Regulating Tobacco Flavours: Implications of WTO Law

32 Pages Posted: 8 Oct 2010 Last revised: 6 Dec 2010

Tania S.L. Voon

University of Melbourne - Melbourne Law School

Andrew D. Mitchell

University of Melbourne - Melbourne Law School

Date Written: September 10, 2010

Abstract

Within the World Trade Organization (‘WTO’), regulatory measures of Canada and the United States restricting ‘flavouring’ of tobacco products including cigarettes with additives such as chocolate, clove and sweeteners are under challenge. At the same time, the tobacco lobby continues to target other tobacco control measures on the basis that they violate international trade or investment law, including Australia’s plain packaging proposal, Uruguay’s stricter labelling requirements, and Norway’s display ban. The WTO-consistency of regulatory restrictions on tobacco flavouring provides an informative case study of the relationship between tobacco control and international economic law. The WTO’s General Agreement on Tariffs and Trade 1994 and Agreement on Technical Barriers to Trade grant WTO Members significant flexibility in implementing genuine health measures including these kinds of restrictions. Nevertheless, to ensure WTO-consistency, tobacco flavouring measures must be carefully designed to achieve their health objectives based on available scientific and empirical evidence, avoiding unnecessary discrimination against or between imported tobacco products and unjustified barriers to international trade. Exemptions for additives that cause direct or indirect harm by masking tobacco harshness, attracting certain groups of consumers such as young people, or increasing the toxicity or addictiveness of tobacco products, are likely to undermine a Member’s health goals and in turn its claim of WTO-consistency.

Keywords: WTO, Trade, Tobacco, WHO, Health

JEL Classification: K33, F02, F14, I18

Suggested Citation

Voon, Tania S.L. and Mitchell, Andrew D., Regulating Tobacco Flavours: Implications of WTO Law (September 10, 2010). Boston University International Law Journal, Vol. 29, No. 2, 2011; U of Melbourne Legal Studies Research Paper No. 513. Available at SSRN: https://ssrn.com/abstract=1688690

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

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