Hong Kong's Draft Infant Formula & Complementary Foods Marketing Code Violates WTO Law (Part 3 of 3)
LexisNexis Legal Newsroom International Law, 2013
51 Pages Posted: 20 Mar 2014
Date Written: August 7, 2013
This three-part analysis entails a technical review of the WTO-compatibility of the Draft Hong Kong Code of Marketing and Quality of Formula Milk and Related Products, and Food Products for Infants & Young Children ("Draft HK Code"). It reveals that various Draft HK Code provisions are more trade-restrictive than necessary to achieve the government's legitimate public policy objectives (i.e., ensuring safe and adequate nutrition by protecting breastfeeding, ensuring the proper use of breastmilk substitutes and supplements, and preventing deceptive product marketing practices). Consequently, the article concludes that the Draft HK Code violates three different World Trade Organization (“WTO”) treaties – the Sanitary and Phytosanitary (“SPS”), Technical Barriers to Trade (“TBT”), and Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) Agreements.
Part 3 of 3 of this analysis evaluates the compatibility of such rules with the provisions of the WTO TRIPS Agreement.
See also Part 1 of 3, at: http://ssrn.com/abstract= 2411187.
See also Part 2 of 3, at: http://ssrn.com/abstract= 2411200.
Keywords: legitimate public policy objectives, negative trademark rights, positive trademark rights, trademark owner's legitimate interests, justifiable encumbrance, more trademark encumbering than necessary, more trade-restrictive than necessary, risks that non-fulfillment would create
JEL Classification: K23, K32, K33
Suggested Citation: Suggested Citation