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The ‘Likeness’ of e-Vapor Products and Cigarettes in the WTO

24 Pages Posted: 28 Sep 2016 Last revised: 4 Jun 2017

Marina Foltea

Trade Pacts (Geneva)

Anna Markitanova

WTI Advisors Ltd. (Oxford/Geneva)

Date Written: January 15, 2017

Abstract

The regulation of e-vapor products (EVPs) is a relatively new topic. While the EVPs sector is fast evolving, the optimal regulation of these products is yet to be fully understood. Some wisdom may be borrowed from the regulation of cigarettes, but many tobacco relevant policies may not be applied to these new products. Evaluations are underway on many aspects of EVPs, for example: their safety, potential health risks, illicit trade, taxation and advertising. This paper examines yet another dimension – one which arises at the intersection of international health and trade law. Namely; it looks at whether EVPs and cigarettes may be found ‘like’ in a WTO dispute challenging trade restrictive measures applying to EVPs.

In particular, the analysis focuses on a hypothetical ban on the importation, distribution, sale and offering for sale of EVPs (referred to as a general ban) – a measure that is either being contemplated or already implemented in some domestic jurisdictions. It finds that EVPs and cigarettes may be ‘like’ under WTO law. In the event that a positive finding is made on other remaining tests necessary to determine discrimination (importantly the ‘less favourable treatment’) and provided the regulating member finds no solid evidence to justify the ban under GATT Article XX, a general ban on EVPs risks being found WTO inconsistent.

Keywords: WTO, tobacco, GATT, TBT, e-vapor, e-cigarettes

Suggested Citation

Foltea, Marina and Markitanova, Anna, The ‘Likeness’ of e-Vapor Products and Cigarettes in the WTO (January 15, 2017). Society of International Economic Law (SIEL), Society of International Economic Law (SIEL), Fifth Biennial Global Conference, July 7-9, 2016. Available at SSRN: https://ssrn.com/abstract=2844044 or http://dx.doi.org/10.2139/ssrn.2844044

Marina Foltea (Contact Author)

Trade Pacts (Geneva) ( email )

Place de Grenus 4
Geneva, 1211
Switzerland

HOME PAGE: http://tradepacts.com/index.php/people/marina-foltea/

Anna Markitanova

WTI Advisors Ltd. (Oxford/Geneva) ( email )

quai du Mont Blanc 27
Geneva, CH-1201
Switzerland

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