WTO To Consider Five Australia Plain Packaging Disputes Under One Panel

The World Trade Organization Dispute Settlement Body yesterday agreed to establish two more panels in a dispute against Australia’s plain packaging for tobacco products, bringing the total to five. And it was agreed that a single panel will be appointed to study the five complaints.

Details of the procedural agreement on the WTO director general’s appointment next month of three panellists to study the complaints will be made available on Monday, according to informed sources.

At the regular DSB meeting yesterday, panel requests were adopted for Cuba and the Dominican Republic.

The Dominican Republic launched its complaint against Australia on 18 July 2012, and Cuba on 3 May 2013. The other disputes were brought by Ukraine, Honduras and Indonesia.

An Australian source said they view the establishment of the panels for Cuba and the Dominican Republic as positive, as it will help ensure the process is harmonised and the same panellists are appointed.

The countries pitted against Australia’s legislation on plain packaging for tobacco products are contending that Australia is breaching its international trade obligations regarding intellectual property rights, in particular trademarks, and geographical indications.

They also are saying that the Australian legislation is detrimental to their country’s tobacco industry. For example, the Dominican Republic and Cuba have held the position that their premium tobacco products, such as cigars, can no longer be differentiated from other products under the Australian legislation.

The Dominican Republic in its statement to the DSB said that it “fully shares Australia’s health objectives, but considers that its plain packaging measures fail to have the desired health effects of reducing tobacco industry.”

“Plain packaging is thus not only an ineffective health policy, but also one which is detrimental to fair competition in the marketplace,” it said. It is therefore inconsistent with Australia’s obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Agreement on Technical Barriers to Trade (TBT), it said.

Australia focussed its statement mainly on the harms of tobacco and on the importance of combining the various disputes. It repeated its particular concern over the precedent-setting 16 months between the Dominican Republic’s first panel request (which was rejected, as is the custom at WTO) and its second one yesterday.

In its statement on the Cuba case, Australia again focussed on the harms of tobacco in Latin America and the Caribbean and its apparent inconsistency with Cuba’s strong record on public health. It also discussed procedural issues of the panel.

Meanwhile, several countries have expressed their intention to adopt more stringent legislation on tobacco products, including plain packaging, such as New Zealand and Ireland. In its statement, New Zealand repeated its support for Australia’s position.

The World Health Organization publicly supports plain packaging for tobacco products.

 

Below is a status report on the dispute at WTO (as of 25 April):

Australia – Certain Measures Concerning Trademarks, Geographical Indications and other Plain Packaging Requirements applicable to Tobacco Products and Packaging.

DS434 – Complaint by Ukraine.

Request for consultations submitted on 13 March 2012.

First panel request: 31 August 2012 (rejected by Australia)

Second panel request/panel established: 28 September 2012

A meeting was held to discuss the panellist criteria in November 2012 but Ukraine requested the suspension of a panel composition. In August 2013 Ukraine reactivated the panel composition and a new meeting was held earlier on March 2014 jointly with Honduras.

 

DS435 – Complaint by Honduras.

Request for consultations submitted on 4 April 2012

First panel request: 16 November 2012 (rejected by Australia)

Second panel request/panel established: 25 September 2013

 

DS441 – Complaint by Dominican Republic.

Request for consultations submitted on 18 July 2012

First panel request: 17 December 2012 (rejected by Australia)

Second panel request: 25 April 2014 (panel established)

 

DS458 – Complaint by Cuba.

Request for consultations submitted on 3 May 2013

First panel request: 25 April 2014 (accepted by Australia and established)

 

DS467 – Complaint by Indonesia

Request for consultations submitted on 20 September 2013.

First panel request submitted 26 March 2014 accepted by Australia and established by the DSB