Australia Accuses Tobacco Industry Of ‘Regulatory Chill’ In WTO Plain Packaging Case

Australia this week at the World Trade Organization said the tobacco industry is applying a “well-known tactic” of instilling a “regulatory chill” on WTO members’ efforts to implement plain-packaging anti-smoking strategies. It also said pro-tobacco countries should not keep putting the issue on WTO committee agendas while their dispute settlement cases are ongoing.

Australia made the comments in its statement to the 18 November WTO Dispute Settlement Body (DSB) meeting, according to a copy of the statement.

Under other business on the agenda, Australia made the statement in relation to the disputes brought against it by five other WTO members (Ukraine, Honduras, Dominican Republic, Cuba and Indonesia) concerning measures requiring tobacco products to be sold in the country in plain packages as a way to discourage smoking.

Australia argued that the actions of some of the members to continue placing the topic on the agendas of the TRIPS (Trade-Related Intellectual Property Rights) Council and the TBT (Technical Barriers to Trade) Committee  “appears to be creating a parallel process alongside the ongoing dispute settlement proceedings.” This is not in accordance with the established rules and practices, since the measures are already subject to dispute settlement proceedings, it said.

Once a dispute begins, it is up to the DSB to inform the relevant councils and committees of any developments in disputes, it said.

Australia further said that the urging that countries considering establishing similar measures wait until the resolution of the current case against Australia concludes, is “a form of regulatory chill” and a “well-known tactic of the tobacco industry” to avoid countries implementing tobacco control measures. New Zealand, Ireland, the United Kingdom, France and Finland are reported to be considering similar measures to discourage smoking.

According to sources, Ukraine, one of the countries involved in the dispute, said it expects the case now under a DSB panel to move forward quickly. Honduras, another complainant, said it has a legitimate right to raise the issue at the appropriate bodies if it feels its interests affected.

Australia raised the matter under “other business” because the TBT Committee met after the deadline for notifying agenda items for the DSB meeting. It defended its public measure as well-supported by research and the World Health Organization, and said the measures are having a positive effect.

A single panel was appointed for all five cases in May (IPW, WTO/TRIPS, 6 May 2014).

The WHO dispute references are: DS434, 435, 441, 458 and 467.