Swift Decision On Plain Packaging At WTO Unlikely; Ukraine Drops Out

As the list of countries adopting legislation making the packaging of tobacco products a lot less sexy is growing, the long-awaited decision of a World Trade Organization panel on Australia’s decision to enforce such legislation might not be coming before the end of the year. Meanwhile, one of the countries complaining about Australia’s legislation has left the fight.

Australia’s Tobacco Plain Packaging Act of December 2011, implemented in December 2012, was challenged by five countries at the WTO on the grounds of violation of international trade rules, including those on intellectual property such as trademark and geographical indications, and on technical barriers to trade.

However, in 2015, one of the complainants, Ukraine, asked that the panel suspend its proceedings. Ukraine’s decision was supported by Australia, and on 30 May, the Ukraine case was terminated because Ukraine had not requested the Dispute Settlement Body to resume its work on the case within the 12 months following the suspension of the panel’s proceedings, according to the WTO.

Ukraine had launched its complaint on 13 March 2012, Honduras on 4 April 2012, the Dominican Republic on 18 July 2012, Cuba on 3 May 2013, and Indonesia on 20 September 2013.

A spokesperson from the Australia Department of Foreign Affairs and Trade told Intellectual Property Watch that “Australia welcomed Ukraine’s decision to suspend its challenge to Australia’s tobacco plain packaging measure in the WTO.”

“On 29 May 2015, the panel agreed to Ukraine’s request to suspend its proceedings against Australia with a view to working towards a mutually agreed solution. Ukraine remains a third party in the remaining four disputes, and its first written submission and evidence remains on the panel record,” said the Australian spokesperson.

The government of Ukraine could not be reached for comment.

Decision Not Before December?

According to the WTO, the last communication by the DSB panel on a timeline for the decision dates back to October 2014, and at that time the panel said its final report to the parties would not be issued before the first half of 2016.

However, the spokesperson said that the latest communication from the panel to the DSB said “the panel does not expect to issue its final report before the end of 2016.”

Plain Packaging Spreading

Australia has said the country’s decision to adopt its plain packaging legislation answers recommendations of the World Health Organization Framework Convention on Tobacco Control (FCTC) to which 180 countries are party.

According to the FCTC, “On World No Tobacco Day 2016 [31 May 2016], UN Secretary-General Ban Ki-moon calls on Governments around the world to implement one simple measure with proven effectiveness in tobacco control: the plain packaging of tobacco products.”

Plain packaging is taking hold in a number of countries. The FCTC reported on “landmark” court judgments upholding plain packaging in the European Union, the United Kingdom, and India, against attempts by the tobacco industry to prevent the implementation of such legislation.

A recent ruling of the World Bank dispute settlement mechanism dismissing a case brought by tobacco company Philip Morris against the government of Uruguay’s plain packaging policy was seen as a landmark (IPW, Public Health, 21 July 2016).

Plain packaging is enforced (in French) in France as of May. In Ireland, the plain packaging bill was signed into law on 10 March 2015, and states that ” all tobacco manufactured after 20 May 2016 must be in standardised packaging. It allows for a one year ‘washout’ period of old packaging and it will be an offence to sell branded tobacco from 20 May 2017,” according to the Irish cancer society.

Asked if the multiplication of plain packaging legislations is likely to influence the outcome of the DSB, the Australian spokesperson said “Australia welcomes the decision by other WTO Members to legislate to implement a wider range of tobacco control measures.”

“However, we expect the panel to rule on the merits of this specific case. As we have consistently stated, Australia is of the firm view that Members have the right to implement measures necessary to protect public health, while complying with relevant international treaty obligations,” the spokesperson said.

“Tobacco plain packaging is a legitimate measure,” the spokesperson said, “designed to achieve a fundamental objective – the protection of human health.”