Plain Packaging For Tobacco Products: WTO Dispute Settlement Body Allegedly Backs Australia

According to many media this morning, citing anonymous sources, the World Trade Organization Dispute Settlement Body has reached a decision in a dispute challenging Australia’s tobacco product plain packaging law. Australia appears to have won the case. The WTO is non-committal and says only a “confidential interim report” has been circulated. Australia is not commenting.

The much-awaited, postponed decision by the WTO Dispute Settlement Body on the case pitting Australia against Honduras, the Dominican Republic, Cuba and Indonesia has, according to sources, been delivered, apparently backing Australia’s argument that its law requiring plain packaging for tobacco does not violate any WTO rules, including those on intellectual property rights.

Asked about the ruling, the WTO told Intellectual Property Watch “We can confirm that the confidential interim report in the ‘plain packaging’ dispute was circulated to the parties in the dispute on a confidential basis on 2 May.  As the report is confidential, the WTO will not be commenting on the matter.”

According to a source, the interim report will be reviewed and parties will have the opportunity to submit comments. A final confidential report is expected to be released after that and made public. The WTO does not have a timeframe for the issuance of the final ruling, a WTO source said.

The Australian mission in Geneva, reached this morning by Intellectual Property Watch, declined to comment on the decision.

This decision was a difficult one to take for the WTO panel, and had been said to be putting the WTO in an uncomfortable political position in the past according to several sources. This issue of plain packaging relates to the ongoing discussion on the intersection between trade and public health, such as between WTO rules and the World Health Organization Framework Convention on Tobacco Control, and nations’ sovereign right to take actions on behalf of their citizens’ public health despite trade commitments.

Uruguay won an important victory against a tobacco company in a case under the World Bank dispute settlement procedures last year (IPW, Public Health, 21 July 2017).

A number of other countries have introduced plain packaging legislation after Australia, such as France, Ireland, and the United Kingdom.

Ukraine was among the original countries challenging Australia’s law but dropped out last year (IPW, WTO/TRIPS, 26 July 2017).

Requests in the past couple of years by several WTO members to discuss plain packaging in the Council for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights were not allowed on the grounds that it was the subject of an ongoing WTO dispute.

It remains to be seen if the TRIPS Council will now revisit the subject, and if many countries will follow with plain packaging legislation in the wake of the decision. Also to be considered is whether this decision will affect other areas than tobacco, such as the food and drink industry.

 

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