The long-running dispute over Australia’s plain
packaging law for tobacco products has advanced to the panel stage, over two
years since the first complaint was filed. The case has brought front and
centre questions on the extent to which flexibilities exist to advance public
health objectives in WTO rules.
The policy at issue is Canberra’s Plain Packaging
Act, which requires all tobacco products sold in Australia to be packaged with
only one colour and shape, with a significant portion of the packaging covered
in health warnings. The bill was approved in December 2011, though it allowed
tobacco companies until December 2012 to make the required changes in their
production.
Furthermore, Australia has noted, estimates from
the World Health Organization place global deaths from tobacco use at 10
million in the year 2030 – up from the 3 million seen in 1990 and the 6 million
annually today. Of these, the majority will be in developing economies.
In the months following the Australian bill’s
approval, legal complaints – both at the WTO and elsewhere – came swiftly. The
five WTO members that have challenged the policy – Cuba, the Dominican
Republic, Honduras, Indonesia, and Ukraine – have claimed that the measure is
unnecessarily trade-restrictive. By undermining protections provided to
trademarks and geographical indications, they say, it is difficult for their
premium products to stand out in the marketplace, making fair competition
impossible.
Complainants have generally cited various
provisions in the General Agreement on Tariffs and Trade (GATT), the Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the
Technical Barriers to Trade (TBT) Agreement in their consultations and panel
requests.
Panel
composition set for May
Under the terms agreed to by both Australia and the
five complainants, one single panel is set to hear all of the disputes jointly.
The WTO Director-General is set to confirm the panellists by 5 May. To date, 28
WTO members have requested third party rights in the dispute.
While global trade rules dictate that a panel, once
formed, should issue a ruling within six months, in practice the process takes
far longer, given the heavy workload that the WTO dispute settlement system currently
faces.