WTO’s AB backs Australia on tobacco plain packaging

In the last ruling of the Appellate Body, the international trade court at WTO, backed Australia on the long-running disputes on tobacco plain packaging requirements. The AB essentially upheld a previous dispute panel ruling – rejecting claims from Honduras and the Dominican Republic that Australia’s tobacco “plain packaging” measures are inconsistent with WTO rules.

This is significant for public health and a big win for the fight against non-communicable diseases. But I believe, was to be expected given the way this issue was also dealt with in other forums.  

The ruling is also a somber reminder of the realities facing the world’s premier trade court – this was the last Appellate Body ruling to be issued pending a resolution over the selection of new Appellate Body members. 

See WTO’s announcement today:

Appellate Body issues reports regarding tobacco plain packaging requirements

Remember there are two disputes – but the AB ruling on both these disputes was combined into a single document more than 200 pages long.

Helpfully, WTO has pointed to the conclusions and the findings of the ruling.

Complainant Honduras- DS435: Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging

Complainant Dominican Republic DS441: Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging

These disputes concern so-called tobacco “plain packaging” measures which took effect in Australia from 1 December 2012. The Australian measures (The TPP Act, TPP Regulations, and Trade Marks Amendment (Tobacco Plain Packaging) Act 2011) set out requirements on the manner in which all tobacco products (including cigarettes and cigars), and their packaging, may appear for sale in the Australian market. The requirements mandate standardized size, font, and location of brand names, variant names, and other marks on retail tobacco packaging; the colour, dimensions and shape of tobacco packaging; the material from which packages may be made, among others.

The crux, as WTO explains in a one-page case summary:

• Measure at issue: Tobacco plain packaging (TPP) measures requiring tobacco products and their retail packaging to appear in a uniform manner.

• Product at issue: Tobacco products and their retail packaging

Both Honduras and the Dominican Republic were unable to demonstrate that Australia’s plain packaging measures are inconsistent with cited provisions of the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the AB ruling said.

It is understood that the AB found a few errors in the Panel’s analysis under the TBT Agreement, “but found that these errors were not sufficiently material to undermine the panel’s overall conclusions”, according to sources.

Also that “one member of the three-member Appellate Body division disagreed with a few of the majority’s intermediate findings under Article 2.2 of the TBT Agreement but concurred with the majority’s ultimate findings and conclusions.”

See an explanation by Knowledge Ecology International on AB’s ruling: While a major victory for Australia and public health, the WTO Appellate Body failed to address the legal status of the Doha Declaration

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