Public health & tobacco plain packaging: Q&A with Benn McGrady, WHO

Q&A with Benn McGrady, Technical Officer (Legal), Public Health Law and Policies, Health Promotion (HPR) at World Health Organization.

Geneva Health Files reached out to Benn McGrady, a health law expert. He speaks about what the recent WTO Appellate Body ruling on tobacco plain packaging, means for public health.

McGrady an expert on the matter, is the author of the book Trade and Public Health: The WTO, Tobacco, Alcohol, and Diet , Cambridge: Cambridge University Press, 2011.

The following are his responses to queries sent on email.

1. The significance of the ruling for public health and non-communicable diseases in particular

WTO Members should feel confident implementing plain packaging as part of a comprehensive approach to tobacco control. More broadly, the outcome reaffirms the legal rights WTO Members have to protect health, including by restricting marketing of harmful commodities.

In this sense, the outcome is relevant not only to tobacco, but also to other contexts in which marketing is restricted like breast-milk substitutes, alcoholic beverages and other foods and beverages.

2. What can we read from the ruling itself – the reasoning wrt TBT and TRIPS agreement. 

WTO law has long recognized a balance between rights and obligations that gives Members policy space to protect health. There were some important issues considered under the TBT Agreement in this dispute, like what it means for a non-discriminatory technical regulation to be trade restrictive, but the TBT arguments turned largely on the strength of the evidence underpinning plain packaging.

On the other hand, the dispute does answer some important questions about trademark rights. It is now quite clear that trademark rights under TRIPS do not include a positive right to use the trademark, but confer a right to preclude others from use in certain circumstances. Separate from the question of what trademark rights are, restrictions on use of trademarks are justifiable under Article 20 where a policy objective pursued by a Member sufficiently supports the restriction. There is some scope here for interpretation, but even far-reaching restrictions can be justified on health grounds.    

2a. Is there something you disagree with – from a public health perspective with the AB ruling?

No comment.

3. Will this ruling mean a definitive end to tobacco’s industry’s efforts to safeguard trademarks?

I am always hesitant to guess what tobacco companies will do next. They have a history of threatening or using legal claims to discourage regulation and of bringing or supporting claims that are unlikely to succeed.  

4. Will the ruling set a precedent for other potential disputes (outside WTO – considering AB doesn’t function any more) for industries like alcohol for example?

The ruling will likely be taken into account where domestic or international courts are called upon to adjudicate legal claims concerning restrictions on use of trademarks. For example, some domestic legal challenges to plain packaging alleged that plain packaging interfered with property rights in trademarks. These claims, which have all failed, required courts to consider the nature of trademark rights under domestic law, including whether a right to use existed. Similar arguments were also made in Chile concerning restrictions on on-pack marketing of foods and beverages to children. Because domestic trademark laws often incorporate TRIPS into domestic law (in one form or another) there are often overlapping legal issues.

But, it is very important to note the limits. For example, Article 20 of TRIPS does not define trademark rights under domestic law. It just restricts what WTO Members can do under WTO law, meaning that domestic courts should be very cautious in using the analysis under Article 20 in claims on grounds relating to protection of property rights.  

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