Logo? No Logo? The WTO Dispute on Plain Packaging of Tobacco, and Beyond

Abstract

In 2012, Australia became the world’s first nation to introduce plain packaging for tobacco products.This public health measure has been challenged in a number of fora, including at the WTO.

This chapter focuses on the intellectual property issues of the WTO dispute, and specifically deals with the following three aspects. First, the chapter considers the WTO Panel’s findings relating to the important issue of scientific evidence, which determines the effectiveness of plain packaging measures.

Secondly, it sets out the Panel’s legal analysis with particular focus on the compatibility of plain packaging with the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Paris Convention, including the role of TRIPS Article 8 and the 2001 Doha Declaration on TRIPS and Public Health, in interpreting TRIPS provisions. Reference is also made to decisions of other domestic courts (indeed, after Australia, very similar tobacco packaging measures have also been adopted by countries such as UK, France and Ireland) and investment arbitral proceedings that have concerned tobacco packaging regulation.

Thirdly, the chapter focuses on the possible spill-over effects the WTO Panel decision is likely to have on other industries, for instance alcohol and fast food – with such industries already beginning to feel the effect of packaging restrictions in a number of countries.