The FCTC and its role in WTO law : some remarks on the WTO plain packaging report

Abstract

A panel, in a proceeding launched within the World Trade Organization (WTO), has recently issued its report1 in a very controversial dispute concerning several Australian measures that require use of plain packaging for all tobacco products. The 884-page report contains a lot of food for thought, and it will take some time for scholars to digests all its findings and analyse all the intended and unintended consequences of the various interpretative choices made by the panel in the course of the proceeding.2 The objective of this paper is very modest, as it only plans to provide a concise summary of the most important findings of the panel and offer some initial comments on one specific problem, ie the approach of the panel to the WHO Framework Convention on Tobacco Control (FCTC)3 and its guidelines. This paper is structured as follows: Section II provides a brief description of the contested measures and summarises the WTO proceeding. Section III reviews the panel’s findings, while Section IV discusses two interrelated issues that were dealt with by the panel: (i) the possibility of classifying the FCTC guidelines as international standards; and (ii) the broader relevance of the FCTC and its guidelines in the context of WTO law. The final part offers conclusions.