Briefing paper on tobacco product regulation and the WTO after US – Clove Cigarettes

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For those interested in matters of trade and health we have posted a briefing paper on the recent World Trade Organization panel report in US – Clove Cigarettes on the O’Neill Institute homepage (www.oneillinstitute.org). See the ‘recent news’ section.

The abstract is as follows:

On September 2, 2011, the World Trade Organization (WTO) released the report of a panel tasked with considering a complaint brought by Indonesia concerning prohibitions on certain flavored tobacco products implemented by the United States (US). The panel concluded that the US violated WTO law by prohibiting clove-flavored cigarettes, but not menthol-flavored cigarettes. More specifically, the measure was found to discriminate against Indonesian clove cigarettes in favor of menthol cigarettes of US origin. 

This briefing paper discusses those aspects of the dispute most relevant to public health, explains the panel’s decision, examines the implications for tobacco control and public health more generally and outlines the options open to the US. The analysis suggests that the decision represents a mixed outcome for public health. Some aspects of the decision reinforce domestic regulatory autonomy, while other aspects are a concern from a public health perspective.  As a next step, the US will have to choose between appealing the outcome, implementing the decision by prohibiting menthol cigarettes or permitting clove cigarettes, or refusing to comply with the outcome of the decision. 

I also recommend the ongoing discussion of the case on the worldtradelaw blog (http://worldtradelaw.typepad.com/ielpblog/).  Whereas the briefing paper aims at providing a summary of the dispute and its implications, there are a few blog posts and comments focused on the question of how the Agreement on Technical Barriers to Trade should be applied. The dispute is quite an important one in terms of how WTO law affects domestic regulatory autonomy in a health context and it will be interesting to see whether either the US or Indonesia will appeal. On the one hand, the US was found to violate WTO law, and in the absence of a successful appeal, will have to bring its domestic law into conformity with WTO law. On the other hand, Indonesia also did not get the outcome it was seeking because the panel rejected the argument that bans on clove cigarettes are not necessary to protect human health.



Posted in FCTC, Tobacco, Trade;


A debate about the international criminalization of falsification of medicines: responding to Attaran, Bate and Kendall

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Neil Boister and Benn McGrady

In a recent article in Journal of International Criminal Justice, we responded to a proposal by Amir Attaran, Roger Bate and Megan Kendall that a treaty should be negotiated under the auspices of the World Health Organization (WHO). More specifically, we responded to the suggestion that a treaty for the criminalization of falsifying medicines should be negotiated under the auspices of the WHO.

We argued that Attaran, Bate and Kendall had failed to consider questions of institutional choice. Working on the assumption that international legalization is an appropriate response to the problem of falsified medicines, we argued that the ‘WHO is not the only forum in which these issues may be addressed and nor is it clear that negotiations under the auspices of the WHO would be better than negotiating an optional protocol to [the UN Convention on Transnational Organized Crime] UNTOC or pursuing a joint initiative of the WHO and the UN Office on Drugs and Crime (UNODC).’ We stressed that if criminalization through international law is the approach to be adopted, it may be more appropriate to locate negotiations within the pre-existing UN criminal justice framework. Read More

Posted in FCTC, Global Health, Trade, WHO;


Peruvian Constitutional Tribunal Upholds Constitutionality of Reformed Smoke Free Law

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Image from Hispanically Speaking News

On July 19, 2011 the Constitutional Tribunal of Peru rejected the unconstitutionality challenge presented by Jaime Barco Roda on behalf of 5,000 Peruvian citizens.* The Court upheld the constitutionality of the country’s reformed Law 28705 – Law for the Prevention and Control of Tobacco Consumption Risks (“Law 28705”).  The decision extensively cited the amicus brief in support of Law 27805 submitted by the O’Neill Institute for National and Global Health Law (“O’Neill Institute”) in collaboration with the Campaign for Tobacco Free Kids (“CTFK”), and the Framework Convention Alliance (“FCA”). Read More

Posted in FCTC, Tobacco, Uncategorized; Tagged: , , , .


Tobacco Control and International Trade in Africa

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Note: From the American Cancer Society’s Blog, The Global Fight Against Cancer

Tobacco Control and International Trade in Africa” (August 8, 2011)

Representatives from 13 African countries learn new skills to fight the deadly tobacco trade

Nairobi, Kenya — The American Cancer Society organised an international trade and tobacco control workshop from July 26–28, in Kenya’s capital city. The three-day workshop convened lawyers specializing in international trade law, tobacco-control advocates, representatives from non-governmental organizations involved in international trade law issues in Africa, representatives of the World Health Organization’s Tobacco Free Initiative and the United Nations Commission on International Trade as well as facilitators from Marquette University, the O’Neill Institute for National and Global Health Law at Georgetown University Law Center, and the Geneva-based Union for International Cancer Control.

Participants hailed from 13 countries in Africa including  Cameroon, the Democratic Republic of Congo , Ghana, Kenya, Lesotho, Malawi, Nigeria Senegal, South Africa, Togo,  and Tanzania, Uganda, Zambia. Read More

Posted in FCTC, Global Health, Tobacco;


Drugs, Babies, Nursing Homes, Cigarettes, and Death: A Year of Health Law at the Canadian Supreme Court

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Given the importance of health as a public policy issue and its profound effect on an individual’s life, it is not surprising that courts are frequently called upon adjudicate health sector claims.  Due to the government’s increasing health sector regulation and, in Canada, its role as health system insurer, the government often appears as a party in health sector cases.  Although this post is a summary of the past year’s decisions from the Canadian Supreme Court, U.S. courts and policymakers face similar issues, for example, the balance between governmental accountability and judicial deference, the right to privacy versus the importance of the free exchange of information, and the rights of individuals versus communities in the context of scarce health resources.  Furthermore, litigation in Canada can impact the U.S., given their proximity and economic ties.          

November 2010:  Privacy of Proprietary Drug Information

Although the Supreme Court of Canada reserved judgment in Merck Frosst Canada Limited v. Minister of Health, it is likely to release its decision in the fall.  Little is known about the facts of this case due to a publication ban, but the federal government allegedly disclosed proprietary information relating to Merck’s drug Singulair (an asthma medication), in contravention of a five-year moratorium on the disclosure of information following drug approval.  Merck also alleged that information had been disclosed without notice, in contravention of federal privacy legislation.  This case has broader implications for the economy and health sector innovation, as it may diminish the incentive for biotechnology investment and medical research in Canada. Read More

Posted in Uncategorized;


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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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