WTO TRIPS Council (February 2015): EU mounts defense of tobacco plain packing measures in the Republic of Ireland and the UK

The following statement was delivered by the European Union on Tuesday, 24 February 2015 at the WTO TRIPS Council during discussions on "Concerns with respect to proposals for plain packaging of tobacco products in the United Kingdom and Ireland".

The European Union's nuanced intervention noted that "[t]obacco products are not ordinary commodities and in view of the harmful effects they have on human health, health protection should be given high importance, in particular, to reduce smoking prevalence among young people. The EU considers, in line with recommendations of the World Health Organisation, that a high level of health protection should be taken as a base for legislative proposals in this area."

In its defense of the proposed legislative measures for tobacco plain packing in the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland, the EU cited Articles 8.1 and 20 of the TRIPS Agreement, Article XX(b) of the GATT 1994 and paragraph 4 of the Doha Declaration on the TRIPS Agreement and Public Health.

Please see below for the complete intervention.

Statement to be read by the EU at the TRIPS Council meeting of 24-25 February, under the agenda point proposed by the Dominican Republic: "Concerns with respect to proposals for plain packaging of tobacco products in the United Kingdom and Ireland"

The EU would like to make the following statement regarding draft legislation on standardised packaging for tobacco products proposed by the Republic of Ireland and the United Kingdom:

Tobacco products are not ordinary commodities and in view of the harmful effects they have on human health, health protection should be given high importance, in particular, to reduce smoking prevalence among young people. The EU considers, in line with recommendations of the World Health Organisation, that a high level of health protection should be taken as a base for legislative proposals in this area.

Article 8.1 TRIPS, states that: Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health (...), provided that such measures are consistent with the provisions of this Agreement.

Article XX(b) of the GATT 1994, although not directly applicable to TRIPS obligations, similarly emphasizes the importance of public health by justifying measures "necessary to protect human ... health".

The Doha Declaration on the TRIPS Agreement and Public Health stresses that "the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health".

Finally, Article 20 TRIPS states that: "The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements…"

In order to protect public health, WTO Members may, for example, introduce provisions providing for the standardisation of the packaging of tobacco products, if those provisions are justified on grounds of public health, are proportionate and do not lead to arbitrary discrimination or disguised restrictions of trade, including with regard to the trade-related aspects of intellectual property rights. Any such measures would be compatible with WTO obligations.

Republic of Ireland

On 17 June of 2014, the Irish Public Health (Standardised Packaging of Tobacco) Bill 2014 was notified to the TBT Committee under the reference G/TBT/N/IRL/1.

The Irish Government states that the Bill aims at further reducing the smoking prevalence in Ireland by reducing the attractiveness of tobacco products especially among young people and that the measures are a response to the packaging design strategies developed by tobacco companies in recent years which are aimed at young people, including young women.

The notified draft forms the latest strand of a comprehensive range of tobacco control legislation already in place in Ireland aimed at decreasing tobacco consumption. Amongst other measures under existing Irish law, there is comprehensive smoke-free legislation in place, a ban on tobacco advertising and sponsorship and a ban on the display of tobacco products in shops. In addition, all tobacco products placed on the market must display combined text and graphic health warnings. Certain types of sale promotions are prohibited. The smoking of tobacco products in vehicles where children are present will also be prohibited by a law to be commenced in 2015.

In addition to the draft Bill, Ireland made available through the TBT notification an explanatory memorandum that details the rationale of the measure and its expected health impacts, a regulatory impact analysis and several scientific studies on the impact of plain packaging on smoking prevalence.

In parallel with the WTO notification, Ireland has also notified the measure to the European Commission in accordance with internal EU requirements for notification of draft national technical regulations. Ireland has received detailed opinions from some EU Member States on the draft measure within the framework of the internal notification procedure. These were analysed and considered by the Irish authorities.

Ireland's draft Bill resumed the legislative process on 17th February, 2015.

United Kingdom

On 3 September 2014, a draft UK Regulation on Standardised Packaging of Tobacco Products 2014 was notified to the TBT Committee.

The UK draft Regulation on Standardised Packaging of Tobacco Products aims at restricting the promotion of tobacco products to further reduce the smoking prevalence in UK by (i) discouraging uptake of tobacco use by young people; (ii) encouraging and supporting tobacco users who want to quit and (iii) reshaping social norms and attitudes around tobacco use to promote health and wellbeing.

It would form the latest strand of a comprehensive range of tobacco control legislation already in place in the UK aimed at decreasing tobacco consumption. Under existing legislation, there is already a ban on advertising tobacco products to the general public, a ban of tobacco sponsorship to sports and cultural events and companies are forbidden to give out free samples of tobacco. Picture warnings on tobacco products are required in the UK. The sale of tobacco products from vending machines is prohibited and as from 2015 tobacco displays in all shops will be prohibited.

In addition to the draft regulation, the UK made available through the TBT notification an explanatory memorandum that details the rationale of the measure and its expected health impacts, an impact assessment and several scientific studies on the impact of plain packaging on smoking prevalence.

In parallel with the WTO notification, the UK has also notified the measure to the European Commission in accordance with internal EU requirements for notification of draft national technical regulations. UK has received detailed opinions from some EU Member States on the draft measure within the framework of the internal notification procedure. These are being analysed and considered by the UK authorities.

On 21 January 2015 UK Public Health Minister Jane Ellison has confirmed that the UK Government backs the public health case for introducing standardised packaging of tobacco products.

The UK Government's intention is to lay regulations for standardised packaging before the end of March, and that the regulations would come into force at the same time as the European Tobacco Products Directive in May 2016 and will apply to the whole of the UK.
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