Overnight, the New Zealand government has announced that it intends to follow Australia’s lead and implement plain packaging of tobacco products. The twist is that new Zealand will await the outcome of WTO and investment treaty claims against Australia before implementing the measure. The government line appears to be that implementation is subject to the outcome of those claims.
It should come as no surprise to lawyers or regulators that the New Zealand government has chosen this cautious approach. The academic question it does raise, however, is whether this delay can be considered an example of regulatory-chill. Have Philip Morris and other tobacco companies succeeded in delaying implementation in countries such as New Zealand? If so, what does it say about dispute settlement at the WTO and under UNCITRAL rules (particularly if one accepts the proposition that the claims are of dubious merit)?