Alexandra Jones (now of the McCabe Centre for Law & Cancer) and I have authored a new paper about the implications of US – Clove Cigarettes for efforts to control NCDs. The paper is available on SSRN here. The abstract is below.
This Article examines the implications of US – Clove Cigarettes and subsequent technical barriers to trade (TBT) disputes for tobacco control and control of non-communicable diseases (NCDs) associated with alcohol and poor diet. In US – Clove Cigarettes, the Appellate Body of the World Trade Organization (WTO) adopted an approach to non-discrimination under the TBT Agreement which requires WTO panels to assess the legitimacy of regulatory distinctions that affect the competitive opportunities of imported products negatively. This article argues that the effect of that test on domestic regulatory autonomy will depend greatly on the standards of proof to be used first in determining the legitimacy of regulatory distinctions and second in determining whether the effect of a regulation on competitive opportunities is based solely on such distinctions. In the context of NCDs, WTO panels will have to be sensitive to the limits of epidemiological evidence and to the fact that risk is based not only on the inherent features of products but also on consumer behavior.