I have just made it back to the office from a briefing here in DC on tobacco in the TPP negotiations. The US proposal is available here.
At the briefing, I made the point that it is not possible to determine the legal effects of the proposal without knowing more about the broader context i.e. what else is in the agreement. Nonetheless, through questioning it was possible to get a better sense of what is being proposed. So, this is my (incomplete) understanding of the proposal:
1. There will be some language recognizing the uniquely harmful character of tobacco products.
2. There will be general exceptions in the TPP, along the lines of those in Article XX(b) of the GATT 1994.
3. The proposal would supplement these general exceptions with an exception specific to tobacco control measures. The general idea is that the specific exception should be easier to invoke than the general exception. This would be achieved by using a threshold lower than a necessity test.
4. It is not yet entirely clear what this specific tobacco exception would apply to. The exception would not apply to legislation. The exception would, however, apply to measures implemented by executive bodies, such as the FDA, under a delegated power. The specific exception would apply to national treatment, but would not apply to investor protection obligations.
5. The specific exception would protect the adoption of regulations “that impose origin-neutral, science-based restrictions on specific tobacco products/classes in order to safeguard public health.”
For the moment, I intend to reserve judgement on the merits of this proposal. I will stick to giving a descriptive account of the proposal and making a couple of points that I already made publicly at the briefing.
Over at worldtradelaw.net, Simon Lester has already asked the question of whether a scientific evidence requirement is overly burdensome for regulators. In the briefing, I made the point that the scientific evidence requirements in WTO law are found primarily in the SPS Agreement and are concerned with whether there is scientific evidence of the existence of a risk (as shown through a risk assessment). Here, the proposal appears to suggest that a TPP member would have to show scientific evidence of the effectiveness of the measure, or of the contribution it makes to tobacco control.
There is no such requirement under WTO law to present scientific evidence of how a measure protects health. Under Article XX(b) of the GATT, the question to be asked is whether “there a genuine relationship of ends and means between the objective pursued and the measure at issue, such that the measure brings about a material contribution to achievement of its objective.” (Brazil – Retreaded Tyres) Hence, WTO law sets out quite a low threshold in terms of the need to prove the effectiveness / contribution of a measure. One rationale for having a low threshold is that the effects of measures need to be judged over long time periods after implementation.
Another question I raised in the briefing is whether the presence of a specific exception might affect interpretation of the general exceptions. For example, if the effectiveness of a regulation is judged by reference to scientific evidence under the specific exception, does this also mean that scientific evidence must be presented under the general exceptions? If so, this would change the character of the general exceptions, making it more difficult and burdensome to invoke them.