The New Tobacco Products Directive and WTO Law: Much Ado About Nothing

Abstract

The paper analyses compatibility of various regulatory mechanisms provided by the new Tobacco Products Directive (TPD) with the requirements of WTO law, in particular those included in the TBT and TRIPS Agreement. After introducing basic provisions of the directive and summarizing the concerns that were raised by some WTO Members during meetings of the TBT Committee and the TRIPS Council, the paper discusses in more detail the merits of those claims. On that basis, it concludes that the concerns expressed by WTO Members are generally overstated and the most of the TPD provisions is WTO-compatible. The paper also notes that the significance of this conclusion goes beyond the specific context of the EU measure. The TPD introduces many innovative regulatory solutions that are at the forefront of contemporary tobacco control policy trends. This allows to conclude that WTO law, while imposing certain standards, generally does not stand against genuine tobacco control polices that are adopted in non-discriminatory manner.

Keywords: Tobacco Products Directive, TBT Agreement, TRIPS Agreement, tobacco and trade, FCTC, tobacco control policy