Plain, but far from simple: Australia's plain packaging legislation and the WTO dispute settlement process

Molly attended the 2012 WTO Public Forum in Geneva where she represented James Cook University: School of Arts and Social Sciences. She is currently studying a Bachelor of Law and Arts and is also the Vice President of the JCU Law Students Society and a mentor in the Young Diplomats Program.

Abstract 

In 2010, the Rudd Government announced a raft of comprehensive anti-smoking reforms, controversially including the world’s first laws demanding the plain packaging of tobacco products.  Years later, as the Gillard Government prepares to bring that same legislation into force, the issue of plain packaging remains contentious, being brought under extensive scrutiny on a domestic, regional and international scale.  This paper predominantly focuses on the issue at an international level, seeking to consider the plain packaging provisions in light of the challenge mounted against them by Ukraine within the World Trade Organisation’s (WTO) dispute settlement mechanism.  In this respect, the case provides the perfect backdrop against which the operation of the WTO’s dispute settlement process can be assessed. 

The paper is set out in several parts: firstly, relevant background information to the issue is briefly provided; secondly, the key legal issues involved in the dispute are detailed and the prospects of success for Australia’s plain packaging legislation is analysed; thirdly, the tension between commercial trade and public health interests is highlighted; and, finally, given the likelihood of Australia successfully defending the legislation, the nation’s potential to invoke new public health rules and norms of global significance is also discussed by reference to regime theory.  Subsequently, recommendations for future action are laid out, stipulating that the Australian Government stay firm on its ambitious stance towards tobacco packaging.  Such a position may ultimately see the nation reinvigorate its status as a middle power capable of harnessing its modest diplomatic sway in order to implement positive change on a global level. 

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