08 November 2012


The Customs Amendment (Smuggled Tobacco) Act 2012 (Cth) has received assent. It amends the Customs Act 1901 (Cth) to create criminal offences for the smuggling of tobacco products and for the conveyance and possession of smuggled tobacco products.

The amendment complements restrictions on tobacco trade marks under the new Australian plain paper packaging regime.

'The WHO Framework Convention on Tobacco Control as an International Standard under the TBT Agreement?' by Lukasz Gruszczynski in 9(5) Transnational Dispute Management (2012) i argues that
there are good grounds for considering the Guidelines to the Framework Convention on Tobacco Control (‘FCTC’) relevant international standards under the Agreement on Technical Barriers to Trade (‘TBT Agreement’). The structure of the article is as follows: (1) Part I provides an overview of the relevant sections of the TBT Agreement and its ambiguities with respect to defining an international standard; (2) Part II sets out the aims, purpose and governance structure of the FCTC; (3) In light of the overviews of the TBT Agreement and the FCTC, Part III then considers whether the FCTC and its Guidelines are likely to satisfy criteria developed by relevant World Trade Organization (‘WTO’) jurisprudence regarding what constitutes an international standard under the TBT Agreement; and, finally (4) Part IV draws out the significance of having the FCTC/Guidelines recognised as an international standard under the TBT Agreement. 
Gruszczynski comments that
The legality of national tobacco control measures is increasingly being tested in different international fora. A local subsidiary of Phillip Morris recently initiated an arbitration under a bilateral investment treaty (‘BIT’) against Australia, seeking compensation for unlawful expropriation resulting from the introduction of a new law on plain packaging. A similar complaint was lodged against Uruguay under the Swiss-Uruguay BIT concerning the size of mandatory pictorial warnings on cigarette packages. The WTO has also become an important arena wherein international tobacco companies indirectly challenge various municipal health measures. At the beginning of 2012, the WTO dispute settlement bodies were required to decide a dispute relating to a United States ban on the production, sale and importation of flavoured cigarettes (including clove cigarettes). More recently, a number of WTO Members initiated a formal dispute settlement proceeding against Australia in further response to its plain packaging law. Other disputes relating to the contents of cigarettes lie ahead.
The TBT Agreement is probably the most important piece of WTO law when it comes to the assessment of any national tobacco control measures  Although it acknowledges that a broad regulatory discretion is enjoyed by WTO Members, it also establishes certain parameters for national technical regulations, having regard to their effect on international trade. As part of this overall framework, the TBT Agreement encourages the international harmonisation of technical standards by offering certain legal advantages to those measures which comply with international standards. Insofar as concerns tobacco control measures, the major potential source of such standards is the FCTC and its Guidelines. This is also the main focus of this article, which is aimed at enquiring into whether the FCTC and its Guidelines can be regarded as relevant international standards under the TBT Agreement.
The first section of this article gives a short overview of relevant provisions of the TBT Agreement. The second section moves on to the FCTC and explains its basic disciplines. The third section connects both instruments by examining the FCTC and its Guidelines in the light of the criteria proposed by the Appellate Body in one of its recent reports. The aim of this part is to determine whether the FCTC (and/or accompanying Guidelines) could qualify as relevant international standards under the TBT Agreement. The last section briefly outlines the practical consequences of qualifying the FCTC and its guidelines as international standards for current and future WTO disputes.
The same issue of TDM features 'Plain Packaging on its Way to Europe: Competence Issues and Compatibility with European Fundamental Rights' by Peter K. Henning &  Leonid Shmatenko, considering the legal obstacles likely to be faced by proposed reforms to the European Union’s (‘EU’) Tobacco Directive in EU law.
The structure of the article is as follows: (1) Part 1 examines whether the EU Commission and Parliament have the legal competence to introduce plain packaging laws; (2) In Part 2, the authors discuss the likely compatibility of plain packaging laws with primary EU law, particularly the Charter of Fundamental Rights of the European Union and Article 34 of the Treaty on the Functioning of the European Union. The authors conclude that the plain packaging measures would require a balancing between the rights of manufacturers to display their trademarks on the one hand and the perceived public health benefits of plain packaging on the other hand. In order to pass the EU law hurdles, the plain packaging measures are likely to need to satisfy a three-step test of adequacy, requiring the suitability, necessity and proportionality of each measure.