The concise 'Tobacco Regulation and Its Discontents: A Cautious View from Singapore' (Singapore Management University School of Law Research Paper No.16/2013) by Locknie Hsu
discusses
the implications of the various legal claims being pursued in various fora in relation to plain packaging of tobacco products laws, especially in relation to Singapore and the Association of Southeast Asian Nations (‘ASEAN’). The article proceeds as follows: (1) In Part 1, Hsu examines the current state of Singapore’s regulation of tobacco; (2) part 2 of the article then considers Singapore’s current investment treaty commitments and their likely compatibility with plain packaging legislation, were it to be introduced into Singapore; (3) finally, part 3 considers the lessons which Singapore can take away from the current proceedings in relation to plain packaging legislation.
Hsu concludes that
While Singapore has not proceeded to introduce plain packaging as Australia has,
there are important litigation issues from Australia’s – and Uruguay’s – experience that
will offer valuable guidance and insight to Singapore. Three key aspects that are unclear at
the moment are: (1) whether tobacco regulation which impinges on IPRs may be
considered an unconstitutional ‘taking’ at the national level, or a breach of treaty
obligations on takings or expropriations; (2) whether such regulation may violate other
general treaty obligations, such as that of fair and equitable treatment; and (3) the extent to
which tobacco regulation in the name of health may trump IPRs, where a health exception
clearly exists in a bilateral treaty. A number of variables make any general rule difficult.
Such variables include the nature and effect of the legislation or regulation in question, the
relevant treaty’s terms, the existence (or non-existence) and applicability of a treaty health
exception. Even the arbitrations against Uruguay and Australia can be expected to yield
differences given these variables. The tribunal’s stance on interpretation and the relative
weight of policy considerations will be other pertinent factors in determining the reasoning
and outcomes of the disputes. In the WTO cases, the challenges have so far largely
revolved around compliance under the TRIPS and TBT Agreements. Two likely
arguments in these cases will be the insufficiency of scientific evidence linking tobacco
packaging to a reduction in smoking and the right of WTO members to impose health
regulations vis-à-vis tobacco products.44 The Doha Declaration on the TRIPS and Public
Health is also likely to be material evidence to be considered in this regard.
From a risk-reduction point of view, it is in Singapore’s immediate interest to
support the inclusion of a health exception explicitly applicable to tobacco regulatory
measures in the TPP. Such inclusion will ensure a measure of protection in the TPP itself,
as well as ensuring that the precedential value of the TPP – which many believe it will
have – will work in favour of future FTA negotiators (including those of Singapore)
arguing in favour of such an exception. A second-best option would be to support a more
general health exception applicable to, inter alia, investment commitments, even if it
makes no explicit mention of tobacco. This is so even if Singapore does not presently
propose additional labeling or packaging measures for tobacco products, whether in the
nature of ‘plain packaging’ under the FCTC Guidelines, or otherwise. This is to preserve
regulatory space in favour of health protection objectives as tobacco product
manufacturers seek to increase sales and to circumvent existing rules by developing new
products or ways of product promotion.
As Singapore and other ASEAN neighbors continue in efforts to control the sale
and marketing of tobacco products, law-makers will no doubt have to do so with a cautious
eye on the unfolding litigation developments elsewhere in order to draw whatever lessons
are available from decisions arising from them. At the same time, Singapore stands poised
at the threshold of a new set of commitments being formulated under the TPP and the treatment of tobacco there, once finalized, will no doubt be fruit for further study and
comment.
