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.