THE GLOBAL TOBACCO EPIDEMIC, THE PLAIN PACKAGING OF TOBACCO PRODUCTS, AND THE WORLD TRADE ORGANIZATION

In response to complaints by Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia, the government of Australia has defended the introduction of plain packaging of tobacco products in the World Trade Organization. This article focuses upon the legal defence of Australia before the WTO Panel. A key part of its defence has been the strong empirical evidence for the efficacy of plain packaging of tobacco products as a legitimate health measure designed to combat the global tobacco epidemic. Australia has provided a convincing case that plain packaging of tobacco products is compatible with the TRIPS Agreement 1994, particularly the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines. Australia has also defended the consistency of plain packaging of tobacco products with the TBT Agreement 1994. Moreover, Australia has provided clear reasons for why the plain packaging of tobacco products is compatible with GATT. The position of Australia has been reinforced by a number of third parties — such as New Zealand, the United Kingdom, Ireland, Norway, Canada, and others — which have also been pioneers in tobacco control and public health. Australia’s leadership in respect of tobacco control and plain packaging of tobacco products is further supported by larger considerations in respect of international public health law, human rights, and sustainable development.


INTRODUCTION
The World Health Organization ('WHO') has highlighted the serious, devastating impact of the global tobacco epidemic in a series of reports. 1 The agency has stressed that tobacco is a leading cause of death, illness and impoverishment: 'The tobacco epidemic is one of the biggest public health threats the world has ever faced, killing around 6 million people a year'. 2 Moreover, the WHO observes that 'children from poor households are frequently employed in This articlebeing written in late 2017, before the decision of the WTO Panel has been handed down publiclyis an analysis of the arguments in the dispute. In May 2017, there were reports in the media that Australia has prevailed in the matter. 21 In fact, the decision has been communicated in private to the parties, however, it will not be made public until the middle of 2018, due to the need for the work to be translated. It is a somewhat unsatisfactory state of affairs to have a leaked draft outcome, without the accompanying reasoning. Nonetheless, public health advocates were delighted by the decision. Nicola Roxon observed: 'I'm absolutely thrilled with the news today because it's a big win for Australia, both for our previous government [and] also for the current government that continued to fight so hard '. 22 No doubt, Australia's opponents will contemplate a further appeal against the decision. Of necessity, this article has been written in the interval between the argument of the case and the publication of the final decision. Given the stage of the proceedings, and that the official WTO decision and reasons are as yet unavailable, it will consider the broad arguments of the parties in the dispute, and will not engage in a detailed black letter analysis of the dispute, as that would be premature (especially given the decision is expected to be lengthy). The focus of the article is upon the competing arguments of the parties to the dispute, and the third parties.
As such, the piece is written from the perspective of evaluating the arguments of the countries involved in the trade dispute (which have been supported by the tobacco industry). 23 The article highlights the importance of public health and human rights in the context of international trade, 24 and supports the position of Australia that plain packaging of tobacco products is defensible under international trade law. Part II considers the relationship between international trade law, and the FCTC, 25 and considers the public health arguments of Australia in respect of the regime. Part III examines the conflict over the Agreement on Trade-related Intellectual Property Rights ('TRIPS'), and the plain packaging of tobacco products. 26 Part IV explores the operation of the Agreement on Technical Barriers to Trade ('TBT'). 27 Part V briefly considers the arguments about plain packaging of tobacco products, and the General Agreement on 21 Tom Miles and Martinne Geller, 'Australia Wins Landmark WTO Tobacco Packaging Case -Bloomberg', Reuters, 5 May 2017, <https://www.reuters.com/article/us-wto-tobacco-australia/australia-wins-landmark-wtotobacco-packaging-case-bloomberg-idUSKBN1801S9>; 'Australia wins Landmark WTO Tobacco Plain Packaging Case', ABC News (online), 5 May 2017, <http://www.abc.net.au/news/2017-05-05/australia-winslandmark-wto-tobacco-packaging-case/8498750>; Simon Chapman, 'World Trade Organization Gives Australia's Plain Tobacco Packs The (Draft) Thumbs Up', The Conversation, 5 May 2017, <https://theconversation.com/world-trade-organisation-gives-australias-plain-tobacco-packs-the-draft-thumbsup-77234>; 'WTO Ruling Could Light the Way to a Tobacco-free Future' (QUT News, 5 May 2017) <https://www.qut.edu.au/news/news?news-id=117336>. 22 Nick Grimm, 'Cigarette Plain Packaging: Former Health Minister Nicola Roxon Hails Leaked WTO Ruling', The World Today, 5 May 2017, <http://www.abc.net.au/news/2017-05-05/nicola-roxon-hails-leaked-wto-plainpackaging-ruling/8500610>. 23 Christopher Thompson, 'Big Tobacco Backs Australian Law Opposers', Financial Times (online), 29 April 2012, <http://www.ft.com/intl/cms/s/0/314c9446-91fb-11e1-867e-00144feab49a.html >.The reporter noted: 'Philip Morris International and British American Tobacco, the two largest publicly listed tobacco companies by volume outside China, told the FT they were advising several countries that had complained that Australia's plain packaging lawsin which tobacco companies will have to sell their products in identical drab packagingviolate international trade agreements'. 24  Tariffs and Trade ('GATT'). 28 Part VI considers the arguments of third parties to the dispute. In particular, it highlights the positions of key countries in respect of intellectual property and public health. The article concludes in Part VII that Australia's plain packaging of tobacco products regime is consistent and compatible with international law on trade, and technical barriers to trade, intellectual property, and public health. Moreover, the parallel field of access to medicines supports the need for intellectual property flexibilities in respect of public health.

II INTERNATIONAL HEALTH LAW
International public health law provides an important context for Australia's trade dispute in respect of the plain packaging of tobacco products. The question of the efficacy of plain packaging of products is an important consideration in respect of intellectual property, technical barriers to trade, and other general considerations in respect of trade. The overarching argument of this article is that international trade law does need to pay due deference to international public health law, human rights, and sustainable development. A

The World Health Organization
Internationally, the WHO welcomed the landmark ruling of the High Court of Australia, and called upon the 'rest of the world to follow Australia's tough stance on tobacco marketing'. 29 The then Director-General of WHO, Dr Margaret Chan, emphasised that the ruling would encourage other countries to implement tobacco control measures, such as the plain packaging of tobacco products: 'With so many countries lined up to ride on Australia's coat-tails, what we hope to see is a domino effect for the good of public health'. 30 She also stressed that the Australian experience would be of benefit to other nations: The evidence on the positive health impact of plain packaging compiled by Australia's High Court will benefit other countries in their efforts to develop and implement strong tobacco control measures to protect the health of their people and to stand resolute against the advances of the tobacco industry. 31 Nicola Roxon -a key figure in the implementation of Australia's plain packaging regime as Minister for Health and as Attorney-Generalreceived a special award from the WHO for 'her unwavering leadership' in the field of health. 32 At the TRIPS Council, the representatives of the WHO provided vocal support for Australia's position. 36 They emphasised 'that tobacco use was one of the greatest threats to public health the world had ever faced, and the single most preventable cause of death in the world today'. 37 The representatives observed: 'Globally, tobacco consumption killed nearly six million people a year through both direct use and the deadly effects of second-hand smoke, more than 70 per cent of whom reside in low-and middle-income countries'. 38 The WHO was worried that 'as necessary tobacco control measures continued to be implemented in developed countries, the tobacco industry, through aggressive marketing and interference practices, had shifted its focus to new markets in the developing world some time ago'. 39  Jonathan Liberman has emphasised the significance of the FCTC to understanding the conflicts over the plain packaging of tobacco products, observing that both domestic challenges and ongoing international challenges to Australia's legislation will have to consider 'the relationship between the FCTC, as both international law and international norm, and trade and investment obligations'. 47 He has suggested: The accumulation of litigation experience and development of jurisprudence build an invaluable collective resource of ideas, themes and narratives that can be drawn upon in different ways in different places to strengthen ongoing efforts to reduce the global burden caused by tobacco and the tobacco industry. 48 For its part, the tobacco industry has sought to undermine the FCTC and the global dissemination of plain packaging of tobacco products. 49 The WTO disputes raise a larger meta-question about the relationship between international health law and trade law, between the FCTC and trade agreements, such as the TRIPS Agreement, the TBT Agreement, and GATT.

Post-implementation Empirical Evidence in Respect of Plain Packaging in Australia
There has been an important debate in the WTO about the empirical evidence for the impact of plain packaging of tobacco products. The introduction of plain packaging was supported by a strong body of empirical research, 50 as set out by Australia's National Preventative Health Taskforce in 2009. There were market research reports, and there were further consultations on the draft legislation to enact the scheme in Australia. Plain packaging of tobacco products was considered to be a logical progression for tobacco control in Australia, given there was already a range of other tobacco control measures leading up to it. 51 And as noted by public health researchers Simon Chapman and Becky Freeman, the Australian government has been systematically evaluating the impact of plain packaging, since its introduction. 52 There was an important early study by Wakefield and colleagues into the introduction effects of the Australian plain packaging policy on adult smokers. 53 The objective of the study was 'to determine whether smokers smoking from packs required under Australia's plain packaging law had different smoking beliefs and quitting thoughts, compared with those still smoking from branded packs'. 54 They undertook a cross-sectional telephone survey during the roll-out phase of the law. The study involved 536 cigarette smokers with their usual brand, of whom 72.3 per cent were smoking from plain packaging, and 27.7 per cent were smoking from branded packaging. The researchers found: 'Compared with branded pack smokers, smokers who were smoking from plain packs rated their cigarettes as being lower in quality and as tending to be less satisfying than 1 year ago'. 55 They argued that: Given that Australia is the first nation to implement plain packaging, our study provides an early investigation of its actual effects on smokers in a market where plain packs are available to all, compared with past studies that have experimentally exposed smokers to a single viewing of a plain or branded pack which may or may not have been their own brand, and naturalistic studies that have mocked-up plain packs for smokers to carry around with them in a trial situation. 56 In 2015, the British Medical Journal published a special supplement of Tobacco Control, containing the results of fifteen peer-reviewed articles on Australia's tobacco plain packaging legislation. 57 This work showed that the specific objectives of plain packaging were achieved and generally sustained among adult smokers. 58 The Australian government's Post-Implementation Review of Tobacco Plain Packaging released in February 2016 59 concluded that the tobacco plain packaging measure had begun to achieve its public health objectives of reducing smoking in Australia. The review concluded: . This decline accounts for approximately one quarter of the total decline in average prevalence rates observed between the 34 months prior to implementation of the measure and the 34 months following the implementation of the measure (the total decline between the two periods was estimated as being 2.2 percentage points, with average prevalence falling from 19.4% to 17.2%). ….
[T]obacco plain packaging is achieving its aim of improving public health in Australia and is expected to have substantial public health outcomes into the future. 60 Further work is still being done in this area. A study in October 2016 considered the impact of Australia's plain packaging of tobacco products among adolescents and young adults. 61 The tobacco industry's claims about plain packaging of tobacco products impacting upon counterfeiting and smuggling have not been supported by evidence from customs in Australia. 62 Indeed, in the United Kingdom, the courts have been highly critical of the poor evidence presented by the tobacco industry in their efforts to question the efficacy of plain packaging of tobacco products. 63 The strong empirical evidence of efficacy was an important factor in terms of the defensibility of the plain packaging measure in the WTO.

Evidence of the Efficacy of Plain Packaging in the WTO
In the executive summary of its argument, Australia emphasised the powerful evidence supporting the efficacy of plain packaging of tobacco products. 64 It noted: Under the two principal provisions at issue in this dispute -Article 20 of the TRIPS Agreement and Article 2.2 of the TBT Agreementthe complainants have assumed the burden of proving that the tobacco plain packaging measure will make no contribution to its public health objectives. …. The qualitative and quantitative evidence before the Panel, and the complainants' own contradictory arguments regarding the effects of the measure, demonstrate that the complainants have failed to discharge this burden. 65 Australia highlighted the important public health context of the dispute, noting that 'this dispute concerns a Member's right to regulate the advertising and promotion of tobaccoa unique, highly addictive product that kills half of its long-term users'. 66 It also stressed the larger international context of the global tobacco epidemic: 60  To combat the global epidemic of tobacco use, the FCTC requires comprehensive tobacco control strategies in recognition that they are the most effective means of reducing the incidence and prevalence of smoking. …. To be effective, such comprehensive strategies must cover all aspects of supply and demand; apply to all tobacco products; optimize synergies between complementary measures; and be continually refreshed and revised. 67 Australia's evidence considered a wide range of empirical research into the efficacy of plain packaging of tobacco products, drawing upon economics, behavioural science, and marketing. Indeed, the work of Cass Sunstein and Alberto Alemanno have highlighted how graphical health warnings and plain packaging of tobacco products are a form of nudge economics, which can help produce behavioural change. 68 In fact plain packaging relies upon graphic design in order to promote behavioural change in respect of smoking. 69 In its conclusion to the executive summary, Australia highlighted the larger ramifications of the dispute: 'The complainants' claims and arguments in this case threaten the essential right of a WTO Member… to decide the level of protection it seeks to achieve when it comes to protecting the lives and wellbeing of its citizens'. 70 Australia insisted that 'tobacco plain packaging is a legitimate public health measure, based upon an extensive body of scientific evidence and the explicit recommendations of the Parties to the FCTC'. 71 In its view, 'The evidence demonstrates that the measure is already contributing to achieving Australia's public health objectives and its effects are likely to grow over the long term.' 72 Australia's strong health justifications seem to be a key part of its victory in the WTO Panel Decision. 73

III THE TRIPS AGREEMENT 1994
The TRIPS Agreement lays down minimum standards for the protection of intellectual property rights, including trademarks, patent law and copyright law. Article 8(1) clearly acknowledges that 'members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement'. The UNCTAD-ICTSD Resource Book on TRIPS and Development provides a useful account of the origins and nature of Article 8: Since language of a treaty is presumed not to be surplus, it would appear that Article 8.1 is to be read as a statement of TRIPS interpretative principle: it advises that Members were expected to have the discretion to adopt internal measures they consider necessary to protect public 67  Article 8 can and should inform the interpretation of the TRIPS Agreement, both as a whole, and in its individual articles. Its operation is certainly not limited to pharmaceutical drugs or patents. Indeed, Article 8 is not even limited to health-care. It refers to food security ('nutrition'), technology transfer and development ('the public interest in sectors of vital importance to their socio-economic and technological development') and competition policy. Philosophically, intellectual property is designed to promote the public interest, particularly in respect of the promotion of public health. Nobel Laureate Joseph Stiglitz has emphasised the need to provide proper recognition of public health and equality under intellectual property rules in international trade agreements. 75 Stiglitz and colleagues have also stressed the need to ensure that intellectual property promotes the UN's Sustainable Development Goals. 76 The dispute over the plain packaging of tobacco products has raised larger issues in respect of the relationship between intellectual property, public health, and trade. A

The Complainants
Confident that the regime was compatible with international trade law, Australia passed legislation for the plain packaging of tobacco products in 2011.
In March 2012, Ukraine asked for consultations over Australia's plain packaging regime. 77 Ukraine argued that Australia's measures, especially in the context of its comprehensive tobacco regulatory regime, were inconsistent with Articles 1, 1.  [193]. 81 Ibid [194]. 82  through special requirements', 88 because it mandates: (i) that trademarks relating to tobacco products be used in a special form, and (ii) that trademarks relating to tobacco products be used in a manner which is detrimental to their capability to distinguish tobacco products of one undertaking from tobacco products of other undertakings. Cuba complained that the Australian Bill had created tension between the right of governments to protect human health, and the commercial interests associated with tobacco consumption. 89 Cuba was concerned that the requirement of standard packaging would have an impact on advertising and consumption of tobacco. The delegate lamented that Cuban cigars had been the target of counterfeiting for many years and in many markets, 90 and Cuba was concerned that plain packaging would defeat its anti-counterfeiting measures; and that it would no longer be possible to use the 'Habano' designation of origin seal or the national guarantee of origin seal used by the Republic of Cuba on its cigars; and that it would be prevented from applying the brand name and the place of origin, La Habana, Cuba, to the rings on cigars.  94 Ibid [210]. 95 Ibid [207]. 96 Ibid [216].
introduce plain packaging of tobacco products. 97 The Australian statement emphasised that 'Australia's Plain Packaging legislation was a legitimate and appropriate measure which would make a significant contribution to protecting the health of Australians'. 98 Australia pointed out that 'Tobacco packaging was one of the last remaining forms of tobacco advertising in Australia and the plain packaging legislation was therefore the next logical step in Australia's tobacco control efforts'. 99 The statement highlighted: The plain packaging of tobacco products was designed to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people; to increase the noticeability and effectiveness of mandated health warnings; to reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking; and, through the achievement of these aims in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates. 100 It stressed that the 'Guidelines agreed by the Conference of the Parties to the WHO Framework Convention on Tobacco Control (FCTC) in 2008 for the implementation of Articles 11 and 13 of the FCTC recommended that Parties consider the introduction of plain packaging'. 101 Further, The proposed legislation was consistent with recommendations made to the Government by Australia's National Preventative Health Taskforce which had been based on extensive research evidence that explored the impacts of tobacco packaging and tested the reactions of respondents exposed to different packaging options under experimental conditions. The weight of the evidence indicated that a plain packaging requirement, as part of a comprehensive suite of tobacco control measures, would help to reduce smoking rates. 102 Australia emphasised that the plain packaging regime was compatible with its international obligations to protect intellectual property rights under the TRIPS Agreement: 'In framing its policy on plain packaging, Australia had paid full regard to its obligations under the TRIPS Agreement 1994 and would ensure that the new policy was implemented in a manner consistent with that Agreement'. 103 The Australian delegate stressed 'that amendments to the Tobacco Plain Packaging Bill had been proposed to ensure trademark owners' ability to protect their trademarks from use by other persons, and the ability to register and maintain the registration of a trademark had been preserved'. 104 In its executive summary, Australia maintained that the complainants had failed to demonstrate that the tobacco plain packaging measure was inconsistent with the TRIPS Agreement. 105 Indeed, Australia argued that its opponents' 'claims are based on theories of "interests" that supposedly "pervade" the TRIPS Agreement 1994, and on attempts to rewrite various provisions of the TRIPS Agreement 1994 to create rights and obligations that do not exist in the text itself'. 106  the measure was inconsistent with Article 20 of the TRIPS Agreement, and that 'the complainants have failed to establish a prima facie case that the tobacco plain packaging measure imposes "special requirements" that "encumber" the "use of a trademark in the course of trade"'. 107 Australia noted: 'The relevant "use" of a trademark under Article 20 … is the use of a trademark to distinguish the goods or services of one undertaking from those of other undertakings', 108 and insisted that 'the use of trademarks to advertise and promote the trademarked product is not a relevant "use" of trademarks under Article 20'. 109 Australia also observed that 'The complainants have not even attempted to demonstrate that the tobacco plain packaging measure encumbers the relevant use of trademarks in the course of trade.' 110 Second, Australia maintained that 'Article 20 of the TRIPS Agreement does not encompass the aspects of the tobacco plain packaging measure which prohibit the use of trademarks on tobacco packaging and products'. 111 Third, Australia said that the 'complainants' interpretation of the term "unjustifiably" is unfounded'. 112 In conclusion, Australia observed that the complainants failed to show that the tobacco plain packaging measure is inconsistent with Article 20 of the TRIPS Agreement: The complainants have failed to show that the measure encumbers by special requirements the relevant 'use' of a trademark to distinguish the goods of one undertaking from those of other undertakings in the course of trade, and have therefore failed to establish the threshold applicability of Article 20. The use of trademarks to advertise and promote tobacco products is not a relevant 'use' of trademarks under Article 20. Any encumbrance upon this use is therefore irrelevant to establishing the applicability of Article 20. 113 Moreover, 'The complainants have failed to provide a coherent interpretative or factual basis for their assertion that the prohibitive elements of the tobacco plain packaging measure are "special requirements" that fall within the scope of Article 20, while other widely-adopted measures that affect the use of a trademark do not'. 114 Furthermore, Australia maintained: 'Assuming arguendo that these prohibitive elements do fall within the scope of Article 20, the complainants have failed to demonstrate that the measure as a whole encumbers the relevant use of a trademark'. 115 The case of Australia in relation to the interpretation of the TRIPS Agreement is a plausible and persuasive argument.

C Academic Debate
There has also been a significant scholarly debate over plain packaging of tobacco products and the TRIPS Agreement. Back in 2008, I made the casealong with my public health colleaguesthat the plain packaging of tobacco products was indeed compatible with the strictures of TRIPS. 116 Our research into the internal documents of the tobacco industry revealed that the industry had been preparing for international trade, investment, and 107 Ibid 17. 108 Ibid. 109  A clear trend has emerged over the years in which NTMs are less about shielding producers from import competition and more about the attainment of a broad range of public policy objectives. You could say we are moving from protection to precaution. This tendency is discernible in practically every economy, as concerns over health, safety, environmental quality and other social imperatives gain prominence. 134 The topic of technical barriers to trade has become increasingly important, with significant battles in the WTO over matters such as tobacco control and the plain packaging of tobacco products; measures dealing with harmful products like asbestos; and environmental and consumer measures like eco-labelling. In its complaint to the WTO about Australia's plain packaging regime, Ukraine alleged the measures were inconsistent with Articles 2.1 and 2.2 of the TBT Agreement. 145 Honduras made a similar complaint, 146 and the Dominican Republic also aired objections about technical barriers to trade. 147 Cuba complained that Australia violated Article 2.1 of the TBT Agreement because it imposed technical regulations that applied less favourable treatment to imported tobacco products treatment than that applied to like products of national origin. 148 Cuba also contended that the plain packaging regime was inconsistent with Article 2.2 because Australia imposed technical regulations that created unnecessary obstacles to trade and are more traderestrictive than necessary to fulfil a legitimate objective, taking into account the risks that nonfulfilment would create. Indonesia has made similar complaints. 149 In response to Indonesia's complaint, Australia said in a statement that 'tobacco plain packaging is a sound, well-considered measure designed and based on a broad range of scientific studies and reports to achieve a legitimate objectivethe protection of public health'. 150 Australia also cited the view of the WHO about the need for global action in respect of the 'tobacco epidemic'. Furthermore, Australia highlighted the terrible health burden placed upon Indonesia because of tobacco. The Australian representatives 'remarked that Indonesia might look favourably upon such health measures, as a substantive majority of Indonesian males are smokers, and the country is estimated to have the second highest male smoking rate in the world'. 151 Australia robustly defended the consistency of plain packaging of tobacco products with the TBT Agreement, arguing in its executive summary that the complainants failed to establish a prima facie case that the tobacco plain packaging measure is inconsistent with Article 2.2 of the The tobacco plain packaging measure is entitled to the presumption in Article 2.5 that it does not constitute an unnecessary obstacle to international trade, and the complainants have failed to rebut that presumption with the type of evidence required. Even if the complainants' claims were found to overcome that fundamental hurdle, the complainants have also failed to establish a prima facie case that the tobacco plain packaging measure is trade-restrictive at all, let alone that it is more trade-restrictive than necessary having regard to the contribution it makes to its public health objectives and the risks that non-fulfilment of those objectives would create. 153 Australia stated that it had 'enacted its tobacco plain packaging measure in accordance with the FCTC Guidelines, which set out the relevant international standard for the plain packaging of tobacco products', 154 and argued that the complainants failed to make a prima facie case that the measure was trade restrictive under Article 2.2 of the TBT Agreement, 155 but instead had tried to artificially expand the definition of trade-restrictiveness. 156 Australia stated: 'None of the complainants has substantiated its claims that the tobacco plain packaging measure entails compliance costs, or increases barriers to market entry, such as to constitute a limiting effect on international trade in tobacco products', 157 contending that 'the complainants have failed in their attempt to establish that the tobacco plain packaging measure is not capable of contributing to its objectives of reducing the use of and exposure to tobacco products in Australia.' 158 Australia commented: [T]he overwhelming weight of the qualitative evidence unequivocally establishes that, by prohibiting tobacco packaging from being used to advertise and promote tobacco productsand thereby reducing the appeal of tobacco products, increasing the effectiveness of graphic health warnings, and reducing the ability of tobacco packaging to mislead consumersthe tobacco plain packaging measure is capable of discouraging smoking initiation and relapse, encouraging cessation, and reducing people's exposure to tobacco products. The quantitative evidence corroborates this conclusion, and is consistent with the tobacco plain packaging measure operating synergistically with other elements of Australia's comprehensive tobacco control policy to reduce further the use of tobacco products and exposure to tobacco smoke in Australia. …. The complainants have thus failed entirely to discharge their burden of establishing that the tobacco plain packaging measure is incapable of contributing to its public health objectives. 159 Furthermore, Australia observed that the complainants had failed to established that the risks arising from non-fulfilment of the measure's objectives are not grave: 'Properly interpreted, the risks that would arise from the non-fulfilment of the public health objectives of the tobacco plain packaging measure are significant and grave, and the consequences would include increased tobacco-related deaths and disease in Australia.' 160 Australia also noted that three of the complainants' four purported 'alternatives'an increase in excise tax, an increase in the minimum legal purchase age for tobacco products, and improved social marketing 153 Ibid 32. 154 Ibid. 155 Ibid 34. 156 Ibid 35. 157 Ibid. 158 Ibid 36. 159 Ibid. 160 Ibid 37. It noted further that, regarding 'the only actual alternative measure the complainants propose a pre-vetting schemethe complainants have failed to provide any credible evidence or argument to support their implausible assertion that the scheme would make "an equivalent or greater contribution" to that of the tobacco plain packaging measure'. 162 The WHO has also defended the position of Australia in a statement at the WTO Committee on Technical Barriers to Trade. 163 The position of Australia seems to have been validated by the WTO Panel Decision.

V GATT
There have also been a number of complaints that Australia's plain packaging regime does not meet the requirements of GATT. 164 Honduras, the Dominican Republic, Cuba, and Indonesia (and Ukraine to begin with) contended that Australia's tobacco regulatory regime appears to be inconsistent with Article III:4 of GATT, which provides that: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.
Moreover, it states that: 'The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.' Tania Voon and Andrew Mitchell comment that the 'Australian plain packaging requirements and associated offences themselves are expressed in non-discriminatory terms and would apply equally to domestic (that is, locally manufactured) and imported tobacco products'. 165 They observe that 'no de facto discrimination is likely to arise in their application because the requirements do not make any other distinctions that might affect local and imported products differently', 166 and conclude that Australia's plain packaging regime does not 'breach the GATT 1994 because it is non-discriminatory, with a limited impact on international trade and a sound public health basis '. 167 In its complaint, Cuba also argued that Australia's plain packaging measures appear to be inconsistent with its obligations under GATT, in particular, that the measures violated Article IX:4, because 'Australia imposes requirements relating to the marking of imported cigar products which materially reduce their value and/or unreasonably increase their cost of production'. 168 In its executive summary, Australia also addressed the GATT arguments, 169 in 161 172 Moreover, Australia maintained that 'Cuba has failed to substantiate its assertion that there has been any reduction in the value of Cuban LHM cigars since the introduction of the tobacco plain packaging measure, let alone to demonstrate a "material" reduction that is attributable to the prohibition on the use of the mark "Habanos"'. 173 The position of Australia  New Zealand has had a keen interest in proceedings because its regime for plain packaging of tobacco products would come into force on the 14 th March 2018. Under new Prime Minister Jacinda Ardern, the government promises to be even more progressive in terms of its commitment to public health and tobacco control.

B The United Kingdom
After initially supporting plain packaging, former Prime Minister of the United Kingdom, David Cameron, postponed the measure, under the pressure of lobbying by the tobacco industry. 187 The government of Scotland threatened to press ahead with its plans to introduce the plain packaging of tobacco products, if the UK did not. 188 Wales was also supportive of the introduction of plain packaging measures. 189 The UK government commissioned Sir Cyril Chantler to investigate the health impacts of plain packaging. The Public Health Minister Jane Ellison promised to introduce plain packaging, after receiving the Chantler report. Chantler advised: 'Tobacco packages appear to be especially important as a means of communicating brand imagery in countries like Australia and the UK which have comprehensive bans on advertising and promotion'. 190 After various false starts, the UK Parliament passed the legislative regime, 191 and the introduction of plain packaging of tobacco products has led to a slump in cigarette sales. 192 But the government has had to defend plain packaging in the High Court of Justice, 193 in a case brought by British American Tobacco and others. In the case, Justice Green also considered the larger international context of the debate over the plain packaging of tobacco products, and emphasised that the TRIPS Agreement and the FCTC should be seen as mutually compatible: It is plain from the above that intellectual property rights are not absolute and must be balanced against other competing public interests. In particular the right to use a trade mark can, under national law, yield to limitations imposed in the pursuit of superior public policy considerations. There is no canonical list of the public interests that may or may not be resorted to on the part of contracting states to limit intellectual property rights and a good deal of discretion is accorded to the signatories. What is however clear is that intellectual property rights can be derogated from in the name of public health since this is one of the few public interests which is explicitly identified. It is a point I return to later but it is worth emphasising The judge concluded that the regulations are consistent with the TRIPS Agreement. This decision was upheld on appeal. 196 There are certainly global lessons for tobacco control policy that can be learnt from the tobacco industry's challenge to the UK's standardised packaging legislation. 197 C

The European Union and Neighbouring Countries
Ireland has adopted the plain packaging of tobacco products. 198 The Public Health (Standardised Packaging of Tobacco) Act 2015 was passed by both Houses of the Oireachtas, and signed into law by the Irish President on 10th March 2015. Ireland became the first country in Europe and the second country in the world to pass such legislation. 199 Hungary is due to introduce plain packaging of tobacco products in 2018, and Slovenia will do so in 2020. Belgium and Finland have taken steps towards the introduction of plain packaging.
A number of neighbouring countries to the European Union have also endorsed Australia's position. At the TRIPS Council, Australia received strong support from Norway, whose government 'expressed its support for the Australian measures at previous meetings of the Council and wished to reiterate its view that the TRIPS Agreement 1994 provided Members the flexibility to adopt measures necessary to protect public health'. 200 Norway was confident that Australia's plain packaging regime was consistent with international trade law: 'Following the information provided by the Australian delegation in this matter, Norway remained confident that the measures described would be implemented in a manner consistent with Australia's WTO obligations'. 201 In 2016, Norway introduced a Bill for plain packaging of tobacco products, 202 and in 2017 Norway successfully defended the standardised packaging of these products in an important legal precedent. 203 Switzerland also expressed its support in the TRIPS Council for public health measures in the area of anti-smoking as long as such measures were implemented in a manner consistent with the TRIPS Agreement and also the Paris Convention. 204 D The Americas In WTO Discussions, Canada 'was confident that Australia, in the elaboration of its Bill, had taken into account the importance of respecting international obligations'. 205 Under the new government of Justin Trudeau, Canada has pushed forward with its own process into launching plain packaging of tobacco products. 206 Jane Philpott, the Canadian Minister of Health, commented: 'I don't believe tobacco companies should be allowed to build brand loyalty with children, for a product that could kill them'. 207 She emphasised: 'Research shows that plain packaging of tobacco products is an effective way to deter people from starting to smoke and will bolster our efforts to reduce tobacco use in Canada.' 208 Rob Cunningham of the Canadian Cancer Society stated that 'Plain packaging is a key tobacco control measure to protect youth and to advance public health …. We strongly support implementation of plain packaging in Canada, just as so many other countries have done or are in the process of doing.' 209 As Dr Becky Freeman has commented, there is a strong case for Canada to join the tobacco plain packaging revolution. 210 Uruguay has been sympathetic to the position of Australia, especially after its graphic health warnings were disputed by tobacco companies under investment treaties. 211 Providing vocal support for Australia in the WTO dispute settlement, Uruguay emphasised that it could not remain silent in this fight against 'the most serious pandemic confronting humanity'. 212 Uruguay also said that 'the norms of the Multilateral Trading System cannot and should not force its members to allow that a product that kills its citizens in unacceptable and alarming proportions continues to be sold wrapped as candy to attract new victims'. 213 In the wake of its defence of graphic health warnings in an Investor-State Dispute Settlement matter, 214 Uruguay has vowed to introduce plain packaging of tobacco products. 215 In the United States, the position of the Obama Administration was complicated on the question of tobacco control. After introducing graphic health warnings for tobacco products, the Administration was embroiled in legal action; and eventually dropped the tobacco control measure for further consideration. 216 There has been criticism that the Obama Administration favoured the tobacco industry in trade negotiations, 217 and a lawsuit was launched against the Food and Drug Administration over the delays in reintroducing graphic health warnings. 218 There has been concern that the new Trump administration has strong links to the tobacco industry, particularly Vice President, Michael Pence, who has received significant funding from the tobacco industry. 219 E

BRICS/BASIC Group
The members of the BRICS and BASIC groupings also offered their perspectives on the debate over the plain packaging of tobacco products in the TRIPS Council. The representative of China stressed that members of WTO needed to be cautious and strike a balance between the protection of IP right holders and the public interest in general. 220 China believed that plain packaging measures should not contravene international obligations under the TRIPS Agreement.
The representative of Brazil emphasised that the existing international rules on IP should be supportive of public policy measures designed to protect public health within Members. 221 Brazil stressed that Article 8 of the TRIPS Agreement and the Doha Declaration on TRIPS and Public Health 222 should guide the interpretation of the applicable TRIPS provisions on trademarks. It is worth recalling the actual, broad language of the Doha Declaration. Article 4 affirms that South Africa reserved its position initially, 223 noting that the question of plain packaging of tobacco products involved a tension between public health and a legitimate right to trademark protection. South Africa has since made further steps itself, towards the adoption of plain packaging of tobacco products. 224 India has shown an interest in the policy option of plain packaging, 225 having already introduced graphic health warnings on tobacco products. 226 However, the tobacco industry has been seeking to undermine India's tobacco control measures. 227 To encourage further legislative and regulatory action, the WHO has promulgated information for policy-makers on evidence, design, and implementation of plain packaging of tobacco products. 228

VII CONCLUSION
The overarching argument of this article has been that plain packaging of tobacco products is defensible under the TRIPS Agreement, the TBT Agreement, and GATT, and in light of larger concerns in respect of international public health law, human rights, and sustainable development. The article provides a critical examination of the arguments in the WTO dispute over plain packaging of tobacco products, before the publication of the first ruling in the dispute. As Alain Pottage has noted, Plain packaging legislation raises a number of engaging theoretical and practical questions: about the legal qualities of the intellectual property rights that articulate branding strategies, about the relationship between the regimes of international trade law and world health policy, and about the history of regulatory initiatives to address the public health implications of smoking. 229 According to media reports, Australia has prevailed in the WTO dispute. 230 The confidential interim report is said to emphasize that Australia's laws are a legitimate public health measure. 231 Australia's plain packaging regime was well designed to withstand legal challenges under the dispute settlement process of the WTO from Honduras, the Dominican Republic, Cuba, and Indonesia (and previously, Ukraine). There is a strong body of empirical evidence supporting the efficacy of plain packaging of tobacco products in Australia. As such, Australia was in a strong position to win the WTO dispute. The High Court of Australia's decision on the plain packaging regime, the decisions on standardised packaging in the UK, and the case of Société JT International on plain packaging of tobacco products in the State Council of