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HomeMedico-LegalWTO's plain packaging finding a 'green light' for SA's tobacco Bill

WTO's plain packaging finding a 'green light' for SA's tobacco Bill

The World Trade Organisation’s (WTO) Appellate body recently confirmed that Australia’s tobacco plain-packaging measures are in compliance with trade rules and obligations; laying to rest all concerns that the measures may be in conflict with WTO law, write Dr Sharon Nyatsanza, project and communications manager and Dr Savera Kalideen executive director of the National Council Against Smoking in Daily Maverick.

They write:
The WTO Appellate body found that plain packaging measures are suitable to reduce the appeal of tobacco products, enhance the effectiveness of health warnings, and reduce the ability of packaging features to mislead consumers.

This serves as a green light for South Africa’s Control of Tobacco Products and Electronic Delivery Systems Bill which introduces tobacco plain packaging measures. It also provides valuable lessons not only for the tobacco control community, but for the entire public health community.

The government needs not recreate evidence to defend tobacco control policy; the World Health Organisation’s Framework Convention on Tobacco Control (FCTC) has been used as the basis for introducing plain-packaging measures. All FCTC measures are evidence-based and reflect global consensus on best practice in curbing the tobacco epidemic.

Litigation is commonly used to deter countries from implementing tobacco control policy, and threats of litigation have led to regulatory delays and watering down of legislation. Plain packaging measures have been challenged by the tobacco companies in different countries (including France and Australia), by investment tribunals and under the WTO dispute settlement system; and may also be challenged in South Africa.

Governments have been relentless in supporting these measures, and litigation has also fortified the case for plain-packaging measures – all challenges instituted against plain-packaging measures have been unsuccessful, marking a new era in tobacco control.

Pursuing public health is a legitimate goal and the law should be used to facilitate and promote the realisation of the highest attainable standard of health. The government should not be dissuaded from introducing public health policy that is well designed, evidence-based, effective and non-discriminatory, by threats of litigation either at local or international tribunals.

Lessons should be drawn from litigation around the world.

The measures introduced by the Tobacco Bill are evidence-based, they will bring policy closer to the FCTC and will play a key role in reducing tobacco prevalence.


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