The regulation of e-vapour products is a relatively new topic. While the e-vapour product sector is fast evolving, the optimal regulation of these products is yet to be fully understood. Some wisdom may be borrowed from the regulation of cigarettes, but many tobacco-relevant policies may not be applied to these new products. Evaluations are underway on many aspects of e-vapour products, for example: their safety, potential health risks, illicit trade, taxation and advertising. This paper examines yet another dimension – one which arises at the intersection of international health and trade law – namely whether e-vapour products and cigarettes may be found “like” in a WTO dispute challenging trade restrictive measures applying to e-vapour products.
In particular, the analysis focuses on a hypothetical ban on the importation, distribution, sale and offering for sale of e-vapour products (referred to as a general ban) – a measure that is either being contemplated or already implemented in some domestic jurisdictions. It finds that e-vapour products and cigarettes may be “like” under WTO law. In the event that a positive finding is made on other remaining tests necessary to determine discrimination (importantly the “less favourable treatment”) and provided the regulating member finds no solid evidence to justify the ban under GATT Article XX, a general ban on e-vapour products risks being found WTO inconsistent.