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.

The regulatory literature has long been concerned with the challenges of technological innovation, yet it says relatively little about what we understand as “innovative” and how innovation “types” impact on regulation. This article unpacks the concept of “innovation” and analyses its significance for the development of regulatory strategy. It shows that innovation types – such as “incremental” and “radical” innovation – are not clear-cut, but involve differences of interpretation. This interpretive flexibility makes them powerful discursive resources in regulatory decision-making. Through a study of the EU’s regulation of nanotechnology, the article shows how arguments of “incremental” and “radical” innovation can be mobilised to very different effect. These different ways of conceptualising new technology affect decisions on: (i) the desirability of legislative reform; (ii) the evidence-base for regulation; and (iii) the use of the precautionary principle. The study also shows how the framing of technology as “incrementally” innovative can contribute to a strategy of “deliberate regulatory ignorance”. The article concludes by arguing that the incremental/radical distinction can be put to more positive use, so that regulatory choices take account of the different techno-scientific and socio-economic dimensions of innovation.

Better regulation is of grave importance to the European Union, as it is seen as a way of obtaining output legitimacy. To achieve this, the European Commission has established a so-called REFIT Stakeholder Platform where stakeholders’ proposals for more effective and efficient EU law are discussed. The central premise for this meta-regulatory instrument is depoliticisation of the REFIT program and the whole better regulation agenda. To ensure this, the European Commission plays a crucial gatekeeping role by only granting access for proposals that echo that premise and by securing depoliticised deliberation afterwards. Utilising a novel typology linking regulatory reform proposals to the risk of politicisation, the argument advanced in this article is that only a minority of the proposals to be considered by Platform members have a low risk of depoliticisation. This, it is argued, is due to the Commission not having a sufficiently well-developed understanding of the premises for REFIT it has itself established.

When determining the Appropriate Level of Protection (ALOP) in food safety law, developed countries rely on the Food Safety Objective (FSO) to meet the requirements of World Trade Organization (WTO) law and to provide a high level of protection based on insights from food safety science. Implementing an FSO/ALOP is resource-intensive and costly. Developing countries who would like to provide similar levels of protection are restricted by limited resources and often face difficulties implementing such an FSO-based ALOP. As a consequence, developing countries may base their ALOP on other legally acceptable reasons, which are non-scientific and less effective. We illustrate a less resource-intensive way to implement the FSO in the ALOP, which enables developing countries to design an ALOP that is based on food safety science. Depending on the resources available in the respective country, we map different possibilities to determine a science-based FSO/ALOP concept for developing countries, which also takes into account the requirements of WTO law.