Cases concerning the regulation of tobacco have long existed within the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade 1947 (GATT 1947), although often these cases have not centered on the detrimental health impact of tobacco products. With the 2012 circulation of the Report of the WTO Appellate Body in U.S.—Clove Cigarettes, the potential friction between international trade law and tobacco regulation in the context of public health has come to the fore. In that Report, the Appellate Body found in part against the United States’ flavored cigarette ban. Combined with the ongoing WTO challenges to mandatory plain tobacco packaging in Australia—Tobacco Plain Packaging, governments might begin to fear that the WTO agreements represent an insurmountable barrier to ambitious tobacco control measures. However, careful examination of the Clove Cigarettes case alongside the two other recent Appellate Body Reports (U.S.—Tuna II (Mexico)5 and U.S.—COOL6) on the WTO's Agreement on Technical Barriers to Trade (TBT Agreement)7 demonstrates that the TBT Agreement has ample flexibility to accommodate health objectives underlying tobacco regulation.

In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA’s) proposed graphic health warnings for cigarette packages violated tobacco companies’ First Amendment rights. In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries’ experiences by stating (first at oral argument and then in his decision) that “none of [those countries] afford First Amendment protections like those found in our Constitution.”

While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. Indeed, several other countries apply “strikingly similar” legal tests when reviewing restrictions on speech (and on commercial speech in particular). Thus, the statement that other countries do not “afford First Amendment protections like those found in our Constitution” is an oversimplification.

Proponents of the Trans-Pacific Partnership agreement (TPPA) describe it as a twenty-first century agreement that will reach further behind the border than any previous free trade or investment agreement. As the chief executive of Business New Zealand said during the round of TPPA negotiations in Auckland in December 2012:

More specifically, the TPPA aims to frame how governments make their domestic policy and regulatory decisions as a complement to more extensive rules that constrain the substance of those decisions. These “disciplines” aim to empower commercial players and advance their interests, and to marginalize competing priorities, advocates, and agencies; including democratic political institutions.

As implementation of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) accelerates and states seek to address risk factors for non-communicable disease more broadly, tension has increased between the law of the World Trade Organization (WTO) and public health. For example, Indonesia recently brought a successful claim against a U.S. law that prohibits cigarettes with a characterizing flavor other than menthol or tobacco. Indonesia succeeded in arguing that the regulation discriminates against clove-flavored cigarettes of Indonesian origin in favor of menthol-flavored cigarettes of U.S. origin.

Also in the WTO context, the Dominican Republic, Honduras, and Ukraine have challenged an Australian law prohibiting the presence of branding on tobacco packaging other than product and variant names in a standardized location, font size, and style. This regulation, commonly referred to as “plain packaging,” is the first of its kind and may represent a turning point in the regulation of tobacco packaging.

Cigarettes result in over 400,000 preventable American deaths each year. In 2011, fewer than twenty percent of adults smoked. Since the publication of the first U.S. Surgeon General's Report on Smoking and Health nearly fifty years ago, when smoking prevalence was around forty percent, policies such as smoke-free laws, large tax increases, and litigation have collectively contributed to cut smoking prevalence in half. Unfortunately, no one expects the mix of policies currently proposed, which includes further tax increases, spatial smoking restrictions, somewhat higher minimum age restrictions, adverse publicity, and quitting assistance, to reduce U.S. smoking prevalence below fifteen percent in the foreseeable future.

The rule adopted by the U.S. Food and Drug Administration (FDA) to require hard-hitting graphic warnings on cigarette packages, as is currently done in dozens of other countries, has thus far been rejected by federal judges who have found that warnings designed to arouse negative emotions violate cigarette manufacturers’ First Amendment rights.

At the turn of the last century, allies of industry on the Supreme Court deployed a novel constitutional doctrine to thwart government regulations aimed at improving public health and safety. During the Lochner v. New York era, the Supreme Court discovered a right to “freedom of contract” in the Due Process Clause of the Fourteenth Amendment that advanced the “economic liberty” of businesses to conduct their affairs without government oversight. The newfound freedom of contract forbade, for example, public policies aimed at improving factory conditions by setting maximum working hours, forbidding child labor, or setting a minimum wage. The Court later somewhat abashedly changed course, finding that government in fact had great leeway to implement economic regulations protecting and promoting general welfare.

Today, seventy-five years after the Supreme Court repudiated the doctrine of economic substantive due process, the Court has backtracked to the notion that the Constitution significantly impedes the government's ability to safeguard public health and safety by regulating commercial activities.

It has been estimated that the use of tobacco kills nearly 6 million people each year, with most deaths occurring in low- and middle-income countries. This disparity is expected to increase over the next few decades. On the basis of current trends, tobacco use will kill more than 8 million people worldwide per annum by 2030, with eighty percent of those premature deaths occurring in low- and middle-income countries. The significant burden of morbidity and mortality associated with tobacco use is well documented and proven and will not be repeated here.

The evidence base for addressing the tobacco epidemic domestically, regionally, and globally has developed in a systematic fashion over the past five decades. Effective measures for tobacco control are now well known and have been canvassed widely in the published literature.

The international law of foreign investment is one of the fastest-growing areas of international economic law with several bilateral investment treaties or preferential trade agreements, including an investment chapter, negotiated every year. At the same time, new cases are being lodged at an exponential rate. Thanks to the remarkable effectiveness of its law, the investment regime has become a center of attraction not only for the settlement of disputes strictly related to investment but also problems between governments concerning matters including those of non-economic dimensions. The nature of the international arbitral process is entirely different from a national court process; it is an international tribunal governed by an international convention, mandated to inquire into the conduct and responsibility of a State in light of its treaty and customary international law obligations. This could result in significant State liability and could impact regulatory regimes and policy goals, attracting considerable criticism.

In November 2011, Australia became the first country in the world to legislate for “plain packaging” of tobacco products. As of December 1, 2012, the packaging of tobacco products sold in Australia must be a standard, drab dark brown color; and the printing of tobacco company logos, brand imagery, colors, or promotional text on that packaging and on individual tobacco products is prohibited. While the Australian scheme is described as “plain packaging,” tobacco packaging is required to be far from “plain” in the ordinary sense of the word. The scheme requires large health warnings composed of graphics, warning statements and explanatory messages, and information messages.

Plain packaging of tobacco products—which has also been called “generic packaging” or “standardized packaging”—is not a new idea. It was proposed as far back as June 1986, when the Canadian Medical Association agreed to a motion in favor of its adoption.

With tobacco trade, the past is prologue. In the 1980s, the U.S. government used domestic trade remedies (“Super 301”) to pry open markets for U.S. tobacco companies. The targets included Japan, South Korea, Taiwan, and Thailand. A grateful tobacco industry donated a renovation of the Treaty Room in the U.S. Department of State, declaring at the dedication: “Tobacco is intimately and historically associated with American diplomacy.”

Thailand responded by banning imported cigarettes on grounds that the imports were more addictive and marketing of imports was driving up consumption. The United States then challenged Thailand for violating the General Agreement on Tariffs and Trade (GATT). The GATT panel ruled against Thailand, finding that the import ban failed to satisfy the health exception of GATT Article XX.

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, we tackle Canada's recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada's provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. We address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

Canadian litigation in this field is nothing like that of the United States with regards to both the volume and variety of its individual and class action litigation claims. This is also true with regard to the stage of advancement of governmental claims in Canada. Nevertheless, particularities of the Canadian context may provide interesting contrast with the situation in the United States.

Despite the overall theme of this Issue being the future of global tobacco control, this Article is about Japan, with the conscious intention of presenting Japan as a demonstration of a different type of tobacco control environment. To be clear, I am not trying to suggest Japan is an unambiguously positive exemplar for other nations. Rather, it is with the idea that Japan's circumstances might be showing us that things are not always as bad as they might first appear. To quote Mick Jagger and Keith Richards, great philosophers of the twentieth century, “You can't always get what you want, but if you try sometimes, you just might find, you get what you need.”