It was concluded in Chapter 3 that facially neutral measures to address the public health implications of tobacco-, alcohol-, and dietary-related diseases may violate a number of prohibitions in the covered agreements. Depending on the circumstances, differential taxation may lead to violations of Article III:2 of the GATT, the Agreement on Agriculture, as well as give rise to countermeasures under the SCM Agreement. In addition, prohibitions on product promotion and advertising could conceivably violate Article III:4 of the GATT and Article XVI of the GATS if a WTO Member has scheduled commitments with respect to advertising or retail services.

When the circumstances are such that a violation may be made out, lawfulness of the measures in question will turn on application exceptions such as Article XX(b) of the GATT and Article XIV(b) of the GATS. At first glance, it appears that the permissive content of the WTO-covered agreements, as reflected in these provisions, provides sufficient protection to enable effective and comprehensive public health protection. This conclusion finds support with respect to origin-neutral advertising bans and taxation measures in Thailand – Cigarettes. In addition, the outcome of recent disputes suggests that, in practice, WTO panels and the Appellate Body show a high degree of deference to the regulatory choices of WTO Members. This deferential practice arguably began with the weighing and balancing approach set out by the Appellate Body in Korea – Various Measures on Beef and can be traced through disputes such as EC – Asbestos to more recent decisions such as Brazil – Retreaded Tyres.

Some form of product regulation is likely to play an important role in any comprehensive policy to address noncommunicable disease associated with tobacco, alcohol, or diet. The concept of product regulation encompasses a variety of measures. In some cases, product regulation may function as a means of prohibition, such as where a good is deemed by government to be too harmful to be sold lawfully. In a similar vein, product regulation may be a means of reducing the harmfulness associated with consumption of a product category, such as where the product is prohibited in its more harmful forms. Alternatively, product regulation might prohibit products from taking particular forms not because of a direct relationship between form and harmfulness, but because of the attractiveness of specific product forms to identifiable consumer groups such as children. In addition, the regulation of product packaging may play an important role in providing information to consumers or in attempts to dissuade consumption.

Examples of product regulation of the first two types can be found in the context of diet. Some Pacific Island states have banned the sale of mutton flaps and turkey tails, which are cuts of meat that are extremely high in fat and often discarded in developed countries. Similarly, a number of WTO Members are working to eliminate artificial trans fat from their food supply and to replace it with cis-unsaturated acids.

This study set out to examine whether domestic regulatory autonomy preserved by the WTO-covered agreements reflects an appropriate balance between the protection of public health and the interests underlying the WTO Agreement. Chapters 1–5 examined this question by reference to interventions to prevent noncommunicable diseases associated with tobacco, alcohol, and diet. This question was also examined against the backdrop set out in Chapter 1, which suggests that the liberalization of trade in tobacco, alcohol, and food have played a role in increasing the prevalence of noncommunicable disease. Chapter 1 also highlighted how some developing countries are particularly vulnerable to noncommunicable disease as a consequence of weak health systems. Another source of vulnerability is the so-called double burden of disease associated with the need to address infectious diseases, such as malaria and HIV/AIDS, while also trying to address noncommunicable diseases.

Chapter 1 also set out a framework for analysis. It was suggested that the relationship between trade and health be examined by reference to two factors. The first factor was determinacy, meaning the ability of WTO Members to determine whether health measures are lawful. This concept was linked to the risk of regulatory chill, which encompasses the prospect that WTO Members may not implement lawful health measures for fear of violating the WTO Agreement. The second factor identified was the way in which WTO law balances the objectives underlying the WTO Agreement with the protection of public health.

This study sketches out the implications of trade law for domestic attempts to address noncommunicable disease. Much remains to be written about this subject. Nonetheless, I hope that this work fills some gaps in the literature and raises questions for further research.

Although this study lies at the intersection of trade law and public health, it is a legal study. The difficulty associated with differing research methodologies meant that a choice had to be made in favor of one discipline or another. The choice to cast this work as a legal study has the advantage of permitting a deeper legal analysis of some issues, but the disadvantage of being less accessible to members of the public health community who do not have legal training. There is some inevitable trade-off in this approach, and my hope is that this study will help public health lawyers and trade lawyers bridge gaps between their fields.

This study also straddles the fields of international trade law, global/international health law, and public international law. There is a very real chance that the study will leave trade lawyers wanting a more detailed analysis of trade law and public health lawyers wanting more detailed analysis of international law in a health context. Unfortunately, this is an inevitable consequence of a monograph that does not seek to cover the field. The intention of this study is not to end all debates about application of trade law to noncommunicable disease.

Normative integration refers to a process whereby disparate norms, such as health norms and trade norms, are integrated or merged through judicial interpretation. In the context of the law of treaties, the process arguably finds its roots in the presumption against conflict. The presumption against conflict provides that treaties shall be read alongside one another unless a subsequent treaty evinces a different legislative intention to a previous treaty. In accordance with this presumption, a treaty interpreter should consider whether two treaties can be read together before considering whether one treaty should be limited in its application as a result of conflict.

The extent to which health norms are integrated into WTO law in the context of dispute settlement is a natural starting point for analysis of how WTO law applies to the new public health. Examination of the issue is a precursor to examining application of the covered agreements. The extent to which WTO law integrates international health norms is also of importance to the question of how international health instruments should be shaped so as to best interact with WTO law. For example, Tomer Broude has argued that the integration of norms in international law tends to lead to the integration of international authority, and that as a consequence, softer or less binding means of integration are less threatening influences on the allocation of authority. In accordance with this argument, nonbinding instruments may enhance the integration of health norms into WTO law to a greater degree than binding norms.

Chapters 2–5 of this study focused on the substantive rules governing the balancing of trade and health under WTO law. However, prior to this study, a number of law reform proposals have been made with the intention of addressing the implications of WTO law for public health in the tobacco, alcohol, and dietary contexts. These proposals either explicitly or implicitly concern questions of institutional choice and the allocation of authority. This chapter examines the merits of these proposals in three parts by reference to the concepts of delegation, legalization, and harmonization.

Part 1 examines the issue of delegation, which encompasses the questions of who should make decisions about the lawfulness of public health measures, as well as whether balancing mechanisms should be further theorized so as to minimize the discretion held by delegated authorities such as the WTO Dispute Settlement Body (DSB). In this respect, tobacco-control advocates have argued for the so-called exclusion of tobacco and tobacco products from the scope of trade agreements. This proposal suggests that a specific set of rules should be created in order to theorize the relationship between trade and tobacco control in a more complete manner than the balancing mechanisms found in the WTO-covered agreements.

Part 2 examines the issue of international legalization. Legalization concerns whether international public health instruments should take on binding forms, as in the case of the FCTC, in order to balance out the effects of the trade regime. Public health groups have advocated this approach.

To some degree the regulatory strategies adopted in the contexts of tobacco, alcohol, and diet are premised on the assumption that small shifts in risk across a population can have a significant impact on population health as a whole. In each context the underlying strategy is to either eliminate or minimize exposure to risk factors for disease. The rationale underpinning the measures discussed in this study is to focus government intervention on the consumption patterns of the population. This legal and regulatory approach does not reflect the entirety of government attempts to reduce noncommunicable disease. Public health authorities also use medical approaches to assist high-risk individuals. Examples include smoking-cessation programs, medical approaches to weight loss, and counseling. Authorities also use education and community-awareness programs and other approaches that are not necessarily regulatory in character.

In the case of tobacco products, the threats posed to human health are direct, and action is usually aimed at reducing consumption of tobacco products to the greatest extent possible. As mentioned in Chapter 1, tobacco control relies on five complementary strategies: (1) demand reduction, (2) provision of information to consumers, (3) supply reduction, (4) reduction of exposure to tobacco smoke, and (5) minimization of the harm caused by individual tobacco products. These strategies are reflected in various provisions of the FCTC, including Article 6 (price and tax measures to reduce demand for tobacco), Article 8 (protection from exposure to tobacco smoke), Article 9 (regulation of the contents of tobacco products), Article 10 (regulation of tobacco-products disclosures), Article 11 (packaging and labeling of tobacco products), Article 12 (education, communication, training, and public awareness), Article 13 (tobacco advertising, promotion, and sponsorship), Article 14 (demand-reduction measures concerning tobacco dependence and cessation), and Article 15 (illicit trade in tobacco products).

INTRODUCTION

The impact of the Marrakesh Agreement Establishing the World Trade Organization (WTO) (hereafter WTO Agreement) – and its linkage to other social issues has long been a subject of debate. One aspect of this debate is the linkage of trade and public health. In 2006 the World Health Assembly (WHA) passed a resolution stressing the need for greater coordination in the development of trade and health policies and recognizing the “demand for information on the possible implications of international trade and trade agreements for health and health policy at national, regional and global levels.” Following this, in 2007, the foreign ministers of Brazil, France, Indonesia, Norway, Senegal, South Africa, and Thailand issued the Oslo Ministerial Declaration. The declaration affirmed the interconnectedness of trade and health policies “in the formulation of all bilateral, regional and multilateral trade agreements.”

More recently, in early 2009, The Lancet, a leading public health journal, published a series of papers on trade and health. A number of commentators called for greater interaction between the public health and trade policy communities and for the public health community to play a greater role in trade policy making. This series of papers was reflective of the trade and health issues that have garnered attention since the conclusion of the Uruguay Round, such as those relating to intellectual property rights and access to medicines as well as trade in health services.