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Review of Policy Conflicts and Coherence between the World Health Organization’s WHO Framework Convention on Tobacco Control (FCTC) and World Trade Organization’s (WTO) Agreements

By Bikesh Bajracharya

Background and rationale: In 2010, the World Health Organization (WHO) estimated that there are 1.3 billion smokers in the world. The global rise in tobacco consumption is mainly caused by global marketing and advertising, promotion and sponsorship from the transnational tobacco companies, trade liberalization and direct foreign investment, and the international movement of counterfeit cigarettes. The WHO recommendations for comprehensive tobacco control programs are to some extent countered by the WTOs trade agreements which prioritize trade over health. The objective of this study was to review the effects of WTO agreements on implementation of WHO FCTC and explore possible strategies for policy coherence between them.

Methodology: The review study is based on documentary research. Source materials were identified using a Boolean search comprised of the following key words (WHO FCTC OR Tobacco control OR Public Health) AND (WTO Agreements OR International Trade Agreements OR Trade) AND (Impact OR Policy Conflict OR Challenges OR Dispute Cases) AND (Policy Coherence OR Policy Cooperation OR Solution) in the following databases:  (1) Scientific publications (BMJ Journals, Cambridge Journals Online, PubMed, SAGE Journal Online, the Lancet) dated from 1989 to 2011, and (2) Public access search engines such as Google scholar and Google web for WHO, WTO and World Bank reports, International conventions and agreements dated from 1947 to 2002. Non-English language papers and papers with only abstract and summary available were excluded. Altogether 300 documents were found relevant based upon the title of the document. Out of which, 154 most relevant documents were included after reviewing the whole content.

Results: The WHO FCTC provisions, such as tobacco taxation, clean indoor air, tobacco product content and emission disclosure, warning labels and packaging and a ban on tobacco advertising were found to contradict WTO agreements. As a result, nine dispute cases were registered to the Dispute Settlement Body of WTO. Dispute cases were mainly related to discrimination between domestic and foreign products. Despite the WTO declaration that there are provisions for protection of public health in the WTO agreements, the usefulness of these has been limited.  There was only one case related to tobacco trade and tobacco control registered in the WTO health exception provision in 1990, when the United States claimed Thailands restriction on importation of cigarettes was in violation of the General Agreement on Tariffs and Trade (GATT) Article XI: 1. But WTOs requirement of non-discriminatory treatment between domestic and foreign products superseded health protection provision.Among a total of  five cases registered in the WTO health exception provisions over the period of 1989 to 2011, (including tobacco, tuna, shrimp, gasoline and asbestos), only one case (European Communities-Measures Affecting Asbestos and Products Containing Asbestos) has been successful in protecting public health. In the asbestos case, the respondent country proved that the public health measure was necessary. It has further proved that there were no   other least trade restrictive measures that could have been chosen, and the WTO panel also noticed there was no discrimination between the domestic and foreign products. Therefore, the health exception provisions imposes strict examination and a high burden of proof on health measures challenged under GATT rules. Thus, countries can both promote trade and protect public health if their trade negotiations reflect coherence in policy.

Conclusion: The WHO FCTC member states should enforce national tobacco control measures with consideration of the principles of WTO of non-discrimination and least trade restrictive measure. It is noticed from the dispute cases that tobacco control measures face challenges from WTO agreements if these principles of the WTO are not strictly followed. So there is possibility of policy coherence between WHO FCTC and WTO agreements if tobacco control measures do not impose arbitrary or unjustified discrimination or disguised restriction to international trade. There is also need of inter-institutional coherence between WHO and WTO.