Tuesday, 12 May 2015

Canada chooses health over trademark rights

 In an April 10, 2015 legal brief to the World Trade Organization (WTO), Canada has strongly defended the rights of WTO member states to legislate to control tobacco and, by extension, to protect public health. Canada’s brief is a third-party submission, soon to be available on the WTO website (www.wto.org), in a formal WTO dispute in which the Dominican Republic, Cuba, Honduras, Indonesia and the Ukraine are contesting the validity of new Australian law that requires plain packaging for cigarettes. Since none of the five countries sells any significant amount of tobacco or tobacco products to Australia, it is strongly suspected that the tobacco industry is somehow involved in the laying of these five complaints.

The clear and concise Canadian brief points out that the complainants have cherry-picked their way through international law, citing passages that support their case, while ignoring others that do not. The Canadian brief then provides a comprehensive review of all pertinent international law and judgements. The brief concludes that international trade law, when properly and comprehensively read, does provide WTO members with the ability to regulate in the interest of public health, and that this is “a right that was carefully and purposefully preserved” by the drafters of international trade law. If the Dispute Settlement Panel were to agree with the interpretations of the five complainants, not only would this “erode [WTO ] Members’ ability to regulate in the interest of public health,” it would also “create new rights for trademark owners [and] establish obligations for Members.”

The authors of the Canadian brief can see that an adverse decision against Australia in this case would not only be a blow tobacco control, it would curtail the right of sovereign nations to legislate to protect the health of their citizens. Let us hope that the Canadian argument will be persuasive and that public health protection will not sacrificed to the commercial interests of tobacco companies.

Canada's submission can be read here.