Trade and tobacco control: the World Trade Organization and the framework convention on tobacco control

The conclusion of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) was something of a watershed moment for health promotion and for international law more generally. As the first treaty concluded under the auspices of the WHO, the FCTC heralded a new era of international health law and diplomacy. In this respect, there is little doubt that the FCTC has spurred states into action in the field of tobacco control. Similarly, the FCTC may also serve as a model for future treaties to address the 35 million deaths that result annually from preventable non-communicable diseases. Notwithstanding this, the question of whether the FCTC has fulfilled one of its core purposes remains unanswered. The forward to the FCTC describes the convention as a response to the globalisation of the tobacco epidemic and, in particular, to the liberalisation of trade. Without doubt, the drafters of the FCTC were concerned with the potential for trade liberalisation to stimulate tobacco consumption. In fact, empirical studies conducted prior to the conclusion of the FCTC confirmed what trade theory suggested -that aggressive liberalisation of trade in tobacco products had stimulated tobacco consumption in a number of developing countries. In response, the FCTC obliged parties to implement a range of tobacco control measures as an indirect means of flanking trade liberalisation. Of course, the drafters were also concerned with the question of whether trade agreements such as the World Trade Organization (WTO) Agreement allowed sufficient regulatory freedom so as to permit effective and comprehensive tobacco control. In respect of this question, however, the parties were neither able to find an answer nor agree upon a solution that would negate this risk. As a consequence, tobacco control advocates continue to call for the complete exclusion of tobacco from trade agreements. Against this backdrop, this study examines the question of whether the FCTC is an adequate response to the globalisation of the tobacco epidemic. This question is explored by reference to the application of the WTO covered agreements to tobacco control measures as well as by reference to the legal relationship between the two treaties. It is argued that an adequate response to the globalisation of the tobacco epidemic requires further action in both the context of the FCTC and the WTO. In particular, action is required so as to minimise uncertainty surrounding application of the WTO covered agreements to tobacco control measures. Additionally, administrative style international laws should govern processes of trade-related policy-making where those efforts may have a negative impact upon tobacco-related health. These approaches should improve the response of the FCTC to trade processes, promote the reconciliation of trade and tobacco control as policy choices and ensure that the FCTC is capable of serving as a model with respect to broader issues of trade and health.