The Real Deal on International Trade; Investment Agreements; and Packaging and Labeling Regulations. Benn McGrady , PhD International trade and investment lawyer based at Georgetown University’s O’Neill Institute for National and Global Health Law, USA.
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International trade and investment lawyer based at Georgetown University’s O’Neill Institute for National and Global Health Law, USA
(Art. 6 quinquies (B)(3) Paris Convention; TRIPS Art. 15.2)
TRIPS Article 20 prohibits WTO Members from unjustifiably encumbering the use of a trademark with special requirements.
It is not clear what types of measures constitute special requirements under Article 20.
Nonetheless, Article 20 concerns only ‘unjustifiable’ encumbrances.
The principles in TRIPS Article 8 emphasize that WTO Members may adopt measures necessary to protect public health.
These principles guide what is ‘unjustifiable’ i.e. necessary measures are justifiable.
Guidance may be sought in Article XX(b) of the General Agreement on Tariffs and Trade (GATT), which permits measures necessary to protect human life or health.
To determine whether a measure is necessary, WTO panels weigh the trade restrictiveness of a measure against its contribution to health protection, in light of the importance of the goal.
WTO panels then consider whether less trade restrictive alternatives are reasonably available.
In recent cases, a high degree of deference has been shown to the regulatory choices of WTO Members.
Protecting human health is considered to be a goal of the highest importance. (Source: EC - Asbestos)
The effectiveness of a measure need not be established (the measure need only make a material contribution to its goal). (Source: Brazil - Retreaded Tyres)
WTO law is also interpreted in light of other international laws. (Source: US - Gasoline)
Article 2.2 provides that technical regulations shall not be more trade restrictive than necessary to achieve a legitimate objective, such as protection of human health.
A technical regulation to protect health, in accordance with relevant international standards shall be presumed necessary.
Whether WHO FCTC guidelines would constitute relevant international standards is an open question.