Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v Uruguay

A Corporate Veto on Health Policy? Global Constitutionalism and Investor–State Dispute Settlement

“…Under ISDS clauses there is no need to enlist the support of client governments; corporations may bring cases directly against the state in question on a number of grounds relating to fair and equitable treatment of investors and their property rights (see McGrady 2012 for a detailed analysis of thr grounds on which corporations may challenge policies under ISDS). This removes a significant barrier to the challenging of domestic policies under international agreements and involves an enormous increase in the number of actors able to bring such challenges.…”

“…Following bans on advertising, promotion and sponsorship, the Uruguayan government enacted a tobacco control law in 2008 to require cigarette packaging to carry health warnings and graphic images covering 50% of their surface area, which was increased to 80% of the packs by a subsequent Presidential Decree (Jarman 2015, Tobacco Tactics 2015, McGrady 2012). This made the Uruguayan health warnings the largest in the world at the time.…”

“…This made the Uruguayan health warnings the largest in the world at the time. In 2010 the sale of multiple variants of a cigarette brand was banned in an attempt to eradicate attempts by TTCs to imply incorrectly, through descriptors or colour branding, that certain variants are safer alternatives for smokers (Tobacco Tactics 2015, McGrady 2012). Under the new regulations it would be impossible for Philip Morris, for example, to offer its ‘Marlboro’ brand for sale in their standard variety (sold in the brand’s signature red and white packs) alongside other brand variants such as ‘Marlboro Menthol’ (sold in green and white packs) or Marlboro ‘Lights’ (sold in gold and white packs and rebranded as ‘Marlboro Gold’ after the banning of the ‘light’ descriptor).…”

The importance of continued engagement during the implementation phase of tobacco control policies in a middle-income country: the case of Costa Rica

“…7 8 However, such efforts have been less studied in low and middle-income countries (LMICs). This is surprising given that important legal and political battles have occurred in LMICs during the implementation phase, especially in Latin America, [9][10][11] including Philip Morris International's (PMI) effort to overturn strong cigarette package health warning labels in Uruguay 12 and constitutional challenges to Guatemala's 13 and Mexico's 14 smoke-free laws, and Colombia's and Panama's tobacco advertising bans. 15 16 In Costa Rica, PMI and British American Tobacco (BAT) blocked tobacco control legislation for decades, 17 but between 2010 and 2012 the health advocacy network, Red Nacional Antitabaco (RENATA, National Anti-Tobacco Network), convinced legislators to enact legislation implementing the FCTC 18 Law 9028 in March 2012.…”

Introduction

“…The challenge to Uruguay's tobacco packaging and labelling requirements is brought by a Philip Morris company in Switzerland 8 under a bilateral investment treaty between Switzerland and Uruguay, 9 as discussed elsewhere. 10 The corresponding challenge to Australia's mandatory standardised tobacco packaging requirements (so-called 'plain' tobacco packaging) is brought by Philip Morris Asia Limited 11 under a bilateral investment treaty between Australia and Hong Kong. 12 In addition, several countries (five at the time of writing) have challenged these Australian laws within the World Trade Organization.…”