The Legitimacy Of The Tobacco Plain Packaging Act Under The Framework Of WTO

The World Health Organization Framework Convention on Tobacco Control(FCTC),which came into force in 2005,called on its members to adopt a variety of tobacco control measures to deal with the public health problems caused by the tobacco epidemic,and the guidelines for implementing the FCTC subsequently recommended that parties consider adopting Tobacco Plain Packaging(TPP)act.In 2012,Australia became the first country to implement the TPP act.Subsequently,Ireland,the United Kingdom,France and other countries have issued their acts.The act,which requires tobacco products to be packed in standardized and plain form,was designed to reduce the appeal of tobacco to consumers and control its sales,but the introduction of the bill has caused a series of legal disputes.A number of World Trade Organization disputes and private lawsuits between governments and big tobacco companies have raised questions about the legality of TPP and legal conflicts between trademark rights,free trade and public health rights.The purpose of this paper is to discuss the legitimacy of the TPP act under the framework of WTO agreements,so as to balance the contradiction between the development of tobacco industry and intellectual property rights,free trade and public health,and to analyze the feasibility of introducing the law in China..This paper involves three parts except the conclusion:The first part is the first chapter,mainly introduces the situation of TPP and its conflicts.The first section briefly describes the evolution and development of TPP,and introduces the background of the emergence of the global tobacco control movement and the adoption of the FCTC.The second section introduces the legal conflicts faced by the TPP.By summarizing these cases and listing the controversial issues,it reveals the main contradiction between the trademark right,free trade and public health.The second part is chapter two and chapter three,which is the main part of this paper.It mainly analyzes the legal issues related to the Australian Tobacco Plain Packaging Act(TPPA)submitted by Ukraine and other four countries to the WTO Dispute Settlement Body(DSB)for consultation.By analyzing the appeal of the complainant and the defense,combining the research results of scholars on the case and the conclusive opinions of DSB,it is valuable to analyze the conditions and boundaries of the restrictions of public health on the use of trademarks and the freedom of trade.Chapter Two mainly discusses the compliance of TPP measures under TRIPS.Section One demonstrates that the TPP measures may lead to discriminatory consequences,but do not cause unfair competition;Section Two discusses that although TPPA belongs to the "special requirements" in TRIPS,it does not constitute the obstacle of "unjustifiable special requirements".Section Three analyzes that although the TPP measures restrict the use of tobacco trademarks,they do not block trademark registration.Section Four discusses that the TPPA does not violate the provisions of TRIPS concerning the protection of the exclusive rights of trademark holders,Australia has no obligation to protect the right to use trademarks.The Chapter Three discusses whether the TPPA violates the relevant provisions of the TBT.Section One demonstrates that the TPP act does not discriminate against foreign tobacco products,and it meets the requirements of national treatment in WTO rules.Section Two proves that the restriction of TPPA on trade does not exceed the necessary limit to achieve the legitimate goal.Section Three has carried on the necessity test to the TPPA;Section Four explains that FCTC and its implementation rules can be used as evidence to support TPPA measures.The third part is the fourth chapter,which pointed out that although the TPPA does not violate the rules of the WTO agreements with compliance,because of the measures is not legally binding and according to the current situation of China's tobacco control which is not ideal,it is not suitable for introducing the law.Then the paper puts forward the application principle and path of FCTC in China,proposes the introduction of the act of tobacco sales control through packaging,and especially analyzes the implementation path of relevant measures in the FCTC in China.