Benn McGrady has more details on the US trade in tobacco proposal:
through questioning it was possible to get a better sense of what is being proposed. So, this is my (incomplete) understanding of the proposal:
1. There will be some language recognizing the uniquely harmful character of tobacco products.
2. There will be general exceptions in the TPP, along the lines of those in Article XX(b) of the GATT 1994.
3. The proposal would supplement these general exceptions with an exception specific to tobacco control measures. The general idea is that the specific exception should be easier to invoke than the general exception. This would be achieved by using a threshold lower than a necessity test.
4. It is not yet entirely clear what this specific tobacco exception would apply to. The exception would not apply to legislation. The exception would, however, apply to measures implemented by executive bodies, such as the FDA, under a delegated power. The specific exception would apply to national treatment, but would not apply to investor protection obligations.
5. The specific exception would protect the adoption of regulations “that impose origin-neutral, science-based restrictions on specific tobacco products/classes in order to safeguard public health.”
In the briefing, I made the point that the scientific evidence requirements in WTO law are found primarily in the SPS Agreement and are concerned with whether there is scientific evidence of the existence of a risk (as shown through a risk assessment). Here, the proposal appears to suggest that a TPP member would have to show scientific evidence of the effectiveness of the measure, or of the contribution it makes to tobacco control.
-- Does it make sense to have a lower threshold for some exceptions than for others? Perhaps all exceptions should be unified around a clear and acceptable standard?
-- Before Tuna, I would have said that national treatment is probably less in need of an exception than investor protection obligations. But regardless, why no exceptions for investor protection?
-- How much of a role should we be giving to the "effectiveness" of measures? Is this just a way to root out protectionist measures? Or is there a broader goal of achieving effective governance?