I. The FCTC and the Problem of the Legal Status of the Guidelines

In a few decades, cigarettes have passed from being a symbol of wealth and power to being one of the most regulated and litigated products in modern societies. In this context, the importance of the Framework Convention on Tobacco Control (FCTC) can hardly be underestimated.Footnote ¹ It has been ratified by 180 Parties,Footnote ² and has become “one of the most rapidly and widely embraced treaties in United Nations history”.Footnote ³ Since its conclusion, many more Governments have enacted laws mandating strict tobacco control measures.

Nevertheless, the FCTC has not managed to halt the litigation strategy adopted by the tobacco industry (and by the States who support the industry). The States who have enacted some of the strictest tobacco control measures have been challenged before domestic and international courts. While litigation of tobacco control measures is nothing new,Footnote ⁴ what changes is that now the FCTC can play a role in the defence of these measures. However, its critical role is made more complicated by its complex structure, and specifically by the legal uncertainty surrounding its Guidelines.

As its name says, the FCTC is a “framework convention”. The Conference of the Parties is the key organ entrusted with advancing and developing its obligations. To this end, it has used two main instruments: Protocols and Guidelines. Although the text of the FCTC stresses much more the role of the Protocols than that of the Guidelines, in the practice the latter have been the key tool in the development of the “framework convention”.Footnote ⁵ Nonetheless, while the adoption of the Guidelines may be easier and quicker, the assessment of their legal value is proving much more complicated. Critically, it is not yet clear to what extent they should be considered binding on States. This issue has been widely discussed in the literature.Footnote ⁶

The question of the legal value of the Guidelines is not only theoretical, but it concretely affects the many current legal disputes in which tobacco control measures have been challenged. Many States are now adopting very advanced and extreme tobacco control measures. Many of these measures go beyond the provisions of the FCTC, but can instead be found in the text of the Guidelines. It follows that for a State to successfully defend its tobacco control measures it would need to demonstrate that they are required and not just suggested by the Guidelines. With the uncertainty surrounding their legal status, it is important to point out that the relevance of the Guidelines encompasses also the scientific realm. In the words of the WHO foreword, the FCTC is an “evidence-based treaty”.Footnote ⁷ As will be shown below, the scientific basis of the FCTC has proved very important in the context of adjudication, for the scientific value has become evidential value.

The most well-known case in which the Guidelines are relevant is certainly the so-called “Plain Packaging” case, in which Australia has been challenged before the World Trade Organization (WTO) and before an investment tribunal for having adopted laws mandating that all cigarettes are sold in standardised, non-appealing packages. Plain packaging is not explicitly mentioned in the text of the FCTC, but it is mentioned in the Guidelines to Article 11Footnote ⁸ and the Guidelines to Article 13.Footnote ⁹ While the investment tribunal found in December 2015 that it had no jurisdiction ratione personae on the case,Footnote ¹⁰ the WTO proceedings are still ongoing.Footnote ¹¹

II. The Relevance of the Guidelines in International Disputes: Some Recent Cases

In the meantime, however, several other international tribunals have issued judgments in which they have assessed the value of the FCTC Guidelines. The most recent and relevant ones are listed below. At the outset, it should be noted that any comparisons between these judgments should be made carefully. The judgments are rendered in different legal contexts and with regard to different tobacco control measures. Moreover, the Guidelines are not homogeneously worded, and thus can be interpreted differently.Footnote ¹² Nonetheless, if taken with a pinch of salt, such comparisons could still be helpful in understanding the current opinion on the value of these Guidelines. As it has been widely reported, international tribunals are not isolated, but have been engaging more and more in dialogue and cross-fertilisation:Footnote ¹³

• ∙ in 2010 the European Free Trade Association Court (the EFTA Court) was requested by the Oslo District Court to give an advisory opinion on the legality of a new tobacco control measure enacted by Norway – the prohibition of visible display of tobacco products.Footnote ¹⁴ While Article 13 of the FCTC mandates a comprehensive advertising ban, only the Guidelines to Article 13 specifically mention the display ban;Footnote ¹⁵

• ∙ in 2010 Indonesia filed a complaint at the WTO against the United States for having put in place an allegedly discriminatory ban on flavoured cigarettes.Footnote ¹⁶ Although neither Indonesia nor the US were party to the FCTC (the US had only signed it, but not ratified), both parties recognised the relevance of the Guidelines to the case and mentioned them in their submissions.Footnote ¹⁷ Indeed, the FCTC Guidelines to Articles 9 and 10 recommend regulating ingredients as a way to reduce tobacco product attractiveness;Footnote ¹⁸

• ∙ in 2014, the Court of Justice of the European Union (CJEU) was asked to review the legality of the tobacco control measures provided by new Directive 2014/40.Footnote ¹⁹ Two cases published on 4 May 2016 dealt extensively with the FCTC and the Guidelines.Footnote ²⁰ Among the many claims, two of the challenged provisions mandated the adoption of tobacco control measures that were not provided in the text of the FCTC, but rather in two sets of Guidelines: the prohibition of the placing on the market of the products with a characterising flavour,Footnote ²¹ and the provision that health warnings should cover 50% or more of the principal display areas of the unit packets;Footnote ²²

• ∙ in 2010, Philip Morris filed a case before the International Centre for Settlement of Investment Disputes (ICSID) under the Switzerland-Uruguay Bilateral Investment Treaty. The final award for this case has been published on 8 July 2016.Footnote ²³ The dispute concerned two tobacco control measures recently adopted by Uruguay: the “single presentation requirement” (SPR, prohibiting the sale of different packaging for cigarettes by a single brand) and an increase in the size of health warnings from 50% to 80% of each package. It should be noted that none of these measures is explicitly foreseen in the FCTC or in the Guidelines.Footnote ²⁴

A brief analysis of these decisions shows that the Guidelines to the FCTC are increasingly relevant in international litigation. In the first years, they were almost neglected by the EFTA Court,Footnote ²⁵ while being considered of “special evidential value” by a WTO Panel.Footnote ²⁶ More recently, they have been the main and only piece of evidence considered by the CJEU.Footnote ²⁷ The ICSID case is a bit different because the challenged measures were not explicitly foreseen by the Guidelines. Notwithstanding, the Guidelines still seem to have had a key role in the analysis of the Tribunal.Footnote ²⁸

III. Conclusions

The choice of the WTO Panel, of the CJEU and of the ICSID tribunal to leave aside the debate on the legal effects of the Guidelines, and instead to fully embrace their evidential value can only be welcome. Evidence is possibly the biggest challenge that these cases pose,Footnote ²⁹ and thus any help in reducing the complexity of the analysis for the adjudicators should certainly be favoured. Against this context, some questions remain unanswered. The first is whether the Guidelines should be the only evidence considered to justify a tobacco control measure (as in the judgments by the CJEU), or whether they should be complemented with additional evidence. The WTO Panel and the ICSID Tribunal took the latter approach, but this could be due to the specific circumstances of the cases (in the WTO case none of the parties was party to the FCTC, while in the ICSID case the challenged measures were not explicitly foreseen by the Guidelines).

The second question is whether the absence of a specific tobacco control measure in the Guidelines should be considered evidence that a measure is not necessary or appropriate, as suggested in the dissenting opinion in the ICSID case. As pointed out above, the SPR measure is neither foreseen by the FCTC nor by the Guidelines at all. In upholding its appropriateness, the Tribunal could only recall the general obligation that Article 11(1)(a) of the FCTC requires States to adopt measures to prevent “the false impression that a particular tobacco product is less harmful than other tobacco products”.Footnote ³⁰ The interesting point in this case is that the absence of a specific reference to the SPR in the Guidelines was used by the claimants as evidence that the measure was not appropriate. This claim was eventually shared by the arbitrator Gary Born in a dissenting opinion written to defend the view that the SPR measure is in breach of the fair and equitable treatment requirement.Footnote ³¹ The implications of this approach are manifold. First, the argument that a measure is not appropriate because it is not mentioned in the Guidelines is clearly at odds with the argument that a measure is not appropriate even though it is mentioned in the Guidelines. In making this argument, the claimants seem to have implicitly conceded that the Guidelines are relevant in assessing whether a measure is appropriate and necessary or not. Second, if this special relevance is recognised by all the parties, it also means that when drafting the Guidelines States should be particularly careful to include all the possible tobacco control measures, to ensure that the instruments designed to help them defend their policies will not be used against them.