THE AGE OF MEGA-REGIONALS Melbourne Law School 20 May 2016 Paula O Brien REGULATING TO REDUCE ALCOHOL-RELATED HARM AND THE TPP

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Edgar O’Neal’
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1 THE AGE OF MEGA-REGIONALS Melbourne Law School 20 May 2016 Paula O Brien REGULATING TO REDUCE ALCOHOL-RELATED HARM AND THE TPP

2 WHO Global Strategy on Alcohol WHO Global Strategy for the Reduction of the Harmful Use of Alcohol (2010) A harm reduction focus Significant harms from alcohol 5.9% deaths worldwide attributable to alcohol 5.1% of disease and disability worldwide attributable to alcohol Leading cause of death and disability for those aged years globally

3 WHO Global Strategy on Alcohol WHO Global Strategy for the Reduction of the Harmful Use of Alcohol (2010) Regulate the availability of alcohol retail licensing number and density of outlets by geographic area; hours of operation Regulate alcohol marketing including online marketing Price alcohol to reduce harm through taxation and minimum pricing (see Scotland) Label alcoholic beverages to provide consumer information

4 Today s Paper My argument: TPP Annex 8-A does make it significantly more difficult for the type of mandatory alcohol health warnings and label information which the evidence suggests would be most effective in reducing alcohol-related harm. The agreement of the parties to TPP Annex 8-A suggests the level of aversion that governments have to alcohol warnings as a policy measure for addressing alcohol-related harm. Annex 8-A is a win for the global alcohol industry. This is not only because of the legal difficulties it potentially creates for parties wishing to introduce alcohol warning labels, but because Annex 8-A embodies and expresses an acceptance by government that the label space belongs to the producer and the producer s desires for the use of the space should generally prevail over all others.

5 Public Health Proposals for Alcohol Marketing What features should a health warning label have to optimise the chance that it will be effective in changing consumer behaviour? The US scheme is not the model! Studies suggest the following features: Specific and detailed health information Simple, direct, active language Text and symbol Design: large font, colour, size, Placement on front of container Regular rotation

6 US health warning label

7 FARE Proposed Alcohol Labels

8 FARE Proposed Alcohol Labels

9 TPP TBT Chapter TPP TBT Chapter 8 Uses some parts of WTO TBT Agreement Applies to technical regulations (such as mandatory alcohol warning labels): definition of technical regulation from WTO TBT Agreement Annex 1, incorporated by TPP TBT art 8.1 Incorporates art 2.1 and 2.2 from WTO TBT Ag: Less favourable treatment: art 2.1 Unnecessary obstacles to international trade: art 2.2

10 TPP TBT Chapter, Annex 8-A TPP TBT Chapter 8 Annex 8-A: Wine and Distilled Spirits Where a Party requires a supplier to include information on a wine/spirits label, the Party shall permit the supplier to indicate such information on a supplementary label affixed to the distilled spirits container (para 6 (spirits) para 11 (wine)) Arguably, establishes a de facto standard for beer.

11 TPP TBT Chapter, Annex 8-A What is a supplementary label? Not defined in TPP. Generally understood as a label which is added to the standard or principal label. Used to save supplier from having to redesign standard product labels to accommodate different labelling requirements for different countries.

12 TPP Health-related Provisions

13 TPP TBT Chapter, Annex 8-A Potential Breaches Annex 8-A makes it much more difficult but not necessarily legally impossible - for a TPP Party to introduce an alcohol health warning and information scheme such as outlined above. Why? Scenario 1: if Australia insisted that suppliers incorporate a health warnings of a specific design onto the front of their principal label = breach of Annex 8-A. Possible that public health exception incorporated from art XX(b) GATT into TTP art 29.1 may assist.

14 TPP TBT Chapter, Annex 8-A Potential Breaches Annex 8-A makes it much more difficult but not necessarily legally impossible - for a TPP Party to introduce an alcohol health warning and information scheme such as outlined above. Why? Scenario 2: Australia allows supplementary labels but sets down design and placement requirements for the label: Is Australia even permitted to prescribe such matters? Paras 6 and 11 of Annex 8-A state that a party may require that the information indicated on a supplementary label be clear, specific, truthful, accurate, legible, not misleading to the consumer, and firmly affixed to the container. Does this express permission imply that there is no permission to do related but unmentioned acts? Public health exception?

15 TPP TBT Chapter, Annex 8-A Potential Breaches Annex 8-A makes it much more difficult but not necessarily legally impossible - for a TPP Party to introduce an alcohol health warning and information scheme such as outlined above. Why? Scenario 3: Australia allows supplementary labels but sets down design and placement requirements for the label: The design and placement standards constitute a de facto prohibition on supplementary labels. Impossible to comply with standards and use a supplementary label. Public health exception?

16 TPP TBT Chapter, Annex 8-A Potential Breaches Public health exception from GATT art XX(b) incorporated by TPP art Provides leeway for labelling measures. Assuming GATT jurisprudence applies, issues include: Justification for labelling prescriptions: large, front of pack labels Less trade-restrictive measures: the more difficult issue because of ambivalent evidence about effectiveness and possibility of using other less intrusive information dissemination strategies.

17 TPP TBT Chapter, Annex 8-A Potential Breaches Public health exception from GATT art XX(b) incorporated by TPP art Provides leeway for labelling measures. Assuming GATT jurisprudence applies, issues include: Justification for labelling prescriptions: large, front of pack labels Less trade-restrictive measures: the more difficult issue because of ambivalent evidence about effectiveness and possibility of using other less intrusive information dissemination strategies.

18 Significance of Annex 8-A Indicative of a policy view within TPP Parties that prominent, front of container health warnings, should not be used to deal with the risks associated with alcohol use. A rejection of WHO Global Strategy recommendation. Potential for future trade obligations. Eg TTIP. Consistent with indications in other international fora, but TTP brings aspiration closer to reality. WTO TBT Committee: 9/12 alcohol matters relate to labelling Aust, NZ, US, Mexico, Chile (and EU) main actors World Wine Trade Group Agreement

19 Significance of Annex 8-A A win for global alcohol industry. Industry put on front foot in relation to proposals for alcohol warning labels. Technical rules in industry s favour. But also the rules embody a concession that the label space largely belongs to the producer. The producer has a right to control the space and the messages it conveys and that little can be asked of a producer in terms of the space accommodating messages sought by other groups, including government, consumers or other interest groups.

20 Copyright The University of Melbourne 2011

WHO Framework Convention on Tobacco Control

WHO Framework Convention on Tobacco Control When WHO was established in 1948, its Member States incorporated the power to negotiate treaties into its Constitution. This power remained dormant until 1996,