Trade law and effective electronic cigarette regulation design

This special communication provides recommendations for policymakers on how to regulate electronic cigarettes (e-cigarettes) without violating international trade rules. Concerns are increasing that e-cigarette consumption poses serious harms to health, prompting a recent call to action from the WHO for regulations to lower the appeal of e-cigarettes and address the threat they pose to global populations. Despite this call, no agreement on an appropriate regulatory approach has been reached between the parties to the WHO Framework Convention on Tobacco Control or in any other multilateral forum. In the absence of multilateral consensus, states have implemented a diverse range of frameworks, including restrictions on packaging, marketing and advertising of e-cigarettes, stringent product standards or even bans on e-cigarettes, sometimes with exceptions for use as a tobacco smoking cessation aid. There is a risk that some of these approaches may be challenged as a restriction of rights that are protected in World Trade Organization agreements, including the Agreement on Technical Barriers to Trade, the General Agreement on Tariffs and Trade and the Agreement on Trade-Related Aspects of Intellectual Property Rights. The authors explain how different types of e-cigarette regulations engage protection under international trade rules and offer recommendations for how states can formulate public health justifications that ensure these regulations do not breach international trade rules. The authors also recommend that states work toward international consensus or guidelines, which can support the legitimacy of e-cigarette regulations in the event of a challenge.