10A.9Mechanisms of influence—litigation

Last updated: September 2018     

Suggested citation: George A, Zhou S and Liberman, J. 10A.9 Mechanisms of influence— litigation. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2018. Available from http://www.tobaccoinaustralia.org.au/chapter-10-tobacco-industry/10a-9-the-mechanisms-of-influence-litigation

The tobacco industry has actively initiated litigation against governments to obstruct the implementation of evidence-based, effective tobacco control measures by claiming such measures are unlawful. In domestic contexts, the tobacco industry’s threats and claims are primarily based on the purported infringement of various commercial rights (such as to expression or speech, property and economic freedom). In an international context, the tobacco industry has initiated claims under international investment agreements and, although international trade law governed by World Trade Organization (‘WTO’) Agreements is enforceable only by WTO members, multinational tobacco companies have also been reported to have provided support to complainants to challenge tobacco control measures before the WTO.1

Australian’s plain packaging scheme has faced legal challenges before three fora—an unsuccessful domestic constitutional challenge before the High Court of Australia; an unsuccessful international investment law challenge by Philip Morris Asia (PMA) under a 1993 Hong-Kong—Australia Bilateral Investment Treaty (‘BIT’) and an unsuccessful challenge by Cuba, the Dominican Republic, Honduras and Indonesia before the World Trade Organization. 

For additional information on legal cases initiated by the tobacco industry, please see Section 16.5 and http://untobaccocontrol.org/kh/legal-challenges/    

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1. Martin A. 'Philip Morris leads plain packs battle in Global trade arena'. Bloomberg News.  Last update: 22 August 2013; Viewed 19 December 2016. Available from: http://www.bloomberg.com/news/2013-08-22/philip-morris-leads-plain-packs-battle-in-global-trade-arena.html.