Trade and Public Health

, by Mcgrady, Benn

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ISBN: 9781107008410 | 1107008417
Cover: Hardcover
Copyright: 3/31/2011

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This book examines the extent to which the law of the WTO restricts domestic implementation of taxes, restrictions on marketing, product regulation, and labeling measures for public health purposes.

Preface	p. xiii
Abbreviations	p. xv
Intersections between Trade and Noncommunicable Disease	p. 1
Introduction	p. 1
The Importance of Examining the Issues in Greater Detail	p. 14
Tobacco	p. 14
Alcohol	p. 15
Diet	p. 17
Justifications for Government Intervention in Each Area	p. 18
The Approach of This Study	p. 21
Determinacy	p. 22
Balancing Trade and Health	p. 23
Prohibitions and Obligations	p. 27
The Interaction of Different International Instruments and Regimes	p. 28
Outline	p. 29
Limitations	p. 30
Normative Integration: Using Health Instruments in Interpretation of the WTO-Covered Agreements	p. 34
Overview of Relevant Health Instruments	p. 35
Using Health Norms in Interpretation of the WTO-Covered Agreements	p. 38
The Use of Extraneous Rules and Resolutions as Evidence of Facts	p. 38
The Use of Extraneous Instruments without Recourse to an Enabling Rule	p. 39
The Use of Standards under the SPS and TBT Agreements	p. 42
Treaty Rules and Article 31(3)(c) of the Vienna Convention on the Law of Treaties	p. 45
The Article 31(3)(c) Debate	p. 47
Wording and Context	p. 50
The Merits of the Restrictive View	p. 55
The Merits of the Divergent View	p. 59
The Merits of the Broad View	p. 71
Which View Should Be Preferred?	p. 73
Can Either the Divergent or Broad Interpretation Apply in the Context of the WTO?	p. 74
Do Temporal Requirements Prevent the Use of Treaties Such as the FCTC in Interpretation of the WTO Agreement?	p. 76
Conclusion on Article 31(3)(c)	p. 77
Conclusion on Normative Integration	p. 78
Freedom to Use Taxes, Subsidies, and Restrictions on Marketing	p. 80
Price Measures	p. 84
How the Covered Agreements Apply to Tax Measures	p. 87
The First Sentence of Article III:2	p. 91
The Second Sentence of Article III:2	p. 94
Article III:4 and Price Floors	p. 100
The Use of Tariffs to Encourage Healthy Consumption Habits	p. 101
Subsidies to Encourage Production and Consumption of Healthful Goods	p. 103
Differential Taxes and the SCM Agreement	p. 104
Agricultural Subsidies	p. 109
Restrictions on Marketing	p. 112
The GATT and the Impact of Advertising Bans on Tobacco Products	p. 115
Advertising Bans and National Treatment under Article III:4	p. 116
Advertising Bans as Quantitative Restrictions under Article XI:1	p. 118
The GATS	p. 120
The Prohibitive Content of the GATS	p. 122
Specific Commitments	p. 123
Conclusion on Application of the GATS	p. 126
Conclusion	p. 127
Necessity and Regulatory Autonomy under the GATT	p. 130
Overlaps between the Covered Agreements	p. 133
Differential Taxation: Overlaps between the GATT, the Agreement on Agriculture, and the SCM Agreement	p. 133
Advertising: The GATT and the GATS	p. 136
Application of the GATT Necessity Test	p. 136
Measures Necessary to Protect Health	p. 137
Characterizing a Regulatory Goal and the Level of Protection Sought	p. 139
Applying the Necessity Test by Reference to the Various Factors	p. 143
Reasonably Available Alternatives	p. 155
Conclusions on the Necessity Test, Tobacco, Alcohol, and Diet	p. 164
The Requirements of the Chapeau	p. 165
Conclusion	p. 168
Product Regulation and Labeling Measures under the SPS and TBT Agreements	p. 170
Which Types of Measures Is the SPS Agreement Applicable to?	p. 175
Tobacco-Control Measures	p. 176
Alcohol	p. 178
Diet	p. 178
Applying the Requirements of the SPS Agreement to Food Regulation	p. 180
A Positive Requirement of Necessity	p. 181
Risk Assessment, Scientific Principles, and Necessity	p. 184
Basing a Measure on a Risk Assessment	p. 185
Provisional Measures under Article 5.7	p. 187
Inconsistent Approaches to Risk Where Risk Turns Largely on Consumer Behavior	p. 189
Least Trade-Restrictive Means	p. 191
Concluding Observations on Product Regulation under the SPS Agreement	p. 194
Food-Labeling Measures under the SPS Agreement	p. 194
Application of the SPS Agreement to Labeling Measures	p. 195
Application of the TBT Agreement to Labeling Measures, Bans on Flavored Cigarettes, and Alcopops	p. 200
When Is a Technical Regulation Trade Restrictive?	p. 203
Legitimate Objectives	p. 205
Measures That Are More Trade Restrictive Than Necessary	p. 206
Conclusion	p. 213
Reallocating Authority at the International Level: Delegation, Legalization, and Harmonization	p. 215
Delegation	p. 218
Who Should Make the Decisions?	p. 218
Can the Relevant Rules Be Theorized in a More Complete Manner?	p. 221
Case Study: The ôExclusionö of Tobacco from Trade Agreements	p. 222
Case Study: The Grant of a Waiver	p. 225
Conclusion on ôCompletely Theorizingö the Relationship	p. 227
International Legalization	p. 228
Binding and Nonbinding Instruments	p. 229
Conflicts between Treaties	p. 234
The Express Language of the FCTC and WTO Agreement	p. 235
Overlapping Subject Matter	p. 236
Overlapping Parties	p. 242
Timing	p. 242
How Will Any Conflict Be Resolved?	p. 243
Treaties as a Response to Trade Processes	p. 247
Responding to the ôGlobalization of the Tobacco Epidemicö	p. 247
International Cooperation to Solve Collective-Action Problems	p. 249
Liberal Accounts of Government Hand-Tying	p. 251
Conclusions on Why Legalization Occurred in the Tobacco-Control Context	p. 253
Implications for Legalization in the Contexts of Diet and Alcohol	p. 254
International Harmonization	p. 261
Harmonization and Regulatory Autonomy	p. 262
Harmonization in Context	p. 264
The Dietary Context	p. 264
The Tobacco Context	p. 270
The Alcohol Context	p. 271
The Presumptive Value of Treaty Rules	p. 272
Conclusion	p. 274
Conclusion	p. 277
Glossary of Basic Trade Terms	p. 289
Bibliography	p. 293
Index	p. 321
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Trade and Public Health

Summary

Author Biography

Table of Contents

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Trade and Public Health

Summary

Author Biography

Table of Contents

Supplemental Materials

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