Addressing the Issue of Trade in Services and Public Health in the Case of Tobacco : Are the FCTC Restrictions on Tobacco Advertising Inconsistent with the GATS?

In spite of popular scepticism about the impacts of Wto disciplines on the application of the Framework Convention on Tobacco Control (Fctc), in this article the author argues that the General Agreement on Trade in Services (Gats) specifically does not preclude the Parties to the Fctc from adopting tobacco advertising restrictions as a tobacco control measure, reflecting to a certain extent that domestic regulation on the curb of tobacco consumption and services trade liberalization in advertising may co-exist. Tobacco advertising restrictions in any form prompted by the Fctc, by their very nature, in the author's view, would be restrictions on the contents of an advertisement undertaken by the advertisers. Such restrictions, on the one hand, are irrelevant to the restrictions on trade in advertising services covered by Gats Article xvi on market access; on the other hand, they are not concerns related to the manner in which the advertising service will be performed, as contained in technical standards under Article vi on domestic regulation. Wto Members are explicitly recognized to enjoy regulatory autonomy in services under the Gats. This suggests that tobacco advertising restrictions could be adopted for public health purposes by Members without a violation of specific commitments for trade in advertising services