WT/DS435/R, WT/DS441/R  
WT/DS458/R, WT/DS467/R  
 
28 June 2018  
(18-4061) Page: 1/884  
  Original: English  
 
 
 
 
AUSTRALIA – CERTAIN MEASURES CON CERNING TRADEMARKS, 
GEOGRAPHICAL INDICAT IONS AND OTHER PLAIN  PACKAGING 
REQUIREMENTS APPLICA BLE TO TOBACCO PRODU CTS AND PACKAGING  
REPORT S OF THE PANEL S 
 
 
SCI redacted , as indicated  [[***]]  
 
 
 
 
 
Note:  
These Panel Reports are in  the form of a single document constituting four separate Panel Reports: 
WT/DS435/R, WT/DS441/R, WT/DS458/R,  and WT/DS467/R. The cover page, preliminary pages, 
sections 1 through 7, appendices, and  annexes are common to all four Panel Reports. The page 
header throughout the document bears the f our document symbols WT/DS435/R, WT/DS441/R, 
WT/DS458/R,  and WT/DS467/R, with the following excep tions: section 8 on page HND -872, which 
bears the document symbol for and contains the Panel's conclusions and recommendations in the 
Panel Report WT/DS435/R; secti on 8 on page DOM -872, which bears the document symbol for and 
contains the Panel's conclusions and recommendation s in the Panel Report  WT/DS44 1/R; section 8 
on pages CUB -872 – CUB-873, which bears the document symbol for and contains the Panel's 
conclusions and recommendations in the Panel Report WT/DS458/R ; and section 8 on page 
IDN-872, which bears the document symbol for and  contains the Panel's conclusions and 
recommendations in the Panel Report WT/DS467/R.  The appendices and t he annexes, which are 
part of the Panel Reports, are circulated in separate documents: WT/DS435/R /Supp l.1, 
WT/DS441/R /Supp l.1, WT/DS458/R /Supp l.1, WT/DS467/R /Supp l.1 (appendices); and  
WT/DS435/R/Add.1, WT/DS441 /R/Add.1, WT/DS458/R/Add.1, WT/DS467/R/Add.1 (annexes) . 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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TABLE OF CONTENTS  
 
LIST OF APPENDICES  ................................ ................................ ................................ ..... 13 
LIST OF ANNEXES  ................................ ................................ ................................ ..........  14 
LIST OF TABLES  ................................ ................................ ................................ .............  15 
LIST OF FIGURES  ................................ ................................ ................................ ...........  15 
MAIN ABBREVI ATIONS USED IN THESE  REPORTS  ................................ ..........................  16 
MAIN EXHIBITS CITED IN THESE REPORTS  ................................ ................................ .... 20 
MAIN CASES CITED IN THESE REPORTS  ................................ ................................ .........  54 
1   INTRODUCTION  ................................ ................................ ................................ ........  63 
1.1   Complaint by Honduras  ................................ ................................ ............................... 63 
1.2   Complaint by the Dominican Republic  ................................ ................................ ........... 63 
1.3   Complaint by Cuba  ................................ ................................ ................................ .....63 
1.4   Complaint by Indonesia  ................................ ................................ ............................... 63 
1.5   Panel establishment and composition  ................................ ................................ ............ 63 
1.5.1    Honduras  ................................ ................................ ................................ ................ 63 
1.5.2    Dominican Republic  ................................ ................................ ................................ ..64 
1.5.3    Cuba ................................ ................................ ................................ ...................... 64 
1.5.4    Indonesia  ................................ ................................ ................................ ............... 65 
1.5.5    Procedural agreement between Australia, Ukraine, Honduras, the Dominican 
Republic, Cuba, and Indonesia  ................................ ................................ ............................. 65 
1.6   Panel proceedings  ................................ ................................ ................................ .......66 
1.6.1    General  ................................ ................................ ................................ .................. 66 
1.6.2    Preliminary rulings on the Panel's terms of reference  ................................ ................... 67 
1.6.3    Working procedures on stri ctly confidential information (SCI)  ................................ ........ 68 
1.6.4    Requests for enhanced third -party rights  ................................ ................................ ....68 
1.6.5    Amicus curiae  submissions  ................................ ................................ ........................ 68 
1.6.6    Suspension of the proceedings and lapse of authority in DS434  ................................ .....70 
1.6.7    Requests for information under Article  13 of the  DSU ................................ ................... 71 
1.6.7.1    Request for information from the WHO and the FCTC Secretariat  ................................ 71 
1.6.7.2    Request for information from the International Bureau of WIPO  ................................ ..72 
1.6.7.3    Data requests by the parties  ................................ ................................ .................. 73 
1.6.7.3.1    Requests by Australia in relation to evidence submitted by the Dominican 
Republic and Ukrainein the context of their first written submissions  ................................ ........ 73 
1.6.7.3.2    Requests by Ukraine and the Dominican Republic in relation to evidence 
submitted by Australia in the context of its fi rst written submission  ................................ .......... 74 
1.6.7.3.3    Additional data requests  ................................ ................................ ...................... 81 
1.6.8    Evidence and arguments presented subsequent to the comments on responses to 
questions following the second substantive meeting  ................................ ............................... 83 
1.6.8.1    Additional comments relating Dr Chipty's Third Rebuttal Report  ................................ ..83 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.6.8.2    Additional comments relating to Australia's Post -Implementation Review  ..................... 84 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 84 
2.1   The measures at issue  ................................ ................................ ................................ 84 
2.1.1    Preparation, adoption, and entry into force of the TPP  measures  ................................ ....85 
2.1.2    The TPP  measures  ................................ ................................ ................................ ...87 
2.1.2.1   Introduction  ................................ ................................ ................................ ......... 87 
2.1.2.2    "Objects" of the TPP  Act ................................ ................................ ......................... 88 
2.1.2.3    Requirements for retail packaging of tobacco products  ................................ .............. 89 
2.1.2.3.1    Physical features of retail packaging  ................................ ................................ .....90 
2.1.2.3.2    Colour and finish of retail packaging  ................................ ................................ .....90 
2.1.2.3.3    Trademarks and other marks on retail packa ging ................................ ................... 91 
2.1.2.3.4    Wrappers  ................................ ................................ ................................ .......... 92 
2.1.2.3.5    Inserts and onserts  ................................ ................................ ............................ 93 
2.1.2.3.6    Other requirements concerning retail packaging  ................................ ..................... 93 
2.1.2.3.7    Summary of requirements on retail packaging  ................................ ....................... 93 
2.1.2.4    Requirements for the appearance of tobacco products  ................................ ............... 98 
2.1.2.4.1    Requirements with respect to cigarettes  ................................ ................................ 98 
2.1.2.4.2    Requirements with respect to cigars  ................................ ................................ .....99 
2.1.2.4.3    Summary of requirements on the appearance of tobacco products  ........................... 99 
2.1.2.5    Section 28 of the TPP  Act ................................ ................................ .....................  100 
2.1.2.6    Offences and civil penalties  ................................ ................................ ..................  100 
2.1.2.7    Relationship with other legislation  ................................ ................................ .........  101 
2.1.2.8    The TMA Act  ................................ ................................ ................................ ....... 102 
2.1.2.9    Regulatory impact analysis  ................................ ................................ ...................  103 
2.2   Other tobacco control -related measures in Australia  ................................ .....................  104 
2.2.1    Mandatory text and GHWs  ................................ ................................ ......................  104 
2.2.2    Restrictions on advertisement and promotion of tobacco products ................................  105 
2.2.3    Taxation measures  ................................ ................................ ................................ . 106 
2.2.4    Restrictions on the sale of tobacco products  ................................ ..............................  107 
2.2.5    Other measures  ................................ ................................ ................................ ..... 109 
2.3   Protection of trademarks and GIs in Australia  ................................ ...............................  110 
2.4   The FCTC ................................ ................................ ................................ .................  114 
2.4.1    Background ................................ ................................ ................................ ...........  114 
2.4.2    Structure and governance  ................................ ................................ .......................  114 
2.4.3    Selected provisions of the FCTC  ................................ ................................ ...............  115 
2.4.4    FCTC Guidelines  ................................ ................................ ................................ .... 118 
2.4.5   FCTC provisions concerning the r elationship between the FCTC and other 
international agreements and bodies  ................................ ................................ ..................  119 
3   PARTIES' R EQUESTS FOR FINDINGS  AND RECOMMENDATIONS  ..............................  119  
3.1   Honduras (DS435)  ................................ ................................ ................................ .... 119 
3.2   Dominican Republic (DS441)  ................................ ................................ ......................  120 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  3.3   Cuba (DS458)  ................................ ................................ ................................ ..........  120 
3.4   Indonesia (DS467)  ................................ ................................ ................................ ... 121 
3.5   Australia  ................................ ................................ ................................ ..................  121 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ .................  122  
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ...... 122  
6   INTERIM REVIEW  ................................ ................................ ................................ .... 122  
6.1   Introduction  ................................ ................................ ................................ .............  122 
6.2   Requests for review of section 7.1    (Order of Analysis)  ................................ .................  123 
6.3   Requests for review of section 7.2.5.1    (Whether the TPP  measures pursue a 
"legitimate objective")  ................................ ................................ ................................ ...... 123 
6.4   Requests for review of section 7.2.5.2    (Whether the TPP measures are "in 
accordance with relevant international standards" under Article 2.5 (second sentence))  ...........  123 
6.5   Requests for review of section 7.2.5.3    (The degree of contribution of the TPP 
measures to their objective)  ................................ ................................ ..............................  124 
6.6   Requests for review of section 7.2.5.3.5.2    (First mechanism: impact of plain 
packaging on the appeal of tobacco products to consumers) ................................ ..................  127 
6.7   Requests for review of section 7.2.5.3.5.3    (Second mechanism: impact of the TPP 
measures on the effectiveness of graph ic health warning)  ................................ .....................  128 
6.8   Requests for review of section 7.2.5.3.5.4    (Third mechanism: reducing the ability 
of the pack to m islead consumers about the harmful effects of smoking)  ................................  128 
6.9   Requests for review of section 7.2.5.3.7    (Impact of the TPP me asures on illicit 
trade)  ................................ ................................ ................................ .............................  129 
6.10   Requests for review of section 7.2.5.4    (The trade -restrictiveness of the TPP 
measures) ................................ ................................ ................................ .......................  129 
6.11   Requests for review of section 7.2.5.5.2.2    (The gravity of the consequences of 
non-fulfilment)  ................................ ................................ ................................ ................  130 
6.12   Requests for review of section 7.2.5.6.1    (Whether less trade -restrictive 
alternative measures are reasonably available to Australia: Approa ch of the Panel)  ..................  130 
6.13   Requests for review of section 7.2.5.6.2    (First proposed alternative measure: 
Increase in the MLPA)  ................................ ................................ ................................ ....... 130 
6.14   Requests for review of section 7.2.5.6.3    (Second proposed alternative measure: 
Increased taxation of tobacco products)  ................................ ................................ ..............  131 
6.15   Requests for review of s ection 7.3.2    (Article 15.4 of the TRIPS Agreement)  .................  132 
6.16   Requests for review of section 7.3.3    (Article 16.1 of the TRIPS Agreement)  .................  132 
6.17   Requests for review of s ection 7.3.5    (Article 20 of the TRIPS Agreement)  ....................  134 
6.18   Requests for review of s ection 7.3.6    (Article 10 bis of the Paris Convention 
(1967), as incorporated by Article 2.1 of the TRIPS Agreement)  ................................ ............  136 
6.19   Requests for review of the Appendices  ................................ ................................ ...... 136 
7   FINDINGS  ................................ ................................ ................................ ...............  138  
7.1   Order of analysis  ................................ ................................ ................................ ...... 138 
7.2   Article  2.2 of the TBT  Agreement  ................................ ................................ ................  140 
7.2.1    Overview of the claims  ................................ ................................ ...........................  141 
7.2.2    Overall approach of the Panel  ................................ ................................ ..................  142 
7.2.3    Applicability of the TBT  Agreement to measures relating to trademarks  ........................  147 
7.2.3.1    Main arguments of the parties  ................................ ................................ ..............  147 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.3.2    Arguments of the third parties  ................................ ................................ ..............  149 
7.2.3.3    Analysis by the Panel  ................................ ................................ ...........................  153 
7.2.4    Whether the TPP  measures constitute a technical  regulation within the meaning of 
Annex  1.1 of the TBT  Agreement  ................................ ................................ .......................  163 
7.2.4.1    Whether the TPP  measures apply to an identifiable group of products  ........................  164 
7.2.4.1.1    Main arguments of the parties  ................................ ................................ ...........  164 
7.2.4.1.2    Analysis by the Panel  ................................ ................................ ........................  165 
7.2.4.2    Whether the TPP  measures lay down one or more product characteristics  ..................  168 
7.2.4.2.1    Main arguments of the parties  ................................ ................................ ...........  168 
7.2.4.2.2    Analysis by the Panel  ................................ ................................ ........................  171 
7.2.4.3    Whether compliance w ith the TPP  measures is mandatory  ................................ ........  177 
7.2.4.3.1    Main arguments of the parties  ................................ ................................ ...........  177 
7.2.4.3.2    Analysis by the Panel  ................................ ................................ ........................  178 
7.2.4.4    Overall conclusion  ................................ ................................ ...............................  180 
7.2.5    Whether the TPP  measures are "more trade -restrictive than necessary to fulfil a 
legitimate objective" within the meaning of Article  2.2 ................................ ..........................  182 
7.2.5.1    Whether the TPP  measures pursue a "legitimate objective"  ................................ ...... 184 
7.2.5.1.1    The objective of the TPP measures  ................................ ................................ ..... 185 
7.2.5.1.1.1    Main arguments of the parties  ................................ ................................ .........  186 
7.2.5.1.1.2    Analysis by the Panel  ................................ ................................ .....................  188 
7.2.5.1.2    Whether the obje ctive pursued by Australia through the TPP  measures is a 
"legitimate objective" within the meaning of Article  2.2 ................................ ........................  195 
7.2.5.2    Whether the TPP  measures are "in accordance with relevant international 
standards" under Article  2.5 (second sentence)  ................................ ................................ ... 197 
7.2.5.2.1    Overview of the arguments of the parties  ................................ ............................  197 
7.2.5.2.2    Approach of the Panel  ................................ ................................ .......................  199 
7.2.5.2.3    Whether the Article  11 and  Article  13 FCTC Guidelines constitute "relevant 
international standards"  ................................ ................................ ................................ .... 200 
7.2.5.2.3.1    The notion of "relevant international standards" in Article  2.5 (second 
sentence)  ................................ ................................ ................................ ........................  200 
7.2.5.2.3.2    Whether the Article  11 and  Article  13 FCTC Guidelines constitute a 
"standard" for tobacco plain packaging within the meaning of Annex 1.2 of the 
TBT Agreement  ................................ ................................ ................................ ................  210 
7.2.5.2.4    Overall conclusion on whether the Article  11 and  Article  13 FCTC Guidelines 
are "relevant international standards" and whether the TPP  measures ar e "in accordance 
with" these Guidelines under Article  2.5 (second sentence)  ................................ ...................  245 
7.2.5.3    The degree of contribution of the TPP  measures to their objective  .............................  253 
7.2.5.3.1    Overview of the parties' arguments  ................................ ................................ .... 253 
7.2.5.3.2    Main arguments of the third parties  ................................ ................................ .... 261 
7.2.5.3.3    Approach of the Panel and structure of the analysis  ................................ ..............  267 
7.2.5.3.4    Access to data and probative value of certain evidence  ................................ .........  274 
7.2.5.3.5    Design, structure and operation of the measures  ................................ .................  276 
7.2.5.3.5.1    Critique of the "plain packaging literature" (TPP  literature)  ................................ . 276 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.3.5.2    First mechanism: impact of plain packaging on the appeal of tobacco 
products to consumers  ................................ ................................ ................................ ..... 312 
7.2.5.3.5.3    Second mechanism: impact of the TPP  measures on the effectiveness of 
GHWs  ................................ ................................ ................................ .............................  352 
7.2.5.3.5.4    Third mechanism: reducing the ability of the pack to mislead consumers 
about the harmful effects of smoking ................................ ................................ ..................  377 
7.2.5.3.5.5    Overall conclusion on evidence relating to the design, structure and 
operation of the TPP  measures  ................................ ................................ ..........................  391 
7.2.5.3.6    Evidence relating to the application of the TPP  measures  ................................ ....... 392 
7.2.5.3.6.1    Impact of the TPP  measures on "proximal" outcomes (appeal of tobacco 
products, effectiveness of GHWs and ability of the pack to mislead)  ................................ ....... 394 
7.2.5.3.6.2    Impact of the TPP  measures on quitting -related outcomes and other distal 
outcomes  ................................ ................................ ................................ ........................  398 
7.2.5.3.6.3    Impact of the TPP  measures on smoking behaviours  ................................ ..........  400 
7.2.5.3.6.4    Overall conclusion on evidence relating to the application of the 
TPP measures since their entry into force  ................................ ................................ ............  404 
7.2.5.3.7    Impact of the TPP  measures on illicit trade  ................................ ..........................  405 
7.2.5.3.7.1    Main arguments of the parties  ................................ ................................ .........  405 
7.2.5.3.7.2    Analysis by the Panel  ................................ ................................ .....................  406 
7.2.5.3.8    Overall conclusion on the degree of contribution of the TPP  measures to 
Australia's objective  ................................ ................................ ................................ .........  415 
7.2.5.4    The trade -restrictiveness of the TPP  measures  ................................ ........................  419 
7.2.5.4.1    Meaning of the term "trade -restrictive" in Article  2.2 ................................ ............  419 
7.2.5.4.1.1    Main arguments of the parties  ................................ ................................ .........  419 
7.2.5.4.1.2    Main arguments of the third parties  ................................ ................................ . 423 
7.2.5.4.1.3    Analysis by the Panel  ................................ ................................ .....................  427 
7.2.5.4.2    Application to the TPP  measures  ................................ ................................ ........  431 
7.2.5.4.2.1    Main arguments of the parties  ................................ ................................ .........  431 
7.2.5.4.2.2    Main arguments by the third parties  ................................ ................................  448 
7.2.5.4.2.3    Analysis by the Panel  ................................ ................................ .....................  450 
7.2.5.5    The nature and gravity of the "risks of non -fulfilment"  ................................ .............  473 
7.2.5.5.1    Main arguments o f the parties  ................................ ................................ ...........  474 
7.2.5.5.2    Analysis by the Panel  ................................ ................................ ........................  480 
7.2.5.5.2.1    Nature of the risks  ................................ ................................ .........................  481 
7.2.5.5.2.2    The gravity of the consequences of non -fulfilment  ................................ .............  483 
7.2.5.5.2.3    Conclusion on the nature of the risks that non -fulfilment would create and 
gravity of their consequences  ................................ ................................ ............................  488 
7.2.5.6    Whether less trade -restrictive alternative measures are reasonably available to 
Austra lia ................................ ................................ ................................ .........................  489 
7.2.5.6.1    Approach of the Panel  ................................ ................................ .......................  489 
7.2.5.6.1.1    Main arguments of the parties  ................................ ................................ .........  489 
7.2.5.6.1.2    Analysis by the Panel  ................................ ................................ .....................  497 
7.2.5.6.2    First proposed alternative measure: Increase in the MLPA  ................................ ..... 503 
7.2.5.6.2.1    Description of the proposed measure  ................................ ...............................  504 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.6.2.2    Whether an increase in the MLPA to 21 years is an alternative measure  ...............  504 
7.2.5.6.2.3    Whether an increase in the MLPA to 21 years would be less trade -restrictive 
than the TPP  measures  ................................ ................................ ................................ ..... 505 
7.2.5.6.2.4    Whether an increase in the MLPA would ma ke an equivalent contribution to 
Australia's objective  ................................ ................................ ................................ .........  508 
7.2.5.6.2.5    Whether an increase in the MLPA is a measure reasonably available to 
Australia  ................................ ................................ ................................ .........................  520 
7.2.5.6.2.6    Overall conclusion on an increased MLPA as an alternative to the 
TPP measures  ................................ ................................ ................................ ..................  520 
7.2.5.6.3    Second proposed alternative measure: Increased taxation of tobacco products  ........  521 
7.2.5.6.3.1    Description of the proposed measure  ................................ ...............................  521 
7.2.5.6.3.2    Whether increased taxation is an alternative measure  ................................ ........  521 
7.2.5.6.3.3    Whether increased taxation would be less trade -restrictive than the 
TPP measures  ................................ ................................ ................................ ..................  523 
7.2.5.6.3.4    Whether increased taxation of tobacco products would make an equivalent 
contribution to Australia's objective  ................................ ................................ ....................  527 
7.2.5.6.3.5    Whether an increase in taxation of tobacco products is reasonably available 
to Australia  ................................ ................................ ................................ .....................  537 
7.2.5.6.3.6    Overall conclusion on increased taxation as an alternative to the 
TPP measures  ................................ ................................ ................................ ..................  539 
7.2.5.6.4    Third proposed alternative measure: social marketing campaigns  ..........................  540 
7.2.5.6.4.1    Description of the proposed measure  ................................ ...............................  540 
7.2.5.6.4.2    Whether "improved" social marketing campaigns are an alternative measure  ........  542 
7.2.5.6.4.3    Whether "improved" social marketing campaigns would be less 
trade -restrictive than the TPP  measures  ................................ ................................ .............  551 
7.2.5.6.4.4    Whether "improved" social marketing campaigns would make an equivalent 
contribution to Austral ia's objective  ................................ ................................ ....................  552 
7.2.5.6.4.5    Whether "improved" social marketing campaigns are reasonably available to 
Australia  ................................ ................................ ................................ .........................  561 
7.2.5.6.4.6    Overall conclusion on improved social marketing campaigns as an 
alternative to the TPP  measures  ................................ ................................ .........................  561 
7.2.5.6.5    Fourth proposed alternative measure: pre -vetting  ................................ ................  562 
7.2.5.6.5.1    Description of the proposed measure  ................................ ...............................  562 
7.2.5.6.5.2    Whether a pre -vetting mechanism would be less trade -restrictive than the 
TPP measures  ................................ ................................ ................................ ..................  566 
7.2.5.6.5.3    Whether a pre -vetting mechanism would make an equivalent contribution to 
Australia's objective  ................................ ................................ ................................ .........  569 
7.2.5.6.5.4    Whether a pre -vetting mechanism is reasonably available to Australia  .................  577 
7.2.5.6.5.5    Overall conclusion on a pre -vetting mechanism as an alternative to the 
TPP measures  ................................ ................................ ................................ ..................  584 
7.2.5.6.6    "Cumulative" application of alternatives  ................................ ..............................  584 
7.2.5.7    Overall conclusion on Article  2.2 ................................ ................................ ...........  586 
7.3   The TRIPS  Agreement  ................................ ................................ ...............................  588 
7.3.1    Article  6quinquies  of the Paris  Convention  (1967), as incorporated by Article  2.1 
of the TRIPS  Agreement  ................................ ................................ ................................ ... 588 
7.3.1.1    Introduction  ................................ ................................ ................................ ....... 588 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.1.2    Main arguments of the parties  ................................ ................................ ..............  590 
7.3.1.3    Main arguments of the third parties  ................................ ................................ ....... 593 
7.3.1.4    Analysis by the Panel  ................................ ................................ ...........................  593 
7.3.2    Article  15.4 of the TRIPS  Agreement  ................................ ................................ ........  598 
7.3.2.1    Main arguments by the parties  ................................ ................................ .............  598 
7.3.2.2    Main arguments by the third parties  ................................ ................................ ...... 602 
7.3.2.3    Analysis by the Panel  ................................ ................................ ...........................  605 
7.3.2.3.1    Interpretation of Article  15.4 ................................ ................................ .............  606 
7.3.2.3.1.1    The meaning of "trademark" in Article  15.4 ................................ ......................  607 
7.3.2.3.1.2    The meaning of "registration of the trademark" in Article  15.4 ............................  608 
7.3.2.3.1.3    The meaning of "obstacle" to the registration of a trademark in Article  15.4 .........  612 
7.3.2.3.1.4    Conclusion  ................................ ................................ ................................ .... 612 
7.3.2.3.2    Application to the TPP  measures  ................................ ................................ ........  612 
7.3.2.3.2.1    Whether the TPP  measures are inconsistent with Article  15.4 in that they 
operate to prevent the registration of signs that are capable of acquiring distinctiveness 
through use  ................................ ................................ ................................ ....................  613 
7.3.2.3.2.2    Whether the TPP  measures are inconsistent with Article  15.4 in that they 
prevent certain signs from acquiring distinctiveness through use  ................................ ...........  615 
7.3.2.3.2.3    Whether the TPP  measures are inconsistent with Article  15.4 in that they 
reduce the protection flowing from registration for tobacco -related trademarks because of 
the nature of the product  ................................ ................................ ................................ .. 620 
7.3.2.3.3    Overall conclusion  ................................ ................................ ............................  623 
7.3.3    Article  16.1 of the TRIPS  Agreement  ................................ ................................ ........  623 
7.3.3.1    Introduction  ................................ ................................ ................................ ....... 623 
7.3.3.2    Main arguments of the parties  ................................ ................................ ..............  624 
7.3.3.3    Main arguments of the third parties  ................................ ................................ ....... 634 
7.3.3.4    Analysis by the Panel  ................................ ................................ ...........................  635 
7.3.3.4.1    The scope of the obligation in Article  16.1 ................................ ...........................  636 
7.3.3.4.2    Whether the TPP  measures violate Article  16.1, because  the prohibition on use 
of certain trademarks reduces their distinctiveness and thus the trademark owner's 
ability to demonstrate a likelihood of confusion  ................................ ................................ .... 639 
7.3.3.4.3    Whether the TPP  measures violate Article  16 because they make 
non-inherently distinctive signs subject to cancellation procedures  ................................ .........  651 
7.3.3.4.4    Whether the TPP  measures erode a trademark owner's right to prevent use 
that is likely to result in confusion by requiring the use of "deceptively similar" marks on 
identical products  ................................ ................................ ................................ .............  653 
7.3.3.4.5    Overall conclusion  ................................ ................................ ............................  655 
7.3.4    Article  16.3 of the TRIPS  Agreement  ................................ ................................ ........  655 
7.3.4.1    Introduction  ................................ ................................ ................................ ....... 655 
7.3.4.2    Main arguments of the parties  ................................ ................................ ..............  656 
7.3.4.3    Main arguments by the third parties  ................................ ................................ ...... 661 
7.3.4.4    Analysis by the Panel  ................................ ................................ ...........................  662 
7.3.4.4.1    Interpretation of Article  16.3 ................................ ................................ .............  663 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.4.4.2    Whether the TPP  measures are inconsistent with Article  16.3 because they 
prevent the maintenance of well -known status for certain tobacco -related trademarks  .............  665 
7.3.4.4.3    Whether the TPP  measures are inconsistent with Article  16.3 in that they 
prevent certain tobacco -related trademarks from acquiring well -known trademark status 
through use  ................................ ................................ ................................ ....................  670 
7.3.4.4.4    Overall Conclusion  ................................ ................................ ............................  671 
7.3.5    Article  20 of the TRIPS  Agreement  ................................ ................................ ...........  671 
7.3.5.1    Overview of the claims  ................................ ................................ ........................  671 
7.3.5.2    Overall approach of the Panel  ................................ ................................ ...............  673 
7.3.5.2.1    Main arguments of the parties  ................................ ................................ ...........  673 
7.3.5.2.2    Main arguments of the third parties  ................................ ................................ .... 675 
7.3.5.2.3    Analysis by the Panel  ................................ ................................ ........................  676 
7.3.5.3    Whether the TPP  measures involve "special requirements" that "encumber" the 
use of a trademark  ................................ ................................ ................................ ...........  680 
7.3.5.3.1    Meaning of the terms "special requirements" and "encumbered" in Article  20 ..........  681 
7.3.5.3.1.1    Main arguments of the parties  ................................ ................................ .........  681 
7.3.5.3.1.2    Main arguments of the third parties  ................................ ................................ . 686 
7.3.5.3.1.3    Analysis by the Panel  ................................ ................................ .....................  689 
7.3.5.3.2    Application to the TPP  measures  ................................ ................................ ........  692 
7.3.5.4    Whether the special requirements in the TPP  measures encumber the "use of a 
trademark" "in the course of trade"  ................................ ................................ ....................  693 
7.3.5.4.1    Meaning of the phrase "in the course of trade"  ................................ .....................  694 
7.3.5.4.1.1    Main arguments of the parties  ................................ ................................ .........  694 
7.3.5.4.1.2    Main arguments of the third parties  ................................ ................................ . 695 
7.3.5.4.1.3    Analysis by the Panel  ................................ ................................ .....................  696 
7.3.5.4.2    The relevant "use of a trademark"  ................................ ................................ ...... 697 
7.3.5.4.2.1    Main arguments of the parties  ................................ ................................ .........  697 
7.3.5.4.2.2    Analysis by the Panel  ................................ ................................ .....................  700 
7.3.5.4.3    Application to the TPP  measures  ................................ ................................ ........  701 
7.3.5.5    Whether the TPP  measures "unjustifiably" encumber the use of trademarks in 
the course of trade  ................................ ................................ ................................ ...........  702 
7.3.5.5.1    Meaning of the term "unjustifiably"  ................................ ................................ .... 703 
7.3.5.5.1.1    Main arguments of the parties  ................................ ................................ .........  703 
7.3.5.5.1.2    Main arguments of the third parties  ................................ ................................ . 714 
7.3.5.5.1.3    Analysis by the Panel  ................................ ................................ .....................  724 
7.3.5.5.2    Whether the TPP  measures are per se unjustifiable  ................................ ..............  731 
7.3.5.5.2.1    The extreme nature of the encumbrance  ................................ ..........................  731 
7.3.5.5.2.2    Whether the unjustifiabili ty of requirements should be assessed in respect of 
individual trademarks and features  ................................ ................................ ....................  733 
7.3.5.5.2.3    Compliance with domestic  regulatory procedures  ................................ ..............  745 
7.3.5.5.2.4    Whether encumbrances falling within the scope of the listed examples in the 
first senten ce of Article  20 are presumed to be "unjustifiabl[e]"  ................................ .............  746 
7.3.5.5.3    Application to the TPP  measures  ................................ ................................ ........  749 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 11 - 
  7.3.5.5.3.1    Introduction  ................................ ................................ ................................ .. 749 
7.3.5.5.3.2    Nature and extent of the encumbrance resulting from the TPP  measures  ..............  749 
7.3.5.5.3.3    The reasons for the adoption of the TPP  measures  ................................ .............  759 
7.3.5.5.3.4    Whether the reasons for the application of the trademark requirements of 
the TPP  measures provide sufficient support for the resulting encumbrance  ............................  762 
7.3.5.6    Overall conclusion  ................................ ................................ ...............................  766 
7.3.6    Article  10bis of the Paris  Convention  (1967), as incorporated by Article  2.1 of the 
TRIPS  Agreement  ................................ ................................ ................................ .............  766 
7.3.6.1    Introduction  ................................ ................................ ................................ ....... 766 
7.3.6.2   Scope of incorporation of Article  10bis of the Paris  Convention  (1967) through 
Article  2.1 of the TRIPS  Agreement  ................................ ................................ ....................  767 
7.3.6.2.1    Main arguments of the parties  ................................ ................................ ...........  767 
7.3.6.2.2    Analysis by the Panel  ................................ ................................ ........................  768 
7.3.6.3    Interpretation of Article  10bis of the Paris  Convention  (1967), as incorporated 
through Article  2.1 of the TRIPS  Agreement  ................................ ................................ ........  771 
7.3.6.3.1    Main arguments of the parties  ................................ ................................ ...........  771 
7.3.6.3.2    Main arguments of the third parties  ................................ ................................ .... 777 
7.3.6.3.3    Analysis by the Panel  ................................ ................................ ........................  778 
7.3.6.4    Whether the TPP  measures are inconsistent with Article  10bis of the 
Paris Convention  (1967), as incorporated in the TRIPS  Agreement  ................................ .........  784 
7.3.6.4.1    Introduction  ................................ ................................ ................................ .... 784 
7.3.6.4.2    Whether the TPP  measures themselves constitute an act of unfair competition  ........  785 
7.3.6.4. 3   Whether the TPP  measures require market actors to engage in acts of unfair 
competition against which Australia is obliged to assure protection  ................................ ........  786 
7.3.6.4.3.1    Article  10bis(3)(1)  ................................ ................................ .........................  787 
7.3.6.4.3.2    Article  10bis(3)(3)  ................................ ................................ .........................  791 
7.3.6.4.3.3    Article  10bis(1) ................................ ................................ .............................  799 
7.3.6.4.4    Overall conclusion  ................................ ................................ ............................  806 
7.3.7    Article  22.2(b) of the TRIPS  Agreement  ................................ ................................ .... 806 
7.3.7.1    Introduction  ................................ ................................ ................................ ....... 806 
7.3.7.2   Main arguments of the parties  ................................ ................................ ..............  807 
7.3.7.3    Main arguments of the third parties  ................................ ................................ ....... 814 
7.3.7.4    Analysis by the Panel  ................................ ................................ ...........................  815 
7.3.7.4.1    Whether the TPP  measures amount to unfair competition by creating unfair 
conditions of competition in respect of GIs  ................................ ................................ ..........  820 
7.3.7.4.2    Whether the TPP  measures compel acts by market participants in respect of 
GIs that constitute acts of unfair competition that Australia is obl iged to prohibit  .....................  821 
7.3.7.5    Conclusion  ................................ ................................ ................................ .........  823 
7.3.8    Article  24.3 of the TRIPS  Agreement  ................................ ................................ ........  823 
7.3.8.1    Main arguments of the parties  ................................ ................................ ..............  824 
7.3.8.2    Main arguments by the third parties  ................................ ................................ ...... 832 
7.3.8.3    Analysis by the Panel  ................................ ................................ ...........................  833 
7.3.8.3.1    Whether the TPP  measures  are covered by Article  24.3 ................................ .........  833 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 12 - 
  7.3.8.3.2    Whether the obligation concerns individual GIs or the system of protection  .............  834 
7.3.8.3.3    Whether Australia has diminished the protection of GIs through the 
TPP measures  ................................ ................................ ................................ ..................  837 
7.3.8.4    Conclusion  ................................ ................................ ................................ .........  843 
7.4   Article  IX:4 of the GATT 1994  ................................ ................................ ....................  843 
7.4.1    Main arguments of the parties  ................................ ................................ .................  843 
7.4.2    Main arguments of the third parties  ................................ ................................ .........  845 
7.4.3    Analysis of the Panel  ................................ ................................ ..............................  845 
7.4.3.1    The Habanos sign and the Cuban Government Warranty Seal  ................................ ... 846 
7.4.3.2    The impact of the TPP  measures on the use of the  Habanos sign and the Cuban 
Government Warranty Seal  ................................ ................................ ...............................  848 
7.4.3.3    Whether the TPP  measures constitute "laws and regulations … relating to the 
marking of imported products"  ................................ ................................ ..........................  850 
7.4.3.3.1    The phrase "[t]he laws and regulations of Members relating to the ma rking of 
imported products" in Article  IX:4 ................................ ................................ ......................  850 
7.4.3.3.1.1    General rule of interpretation  ................................ ................................ ..........  850 
7.4.3.3.1.2    The 1958 Decision on Marks of Origin  ................................ ..............................  853 
7.4.3.3.1.3    Negotiating history  ................................ ................................ ........................  856 
7.4.3.3.2    Whether the TPP  measures, insofar as they restrict the use of the Habanos 
sign and Cuban Government Warranty Seal, constitute "laws and regulations … relating 
to the marking of imported products"  ................................ ................................ .................  858 
7.4.3.4    Whether the TPP  measures are "such as to permit compliance without materially 
reducing the value" of Cuban LHM cigars  ................................ ................................ ............  860 
7.4.3.4.1    The meaning of the term "materially reducing the[] value [of imported 
products]"  ................................ ................................ ................................ .......................  861 
7.4.3.4.2    Whethe r Cuban LHM cigars are stripped from added value, thus leading to a 
material reduction of their value in the sense of Article  IX:4 ................................ ..................  863 
7.4.3.4.3    Whether the TPP  measures create consumer uncertainty about the 
authenticity of Cuban LHM cigars, thus leading to a material reduction of their value  ................  867 
7.4.4    Conclusion  ................................ ................................ ................................ ............  870 
8   COMP LAINT BY HONDURAS (D S435): CONCLUSIONS A ND 
RECOMMENDATIONS  ................................ ................................ ............................  HND-872  
8   COMPLAINT BY THE DOM INICAN REPUBLIC (DS4 41): CONCLUSIONS A ND 
RECOMMENDATIONS  ................................ ................................ ...........................  DOM -872  
8   COMPLAINT BY CUBA (D S458): CONCLUSIONS A ND RECOMMENDATIONS  ...... CUB-872  
8   COMPLAINT BY INDONES IA (DS467): CONCLUSI ONS AND 
RECOMMENDATIONS  ................................ ................................ .............................  IDN-872  
TABLE A: PAPERS INCL UDED IN A PRIMARY TP P LITERATURE REVIEW AND/OR 
EXHIBIT JE -24 ................................ ................................ ................................ .............  874  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 13 - 
  LIST OF A PPENDICES  
 
Contents  Page  
Appendix  A 
 Post-Implementation Evidence on Non -Behavioural Outcomes of the TPP measures  A-1 
Appendix B  Evidence o n Quitting -Related Outcomes And Other Distal Outco mes Since The Entry 
Into Force of the TPP measures  
 B-1 
Appendix C  Evidence o n Smoking Prevalence Following The Entry Into Force of the 
TPP measures  
 C-1 
Appendix D  Evidence Relating to Tobacco Product Sales a nd Consumption Following The Entry  
Into Force of the TPP measures  
 D-1 
Appendix E  Post-Implementation Evidence on Downward  Substitution in t he Cigarette Market  
 E-1 
 
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 14 - 
  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex A -2 Additional Working Procedures Concerning Strictly Confidential Information  A-9 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Honduras  B-2 
Annex  B-2 Integrated executive summary of the arguments of the Dominican Republic  B-31 
Annex  B-3 Integrated executive summary of the arguments of Cuba  B-60 
Annex  B-4 Integrated executive summary of the arguments of Indonesia  B-77 
Annex  B-5 Integrated executive summary of the arguments of Australia  B-96 
ANNEX C  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Argentina  C-2 
Annex  C-2 Executive summary of the arguments of Brazil  C-6 
Annex  C-3 Executive summary of the arguments of Canada  C-11 
Annex  C-4 Executive summary of the arguments of China  C-14 
Annex  C-5 Executive summary of the arguments of the European Union  C-18 
Annex  C-6 Executive summary of the arguments of Guatemala  C-22 
Annex  C-7 Executive summary of the arguments of Japan  C-28 
Annex  C-8 Executive summary of the arguments of the Republic of Korea  C-32 
Annex  C-9 Executive summary of the arguments of Malawi  C-34 
Annex  C-10 Executive summary of the arguments of New Zealand  C-37 
Annex  C-11 Executive summary of the arguments of Nicaragua  C-40 
Annex  C-12 Executive summary of the arguments of Nigeria  C-43 
Annex  C-13 Executive summary of the arguments of Norway  C-49 
Annex  C-14 Executive summary of the arguments of Oman  C-53 
Annex  C-15 Executive summary of the arguments of Peru  C-55 
Annex  C-16 Executive summary of the arguments of the Philippines  C-56 
Annex  C-17 Executive summary of the arguments of Singapore  C-58 
Annex  C-18 Executive summary of the arguments of South Africa  C-62 
Annex  C-19 Executive summary of the arguments of Chinese Taipei  C-64 
Annex  C-20 Executive summary of the arguments of Thailand  C-65 
Annex  C-21 Executive summary of the arguments of Turkey  C-70 
Annex  C-22 Executive summary of the arguments of Uruguay  C-75 
Annex  C-23 Executive summary of the arguments of Zambia  C-77 
Annex  C-24 Executive summary of the arguments of Zimbabwe  C-79 
 
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 15 - 
  LIST OF TABLES  
LIST OF FIGURES  
 
Figure  Page  
Figure  1: TPP Act and TPP  Regulations as applied to the front, top, and side of a cigarette pack  94 
Figure  2: TPP Act and the TPP Regulations as applied to the back, base and side of a cigarette pack  95 
Figure  3: TPP Act and TPP Regul ations as applied to the front, top and side of a cigarette carton  95 
Figure  4: TPP Act and TPP Regulations as applied to the back, base and side of a cigarette carton  96 
Figure  5: TPP Act and TPP Regulations as applied to cigar tubes  97 
Figure  6: TPP Act and TPP Regulations as applied to the front and side of a cigar box  97 
Figure  7: TPP Act and TPP Regulations as applied to the back of a cigar box  98 
Figure  8: TPP Act and TPP Regulations as applied to the appearance of cigarettes  99 
Figure  9: TPP Act and TPP Regulations as applied to the appearance of cigars  100 
Figure  10: Current GHWs used on the front of cigarette packaging  105 
Figure  11: Australia's depiction of the operation of the TPP measures  190 
Figure  12: Australia's depiction of the  TPP Act  269 
Figure  13: Diagram of the TPB  325 
Figure  14: Professor Chaloupka's conceptual framework for the evaluation of health warning policies  357 
Figure  15: Adult smoking prevalence - CISNET  517 
Figure  16: Adult smoking prevalence - SimSmoke  517 
Figure  17: Framework proposed by Professor Keller regarding effective marketing communications  545 
Figure  18: The Habanos composite trademark registered in Australia  846 
Figure  19: The Habanos label applied to the upper corners of Cuban LHM cigar boxes starting in 1994  846 
Figure  20: The Habanos label applied to the upper corners of Cuban LHM cigar boxes since 2004  847 
Figure  21: The Cuban Government warranty seal  847 
 Table  Page  
Table  1: Requirements for brand, business, company or variant names  92 
Table  2: Relevance and quality ratings awarded by the Stirling Review  296 
Table  3: Estimated reduction in US initiation rates following an increase in the MLPA, by age group  516 
Table  4: Estimated price and tax increase equivalents to hypot hetical contributions of the 
TPP measures  to reducing the number of smokers   528 
Table  5: Proposed segmentation for Australian social marketing campaigns  556 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 16 - 
  MAIN ABBREVIATIONS U SED IN TH ESE REPORT S 
Abbreviation  Description  
ABAC  Alcohol Beverages Advertising (and Packaging) Code  
ABS Australian Bureau of Statistics  
ACBPS  Australian Customs and Border Protection Services  
ACCC  Australian Competition and Consumer Commission  
ACL Australian Consumer Law (Competition and Consumer Act 2010 (Cth), 
Schedule 2  
ACT Australian Capital Territory  
Amended GPA  Agreement on Government Procurement, as amended by the 2012 Protocol  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  
ANPHA  Australian National Preventive Health Agency  
ARIMA  autoregressive integrated moving average  
ARIMAX  autoregressive integrated moving average with explanatory variable  
Article  11 FCTC Guidelines  FCTC Guidelines for Implementation of Article  11 of th e FCTC  
Article  13 FCTC Guidelines  FCTC Guidelines for Implementation of Article  13 of the FCTC  
Article  11 and Article  13 
FCTC Guidelines  FCTC Guidelines for Implementation of Article  11 of the FCTC and 
FCTC Guidelines for Implementation of Article  13 of the FCTC  
ASEAN  Association of South -East Asian Nations  
ASSAD  Australian Secondary Students Alcohol Smoking and Drug  
ATMOSS  Australian Trade Marks Online Search System  
AUD Australian dollar  
BATA  British American Tobacco Australia  
BMJ British Medical Journal  
CCA Competition and Consumer Act 2010 (Cth)  
CCQ Cancer Council Queensland  
CCV Cancer Council Victoria  
CI Regulations  Commerce (Imports) Regulations 1940 (Cth)  
CINSW  Cancer Institute New South Wales  
CISNET  Cancer Intervention and Surveillance Modeling Network  
CITTS  Cancer Institute New South Wales Tobacco Tracking Survey  
Codex  Codex Alimentarius Commission  
COP Conference of the Parties  
CSE cigarette stick equivalents  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 17 - 
  Abbreviation  Description  
Doha Declaration  Declaration on the TRIPS  Agreement and Public Health, WT /MIN(01)/DEC/2 
(14 November 2001)  
DHA Department of Health and Ageing  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
EOS Exchange of Sales  
EPS empty pack survey  
FAO Food and Agriculture Organization of the United Nations  
FCTC WHO Framework Convention on Tobacco Control, done at Geneva, 21 May 
2003, UN Treaty Series, Vol. 2302, p. 166  
FCTC Guidelines  FCTC Guidelines for Implementation of the FCTC  
FMC factory -made cigarettes  
GATS  General Agreement on Trade in Services  
GATT 1947  General Agreement on Tariffs and Trade 1947  
GATT 1994  General Agreement on Tariffs and Trade 1994  
GEE generalised estimating equation  
GI(s) geographical indication(s)  
GHW(s)  graphic health warning(s)  
GPA Agreement on Government Procurement  
GRP(s)  gross rating point(s)  
Havana Charter  Havana Charter for an International Trade Organization  
IARC International Agency for Research on Cancer  
ILO International Labour Organization  
IMS In-Market -Sales  
IMS/EOS  In-Market -Sales/Exchange of Sales  
Information Standard  Competition and Consumer (Tobacco) Information Standard 2011  (Cth) 
IP intellectual property  
IPE Institute for Policy Evaluation  
IPPC International Plant Protection Convention  
IPPCC  International Plant Protection Convention Commission  
ISO International Organization for Standardization  
ISO/IEC  Guide  2: 1991  International Organization for Standardization / International Electrotechnical 
Commission Guide 2, General Terms and Their Defi nitions Concerning 
Standardization and Related Activities, 6th  edn (1991)  
ITA Imperial Tobacco Australia Limited  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 18 - 
  Abbreviation  Description  
ITC International Tobacco Control  
ITC Project  International Tobacco Control Policy Evaluation Project  
IV instrument variable  
LHM large handmade  
Lisbon Agreement  "Lisbon Agreement for the International Registration of Appellations of Origin " 
MFN most-favoured -nation  
MLA minimum age of legal access  
MLPA  minimum legal purchasing age  
Declaration on Dispute 
Settlement Pursuant to Article 
VI of the GATT 1994 or Part V 
of the SCM Agreement  Declaration on Dispute Settlement Pursuant to the Agreement on 
Implementation of Article  VI of the General Agreement on Tariffs and Trade 
1994 or Part  V of the Agreement on Subsidies and Countervailing Mea sures  
NDSHS  National Drug Strategy Household Survey  
NHS National Health Survey  
NPHT  National Preventative Health Taskforce  
NTPPTS  National Tobacco Plain Packaging Tracking Survey  
NSW New South Wales  
NSWPHS  New South Wales Population Health Survey  
NTC National Tobacco Campaign  
OBPR  Office of Best Practice Regulation  
OIE World Organization for Animal Health  
OECD  Organisation for Economic Co -operation and Development  
OLS ordinary least square  
Paris Convention  Paris Convention for the Protection of Industrial Property  
Paris Convention (1967)  Stockholm Act of the Paris Convention for the Protection of Industrial 
Property of 14 July 1967  
PCC Pacific Cigar Company  
PIR post-implementation review  
PML Philip Morris Limited  
RIS regulation impact statement  
RMSS  Roy Morgan Single Source  
RYO roll-your-own 
SAHOS  South Australian Health Omnibus Survey  
SCI strictly confidential information  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SDR socially desirable responding  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 19 - 
  Abbreviation  Description  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
SSHBS  New South Wales School Students Health Behaviours Survey  
TBT Agreement  Agreement on Technical Barriers to Trade  
TBT Committee 
Recommendation  Committee on Technical Barri ers to Trade, Secretariat Note, "Decisions and 
Recommendations Adopted by the WTO Committee on Technical Barriers to 
Trade Since 1 January 1995", WTO Document G/TBT/1/Rev.12 (21 January 
2015), Section 4.3.1.1, p.  20 (entitled "Significant effect on trade o f other 
Members")  
TCT Tobacco Control Taskforce  
TM Act  Trade Marks Act 1995 (Cth)  
TMA Act  Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth)  
TMA Bill  Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth)  
Tokyo Round Standards Code 1979 Tokyo Round Agreement on Technical Barriers to Trade  
TPB Theory of Planned Behaviour  
TPP Act  Tobacco Plain Packaging Act 2011 (Cth)  
TPP Bill  Tobacco Plain Packaging Bill 2011 (Cth)  
TPP literature  tobacco plain packaging literature  
TPP measures  Tobacco Plain Packaging Act 2011 (Cth); Tobacco Plain Packaging Regulations 
2011 (Cth), as amended by the Tobacco Plain Packaging Amendment 
Regulation 2012 (No. 1) (Cth); Trade Marks Amendment (Tobacco Plain 
Packaging) Act 2011 (Cth)  
TPP Regu lations  Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco 
Plain Packaging Amendment Regulation 2012 (No. 1) (Cth)  
TRA Theory of Reasoned Action  
TRIPS  Agreement  Agreement on Trade -Related Aspects of Intellectual Property Rights  
TWG Tobacco Working Group  
USCDC  United States Centers for Disease Control and Prevention  
USFDA  United States Food and Drug Administration  
USIOM  United States Institute of Medicine  
Vienna Convention  Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, UN 
Treaty Series, Vol. 1155, p. 331  
VSHS  Victorian Smoking and Health Survey  
WHA World  Health Assembly  
WHO World Health Organization  
WIPO  World Intellectual Property Organization  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 20 - 
  MAIN EXHIBITS CITED IN TH ESE REPORT S 
Exhibit No(s).  Short title  Title 
AUS-1, 
JE-1 
 TPP Act  Tobacco Plain Packaging Act 2011 (Cth) 
AUS-2, 
JE-7 TPP Bill Explanatory 
Memorandum  
 Explanatory Memorandum, Tobacco Plain Packaging Bill 
2011 (Cth) 
AUS-3, 
JE-2 TPP Regulations  Tobacco Plain Packaging Regulations 2011 (Cth), as 
amended by the Tobacco Plain Packaging Amendment 
Regulation 2012 (No.  1) (Cth) 
 
AUS-4, 
JE-3 
 TMA Act Trade Marks Amendment (Tobacco Plain Packaging) Act 
2011 (Cth) 
AUS-5, 
JE-5 TMA Bill Explanatory 
Memorandum  Explanatory Memorandum, Trade Marks Amendment 
(Tobacco Plain Packaging) Bill 2011  (Cth) 
 
AUS-6, JE-4 TMA Bill  Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 
(Cth) 
 
AUS-7 Samet Report  "Expert Report of J. Samet" (5  March  2015)  
 
AUS-8 Chaloupka Illicit Market 
Report  F. Chaloupka, "Expert Report on Australia's Tobacco Plain 
Packaging Legislation" (6  March  2015)  
 
AUS-9 Chaloupka Public Health 
Report  F. Chaloupka, "Expert Report on Australia's Plain Packaging 
Legislation " (7 March  2015)  
 
AUS-10 Tavassoli Report  N. Tavassoli, "Report on the World Trade Organization 
Dispute Settlement Proceedings Concerning Australia's 
Tobacco Plain Packag ing Legislation" (10  March  2015)  
 
AUS-11 Dubé Report  "Expert Report of Dr. Jean -Pierre Dubé" (9  March  2015)  
 
AUS-12 Slovic Report  "Expert Report of Dr. Paul Slovic" (4  March  2015)  
 
AUS-13 Biglan Report  "Expert Report of A. Biglan" (6  March  2015)  
 
AUS-14 Fong Report  "Expert Report of Dr. Geoffrey T. Fong" (4  March  2015)  
 
AUS-15 Brandon Report  T. Brandon, "Expert Report" (9  March  2015)  
 
AUS-16 Correa Report  C. Correa, "Compatibility of Australia's Tobacco Plain 
Packaging Legislation with the TRIPS Agreement – Analysis 
of the Expert Reports Submitted by Ukraine" 
(10 March  2015)  
 
AUS-17 Chipty Report  "Report of Dr. Tasneem Chipty" (9  March  2015)  
 
AUS-18 Katz Report  M. Katz, "An Economic Assessment of the Effects of Tobacco 
Plain Packaging" (9 March  2015)  
 
AUS-19 (SCI)  HoustonKemp Report  HoustonKemp, "Competition and Trade for Tobacco Products 
in Australia" (9  March  2015) (SCI)  
 
AUS-21 Finkelstein Report  "Report by Ray Finkelstein QC to the Dispute Settlement 
Panel Established by the World Trade Organization: The 
Tobacco Plain Packaging Act 2011  (Cth) and the Australian 
Consumer Law " (11 March  2015)  
 
AUS-22 (SCI)  Sims Report  R. Sims, "Report Concerning th e Australia Consumer Law 
and the Packaging of Tobacco Products" (24  February  2015) 
(SCI)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 21 - 
  Exhibit No(s).  Short title  Title 
AUS-23 British American Tobacco, 
Packaging Brief 2001  
 British American Tobacco, "Packaging Brief" (2  January 
2001), Bates Nos. 325211963 -325211964  
 
AUS-24 WHO Second -Hand Smoke 
Policy Recommendations  World Health Organization, Protection from Exposure to 
Second -Hand Tobacco Smoke: Policy Recommendations  
(Geneva, 2007)  
 
AUS-25 US Surgeon General's 
Report 2004  US Department of Health and Human Services, The Health 
Consequences of Smoking: A Report of the Surgeon General  
(Atlanta, 2004), Chap.  1 
 
AUS-27 Banks et al. 2015  E. Banks, G. Joshy, M. Weber, B. Lui, R. Grenfell, S. Eggar, 
E. Paige, A. Lopez, F. Sitas and V. Beral, "Tobacco Smoking 
and All -Cause Morta lity in a Large Australian Cohort Study: 
Findings from a Mature Epidemic with Current Low Smoking 
Prevalence", BMC Medicine  (2015) , Vol. 13, 
doi:10.1186/s12916 -0150281  
 
AUS-28 WHO Tobacco Fact Sheet  World Health Organization, Media Centre, "Tobacco", Fact 
Sheet No.  339 (May  2014), available at: 
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 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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AUS-42 (revised)  WHO/FCTC amici curiae  
brief World Health Organization and the WHO Framework 
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AUS-42 (revised)  WHO/FCTC Request for 
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JE-19 FCTC World Health Organization, Framework Convention on 
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AUS-95 Philip Morris, 
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AUS-96 Philip Morris Marketing 
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AUS-99 Swedish Match, New 
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AUS-100 Swedish Match, New 
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AUS-101 Swedish Match , Cigars for 
a Trend -Conscious 
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AUS-102,  
DOM-315 Miller et al. 2015  
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AUS-103 Swedish Match, 2013 
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AUS-107 Philip Morris, Alpine 
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AUS-108 Colmar Brunton, Alpine 
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DOM-44 FCTC Guidelines for 
Implementation (2013 
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HND-4,  
DOM-52 PM Rudd,  Anti-Smoking 
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AUS-116,  
JE-15 Response to NPHT, The 
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AUS-119,  
CUB-75 Parr et al. 2011c  V. Parr, P.  Ell, and K. Gagg, "Market Testing of Potential 
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AUS-120,  
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DOM-131 National Tobacco Strategy 
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AUS-168 Philip Morris, Virginia 
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AUS-169 Philip Morris, New 
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AUS-170 Philip Morris, Merit Pack 
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AUS-171 RJ Reynolds, Salem A&A 
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of Health Warning Messages – Quantitative Study of 
Canadian Youth", prepared for Health Canada (June  2008)  
 
AUS-180 -  A. Richardson, O. Ganz, and D. Vallone, "The Cigar 
Ambassador: How Snoop Dogg uses Instagram to Promote 
Tobacco Use", Tobacco Control (2014), Vol.  23, pp.  79-80; 
and M. Fine, "The Music Mogul", Cigar Aficionado  (May/June 
2009)  
 
AUS-181 Kostygina et al. 2014 G. Kostygina, S.A. Glantz, and P.M. Ling, "Tobacco Industry 
Use of Flavours to Recruit New Users of Little Cigars and 
Cigarillos", Tobacco Control (2014), 
doi:10.1136/tobaccocontrol -2014-051830  
 
AUS-182 Wenger et al. 2001  L. Wenger, R. Malone, A. George, and L. Bero, "Cigar 
Magazines: Using Tobacco to Sell a Lifestyle", Tobacco 
Control (2001), Vol.  10, No.  3, pp.  279-284 
 
AUS-183 Jamner 1999  M. Jamner, "Cigar Smoking Among College Students: 
Prevalence and Correlates", Preventive Medicine (1999), 
Vol. 29, No.  3, pp.  187-194 
 
AUS-184,  
JE-24(64)  Wakefield et al. 2013  M. Wakefield, L. Hayes, S. Durkin, and R. Borland, 
"Introduction Effects of the Australian Plain Packaging Policy 
on Adult Smokers: A Cross -Sectional Study", BMJ Open  
(2013), doi:10.1136/bmjopen -2013- 
003175  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 29 - 
  Exhibit No(s).  Short title  Title 
AUS-185,  
JE-24(43)  Moodie and Mackintosh 
2013 C. Moodie and A. Mackintosh, "Young Adult Women 
Smokers' Response to Using Plain Cigarette Packaging: A 
Naturalistic Approach", BMJ Open  (2013), 
doi:10.1136/bmjopen -2012-002402  
 
AUS-186,  
DOM-235 White  et al. 2015a  V. White, T. Williams, and M. Wakefield, "Has the 
Introduction of Plain Packaging with Larger Graphic Health 
Warnings Changed Adolescents' Perceptions of Cigarette 
Packs and Brands?" Tobacco Control (2015), Vol.  24, 
pp. ii42-ii49 
 
AUS-187 Moodie and Hasti ngs 2011  C. Moodie and G. Hastings, "Making the Pack the Hero, 
Tobacco Industry Response to Marketing Restrictions in the 
UK: Findings from a Long -Term Audit", International Journal 
of Mental Health and Addiction (2011), Vol.  9, pp. 24 -38  
 
AUS-189,  
JE-24(42)  Moodie and Ford 2011  C. Moodie and A. Ford, "Young Adult Smokers' Perceptions of 
Cigarette Pack Innovation, Pack Colour and Plain Packaging", 
Australasian Marketing Journal (2011), Vol.  19, pp.  174-180 
 
AUS-190 Hammond et al. 2006  D. Hammond, G. Fong, A. McNeil, R. Borland, and 
K. Cummings, "Effectiveness of Cigarette Warning Labels in 
Informing Smokers about the Risks of Smoking: Findings 
from the ITC Four Country Survey", Tobacco Control (2006), 
Vol. 15, pp.  iii19-iii25 
 
AUS-192 Kennedy et al. 2012  R. Kennedy, M. Spafford, I. Behm, D. Hammond, G. Fong, 
and R. Borland, "Positive Impact of Australian 'Blindness' 
Tobacco Warning Labels: Findings from the ITC Four Country 
Survey", Clinical and Experimental Optometry (2012), Vol.  
95, pp. 590-598  
 
AUS-196 O'Connor et al. 2007  R. O 'Connor, A. McNeill, R. Borland, D. Hammond, B.  King, 
C. Boud reau, and M. Cummings, "Smokers ' Beliefs About the 
Relative Safety of Other Tobacco Products: Findings from the 
ITC Collaboration", Nicotine and Tobacco Research (2007), 
Vol. 9, No.  10, pp.  1033-1042 
 
AUS-197 Camel Advertising 
Development White Paper  
 RJ Reynolds, "Camel Advertising Development 'White Paper'" 
(1986), Bates Nos.  506768775 -506768784  
 
AUS-198, 
JE-24(13)  CBRC 1992  Centre for Behavioural Research in Cancer, "Public Approval 
of Proposed Tobacco Pack Labelling and Other Modifications: 
Supplement to: Health Warnings and Contents Labelling of 
Tobacco Products" (1992), Bates Nos. 
2023248457 -2023248474  
 
AUS-199,  
JE-24(47 ) Munafò et al. 2011  M. Munafò, N. Roberts, L. Bauld, and U. Leonards, "Plain 
Packaging Increases Visual Attention to Health Warnings on 
Cigarette Packs in Non -smokers and Weekly Smokers but 
not Daily Smokers", Addiction (2011), Vol.  106, 
pp. 1505-1510 
 
AUS-200,  
JE-24(40)  Maynard et al. 2013  O. Maynard, M. Munafò, and U. Leonards, "Visual Attention 
to Health Warnings on Plain Tobacco Packaging in Adolescent 
Smokers and Non -Smokers", Addiction  (2013), Vol.  108, 
pp. 413-419 
 
AUS-201 Mays et al. 2015  D. Mays, R. Niaura, W. Evans, D. Hammond, G. Luta, and K. 
Tercyak, "Cigarette Packaging and Health Warnings: The 
Impact of Plain Packaging and Message Framing on Young 
Smokers", Tobacco Control (2015), Vol.  24, pp.  e87-e92  
 
AUS-202,  
JE-24(6)  Beede and L awson 1992  P. Beede and R. Lawson, "The Effect of Plain Packages on 
the Perception of Cigarette Health Warnings", Public Health  
(1992), Vol.  106, pp.  315-322 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 30 - 
  Exhibit No(s).  Short title  Title 
AUS-203,  
JE-24(1)  Al-hamdani 2013  M. Al-hamdani, "The Effect of Cigarette Plain Packaging on 
Individuals' Health Warning Recall", Healthcare Policy 
(2013), Vol.  8, No.  3, pp.  68-77 
 
AUS-204 Partos et al. 2013  T. Partos, R. Borland, H. Yong, J. Thrasher, and 
D. Hammond, "Cigarette Packet Warning  Labels Can Prevent 
Relapse: Findings from the International Tobacco Control 
4-Country Policy Evaluation Cohort Study", Tobacco Control 
(2013), Vol.  22, pp.  e43-e50  
 
AUS-205 McCaul et al. 2006  K. McCaul, J. Hockemeyer, R. Johnson, K. Zetocha, 
K. Quinlan,  and R. Glasgow, "Motivation to Quit Using 
Cigarettes: A Review", Addictive Behaviors (2006), Vol.  31, 
pp. 42-56  
 
AUS-206,  
DOM-306 
  Wakefield et al. 2015  M. Wakefield, K. Coomber, M. Zacher, S. Durkin, 
M. Brennan, and M. Scollo, "Australian Adult Smokers' 
Responses to Plain Packaging with Larger Graphic Health 
Warnings One Year After Implementation: Results from a 
National Cross -Sectional Tracking Survey", Tobacco Control 
(2015), Vol.  24, pp.  ii17-ii25 
 
AUS-207,  
HND-132, 
DOM-199 Dunlop  et al. 2014 S. Dunlop, T. Dobbins, J. Young, D. Perez, and D.  Currow, 
"Impact of Australia's Introduction of Tobacco Plain Packs on 
Adult Smokers' Pack -Related Perceptions and Responses: 
Results from a Continuous Tracking Survey", BMJ Open 
(2014), Vol.4, doi:10.1136/bmjopen -2014-005836  
 
AUS-208 Borland and Hill 1997  R. Borland and D. Hill, "Initial Impact of the New Australian 
Tobacco Health Warnings on Knowledge and Beliefs", 
Tobacco Control (1997), Vol.  6, pp.  317-325  
 
AUS-209,  
JE-24(27)  Goldberg et al. 1999  M. Goldberg, J. Liefeld, J. Madill, and H. Vredenburg, "The 
Effect of Plain Packaging on Response to Health Warnings", 
American Journal of Public Health (1999), Vol.  89, No.  9, 
pp. 1434-1435 
 
AUS-210 Borland et al. 2009a  R. Borland, N. Wilson, G.  Fong, D. Hammond, K. Cummings, 
H. Yong, W. Hosking, G. Hastings , and J. Thrasher, "Impact 
of Graphic and Text Warnings o n Cigarette Packs : Findings 
from Four Countries Over Five Years", Tobacco Control  
(2009) , Vol. 18, No. 5 , pp. 358-364 
 
AUS-211 Borland  et al. 2009b  R. Borland, H. Yong, N. Wilson, G. Fong, D.  Hammond, 
K. Cummings, W. Hosking , and A.  McNeill, "How Reactions to 
Cigarette Packet Health Warnings Influence Quitting: 
Findings from the ITC Four -Country Survey", Addiction 
(2009), Vol.  104, pp.  669-675 
 
AUS-212 Hammond et al. 2007  D. Hammond, G. Fong, R. Borland, K. Cummings, A.  McNeil 
and P.  Driezen, "Text and Graphic Warnings on Cigarette 
Packages - Findings from the International Tobacco Control 
Four Country Study", American Journal of Preventive 
Medicine (2007), Vol.  32, No.  3, pp.  202-209 
 
AUS-213 Borland 1997  R. Borland, "Tobacco Health Warnings and Smoking -Related 
Cognitions and Behaviours", Addiction (1997), Vol.  92, 
No. 11, pp.  1427-1435  
 
AUS-214,  
JE-24(67),  
DOM-285 Young et al . 2014 J. Young, I. Stacey, T. Dobbins, S. Dunlop, A.  Dessaix, and 
D. Currow, "Association Between Tobacco Plain Packaging 
and Quitline Calls: A Population -Based, Interrupted 
Time-series Analysis", Medical Journal of Australia (2014), 
Vol. 200, No.  1, pp.  29-32 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 31 - 
  Exhibit No(s).  Short title  Title 
AUS-215 
(revised), 
DOM-305 Durkin et al . 2015 S. Durkin, E. Brennan, M. Coomber, M. Zacher, 
M. Wakefield, and M. Scollo, "Short -Term Changes in 
Quitting -Related Cognitions and Behaviours After the 
Implementation of Plain Packaging with Larger Health 
Warnings: Findings from a National Cohort Study with 
Australian Adult Smokers", Tobacco Control (2015), Vol.  24, 
pp. ii26-ii32  
 
AUS-216,  
CUB-60 Stirling Rev iew 2013 
Update  C. Moodie, K. Angus, M. Stead, and L. Bauld, "Plain Tobacco 
Packaging Research: An Update", Centre for Tobacco Control 
Research, Institute for Social Marketing, University of 
Stirling (2013)  
 
AUS-217 Mutti et al. 2011  S. Mutti, D. Hammond, R. Borland, M. Cummings, 
R. O'Connor, and G. Fong, "Beyond Light and Mild: Cigarette 
Brand Descriptors and Perceptions of Risk in the 
International Tobacco Control (ITC) Four Country Survey", 
Addiction (2011), Vol.  106, pp.  1166-1175 
 
AUS-218 Labrecque et al. 2013  L. Labrecque, V. Patrick, and G. Milne, "The Marketers' 
Prismatic Palette: A Review of Color Research and Future 
Directions", Psychology and Marketing (2013), Vol.  30, 
No. 2, pp. 187 -202 
 
AUS-219,  
JE-24(50)  Parr et al. 201 1b V. Parr, B. Tan, and P.  Ell, "Market Research to Determine 
Impact of Plain Packaging on Other Tobacco Products", GfK 
bluemoon, prepared for Department of Health and Ageing, 
Australian Government (December 2011)  
 
AUS-220 DeSantis and Morgan 
2003 A. DeSantis and S. Morgan, "Sometimes a Cigar [Magazine] 
is More Than Just a Cigar [Magazine]: Pro -Smoking 
Arguments in Cigar Aficionado, 1992 -2000", Health 
Communication (2003), Vol.  15, No.  4, pp.  457-480 
 
AUS-221,  
JE-24(26)  Goldberg et al. 1995  M. Goldbe rg, G. Kindra, J. Lefebvre, J. Liefeld, 
J. Madill -Marshall, N. Martohardjono, and H.  Vredenburg, 
"When Packages Can't Speak: Possible Impacts of Plain and 
Generic Packaging of Tobacco Products",  Expert Panel 
Report, prepared for Health Canada (March  1995)  
 
AUS-222 
(revised),  
JE-24(68), 
DOM-286 Zacher et al. 2014  M. Zacher, M. Bayly, E. Brennan, J. Dono, C. Miller, 
S. Durkin, M. Scollo, and M. Wakefield, "Personal Tobacco 
Pack Display Before and After the Introduction of Plain 
Packaging with Larger Pictorial Health Warnings in Australia: 
An Observational Study of O utdoor Café Strips", Addiction 
(2014), Vol.  109, pp.  653-662 
 
AUS-223 
(revised), 
DOM-287 Zacher et al . 2015 M. Zacher, M. Bayly, E. Brennan, J. Dono, C. Miller, 
S. Durkin, M. Scollo, and M. Wakefield, "Personal Pack 
Display and Active Smoking at Outdoor C afé Strips: 
Assessing the Impact of Plain Packaging 1 year Post 
Implementation", Tobacco Control (2015), Vol.  24, 
pp. ii94-ii97 
 
AUS-224, 
DOM-304 Brennan et al. 2015  E. Brennan, S. Durkin, K. Coomber, M. Zacher, M.  Scollo, 
and M. Wakefield, "Are Quitting -Related Cognitions and 
Behaviours Predicted by Proximal Responses to Plain 
Packaging with Larger Health Warnings? Findings from a 
National Cohort Study with Australian Adult Smokers", 
Tobacco Control (2015), Vol.  24, pp.  ii33-ii41 
 
AUS-226 Hyland et al. 2006 A. Hyland, R. Borland, Q. Li, H. Yong, A. McNeill, G.  Fong, R. 
O 'Connor, and K. Cummings, "Individual -Level Predictors of 
Cessation Behaviours Among Participants in the International 
Tobacco Control (ITC) Four Country Survey", Tobacco 
Control (2006),  Vol. 15, pp. iii83 -iii94 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 32 - 
  Exhibit No(s).  Short title  Title 
AUS-228,  
JE-24(54)  Rousu and Thrasher 2013  M. Rousu and J. Thrasher, "Demand Reduction from Plain 
and Pictorial Cigarette Warning Labels: Evidence from 
Experimental Auctions", Applied Economic Perspective and 
Policy (2013), Vol . 35, No.  1, pp.  171-184 
 
AUS-229,  
JE-24(58)  Thrasher et al. 2011  J. Thrasher, M. Rousu, D. Hammond, A. Navarro, and J. 
Corrigan, "Estimating the Impact of Pictorial Health Warnings 
and 'Plain' Cigarette Packaging: Evidence from Experimental 
Auctions Amo ng Adult Smokers in the US", Health Policy 
(2011), Vol.  102, pp.  41-48 
 
AUS-234 Letter from D. Latham of 
Lovell White Durrant  Letter dated 6  July 1994 from D. Latham of Lovell, White, 
Durrant to J. Smithson, Public Affairs Manager, Rothmans 
International Services Limited, attaching letter dated 
5 July 1994 from L. Baeumer, Director, Industrial Property 
Law Department, WIPO, to D.  Latham of Lovell, White, 
Durrant, Bates Nos.  502592535 -502592536  
 
AUS-235 Letter from L. Baeumer , 
WIPO  Letter dated 31  August  1994 from L. Baeumer, Director, 
Industrial Property Law Department, WIPO, to R. Oman of 
Mudge, Rose, Guthrie, Alexander and Ferdon, Bates 
Nos. 515446013 -515446015  
 
AUS-236 Carvalho 3rd edn , AUS 
excerpts  Nuno Pires de Carvalho, The TRIPS Regime of Trademarks 
and Designs , 3rd edn (Kluwer Law International, 2014) , 
pp. 233, 249, 252, 318 -319, 323 -333, and 348  
 
AUS-242 Correa's Commentary on 
the TRIPS Agreement  C. Correa, Trade Related Aspects of Intellectual Property 
Rights: A Commentary on the TRIPS  Agreement  (Oxford 
University Press, 2007), pp.  175-176, 182, 186, 223, and 
388 
 
AUS-243 Shorter Oxford English 
Dictionary, Vol.  1 AUS 
excerpts, Part 1  Shorter Oxford English Dictionary , 6th edn, A.  Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  1, pp. 22, 56, 
336, 341, 470, 489, 500, 542, 827, 888, 1252, 1271, 1364, 
1412, and 1799  
 
AUS-245 Shorter Oxford English 
Dictionary, Vol.  2 AUS 
excerpts  Shorter Oxford English Dictionary , 6th edn, A.  Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  2, pp. 1974, 
2341, 2363, 2509, 2541, 3312, 3445, and 3485  
 
AUS-246 - J. Malbon, C. Lawson, and M. Davison, The WTO Agreement 
on Trade -Related Aspects of Intellectual Property Rights: A 
Commentary (Edward Elgar, 2014), p.  294 
 
AUS-248 CTD Act  Commerce (Trade  Descriptions ) Act 1905  (Cth) 
 
AUS-251,  
DOM-155,  
CUB-1 
 CI Regulations  Commerce (Imports) Regulations 1940  (Cth)  
AUS-255 BATA media release  British American Tobacco Australia, "BAT Forced to Close 
Australian Factory", Media Release (31  October  2014)  
 
AUS-258 Amcor Submission on TPP 
Bill Amcor Limited, "Submission to the Commonwealth 
Government on the Tobacco Plain Packaging Bill 2011 " 
(3 June 2011)  
 
AUS-259 -  Acts Interpretation Act 1901  (Cth) 
 
AUS-260 -  P. O'Neill, "Was There an EM?: Explanatory Memoranda and 
Explanatory Statements in the Commonwealth Parliament" 
(12 September  2006)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 33 - 
  Exhibit No(s).  Short title  Title 
AUS-263,  
JE-24(11)  Brose et al. 2014  L. Brose, C. Chong, E. A spinall, S. Michie, and A.  McEwe n, 
"Effects of Standardised Cigarette Packaging on Craving, 
Motivation to Stop and Perceptions of Cigarettes and Packs", 
Psychology & Health (2014), Vol.  29, No.  7, pp.  849-860 
  
AUS-265 Statements of the Hon. 
Chris Bowen MP, 
Treasurer, and Senator 
the Hon. Penny Wong, 
Minister for Finance and 
Deregulation   
 Statements of the Hon. Chris Bowen MP, Treasurer, and 
Senator the Hon. Penny Wong, Minister for Finance and 
Deregulation, "Economic Statement", Commonwealth of 
Australia (August 2013)  
 
AUS-266 Budge t Paper No.  2 – 
2013-2014 Commonwealth of Australia, "Budget Measures – Budget 
Paper No.  2 – 2013-2014" (2013), p.  25  
 
AUS-267 - Public Health (Tobacco) Act 2008  (NSW)  
 
AUS-280 Evidence Brief: Tobacco 
Control and Mass Media 
Campaigns   
 Australian National Preventive Health Agency, "Evidence 
Brief: Tobacco Control and Mass Media Campaigns" (2013)  
 
AUS-283 Cancer Institute NSW 
website  Cancer Institute New South Wales, "iCanQuit", available at: 
<http://www. icanquit.com.au/ >, accessed 4  March  2015 
 
AUS-284 Victorian QuitTxt 
application  Victorian QuitTxt application, available at: 
<http://www.quit.org.au/preparing -to-quit/choosing -best-w
ay-to-quit/quittxt >, accessed 4  March  2015 
 
AUS-285 Queensland Health 
program  Queensland Health, "SmokeCheck – Indigenous Smoking 
Program", available at: 
<http://www.health.qld.gov.au/atod/prevention/smokechec
k.asp >, accessed 28  January  2015 
 
AUS-286 Anti-smoking campaign 
website  Australian Indigenous HealthInfoNet, "Butt Out Boondah 
(Smoke)", available at: 
<http://www.healthinfonet.ecu.edu.au/key -resources/progra
ms-projects?pid=2173 >, accessed 8  March  2015 
 
AUS-287 Quit Victoria  Quit Victoria, "Triggers", available at: 
<http://www.quit.org.au/staying -quit/triggers >, accessed 
5 March  2015 
 
AUS-288 NSW YouTube video  New South Wales Cancer  Institute, "Michael  O'Loughlin 's 
WeCanQuit Smoking Pledge", YouTube video, av ailable at: 
<http://www.cancerinstitute.org.au/prevention -and-early-de
tection/public -education -campaigns/tobacco -control /we-can-
quit>, accessed 9  March  2015 
 
AUS-289 Queensland Health 
website  Queensland Health "Your Future's Not Pretty Campaign", 
available at: 
<http://www.health.qld.gov.au/atod/ prevention/quit_campa
ign.asp >, accessed 6  March  2015 
 
AUS-292,  
HND-80,  
DOM-119,  
CUB-64,  
IDN-21 
 Tobacco Excise Increase 
PIR  The Treasury, "Post -Implementation Review: 25 Per Cent 
Tobacco Excise Increase", Australian Government 
(February  2013)  
AUS-293 Industry statements on 
excise and downtrading  Industry statements on excise and downtrading, in cluding: 
Remarks by Matteo Pelle grini, President, Asia Region, Philip 
Morris International Inc, Investor Day, Lausanne, 
26 June 2014; Phillip Morris International, "Annual Report 
2011", p. 26; Imperial Tobacco, "Annual Report and Account 
2008: Driving Growth, Delivering Value", p. 15; and Japan 
Tobacco, Inc., "Annual Report 2011", p. 8  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 34 - 
  Exhibit No(s).  Short title  Title 
AUS-294 1958 GATT Decision  General Agreement on Tariffs and Trade  Secretariat, Marks 
of Origin: Report by Working Party as adopted by the 
CONTRACTING PARTIES at their Meeting of 
21 November  1958, GATT Document L/912/Rev.1 
(22 November  1958)  
 
AUS-295 1956 GATT Secretariat 
Note General Agreement on Tariffs and Trade Secr etariat, Marks 
of Origin: Note by the GATT Secretariat Concerning the ICC 
Proposal, GATT Document L/556 (19  October  1956)  
 
AUS-296 1931 League of Nations 
Report  League of Nations Economic Committee, Report to the 
Council on the Work of the Thirty -Fifth Se ssion, held at 
Geneva from  18 to 22  June 1931, League of Nations 
Document C.427.M.177.1931.II.B (24  June 1931)  
 
AUS-297,  
DOM-43 -  Trade Practices (Consumer Product Information Standards) 
(Tobacco) Regulations 2004  (Cth) 
 
AUS-322 - Trade Practices (Consumer Product Information Standards) 
(Tobacco) Regulations 1994  (Cth) 
 
AUS-343 Tobacco in Australia 2012, 
AUS excerpts  M. Scollo, "The Pricing and Taxation of Tobacco Products in 
Australia", in M. Scollo and M.  Winstanley (eds.), Tobacco in 
Australia:  Facts and Issues , 4th edn, Cancer Council Victoria 
(Melbourne, 2012), Chap.  13, pp.  i-130 
 
AUS-350 - Tobacco Products Control Act 2006  (WA) 
 
AUS-351 - Tobacco (Amendment) Act 1990  (ACT)  
 
AUS-353 - Tobacco Products (Prevention of Supply to Children) Act  
1998 (Qld), Sections 15, 22, and 40  
 
AUS-358 - Public Health Amendment (Juvenile Smoking) Act 2002  
(NSW)  
 
AUS-359 - Tobacco Products Regulation (Miscellaneous Offences) 
Amendment Act 2007  (SA) 
 
AUS-360 - Public Health Act 1997  (Tas)  
 
AUS-374 - Tobacco Control Act 2002  (NT) 
 
AUS-417 - Excise Tariff Amendment Act (No 1) 2000  (Cth) 
 
AUS-418 - Excise Tariff Amendment (Tobacco) Act 2010  (Cth) 
 
AUS-421,  
HND-85,  
DOM-114,  
IDN-5 Tobacco Excise Media 
Release  Australian Government Treasury, "Government to Increase 
Tobacco Excise", Media Release No. 15 (1  August  2013)  
 
AUS-435 Background Paper, 
National Tobacco Strategy 
1999 to 2002 -2003 Ministerial Council on Drug Strategy, Background Paper: A 
Companion Document to the National Tobacco Strategy 
1999 to 2002 -03, Department of Health and Aged Care, 
Commonwealth of Australia, (Canberra, 1999), p.  7 
 
AUS-436 Australia's National 
Tobacco Campaign: 
Evaluation Report  Department of Health and Ageing, Australia's National 
Tobacco Campaign: Evalu ation Report Volume Three , 
Australian Government (Canberra, 2004)  
 
AUS-441 Quitnow website  Australian Government, Quitnow, "More Targeted Approach" 
and "Culturally and Linguistically Diverse Advertisements" 
(15 July 2013), available at: 
<http://www.quitnow.gov.au/internet/quitnow/publishing.ns
f/Content/mta -2012-13>, accessed 11 October 2013  
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- 35 - 
  Exhibit No(s).  Short title  Title 
AUS-489,  
CUB-89 ConAgra v. McCain  Federal Court of Austr alia, ConAgra Inc v. McCain Foods 
(Australia) Pty Ltd  (1992) 23 IPR 19  
 
AUS-500,  
CUB-50 JTI v. Commonwealth  High Court of Australia, JT International SA v. 
Commonwealth of Australia; British American Tobacco 
Australasia Limited v. The Commonwealth  (2012) 291 ALR 
669 
 
AUS-501 Ulucanlar et al. 2014  S. Ulucanlar, G. Fooks, J. Hatchard, and A. Gilmore, 
"Representation and Misrepresentation of Scientific Evidence 
in Contemporary Tobacco Regulation: A Review of Tobacco 
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doi:10.1371/journal.pmed.1001629   
 
AUS-504 CINSW Rebuttal of BATA 
Analysis of CITTS Data  Cancer Institute New South Wales, "Summary: Cancer 
Institute NSW's Rebuttal of British American Tobacco's 
Analysis of Cancer Institute NSW  Tobacco Tracking Survey 
(CITTS) Data" (30  September  2014)  
 
AUS-507,  
JE-24(57)  Scollo et al. 2014  M. Scollo, M. Zacher, S. Durkin, and M. Wakefield, "Early 
Evidence About the Predicted Unintended Consequences of 
Standardised Packaging of Tobacco Products  in Australia: A 
Cross -Sectional Study of the Place of Purchase, Regular 
Brands and Use of Illicit Tobacco ", BMJ Open (2014), Vol.  4, 
doi:10.1136/bmjopen -2014-005873  
 
AUS-511 Chipty Supplementary 
Report  
 "Supplementary Report of Dr. Chipty" (31  May 2015)  
AUS-512 - Supplementary Graphs, Import Volumes, Value and Share of 
the Market  
 
AUS-513 - Australian Bureau of Statistics, "Balance of Payments and 
International Investment Position, Australia, Concepts, 
Sources and Methods, 1998", Cat. No.  5331.0 (1998)  
 
AUS-530 WTO Staff Paper, 
International Standards 
and TBT Agreement  E. Wijkström and D. McDaniels, "International Standards and 
the WTO TBT  Agreement: Improving Governance for 
Regulatory Alignment", Staff Working Paper ERSD -2013-06, 
World Trade Organizati on, Economic Research and Statistics 
Division (2013)  
 
AUS-531 Fong Supplemental Report  G. Fong, "Supplemental report in Response to Professor 
Ajzen" (8  September  2015)  
 
AUS-532 Slovic Rebuttal Report  P. Slovic, "Rebuttal Report" (11  September  2015)  
 
AUS-534 Brandon Rebuttal Report  
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AUS-535 (SCI)  Chipty Rebuttal Report  "Rebuttal report of Dr. Tasneem Chipty" 
(14 September  2015) (SCI)  
 
AUS-536,  
DOM-139 WIPO Protection Against 
Unfair Competition  International Bureau of WIPO, Protection Against Unfair 
Competition: Analysis of the Present World Situation , World 
Intellectual Property Organization (Geneva, 1994)  
 
AUS-539 Shorter Oxford English 
Dictionary, Vol.  1 AUS 
excerpts, Part 2  Shorter Oxford E nglish Dictionary , 6th edn, A.  Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  1, pp.  15, 16, 
488, 719, and 1174  
 
AUS-544 Philip Morris Marketing 
Presentation 1990  Philip Morris, "1991 Original Budget – Marketing 
Presentation  October  3, 1990", Bates  
Nos. 2504107139A -2504107171  
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 36 - 
  Exhibit No(s).  Short title  Title 
AUS-547 1994 USIOM  Report, 
Chap.  8 B. Lynch and R. Bonnie (eds.), Growing up Tobacco Free: 
Preventing Nicotine Addiction in Children and Youth , US 
Institute of Medicine (National Academy Press, 1994), 
Chap.  8 
 
AUS-549 Consultation Paper, New 
Zealand Ministry of Health  Ministry of Health, Proposal to Introduce Plain Packaging of 
Tobacco Products in New Zealand , Consultation Document, 
New Zealand Government (Wellington, 2012); and Ministry 
of Health, "Regulatory Impact St atement: Plain Packaging of 
Tobacco Products", New  Zealand Government 
(28 March  2012)  
 
AUS-550 Ireland House of the 
Oireachtas, Report  Ireland, Houses of the Oireachtas, Joint Committee on 
Health and Children, "Report on Hearings in Relation to the 
Genera l Scheme of the Public Health (Standardised 
Packaging of Tobacco) Bill", Vol.  1 (April 2014)  
 
AUS-551 Statement of J. Ellison, UK 
Under -Secretary of State 
for Public Health, on 
publication of Chantler 
Report  
 Statement dated 3  April 2014 of J. Ellison, UK  
Under -Secretary of State for Public Health, delivered to the 
House of Commons on publication of Chantler Report on 
Standardised Packaging of Tobacco Products  
 
AUS- 553  Norway Standardised 
Tobacco Packaging 
Consultation Paper  Norwegian Ministry of Health  and Care Services, 
"Consultation on the Proposal for Standardised Tobacco 
Packaging and the Implementation of Article 5.3 of the 
Framework Convention on Tobacco Control" (17  March  2015)  
 
AUS-554 Packaging Business 
Review, Chile Proposes 
Plain Packaging f or 
Cigarettes  Packaging Business Review, "Chile Proposes Plain Packaging 
for Cigarettes" (19  August  2015), available at: 
<http://containers.packaging -business -review.com/news/chi
le-proposes -plain-packaging -for-cigarettes -190815 -4650223
>, accessed 13  September  2015  
 
AUS-555 Hammond Review  D. Hammond, "Standardized Packaging of Tobacco Products: 
Evidence Review", prepared for  Irish Department of Health 
(March 2014)  
 
AUS-556 BAT, Half -Year Results 
2015 British American Tobacco, "British American Tobacco 
Half-Year Results 2015", Transcript (29  July 2015), available 
at: <http://www.bat.com/group/
sites/uk__9d9kcy.nsf/vwPagesWebLive/ DO72TJQU/$FILE/
medMD9Z3HKK.pdf?openelement >, accessed 
9 September  2015 
 
AUS-557,  
JE-24(63)  Wakefield et al. 2012  M. Wakefield, D. Germain, S. Durkin, D. Hammond, M. 
Goldberg, and R. Borland, "Do Larger Pictorial Health 
Warnings Diminish the Need for Plain Packaging of 
Cigarettes?", Addiction (2012), Vol.  107, No.  6, 
pp. 1159-1167 
 
AUS-559 Philip Morris Submission 
to Legislative Council of 
Tasmanian Parliament  Philip Morris Ltd, "Submission to the Legislative Council 
Government Administration Committee 'A' Inquiring into the 
Public Health Amendment (Tobacco Free Generation) Bill 
2014" (June 2015)  
 
AUS-570,  
HND-124, 
DOM-307 
  NTPPTS Technical Report  K. Coomber, M. Zacher, S. Du rkin, E. Brennan, M.  Scollo, 
M. Wakefield, P.  Myers, N. Vickers, and S.  Misson, 
"Australian National Tobacco Plain Packaging Tracking 
Survey: Technical Report", Cancer Council Victoria, prepared 
for Australian Government Department of Health (March 
2015)  
 
AUS-582 Chaloupka Rebuttal 
Report  F. Chaloupka, "Rebuttal Report on Selected Issues Raised in 
Ongoing Challenges to Australia's Tobacco Plain Packaging 
Measure" (26  October  2015)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 37 - 
  Exhibit No(s).  Short title  Title 
AUS-583 Dubé Rebuttal Report  J.-P.Dubé, "A Rebuttal to Comments Made by Dr. Professor 
Steenkamp" (26  October  2015)  
 
AUS-584 Katz Surrebuttal Report  M. Katz, "The Effects of Tobacco Plain Packaging: Surrebuttal 
to Professor Damien Neven" (26  October  2015)  
 
AUS-585 Fong Second 
Supplemental Report  G. Fong, "Supplementary Report in Response to Professors 
Inman and Kleijnen" (27  October  2015)  
 
AUS-586 Chipty Surrebuttal Report  "Surrebuttal Report of Dr. Tasneem Chipty" 
(26 October  2015)  
 
AUS-588 Tavassoli Rebuttal Report  N. Tavassoli, "Rebuttal to Arguments Raised in Exhibit 
DOM/HND -14" (26  October  2015)  
 
AUS-590 Chaloupka Second 
Rebuttal Report  F. Chaloupka, "Report on Selected Issues Raised in Ongoing 
Challenges to Australia's Tobacco Plain Packaging Measure" 
(7 December  2015)  
 
AUS-591 Chipty Second Rebuttal 
Report  "Second rebuttal report of Dr. Tasneem Chipty" 
(8 December  2015)  
 
AUS-593 BATA Submission on 
Australian Government 
Tax Discussion Paper  British American Tobacco Australia, "Submission to the 
Australian Government's Re:Think – Tax Discussion Paper 
Consultation" (5  June 2015)  
 
AUS-595, 
DOM-319 WHO Report on the Global 
Tobacco Epidemic  2015 World Health Organization, WHO Report on the Global 
Tobacco Epidemic, 2015: Raising Taxes on Tobacco  (Geneva, 
2015)  
 
AUS-595.A  WHO Report on the Global 
Tobacco Epidemic 2015, 
Appendix IX  
 World Health Organization, WHO Report on the Global 
Tobacco Epidemic, 2015: Raising Taxes on Tobacco  (Geneva, 
2015), Appendix IX  
 
AUS-596 ISO 6385  International Organization for Standardization, International 
Standard 6385: Ergonomic Principles in the Design of Work 
Systems , 2nd edn, ISO 6385:2004(E) (1 February  2004)  
 
AUS-597 ISO 26000  International Organization for Standardization, International 
Standard 26000: Guidance on Social Responsibility , 1st edn, 
ISO 26000:2010(E) (1  November  2010)  
 
AUS-598 ISO 14001  International Organization for Standardi zation, International 
Standard 14001: Environmental Management Systems – 
Requirements with Guidance for Use, 3rd edn, ISO 
14001:2015(E) (15  September  2015)  
 
AUS-601 Kumar and Steenkamp, 
Private Label Strategy   N. Kumar and J. -B. Steenkamp, Private Label Strategy: How 
to Meet the Store Brand Challenge  (Harvard Business Press, 
2013), Chap. 6  
 
AUS-602,  
DOM-368 2008 IARC Handbook  World Health Organization, International Agency for 
Research on Cancer, Methods for Evaluating Tobacco Control 
Policies, Handbooks of Cancer Prevention, Tobacco Control, 
Vol. 12 (Lyon, 2008)  
 
AUS-604 Chaloupka Third Rebuttal 
Report  F. Chaloupka, "Third Rebuttal Report on Selected Issues 
Raised in Ongoing Challenges to Australia's Tobacco Plain 
Packaging Measure" (29  January  2016)  
 
AUS-605 Chipty Third Rebuttal 
Report  T. Chipty, "Third Rebuttal Report of Dr. Tasneem Chipty" 
(1 February  2016)  
 
AUS-607 WHO Policy Package to 
Reverse the Tobacco 
Epidemic   
 World Health Organization, MPOWER: A Policy Package to 
Reverse the  Tobacco Epidemic  (2008)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 38 - 
  Exhibit No(s).  Short title  Title 
AUS-609 Tasmania Strategic Plan  Tasmanian Government, Department of Health and Human 
Services, " Healthy Tasmania – Five Year Strategic Plan – 
Community Consultation Draft"  (December 2015)  
 
AUS-612,  
CUB-94  Irish Public Health Act 
2015 Ireland, Public Health (Standardised Packaging of Tobacco) 
Act 2015  
 
AUS-613 - United Kingdom, The Standardised Packaging of Tobacco 
Products Regulations 2015  
 
AUS-614 - France, LOI n° 2016 -41 du 26 janvier 2016 de Modernisation 
de Notre Système de Santé, Article  27  
 
AUS-615  Draft Decree, Neutrality 
and Standardisation for 
the Packaging of 
Cigarettes and Rolling 
Tobacco  France, Decree on the Conditions of Neutrality and 
Standardisation for  the Packaging and Paper of Cigarettes 
and Rolling Tobacco (Draft), European Commission 
Notification No. 2015/241/F (7  May 2015)  
 
AUS-616 Hungary, Draft 
Amendment to 
Government Decree 
39/2013  Hungary, Government Decree Amending Government Decree 
39/2013 of 14 February  2013 on the Manufacture, 
Placement on the Market and Control of Tobacco Products, 
Combined Warnings and the Detailed Rules for the 
Application of the Health -Protection Fine (Draft), European 
Commission Notification No.  2015/529/HU 
(21 Septem ber 2015)  
 
AUS-617 - New Zealand, Smoke -free Environments (Tobacco Plain 
Packaging) Amendment Bill  (2014)  
 
AUS-618 Norway, Draft 
Amendments  Norway, "Draft Amendments to the Tobacco Control Act" and 
"Draft Amendments to the Labelling Regulations", European 
Commission Notification No.  2015/2009/N (5 May 2015)  
 
AUS-619 Park and Srinivasan 1994   C. Park and V. Srinivasan, "A Survey -Based Method for 
Measuring and Understanding Brand Equity and Its 
Extendability", Journal of Marketing Research  (1994) 
Vol. 31, pp.  271-288 
 
AUS-621 CCV 2014 Survey  V. White and T. Williams, "Australian Secondary School 
Students' Use of Tobacco in 2014: Report", Cancer Council 
Victoria, prepared for Tobacco Control Taskforce, Australian 
Government Department of He alth (October 2015)  
 
AUS-622 NHS Results  Australian Bureau of Statistics, National Health Survey: First 
Results: 2014 -15, CAT. 4364.0.55.001  (2015)  
 
AUS-623 Dessaix et al. 2016  A. Dessaix, A. Maag, J. McKenzie, and D. Currow, "Factors 
Influencing Reductions in Smoking Among Australian 
Adolescents", Public Health Research and Practice (2016), 
Vol. 26, doi:http://dx.doi.org/10.17061/phrp2611605  
 
AUS-624 Tobacco Plain Packaging 
PIR Department of Health, "Post -Implementation Review: 
Tobacco Plain Packaging 2016", Australian Government 
(2016)  
 
JE-6 
 TM Act  Trade Marks Act 1995  (Cth) 
 
JE-9 - Exposure Draft, Tobacco Plain Packaging Bill 2011  (Cth) 
(7 April 2011)  
 
JE-11 Consultation Paper 
Non-Cigarette Tobacco 
Products  Department of Health and Ageing, "Consultation Paper: 
Tobacco Plain Packaging: Proposed Approach to 
Non-Cigarette Tobacco Products", Australian Government 
(30 September  2011)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 39 - 
  Exhibit No(s).  Short title  Title 
JE-16 CCV Review 2011 
(Updated)  Cancer Cou ncil Victoria, "Plain Packaging of Tobacco 
Products: A Review of the Evidence" (May  2011, updated 
August 2011)  
 
JE-20 Article 11 FCTC 
Guidelines, 
FCTC/COP/3(10)  "Guidelines for Implementation of Article 11 (Packaging and 
Labelling of Tobacco Products)", D ocument FCTC/COP3(10), 
excerpted from Conference of the Parties to the WHO 
Framework Convention on Tobacco Control, "Decisions", 
Third Session, held in Durban, South Africa, 17 to 
22 November  2008, Document FCTC/COP/3/DIV/3 
(16 February  2009)  
 
JE-21 Article 13 FCTC 
Guidelines, 
FCTC/COP/3(12)  "Guidelines for Implementation of Article 13 (Tobacco 
Advertising, Promotion and Sponsorship)", Document 
FCTC/COP3(12), excerpted from Conference of the Parties to 
the WHO Framework Convention on Tobacco Control, 
"Decisions", Third Session, held in Durban, South Africa, 17 
to 22 November  2008, Document FCTC/COP/3/DIV/3 
(16 February  2009)  
 
JE-22 TPPA Regulation 
Explanatory Statement  Explanatory Statement, Tobacco Plain Packaging 
Amendment Regulation 2012  (No. 1) (Cth) 
 
JE-24 - Plain Packaging Literature  
 
JE-24(2)  Arora et al. 2013  M. Arora, A. Tewari, N. Grills, G. Nazar, J. Sonrexa, 
V. Gupta, R. Moodie, and K. Reddy, "Exploring Perception of 
Indians About Plain Packaging of Tobacco Products: A Mixed 
Method Research", Frontiers in Public Health (2013), Vol.  1, 
doi: 10.3389/fpubh.201 3.00035  
 
JE-24(18)  Environics 2008b  Environics Research Group, "Consumer Research on the Size 
of Health Warning Messages – Quantitative Study of 
Canadian Adult Smokers", prepared for Health Canada (May 
2008)  
 
JE-24(21)  Ford et al. 2013b  A. Ford, C. Moodi e, A. MacKintosh, and G. Hastings, "How 
Adolescents Perceive Cigarette Packaging and Possible 
Benefits of Plain Packaging", Education and Health (2013), 
Vol. 31, pp.  83-88  
 
JE-24(33)  Hoek et al. 2009  J. Hoek, P.  Gendall, and J. Louviere, "Tobacco Branding and 
Plain Packaging: The New Frontier in Tobacco Control?", 
prepared for American Marketing Association 20th 
Anniversary Marketing and Public Policy Conference held in 
Washington, DC, 28 to 30  May 2009 
 
JE-24(38)  Lund and Scheffels 2013  I. Lund a nd J. Scheffels, "Young Smokers and Non -Smokers 
Perceptions of Typical Users of Plain vs. Branded Cigarette 
Packs: A Between Subjects Experimental Survey", BMC 
Public Health  (2013), Vol.  13, 
doi:10.1186/1471 -2458-13-1005 
 
JE-24(39)  Madill -Marshall et al. 1996 J. Madill -Marshall, M. Goldberg, G. Gorn, J. Liefeld, and H. 
Vredenburg, "Two Experiments Assessing the Visual and 
Semantic Images Associated with Current and Plain 
Cigarette Packaging", Advances in Consumer Research 
(1996), Vol.  23, p.  267  
 
JE-24(41)  McCool et al. 2012  J. McCool, L. Webb, L. Cameron, and J. Hoek, "Graphic 
Warning Labels on Plain Cigarette Packs: Will They Make a 
Difference to Adolescents?", Social Science & Medicine 
(2012), Vol.  74, pp.  1269-1273 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 40 - 
  Exhibit No(s).  Short title  Title 
JE-24(46)  Moodie et al. 2012  C. Moodie, G. Hastings, and L. Joossens, "Young Adult 
Smokers' Perceptions of Illicit Tobacco and the Possible 
Impact of Plain Packaging on Purchase Behaviour", European 
Journal of Public Health  (2012), Vol.  22, pp.  251-253 
 
JE-24(48)  Northrup and Pollard 1995 D. Northrup and J. Pollard, Plain Packaging of Cigarettes, 
Event Marketing to Advertise Smoking, and other Tobacco 
Issues: A Survey of Grade Seven and Grade Nine Ontario 
Students , Institute for Social Research, York University 
(Toronto,  September  1995) 
 
JE-24(51)  Pechey et al. 2013  R. Pechey, D. Spiegelhalter, and T. Marteau, "Impact of Plain 
Packaging of Tobacco Products on Smoking in Adults and 
Children: An Elicitation of International Experts' Estimates", 
BMC Public Health (2013) , Vol. 13, No.  18, 
doi:10.1186/1471 -2458-13-18 
 
JE-24(55)  Scheffels and Lund 2013  J. Scheffels and I. Lund, "The Impact of Cigarette Branding 
and Plain Packaging on Perceptions of Product Appeal and 
Risk Among Young Adults in Norway: A Between -Subjects 
Experimental Survey", BMJ Open  (2013), 
doi:10.1136/bmjopen -2013-003732  
 
JE-24(56)  Scheffels and Saebo 2013  J. Scheffels and G. Saebo, "Perceptions of Plain and Branded 
Cigarette Packaging Among Norwegian Youth and Adults: A 
Focus Group Study", Nicotine & Tobacco Research  (2013), 
Vol. 15, No.  2, pp.  450-456 
JE-24(59)  Uppal et al. 2013  N. Uppal, L. Shahab, J. Britton, and E. Ratschen, "The 
Forgotten Smoker: A Qualitative Study of Attitudes Towards 
Smoking, Quitting, and Tobacco Control Policies Among 
Continuing Smokers", BMC Public Health  (2013), Vol.  13, 
doi:10.1186/1471 -2458-13-432 
 
JE-24(65)  Wakefield  et al. 2014  M. Wakefield, M. Bayly, and M. Scollo, "Product Retrieval 
Time in Small Tobacco Retail Outlets Before and After the 
Australian Plain Packaging Policy: Real -World Study", 
Tobacco Control  (2014), Vol.  23, pp.  70-76 
 
DOM/HND/ID N-3 Ajzen Report  I. Ajzen, "Examination of Australia's Reliance on Behavioral 
Theories to Support its Tobacco Plain Packaging Legislation" 
(1 June 2015)  
 
DOM/HND/IDN -4 Ajzen Supplemental 
Report  I. Ajzen, "Supplemental Report: Pre -Implementation 
Empirical Testing of Behavioral Theories Relied on by 
Australia to Justify Plain Packaging" (7  July 2015)  
 
DOM/HND/IDN -5 Ajzen Rebuttal Report  I. Ajzen, "The Role of Theory and Empirical Evidence in 
Evaluating the Effectiveness of Plain Packaging: Response to 
Austr alia and its Experts" (27  October  2015)  
 
DOM/HND/IDN -6 Ajzen response to Panel 
question Nos.  146, 202, 
and 203  I. Ajzen, "Response to Questions 146, 202, and 203 by the 
Panel" (8  December  2015)  
DOM/HND -1 Shavin Report  D. Shavin, "Prohibitions Against Misleading and Deceptive 
Conduct Pursuant to the Australian Consumer Law and the 
Australian Competition and Consumer Commission's History 
of Effective Enforcement Thereof" (4  October  2014)   
 
DOM/HND -2 CMZ Report  P. Chaudhry, A. Murray, and A. Zimmerman, "The Impact of 
Plain Packaging on the Illicit Trade in Tobacco Products in 
Australia" (22  September  2014)  
 
DOM/HND -3 Peer Review Report  J. Inman, "Plain Packaging Literature Peer Review Project" 
(3 October  2014)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 41 - 
  Exhibit No(s).  Short title  Title 
DOM/HND -4 Kleijnen Systematic 
Review  J. Kleijnen, A. Bryman, and M. Bosnjak, "Quality of the 
Empirical Evidence Testing the Impact of Plain Packaging on 
Tobacco Consumption: A Systematic Review" 
(7 October  2014)  
 
DOM/HND -5 Steenkamp Report  J.-B. Steenkamp, "The Effect of Plain Packaging on Smok ing 
Behavior – An Analysis Based on Widely Accepted Consumer 
Behavior and Marketing Principles" (29  September  2014)  
 
DOM/HND -6 Steinberg Report  L. Steinberg, "Adolescent Decision -Making and the 
Prevention of Underage Smoking: The Role of Plain 
Packaging" (15 September  2014)  
 
DOM/HND -7 Fischer Report  "Expert Report of G. Fischer" (6  October  2014)  
 
DOM/HND -8 Keller Report  P. Keller, "Effective and Efficient Social Marketing 
Communication as an Alternative to Plain Packaging" 
(29 September  2014)  
 
DOM/HND -9 Shavin Pre -Vetting Report  D. Shavin, "Pre -Vetting of Packaging and Tobacco Products 
as an Alternative to Plain Packaging" (4  October  2014)  
 
DOM/HND -10 Steinberg Rebuttal Report  L. Steinberg, "Rebuttal Report: Adolescent Decision -Making 
and the Prevention Underage Smoking: The Role of Plain 
Packaging: A Response to Expert Evidence Submitted on 
Behalf of Australia" (3  July 2015)  
 
DOM/HND -11 Fischer Rebuttal Report  G. Fischer, "Response to report submitted by Prof. Brandon" 
(7 July 2015)  
 
DOM/HND -12 Peer Review Project 
Rebuttal Report  J. Inman, "Plain Packaging Literature Peer Review Project: 
Rebuttal Report" (14  September  2015)  
 
DOM/HND -13 Kleijnen Systematic 
Review Rebuttal Report  J. Kleijnen, A. Bryman, and M. Bosnjak, "Systematic Review 
Rebuttal Report" (14  September  2015)  
 
DOM/HND -14 Steenkamp Rebuttal 
Report  J.-B. Steenkamp, "Tobacco Packaging in the Australian 
Context – Lessons from Marketing Principles and Empirical 
Data: A Rebuttal to Arguments Raised by Australia and its 
Experts" ( 11 September  2015)  
 
DOM/HND -15 Steinberg Second Rebuttal 
Report  L. Steinberg, "Adolescent Decision -Making and the 
Prevention of Underage Smoking: The Role of Plain 
Packaging: A Second Response to Expert Evidence 
Submitted on Behalf of Australia" (23  Octob er 2015)  
 
DOM/HND -17 Peer Review Project 
Second Rebuttal Report  J. Inman, "Plain Packaging Literature Peer Review Project: 
Second Rebuttal Report" (8  December  2015)  
 
DOM/HND -18 Kleijnen Systematic 
Review Second Rebuttal 
Report  J. Kleijnen, A. Bryman, and  M. Bosnjak, "Systematic Review 
Second Rebuttal Report" (7  December  2015)  
 
DOM/HND -19 Steenkamp Second 
Rebuttal Report  J.-B. Steenkamp, "Rebuttal to  October  2015 Supplementary 
Reports of Professors J.P.  Dubé and N. Tavassoli" 
(9 December  2015)  
 
DOM/HND -20 Steinberg Response to 
Panel Question No.  159 L. Steinberg, "Adolescent Decision -Making and the 
Prevention of Underage Smoking: The Role of Plain 
Packaging: A Response to the WTO Panel" 
(7 December  2015)  
 
DOM/IDN -1 List Report  J. List, "A Consideration of the Empirical Evidence on the 
Effects of Australia's Tobacco Plain Packaging Legislation" 
(1 June 2015)  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 42 - 
  Exhibit No(s).  Short title  Title 
DOM/IDN -2 Ajzen et al. Data Report  I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, 
"Reconsideration of Empirical Evidence on the Effectiveness 
of Australian Plain Packaging Legislation: Evidence from the 
National Plain Packaging Tracking Survey (NPPTS) and Other 
Datasets" (15  September  2015)  
 
DOM/IDN -3 List Rebuttal Report  J. List, "A Further Consideration of the Empirical Evidence on 
the Effects o f Australia's Tobacco Plain Packaging 
Legislation" (16  September  2015)  
 
DOM/IDN -4 Ajzen et al. Second Data 
Report  I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, 
"Reconsideration of Empirical Evidence on the Effectiveness 
of Australia's Plain Packaging Leg islation: Evidence from the 
International Tobacco Control (ITC) and Personal Pack 
Display Datasets" (27  October  2015)  
 
DOM/IDN -5 List Second Supplemental 
Report  J. List, "A Synthesis of the Evidence on Australia's Plain 
Packaging Policy" (28  October  2015)  
 
DOM/IDN -6 Ajzen et al. Data Rebuttal 
Report  I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, 
"Reconsideration of Empirical Evidence on the Effectiveness 
of Australian Plain Packaging Legislation: Evidence from the 
National Plain Packaging Tracking Survey (NPPTS) and Other 
Datasets: Rebuttal Report" (9  December  2015)  
 
DOM/IDN -7 List Third Supplemental 
Report  J. List, "A Further Synthesis of the Newly -Available Evidence 
on Australia's Plain Packaging Policy" (8  December  2015)  
 
DOM/IDN -8 Ajzen et al. Second  Data 
Rebuttal Report  I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, "Findings From 
the NPPTS, ITC and Personal Pack Display Datasets: 
Response to Arguments by Professor Chaloupka and 
Australia" (29  January  2016)  
 
DOM/IDN -9 List Summary Report  J. List, "C oncluding Summary on Australia's Plain Packaging 
Policy" (2  February  2016)  
 
HND-2,  
DOM-50 NPHT Terms of Reference   Australian Government, Preventative Health Taskforce, 
"Terms of Reference", available at: 
<http://www.preventativehealth.org.au/internet/preventativ
ehealth/publishing.nsf/Content/terms -of-reference -1lp>, 
accessed 7  October  2014 
 
HND-12,  
IDN-6 Letter of 23 April 2009 
from OBPR to DHA  Letter dated 23  April 2009 from T. Lind, Office of Best 
Practice Regulation, to D. Sloane, Assistant Director, 
Department of Health and Ageing, Draft RIS for the Tobacco 
Control Act  
 
HND-13 Best Practice Regulation 
Preliminary Assessment  Department of Health and Ageing, "Best Practice Regulation 
Preliminary Assessment", Australian Government 
(7 April 2010)  
 
HND-15 RIS 2010  Facsimile dated 27  April 2010 from P.  Marshall, Director, 
Department of Health and Ageing , to R. Ristic, Director, 
Office of Best Practice Regulation , attaching "Regulation 
Impact Statement: Plain Packaging of Tobacco Products" 
(April 2010)  
 
HND-16 Letter of 4 May 2010 from 
OBPR to DHA   Letter dated 4  May 2010 from R. Rist ic, Director, Office of 
Best Practice Regulation, to P.  Marshall, Director, 
Department of Health and Ageing  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 43 - 
  Exhibit No(s).  Short title  Title 
HND-18,  
CUB-9 Best Practice Regulation 
Report 2011 –12  Australian Government, Office of Best Practice Regulation, 
Best Practice Regulation Report 2011 –12 (Canberra, 2012), 
available at: 
<https://ris.govspace.gov.au/files/2012/10/best -practice -re
gulation -report_2012.pdf >, accessed 1  October  2014  
 
HND-24 - Republica de Honduras, Ley Especial para el Control del 
Tabaco, Decreto 92 -2010, Diario Oficial Num. 32, 296 
(21 August  2010)  
 
HND-26 Reporting Instrument of 
the WHO FCTC submitted 
by Australia  Department of Health and Ageing, "Reporting Instrument of 
the WHO Framework Convention on Tobacco Control", 
Australian Government, (30  April 2012), pp.  1-3, 27-30, 
55-56, and Annex 1, pp.  1 and 12, available at: 
<http://www.who.int/fctc/reporting/party_reports/australia_
2012_report_final.pdf?ua=1 > and 
<http://www.who.int/fctc/reporting/party_reports/aust ralia_
annex1_miscellaneous.pdf >, accessed 3  October  2014 
 
HND-31 Oxford Dictionaries online, 
HND excerpts  Oxford Dictionaries online, British and World English, 
definitions of "acquire", "by", "confusion", "course", 
"develop", "encumber", identical", "jus tifiable", "likelihood", 
"nature", "necessary", "obstacle", "reasonable", 
"requirement", "right", "similar", and "trade", available at: 
<www.oxforddictionaries.com >, accessed 
29 September  2014 or 3 October  2014 
 
HND-39 Bodenhausen, HND 
excerpts  G.H.C. Bodenhausen, Guide to the Application of the Paris 
Convention for the Protection of Industrial Property, as 
Revised at Stockholm in 1967  (WIPO, 1969), pp.  108, 128, 
and 144 -146 
HND-40 WIPO IP Handbo ok, HND 
excerpts  World Intellectual Property Organization, WIPO Intellectual 
Property Handbook , 2nd edn  (Geneva, 2004)  
 
HND-47 S. Lester International 
Economic Law and Policy 
Blog  S. Lester, "Fun with Plain Packaging", International Economic 
Law and Policy Blog, available at: 
<http://worldtradelaw.typepad.com/ielpblog/2014/06/fun -wi
th-plain-packaging.html >, accessed 2  October  2014 
 
HND-48 Merriam -Webster 
Dictionary online, HND 
excerpts  Merriam -Webster Dictionary online, definitions of 
"competition", "encumber", "reasonable", "requirement", 
and "trade", available at: 
<http://www.merriam -webster.com >, accessed 
29 September  2014 or 7  October  2014 
 
HND-50,  
DOM-161 DHA Guide to Tobacco 
Plain Packaging  Department of Health and Ageing, Tobacco Plain Packaging: 
Your Guide (July 2012), Australian Government, available at: 
<http://www.health.gov.au/internet/main/publishing.nsf/Co
ntent/tppbook >, accessed 7  October  2014 
 
HND-67,  
DOM-98,  
IDN-41 
 KPMG Report 2013  KPMG, "Illicit Tobacco in Austr alia: 2013 Full Year Report" 
(3 April 2014)  
 
HND-72 Rimpelä  and Rain io 2004  A. Rimpelä  and S. Rain io, "The Effectiveness of Tobacco 
Sales Ban to Minors: The Case of Finland", Tobacco Control  
(2004), Vol.  13, pp.  167-174 
 
HND-74 Ahmad and Billimek 2007  S. Ahmad and J. Billimek, "Limiting Youth Access to 
Tobacco: Comparing the Long -Term Health Impacts of 
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HND-76 Ahmad 2005b  S. Ahmad, "The Cost -Effectiveness of Raising the Legal 
Smoking Age in California", Medical Decision Making  (2005), 
Vol. 25, pp.  330-340 
 
HND-78 ACCC industry codes  Australian Competition and Consumer Commission, 
"Industry Codes", available at: 
<https://www.accc.gov.au/business/industry -codes >, 
accessed 7  October  2014 
 
HND-79 Tobacco in Australia 2012, 
HND excerpts  M. Scollo and M. Winstanley (eds.), Tobacco in Australia: 
Facts and  issues , 4th edn, Cancer Council Victoria 
(Melbourne, 2012), Chap. 1, p.  7 and Chap.  13, p.  1, 
available at: 
<http://www.tobaccoinaustralia.org.au/downloads/chapters /
Ch1_Prevalence.pdf > and 
<http://www.tobaccoinaustralia.org.au/downloads/chapters/
Ch13_Taxation.pdf >, accessed 6  October  2014 
 
HND-83 Dunlop et al. 2011  S. Dunlop, D . Perez, and T. Cotter, "Australian Smokers' and 
Recent Quitters' Responses to the Increasing Price of 
Cigarettes in the Context of a Tobacco Tax Increase", 
Addiction  (2011), Vol.  106, pp.  1687-1695 
 
HND-86 - Excise Tariff Amendment (Tobacco) Act 2014  (Cth) 
 
HND-89 New Shorter Oxford 
English Dictionary, HND 
excerpts  The New Shorter Oxford English Dictionary on Historical 
Principles , L. Brown (ed.) (Oxford University Press, 1993), 
Vol. I and Vol.  II, pp.  54, 459, 674, 1255, 1348, 1791, 
2387, and 3482  
 
HND-104 Chantler Notes 
14 March  2014 C. Chantler, "Independent Review into Standardised 
Packaging of Tobacco – Notes of Australia -Based Meetings" 
(14 March  2014), available at: 
<http://www.kc l.ac.uk/health/packaging -docs.aspx >, 
accessed 6  October  2014  
 
HND-110 IP Australia Letter  Letter dated 3  December  2012 from Australian Government, 
Trade Mark Application No.  1509780  
 
HND-118 Klick Rebuttal Report  J. Klick, "Rebuttal Report – A Reply to  Dr. Chipty" 
(8 July 2015)  
 
HND-121 ISO 3394 International Organization for Standardization, International 
Standard 3394: Packaging — Complete, Filled Transport 
Packages and Unit Loads — Dimensions of Rigid Rectangular 
Packages , 3rd edn, ISO 3394:2012(E) (1 November  2012)  
 
HND-122 Klick Supplemental 
Rebuttal Report  J. Klick, "Supplemental Rebuttal Report – A Review of New 
and Updated Australian Survey and Market Data" 
(16 September  2015)  
 
HND-123 Neven Rebuttal Report  D. Neven, "The Effect of Plain Packaging Regulation on 
Competition and Tobacco Consumption: A Response to 
Professor Katz's Report" (16  September  2015)  
 
HND-133, 
DOM-237, 
DOM-311  Scollo et al. 2015a  M. Scollo, M. Zacher, K. Coomber, M. Bayly, and 
M. Wakefield, "Changes in Use of Types of Tobacco Products 
by Pack Sizes and Price Segments, Prices Paid and 
Consumption Following the Introduction of Plain Packaging in 
Australia", Tobacco Control  (2015), Vo l. 24, pp.  ii66-ii75 
 
HND-134 Ajzen, Health Psychology 
Review 2014  I. Ajzen, "The Theory of Planned Behaviour is Alive and Well, 
and Not Ready to Retire: A Commentary on Sniehotta, 
Presseau, and Araújo -Soares", Health Psychology Review  
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- 45 - 
  Exhibit No(s).  Short title  Title 
HND-135, 
DOM-236, 
DOM-288 White et al. 2015b  V. White, T. Williams, A. Faulkner, and M. Wakefield, "Do 
Larger Graphic Health Warnings on Standardised Cigarette 
Packs Increase Adolescents' Cognitive Processing of 
Consu mer Health Information and Beliefs about Smoking 
Related Harms?", Tobacco Control  (2015), Vol.  24, 
pp. ii50-ii57 
 
HND-141,  
IDN-31 Framework 
Convention/Protocol 
Approach, FCTC Paper 1  D. Bodansky, "The Framework Convention/Protocol 
Approach", Framework Convention on Tobacco Control, 
Technical Briefing Series, Paper 1, WHO/NCD/TFI/99.1 
(1999)  
 
HND-148 - KPMG, "Illicit Tobacco in Australia: 2014 Full Year Report" 
(27 March  2015)  
 
HND-149 Pechmann et al. 2011  C. Pechmann, A. Biglan, J. Grube, and C. Cody,  
"Transformative Consumer Research for Addressing Tobacco 
and Alcohol Consumption", in D. Mick, S. Pettigrew, C. 
Pechmann, and J. Ozanne (eds.), Transformative Consumer 
Research for Personal and Collective Well -Being  (Routledge, 
2011)  
 
HND-152 Tworek et al. 2010  C. Tworek, R. Yamaguchi, D. Kloska, S. Emery, D.  Barker, G. 
Giovino, P.  O'Malley, and F. Chaloupka, "State -Level Tobacco 
Control Policies and Youth Smoking Cessation Measures", US 
National Institutes of Health Public Access Author 
Manuscript, publ ished in  Health Policy  (2010), Vol.  97, 
doi:10.1016/j.healthpol.2010.04.009  
 
HND-153 Tauras et al. 2013  J. Tauras, J. Huang, and F. Chaloupka, "Differential Impact 
of Tobacco Control Policies on Youth Sub -Populations", 
International Journal of Environmental Research and Public 
Health (2013), Vol.  10, pp.  4306-4322 
 
HND-154 Sussman et al. 2013  S. Sussman, D. Levy, K. Lich, C. Cene, M. Kim, L.  Rohrbach, 
and F. Chaloupka, "Comparing Effects of Tobacco Use 
Prevention Modali ties: Need for Complex System Models", 
Tobacco Induced Diseases  (2013), Vol.  11 
 
HND-156 Guindon et al. 2013  E. Guindon, P.  Driezen, F. Chaloupka, and G. Fong, 
"Cigarette Tax Avoidance and Evasion: Findings from the 
International Tobacco Control Policy Evaluation Project", 
Tobacco Control  (13 November  2013), 
doi:10.1136/tobaccocontrol -2013-051074  
 
HND-157 Cummin gs et al. 2009  M. Cummings, G. Fong and R. Borland, "Environmental 
Influences On Tobacco Use: Evidence From Societal And 
Community Influences On Tobacco Use And Dependence", 
Annual Review of Clinical Psychology  (2009), Vol.  5, 
pp. 433-458 and C -1 to C -2 
 
HND-158 Nargis et al. 2013  N. Nargis, G. Fong, F. Chaloupka and Q. Li, "The Choice Of 
Discount Brand Cigarettes: A Comparative Analysis Of 
International Tobacco Control Surveys in Canada and the 
United States (2002 –2005)", US National Institutes of Health 
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doi:10.1136/tobaccocontrol -2012-050851  
 
HND-161  -  World Organization for Animal Health, "Procedures Used by 
the OIE to Set Standards and Recommendations for 
International Trade, with a Focus on the Terrestrial  and 
Aquatic Animal Health Codes "  
 
HND-165 Klick Second 
Supplemental Rebuttal 
Report  J. Klick, "Second Supplemental Rebuttal Report – A Review 
of Australian Survey Data From New South Wales" 
(28 October  2015)  
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- 46 - 
  Exhibit No(s).  Short title  Title 
HND-166 Klick Third Supplemental 
Rebuttal Report  J. Klick, "Third Supplemental Rebuttal Report – A Reply to 
Dr. Chipty and Professor Chaloupka" (8  December  2015)  
 
HND-167 - Ireland, Public Health (Standardised Packaging of Tobacco) 
Bill 2014  
 
HND-169 Klick Fourth Supplemental 
Rebuttal Report  J. Klick, "Fourth Supplemental Rebuttal Report – Comments 
on Additional Arguments Raised by Dr. Chipty" 
(3 February  2016)  
 
DOM-49 - Australian Parliament, Senate Community Affairs References 
Committee, The Tobacco Industry and the Costs of 
Tobacco -Related Illness , (15 December  1995)  
 
DOM-56 WIPO Brands Report  World Intellectual Property Organiz ation, 2013 World 
Intellectual Property Report: Brands – Reputation and Image 
in the Global Marketplace , WIPO Economics and Statistics 
Series (2013)  
 
DOM-65 WIPO IP Handbook, Full 
text World Intellectual Property Organization, WIPO Intellectual 
Property Handbook , 2nd edn  (Geneva, 2004)  
 
DOM-72, 
IDN-103 Crazy Ron v. Mobileworld  Federal Court of Australia, Crazy Ron's Communications Pty 
Limited v. Mobileworld Communications Pty Limited (2004) 
209 ALR 1  
 
DOM-73 Louis Vuitton v. Sonya  Federal Court of Australia, Louis Vuitton Malletier v. Sonya 
Valentine Pty Ltd  (2013) FCA 933  
 
DOM-78,  
IDN- 76 WIPO Joint 
Recommendation  World Intellectual Property Organization, "Joint 
Recommendation Concerning Provisions on the Protection of 
Well-Known Marks", adopted by the Assembly of the Paris 
Union for the Protection of Industrial Property and the 
General Assembly of the World Intellectual Property 
Organization (WIPO) at the Thirty -Fourth Series of Meetings 
of the Assemblies of the Member State s of WIPO (20 to 
29 September  1999), No. 833(E) (September 1999)  
 
DOM-79 Bodenhausen, Full text  G.H.C. Bodenhausen, Guide to the Application of the Paris 
Convention for the Protection of Industrial Property, as 
Revised at Stockholm in 1967  (WIPO, 1969)  
 
DOM-85 - Oxford English Dictionary online, definition of "justifiable", 
available at: 
<http://www.oed.com/view/Entry/102219?redirectedFrom=j
ustifiable#eid >, accessed 9 April 2014 
 
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available at: 
<http://www.oed.com/view/Entry/102219?redirectedFrom=j
ustifiable#eid >, accessed  9 April 2014 
 
DOM-92 Gibson Report  S. Gibson, "Standardised Packaging of Tobacco Products 
Review of Department of Health Impact Assessment" 
(August 2014), Appendix 1 of British American Tobacco's 
Response to the UK Consultation on the Introduct ion of 
Regulations for Standardised Packaging of Tobacco Products 
(7 August  2014)  
 
DOM-93 SA HOS data  South Australian Health and Medical Research Institute, "Key 
Smoking Statistics for SA – 2013", results from South 
Australian Health Omnibus Survey 2013,  available at: 
<https://www.sahmri.com/user_assets/c23dc77e9e0f242c8
a59442c3bc21e1c56cbdbe5/key_smoking_statis tics_for_sa_
2013_ -30_april_2014.pdf >, accessed 7  October  2014 
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  Exhibit No(s).  Short title  Title 
DOM-96 ABC News 2014  L. Mellor, "More Younger Queenslanders Smoking, But 
Overall Numbers Declining" Australian Broadcasting 
Corporation News (10  September  2014), available 
at:<http://www.abc.net.au/news/2014 -09-09/more -younger
-qld-smokers -but-overall -numbers -decline/5731834/?site=b
risbane&progra m>, accessed 7  October  2014  
 
DOM-97 FCTC Illicit Trade Protocol  World Health Organization, Framework Convention on 
Tobacco Control, Protocol to Eliminate Illicit Trade in Tobacco 
Products (2013)  
 
DOM-99 CCV KPMG Report Analysis  Cancer Council Victoria, "Analysis of KPMG LLP Report on 
Use of Illicit Tobacco in Australia  " (11 November  2013, 
updated  March  2014)  
 
DOM-100 IPE Report  D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Empirical 
Assessment of Australia's Plain Packaging Regime", Institute 
for Policy Evaluation (7  October  2014)  
 
DOM-105, 
CUB-72 McKeganey Report  N. McKeganey, "A Critical Analysis of Evidence that 
Standardised Tobacco Packaging Will Reduce Smoking 
Prevalence in the United Kingdom" (5  August  2014), 
Appendix 5 of British American T obacco's Response to the 
UK Consultation on the Introduction of Regulations for 
Standardised Packaging of Tobacco Products 
(7 August  2014)  
 
DOM-108 Peer review of Pechey et 
al. 2013  B. Freeman, "Reviewer's Report" of " Impact of Plain 
Packaging of Tobacco  Products on Smoking in Adults"  
(7 September  2012), available at: 
<http://www.biomedcentral.com/1471 -2458/13/18/prepub >
, accessed 7  October  2014 
 
DOM-109 NTC Survey 2013  P. Myers and D. B lackmore, "The National Partnership 
Agreement on Preventative Health (NPAPH) – Tobacco Social 
Marketing Campaign  September  2013 – Evaluation Report – 
Waves 5 & 6", The Social Research Centre, prepared for 
Australian National Preventive Health Agency  
 
DOM-110 ACL Competition and Consumer Act 2010  (Cth), Schedule 2 
(Australian Consumer Law)  
 
DOM-115 Chaloupka et al. 2012  F. Chaloupka, A. Yerekly and G. Fong, "Tobacco Taxes as a 
Tobacco Control Strategy", Tobacco Control  (2012), Vol.  12, 
pp. 172-180 
 
DOM-116 Chaloupka and Warner 
1998 F. Chaloupka and K. Warner, "The Economics of Smoking" 
(12 January 1999), prepared for J. Newhouse and A. Culyer 
(eds.), The Handbook of Health Economics   
  
DOM-117 2011 IARC Handbook  World Health Organization, International Agency for 
Research on Cancer, Effectiveness of Tax and Price Policies 
for Tobacco Control , Handbooks of Cancer Prevention, 
Tobacco Control, Vol.  14 (Lyon, 2011)  
 
DOM-118 Ross and Chaloupka 2006  H. Ross and F. Cha loupka, "Economic Policies for Tobacco 
Control in Developing Countries", Salud Publica Mexico  
(2006), Vol.  48, pp.  S113-S120 
 
DOM-122 Bardsley and Olekalns 
1999  P. Bardsley and N. Olekalns, "Cigarette and Tobacco 
Consumption: Have Anti -Smoking Policies Made a 
Difference?", The Economic Record  (September 1999), 
Vol. 75, No.  230, pp.  225-240  
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  Exhibit No(s).  Short title  Title 
DOM-126 Tobacco in Australia 2012, 
DOM excerpts  M. Winstanley and L. Wood, "Factors Influencing the Uptake 
and Prevention of Smoking", in M. Scollo  and M. Winstanley 
(eds.), Tobacco in Australia: Facts and Issues , 4th edn, 
Cancer Council Victoria, (Melbourne, 2012), Chap.  5, 
pp. i-144, available at: 
<http://www.tobaccoinaustralia.org.au/chapter -5-uptake/5 -
26-reducing -tobacco -access -and-supply >, accessed 
7 October  2014 
 
DOM-128, 
HND-70 Fidler and West 2010  J. Fidler and R. West, "Changes in Smoking Prevalence in 
16-17 Year -Old Versus Older Adu lts Following a Rise in Legal 
Age of Sale: Findings from an English Population Study", 
Addiction  (2010), Vol.  105, pp.  1984-1988 
 
DOM-130, 
HND-75 Ahmad 2005a  S. Ahmad, "Closing the Youth Access Gap: The Projected 
Health Benefits And Cost Savings of a National Policy to 
Raise the Legal Smoking Age to 21 in the United States", 
Health Policy  (2005), Vol.  75, pp.  74-84 
  
DOM-133, 
IDN-93 - Turkey, The Regulations o n Procedures and Rules Applicable 
to Production and Trading of Tobacco Products, Official 
Gazette , Issue 27749 (4  November  2010)  
  
DOM-134,  
IDN-94 - Turkey, Regulations Relating to the Principles and 
Procedures Applicable to the Manufacturing Methods, 
Labeling and Control Measures Related to Protection from 
the Harmful Effects of Tobacco Products, Official Gazette, 
Issue 25692 (6  January  2005)  
 
DOM-136, 
HND-87 - Alcohol Beverages Advertising Code, "About the ABAC 
Scheme", available at: < http://www.abac.org.au/about/ >, 
accessed 7  October  2014 
 
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<http://www.alcohol.gov.au/internet/alcohol/publishing.nsf/
Content/BFE15C2AC3242C22CA25718E0081F1C5/$File/adve
rtising.pdf >, accessed 7  October  2014 
 
DOM-143 -  Oxford English Dictionary online, definition of "un'fair", 
available at: 
<http://www.oed.com/view/Entry/213174?rskey=IGEAyx&r
esult=1&isAdvanced=false#eid >, accessed 9  April 2014 
 
DOM-145 - Oxford Englis h Dictionary online, definition of "honest", 
available at: 
<http://www.oed.com/view/Entry/88149?rskey=Tq7xuH&re
sult=1&isAdvanced=false#eid >, accessed 9  April 2014 
 
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available at: 
<http://www.oed.com/view/Entry/166306?rskey=fgWvbI&re
sult=1&print >, accessed 10  May 2014 
 
DOM-164 Peer review of Lund and 
Scheffels 2013  J. Hoek, "Reviewer's Report" of " Perceptions of Typical Users 
of Plain vs. Branded Cigarette Packs Among Young Smokers 
and Non -Smokers. A Between -Subjects Experimental 
Survey " (10 August  2013)  
 
DOM-165 Author's response to peer 
reviews of Pechey et al. 
2013 "Author's Response to Reviews" of " Impact of Plain 
Packaging of Tobacco Products on Smoking in Adults and 
Children: An Elicitation of International Experts' Estimates" 
(10 October  2012), available at:  
<http://www.biomedcentral.com/1471 -2458/13/18/prepub > 
accessed 7  October  2014 
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  Exhibit No(s).  Short title  Title 
DOM-224 Aribarg et al. 2014  A. Aribarg, N. Arora, T. Henderson, and Y. Kim, "Private 
Label Imitation of a National Brand: Implications for 
Consumer Choice and Law", Journal of Marketing Research 
(2014), Vol. 51, pp. 657 -675 
 
DOM-229 - Australian Competition and Consumer Commission, "ACCC 
Resolves 'Light' and 'Mild' Cigarette Issue with B.A.T. and 
Philip Morris", Media Release No.  119/05 (12  May 2005), 
available at: 
<https://www.accc.gov.au/media -release/accc -resolves -ligh
t-and-mild-cigarette -issue-with-bat-and-philip -morris >, 
accessed 29  May 2015 
 
DOM-232 2015 USIOM  Report  R. Bonnie, K. Stratton, and L. Kwan (eds.), Public Health 
Implications of Raising the Minimum Age of Legal Access to 
Tobacco Products , US Institute of Medicine (The National 
Academies Press, 2015) (Pre -Publication Copy: Uncorrected 
Proofs)  
 
DOM-282 Moodie et al. 2014  C. Moodie, L. Bauld, A. Ford, and A. Mackintosh, "Young 
Women Smokers' Response to Using Plain Cigarette 
Packaging: Qualitative Findings from a Naturalistic Study", 
BMC Public Health  (2014), Vol.  14, 
doi:10.1186/1471 -2458-14-812 
 
DOM-297 Department of Hea lth's 
online evaluation of  Plain 
Packaging  Department of Health, "Evaluation of Tobacco Plain 
Packaging in Australia", Australian Government (17 March 
2015), available at: 
<http://www.health.gov.au/internet/main/publishing.nsf/Co
ntent/tobacco -plain-packaging -evaluation >, accessed 
27 July 2015 
 
DOM-303 IPE Updated Report  D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated 
Empirical Assessm ent of Australia's Plain Packaging Regime", 
Institute for Policy Evaluation (14  September  2015)  
 
DOM-308 - Oxford English Dictionary online, definition of "capable", 
available at: 
<http://www.oed.com/view/Entry/27354?redirectedFrom=c
apable&print >, accessed 9  September  2015 
 
DOM-317 RJ Reynolds v. FDA  US Court of Appeals, RJ Reynolds Tobacco Co. v. FDA, 69 6 
F.3d 1205 (D.C. Cir. 2012)  
 
DOM-318,  
CUB-81 WHO Report on the Global 
Tobacco Epidemic 2013  World Health Organization , WHO Report on the Global 
Tobacco Epidemic, 2013: Enforcing Bans on Tobacco 
Advertising, Promotion and Sponsorship  (Geneva, 2013)  
 
DOM-331 - Oxford English Dictionary online, definition of "respect", 
available at: 
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esult=1&isAdvanced=fals e&print >, accessed 
9 September  2015 
 
DOM-339 OIE, How to Use the 
Terrestrial Code to Set 
Health Measures for Trade 
in Terrestrial Animals and 
Products   World Organization for Animal Health, "Facilitating Safe 
Trade: How to Use the Terrestrial Code to Set Health 
Measures for Trade in Terrestrial Animals and Products", 
available at: 
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dard_Setting/docs/pdf/A_IMPORT_HEALTH_MEASURES_1.pd
f>, accessed 15  September  2015 
 
DOM-345 Codex List of Standards  Codex Alimentarius Commission, "List of Standards", 
available at: 
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rds/>, accessed  15 September  2015 
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  Exhibit No(s).  Short title  Title 
DOM-360 ASSAD 2011 Report  E. Bariola and V. White, "Victorian Secondary School 
Students' Use of Licit and Illicit Substances in 2011: Results 
from the 2011 Australian Secondary Students' Alcohol and 
Drug (ASSAD) Survey", Cancer Council Victoria, prepared for 
Victorian Department of Health (2012)  
 
DOM-361 IPE Second Updated 
Report  D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated 
Empirical Assessment of Australia's Plain Packaging Regime", 
Institute for Policy Evaluation (27  October  2015)  
 
DOM-369 Borland and Cummings 
2010 R. Borland and K. Cummings, "Advancing Tobacco Contr ol by 
Effective Evaluation" in P.  Boyle, N. Gray, J. Henningfield, J. 
Sffrin, and W. Zatonski (eds.), Tobacco: Science, Policy and 
Public Health  (Oxford Scholarship Online, 2010), 
pp. 629-641 
 
DOM-370 Schneider et al. 2015  S. Schneider, S. Buka, K. Dash, J. Winickoff, and 
L. O'Donnell, "Community Reductions in Youth Smoking 
After Raising the Minimum Tobacco Sales Age to 21", 
Tobacco Control  (12 June 2015), 
doi:10.1136/tobaccocontrol -2014-052207  
 
DOM-371 Evidence to Senate 
Finance and Public 
Administration Legislation 
Committee   
 Evidence to Finance and Public Administration Legislation 
Committee, Senate, Commonwealth of Australia, Canberra 
(26 May 2015 and 2  June 2015), excerpts  
 
DOM-373 (SCI)  -  Data update and computer c ode and calculations supporting 
the IPE Updated Report (SCI)  
 
DOM-375 IPE Third Updated Report  D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated 
Empirical Assessment of Australia's Plain Packaging Regime", 
Institute for Policy Evaluation (8 December  2015)  
 
DOM-378 (SCI)  -  "Dominican cigar sal es" and "Dominican cigar brands  
variants " (SCI)  
 
DOM-379 IPE Summary Report  D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, 
"Summary of Findings: Empirical Assessment of Australia's 
Plain Packagin g Regime", Institute for Policy Evaluation 
(1 February  2016)  
 
DOM-382 Yong et al. 2015  H. Yong, R. Borland, D. Hammond, J. Thrasher, 
K. Cummings, and G. Fong, "Smokers' Reactions to the New 
Larger Health Warning Labels on Plain Cigarette Packs in 
Australia: Findings from the ITC Australia Project", Tobacco 
Control  (19 February  2015), 
doi:10. 1136/tobaccocontrol -2014-05197  
 
CUB-10 Gangjee Book  Dev Gangjee, Relocating the Law of Geographical Indications  
(Cambridge University Press, 2012), pp.  281-283 
 
CUB-13 Tobacco in Australia 2012, 
CUB excerpts  M. Scollo and M. Winstanley (eds.), Tobacco in  Australia: 
Facts and Issues , 4th edn, Cancer Council Victoria, 
(Melbourne, 2012), Chaps. 1, 2, 5.3, 5.5, and 11  
 
CUB-15 Shanahan and Elliott 2008  P. Shanahan and D. Elliott, Evaluation of the Effectiveness of 
the Graphic Health Warnings on Tobacco Product Packaging 
2008, Department of Health and Ageing, Australian 
Government, (Canberra, 2008)  
 
CUB-26 US Surgeon General's 
Report 2012, CUB 
excerpts  US Department of Health and Human Services, Preventing 
Tobacco Use Among Youth and Young Adults: A Repo rt of 
the Surgeon General  (Atlanta, 2012), Chaps. 1, 5, and 7  
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  Exhibit No(s).  Short title  Title 
CUB-31 FAO Guide  Food and Agriculture Organization of the United Nations 
(FAO) and SINER -GI, Linking People, Places and Products: A 
Guide for Promoting Quality Linked to Geographical Origin 
and Sustainable Geographical Indications , 2nd edn 
(2009 -2010), pp.  iii, 19 -25, and 27  
 
CUB-34 Deselnicu et al. 
Meta-Analysis  O. Deselnicu, M. Costanigro, D. Souza -Monteiro, and D. 
McFadden, "A Meta -Analysis of Geographical Indication Food 
Valuation Studies:  What Drives the Premium for 
Origin -Based Labels?", Journal of Agricultural and Resource 
Economics  (2013), Vol.  38, No.  2, pp.  204-219 
 
CUB-36 2012 EU GI Study  European Commission, "Value of Production of Agricultural 
Products and Foodstuffs, Wines, Aroma tised Wines and 
Spirits Protected by a Geographical Indication (GI)", Final 
Report (October 2012)  
 
CUB-38 - European Commission, "Questions & Answers: New Rules for 
Tobacco Products", Memo/14/134 (26  February  2014)  
 
CUB-39 (SCI)  -  "Packaged and Non -Packaged Sales of LHM Cigars in Select 
Australian Retail Outlets:  January  2011 – November  2012" 
(SCI)  
 
CUB-40 -  "Recommended Storage of LHM Cigars"  
 
CUB-41 Parr and Ell 2011  V. Parr and P.  Ell, "Market Testing of New Health Warnings 
and Information Mess ages for Tobacco Product Packaging: 
Premium Cigars, Cigarillos / Little Cigars and Roll Your Own", 
GfK bluemoon Qualitative Research Report, prepared for 
Department of Health and Ageing, Australian Government 
(October 2011)  
 
CUB-44 - Shorter Oxford English Dictionary , 6th edn, A.  Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  1, p. 2541 
 
CUB-45 - Shorter Oxford English Dictionary , 6th edn, A. Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  1, pp. 1482 and 
3445 
 
CUB-48 - Shorter Oxford English Dictionary , 6th edn, A. Stevenson 
(ed.) (Oxford University Press, 2007), Vol.  1, p. 827 
 
CUB-49 Audier Protection of GIs  J. Audier, "Protection of Geographical Indications in France 
and Protection of French Geographical Indications in Other 
Countries", Lecture presented at Symposium on the 
Protection of Geographical Indications in the Worldwide 
Context held in Eger, Hungary from 24 to 25  October  1997, 
WIPO/GEO/EGR/97/8/Rev  
 
CUB-58 Stead et al. 2013  M. Stead, C. Moodie, K. Angus, L. Bauld, A.  McNeill, J. 
Thomas, G. Hastings, K. Hinds, A. O'Mara -Eves, I. Kwan, R. 
Purves, and S. Bryce, "Is Consumer Response to 
Plain/Standardised Tobacco Packaging Consistent with 
Framework Convention on Tobacco Control Guidelines? A 
Systematic Review of Quantitat ive Studies", PLoS One  
(2013), Vol.  8, doi:10.1371/journal.pone.0075919  
 
CUB-62 WHO Tobacco Tax Manual, 
Full Text  World Health Organization, WHO Technical Manual on 
Tobacco Tax Administration  (2011)  
 
CUB-63 WHO Tobacco Tax 
Simulation Model  World Health Organization, "The World Health Organization''s 
Tobacco Tax Simulation Model" (June 2013)  
CUB-66 US Surgeon General's 
Report 1994  US Department of Health and Human Services,  Preventing 
Tobacco Use Among Youth and Young Adults: A Report of 
the Surgeon Gene ral (Atlanta, 1994), pp.  49-51 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 52 - 
  Exhibit No(s).  Short title  Title 
CUB-67 - UK Department of Health, "Consultation on the Introduction 
of Regulations for Standardised Packaging of Tobacco 
Products" (June 2014)  
 
CUB-79 Vision One Report  Vision One Research, "Survey of the Australian Cigar Market: 
Report on Methodology and Findings" (8  October  2014)  
 
IDN-1 -  Australian Broadcasting Corporation News, "Indonesia 
Pushes for Graphic Health Warnings on Cigarette Packs" 
(25 June 2014), available at: 
<http://www.abc.net.au/news >, accessed 
27 September  2015 
 
IDN-23 Excise Tariff Working 
Pages  Australian Taxation Office, "Excise Tariff Working Pages: 
Schedule (1  December  2013)", available at: 
<http://law.ato.gov.au >, accessed 18  December  2013 
 
IDN-24 Tobacco in Australia 2012, 
IDN excerpts  T. Carroll, "Social Marketing and Public Education 
Campaigns", in M. Scollo and M. Winstanley (eds.), Tobacco 
in Australia: Facts and Issues , 4th edn, Cancer Council 
Victoria (Melbourne, 2012), Chap.  14, pp.  i-36, and 
Appendix 1, p.  1 
 
IDN-30 Layton and Lowe 2014  D. Layton and J. Lowe, "The Framework Convention on 
Tobacco Control and the World Trade Organization: A 
Conflict Analysis under International Law", Global Trade and 
Customs Journal (2014), Vol.  9, Issue 6, pp.  246-252 
 
IDN-32 Vadi 2012  V. Vadi, "Global Health Governance at a Crossroads: 
Trademark Protection v. Tobacco Control in International 
Investment Law", Stanford Journal of International Law  
(2012), Vol.  48, No.  1, pp.  93-130 
 
IDN-43 WIPO IP Handbook, IDN 
excerpts  World Intellectual Property Organization, WIPO Intellectual 
Property Handbook , 2nd edn  (Geneva, 2004), paras. 
2.313 -2.512 and 5.107 -5.123  
 
IDN-60 Wadlow, Law of 
Passing -Off, IDN excerpts  C. Wadlow, The Law of Passing -Off: Unfair Competition by 
Misrepresentation , 3rd edn (Sweet & Maxwell, 2004), 
Sections 2 -1 to 2 -52 
 
IDN-61 Bodenhausen, IDN 
excerpts  G.H.C. Bodenhausen, Guide to the Application of the Paris 
Convention for the Protection of Industrial Property, as 
Revised at Stockholm in 1967  (WIPO, 1969), pp.  142-146 
 
IDN-62 ATMOSS search results  Australian Trade Marks Online Search System, "Trade Mark 
Details", Search Results, Trade Mark No.  1519376, 
"Indonesian Gold", available at: 
<http://pericles.ipaustralia.gov.au/atmoss >, accessed 
26 September  2014 
 
IDN-87 - F. Chalou pka, "How Effective Are Taxes in  Reducing Tobacco 
Consumption?"  
 
IDN-88 WHO, Raising Tax on 
Tobacco  World Health Organization, "Raising Tax on Tobacco: What 
You Nee d to Know" (2014)  
 
IDN-89 US Surgeon General's 
Report 2000, Executive 
Summary  US Department of Health and Human Services, Reducing 
Tobacco Use: A Report of the Surgeon General  (Atlanta, 
2000), Executive Summary, reprinted in US Centers for 
Disease Control, MMWR Recommendations and Reports  
(22 December  2000), Vol.  49, No.  RR-16 
 
IDN-101 Tivo v. Vivo  Federal Court of Australia, Tivo Inc v. Vivo International 
Corporation Pty Ltd (2012) FCA 252  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 53 - 
  Exhibit No(s).  Short title  Title 
IDN-106 Carvalho 3rd  edn, IDN 
excerpts  Nuno Pires de Carvalho, The TRIPS Regime of Trademarks 
and Designs , 3rd edn (Kluwer Law International, 2014 ), 
pp. 254-255 
 
UKR-1 Dinwoodie Report  G. Dinwoodie, "Compatibility of Restrictions on the Use of 
Trade Marks with the TRIPS Agreement" (13  July 2014)  
 
UKR-2 Schwebel Report  "On Whether the Owner of a Registered Trademark Has the 
Right to Use that Trademark: Opinion of Judge Stephen M. 
Schwebel" (29 September 2014)  
 
UKR-3 (SCI)  Neven Report  D. Neven, "The Effects of Plain Packaging Regulation on 
Competition and Tobacco Consumption: An Economic 
Assessment" (2  October  2014) (SCI)  
 
UKR-4 Howell Report  "John Howell – Expert Report" (25  January  2014)  
 
UKR-5 Klick Report  J. Klick, "The Effect of Au stralia's Plain Packaging Law on 
Smoking: Evidence from Survey and Market Data" 
(26 July 2014)  
 
UKR-6 Klick TPP Literature Report  "Report by J. Klick on Plain Packaging Literature and 
Research Methodology" (2  October  2014)  
 
UKR-7 Satel Report  "Sally Satel, M.D. -- Expert Report" (19  February  2014)  
 
UKR-8 Viscusi Report  W.K. Viscusi, "An Assessment of Plain Pack Cigarette 
Packaging Policies" (21  November  2013)  
 
UKR-9 Winer Report  "Professor Russell S. Winer, Ph.D. -- Expert Report" 
(22 November  2013)  
 
UKR-10 Janeczko Report  R. Janeczko, "The Impact of Plain Packaging on the Sale of 
Illicit Tobacco in Australia" (20  December  2013)  
 
UKR-11 Heydon Report  J. Heydon, "Report Concerning the Australian Consumer Law 
and the  Packaging of Tobacco Products" (2014)  
 
UKR-51 - Email correspondence dated 7  April 2009 from D. Sloane, 
Assistant Director, Department of Health and Ageing, to R. 
Ristic, S. Rowley, and C. Toyne, Office of Best Practice 
Regulation, attaching Department o f Health and Ageing, 
"DRAFT Regulation Impact Statement – Tobacco Control Act" 
(April 2009)  
 
UKR-80 WIPO, Introduction to 
Intellectual Property  World Intellectual Property Organization, Introduction to 
Intellectual Property: Theory and Practice , (Kluwer Law 
International, 1997), Chaps. 12 and 18   
 
UKR-144 Heckman Report  "Report of James J. Heckman: UK Plain Packaging 
Consultation", Annex 4 of the Response of Philip Morris 
Limited to the UK Department of Health Consultation on 
Standardised Packag ing of Tobacco Products 
(9 August  2012)  
 
UKR-154 Mitchell Report  G. Mitchell, "Observations on the Chantler Report: A 
Psychological Analysis of the Potential Impact of 
Standardized Cigarette Packaging on Underage Smoking" 
(30 July 2014), Appendix 6 of British American Tobacco's 
Response to the UK Consultation on the Int roduction of 
Regulations for Standardised Packaging of Tobacco Products  
(7 August  2014)  
 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 54 - 
  MAIN CASES CITED IN THESE REPORT S 
Short title  Full case title and citation  
Argentina  – Financial Services  Appellate Body Report, Argentina  – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9 May 2016  
Argentina  – Footwear (EC)  Appellate Body Report, Argentina  – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R , adopted 12 January 2000, DSR 2000:I, p. 515  
Argentina  – Import Measures  Appellate Body Reports, Argentina  – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 26 
January 2015  
Argentina  – Import Measures  Panel Reports, Argentina  – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add .1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26 January 2015, as modified (WT/DS438/R) and upheld 
(WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / 
WT/DS444/AB/R / WT/DS445/AB/R  
Argentina  – Textiles and 
Apparel  Appellate Body Report, Argentina  – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R  and Corr.1, adopted 22 
April 1998, DSR 1998:III, p. 1003  
Australia – Apples  Appellate Body Report, Australia  – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175  
Brazil  – Desiccated Coconut  Appellate Body Report, Brazil  – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167  
Brazil  – Retreaded Tyres  Appellate Body Report, Brazil  – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17 December 2007, DSR 2007:IV, p. 1527  
Brazil  – Retreaded Tyres  Panel Report, Brazil  – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R , adopted 17 December 2007, as modified by Appellate Body 
Report  WT/DS332/AB/R, DSR 2007:V, p. 1649  
Canada  – Aircraft  Appellate Body Report, Canada  – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1377  
Canada  – Continued 
Suspension  Appellate Body Report, Canada  – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R , adopted 14 November 2008, DSR 
2008:XIV, p. 5373  
Canada  – Continued 
Suspension  Panel Report, Canada  – Continued Suspension of Obligations in the EC  –
 Hormones Dispute , WT/DS321/R  and Add.1 to Add.7, adopted 14 November 
2008, as modified by Appellate Body Report  WT/DS321/AB/R, DSR 2008:XV, 
p. 5757  
Canada  – Dairy Appellate Body Report, Canada  – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products , WT/DS103/AB/R , WT/DS113/AB/R , 
and Corr.1, adopted 27 October 1999, DSR 1999:V, p. 2057  
Canada  – Periodicals  Appellate Body Report, Canada  – Certa in Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30 July 1997, DS R 1997:I, p. 449  
Canada  – Periodicals  Panel Report, Canada  – Certain Measures Concerning Periodicals , 
WT/DS31/R  and Corr.1, adopted 30 July 1997, as modified by Appellate 
Body Report WT/DS31/AB/R, DSR 1997:I, p. 481  
Canada  – Pharmaceutical 
Patents  Panel Report, Canada  – Patent Protection of Pharmaceutical Products , 
WT/DS114/R , adopted 7 April 2000, DSR 2000:V, p. 2289  
Canada  – Renewable Energy / 
Canada  – Feed-in Tariff 
Program  Appellate Body Reports, Canada  – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada  – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, DSR 
2013:I, p. 7  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 55 - 
  Short title  Full case title and citation  
Canada  – Wheat Exports and 
Grain Imports  Appellate Body Report, Canada  – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27 September 
2004, DSR 2004:VI, p.  2739 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 23 
October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DS R 2006:XII, p. 5473)  
Chile – Price Band System 
(Article  21.5 – Argentina)  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products  – Recourse to Article  21.5 of the 
DSU by Argentina , WT/DS207/AB/RW , adopted 22 May 2007, DSR 2007:II, 
p. 513  
China  – Auto Parts  Appellate Body Reports, China  – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 12 
January 2009, DSR 2009:I, p. 3  
China  – Intellect ual Property 
Rights  Panel Report, China  – Measures Affecting the Protection and Enforcement of 
Intellectual Property Rights , WT/DS362/R , adopted 20 March 2009, DSR 
2009:V, p. 2097  
China  – Publications a nd 
Audiovisual Products  Appellate Body Report, China – Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R , adopted 19 January 2010, DSR 2010:I, p. 3  
China  – Publications and 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19 January 2010, as modified by Appellate 
Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China  – Rare Earths  Appellate Body Reports, China  – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/AB/R  / WT/DS432/AB/R  / 
WT/DS433/AB/R , adopted 29 August 2014, DSR 2014:III, p. 805  
China  – Rare Earths  Panel Reports, China  – Measures Related to the Exportation of Rare Earths,  
Tungsten, and Molybdenum , WT/DS431/R  and Add.1 / WT/DS432/R  and 
Add.1 / WT/DS433/R  and Add.1, adopted 29 August 2014, upheld by 
Appellate Body Reports WT/DS431/AB/R / WT/DS432/AB/R / 
WT/DS433/AB/R, DSR  2014:IV, p. 1127  
China  – Raw Materials  Appellate Body Reports, China  – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2 012:VII, p. 3295  
China  – Raw Materials  Panel Reports, China  – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted  22 February 2012, as modified by 
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, DSR 2012:VII, p. 3501  
Colombia  – Ports of Entry  Panel Report, Colombia  – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535  
Colombia  – Textiles  Appellate Body Report, Colombia  – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add. 1, adopted 22 
June 2016  
Dominican Republic  – Import 
and Sale of Cigarettes  Panel Report, Dominican Republic  – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R , adopted 19 May 2005, as modified 
by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV,  p. 7425  
EC – Approval and Marketing of 
Biotech Products  Panel Reports, European Communities  – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 
/ WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to Add.9 
and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 56 - 
  Short title  Full case title and citation  
EC – Asbestos  Appellate Body Report, European Communities  – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB /R, adopted 5 
April 2001, DSR 2001:VII, p. 3243  
EC – Bananas III  Appellate Body Report, European Communities  – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25 
September 1997, DSR 1997:II, p. 591  
EC – Bananas III Panel Reports, European Communities  – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/R/ECU (Ecuador)  / WT/DS27/R/GTM, 
WT/DS27/R/HND (Guatemala and Honduras)  / WT/DS27/R/MEX (Mexico)  / 
WT/DS27/R/USA (US), adopted 25  September 1997 , as modified by Appellate 
Body Report WT/DS27/AB/R, DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
EC – Bananas III  
(Article  21.5 – Ecuador II) /  
EC – Bananas III  
(Article  21.5 – US) Appellate Body Reports, European Communities  – Regime for the 
Importat ion, Sale and Distribution of Bananas  – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11 
December 2008, and Corr.1 / European Communities  – Regime for the 
Importation, Sale and Distribution of Bananas  – Recourse to Article  21.5 of 
the DSU by the United States , WT/DS27/AB/RW/USA  and Corr.1, adopted 22 
December 2008, DSR 2008:XVIII, p.  7165 
EC – Chicken  Cuts Appellate Body Report, European  Communities  – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopte d 
27 September 2005, and Corr.1, DSR 2005:XIX, p.  9157 
EC – Export Subsidies on Sugar  
 Panel Reports, European Communities  – Export Subsidies on Sugar , 
WT/DS265/R (Australia)  / WT/DS266/R (Brazil)  / WT/DS283/R (Thailand) , 
adopted 19 May 2005, as modified by Appellate Body Report 
WT/DS265/AB/R, WT/DS266/AB/R, WTDS283/AB/R, DSR 2005:XIII, p.  6499 
/ DSR 2005:XIV, p.  7071 
 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  
EC – Hormones (Canada) 
(Article  22.6 – EC) Decision by the Arbitrators, European Communities  – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by Canada  –
 Recourse to Arbitration by the European Communities under Article  22.6 of 
the DSU , WT/DS48/ARB , 12 July 1999, DSR 1999:III, p. 1135  
EC – Hormones (US) 
(Article  22.6 – EC) Decision by the Arbitrators, European Communities  – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by the United 
States  – Recourse to Arbitration by the European Communities under 
Article  22.6 of the DSU , WT/DS26/ARB , 12 July 1999, DSR 1999:III, p. 1105  
EC – Poultry  Appellate Body Report, European Communities  – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23 July 
1998, DSR 1998:V, p. 2031  
EC – Sardines  Appellate Body Report, European Communities  – Trade Description of 
Sardines , WT/DS231/AB/R , adopted 23 October 2002, DSR 2002:VIII, p. 
3359 
EC – Seal Products  Appellate Body Reports, European Communities  – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18 June 2014, DSR 2014:I, p. 7  
EC – Seal Products  Panel Reports, European Communities  – Measures Prohibit ing the 
Importation and Marketing of Seal Products , WT/DS400/R  and Add.1 / 
WT/DS401/R  and Add.1, adopted 18 June 2014, as modified by Appellate 
Body R eports WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p. 365  
EC – Tariff Preferences  Appellate Body Report, European Communities  – Conditions for the Granting 
of Tariff Preferences to Developing Countries , WT/DS246/AB/R , adopted 20 
April 2004, DSR 2004:III, p. 925  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 57 - 
  Short title  Full case title and citation  
EC – Tariff Pre ferences  Panel Report, European Communities  – Conditions for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R , adopted 20 April 2004, 
as modified by Appellate Body Report WT/DS246/AB/R, DSR 2004:III, p. 
1009 
EC – Trademarks and 
Geographical Indications 
(Australia)  Panel Report,  European Communities  – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint 
by Australia , WT/DS290/R , adopted 20 April 2005, DSR 2005:X, p. 4603  
EC – Trademarks and 
Geographical Indications (US)  Panel Report,  European Communities  – Protection of Trademarks and 
Geographical Ind ications for Agricultural Products and Foodstuffs, Complaint 
by the United States , WT/DS174/R , adopted 20 April 2005, DSR 2005:VIII, 
p. 3499  
EC – Trademarks and 
Geographical Indications  Panel Reports,  European Communities  – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs , 
WT/DS290/R (Australia)  / WT/DS174/R (US), adopted 20 April 2005, DSR 
2005:VIII, p. 3499 / DSR 2005: X, p. 4603 
EC – Tube or Pipe Fittings  Panel Report, European Communities  – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 18 August 
2003, as modified by Appellate Body Report WT/DS219/AB/R, D SR 2003:VII, 
p. 2701  
EEC – Oilseeds  I 
 GATT Panel Report, European Economic Community  – Payments and 
Subsidies Paid to Processors and Producers of Oilseeds and Related 
Animal -Feed Proteins , L/6627, adopted 25  January  1990, BISD  37S/86  
EU – Poultry Meat (China)  Panel Report, European Union  – Measures Affecting Tariff Concessions on 
Certain Poultry Meat Products , WT/DS492/R  and Add.1, adopted 19 April 
2017  
Guatemala  – Cement I  Appellate Body Report, Guatemala  – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, 
DSR 1998:IX, p. 3767  
India – Additi onal Import 
Duties  Appellate Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United States , WT/DS360/AB/R , adopted 17 November 
2008, DSR 2008:XX, p. 8223  
India – Agricultural Products  Appellate Body Report, India – Measures Concerning the Importation of 
Certain Agricultural Products , WT/DS430/AB/R , adopted 19 June 2015  
India – Autos  Panel Report, India – Measures Af fecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Corr.1, adopted 5 April 2002, DSR 2002:V, 
p. 1827  
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, 
DSR 1998:I, p. 9  
India – Quantitative 
Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS90/AB/R , DSR 1999:V, p. 1799  
Indonesia  – Autos  Panel Report, Indonesia  – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1  and 
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Japan  – Agricultural Products II  Appellate Body Report, Japan  – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted 19 March 1999, DSR 1999:I, p. 277  
Japan  – Alcoholic Beverages II  Appellate Body Report, Japan  – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 1 November 1996, 
DSR 1996:I, p. 97  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 58 - 
  Short title  Full case title and citation  
Japan  – Apples  Appellate Body Report, Japan  – Measures Affecting the Importati on of 
Apples , WT/DS245/AB/R , adopted 10 December 2003, DSR 2003:IX, p. 
4391 
Japan  – DRAMs (Korea)  Appellate Body Report, Japan  – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, adopted 17 
December 2007, DSR 2007:VII, p. 2703  
Japan  – DRAMs (Korea)  Panel Report, Japan  – Countervailing Duties on Dynamic Random Access 
Memories from Korea , WT/DS336/R , adopted 17 December 2007, as 
modified by Appellate Body Report WT/ DS336/AB/R, DSR 2007:VII, p. 2805  
Japan  – Leather (US II)  
 GATT Panel Report, Panel on Japanese Measures on Imports of Leather , 
L/5623, adopted 15  May 1984, BISD  31S/94  
Korea  – Alcoholic Beverages  Appellate Body Report, Korea  – Taxes on Alcoholic Beverages , 
WT/DS75/AB/R , WT/DS84/AB/R , adopted 17 February 1999, DSR 1999:I, p. 
3 
Korea  – Dairy Appellate Body Report, Korea  – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, DSR 
2000:I, p. 3  
Korea  – Various Measures on 
Beef Appellate Body Report, Korea  – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10 January 
2001, DSR 2001:I, p. 5  
Mexico  – Taxes on Soft Drinks  Appellate Body Report, Mexico  – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R , adopted 24 March 2006, DSR 2006:I, p. 3  
Mexico  – Telecoms  Panel Repo rt, Mexico  – Measures Affecting Telecommunications Services , 
WT/DS204/R , adopted 1 June 2004, DSR 2004:IV, p. 1537  
Russia  – Pigs (EU)  Panel Report, Russian Federation  – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European Union , WT/DS475/R  and 
Add.1, adopted 21 March 2017, as modified by Appellate Body  Report 
WT/DS475/AB/R  
Thailand  – Cigarettes  
 GATT Panel Report, Thailand  – Restrictions on Importation of and Internal 
Taxes on Cigarettes , DS10/R, adopted 7  November  1990, BISD  37S/200  
Thailand  – Cigarettes 
(Philippines)  Appellate Body Report, Thailand  – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R , adopted 15 July 2011 , DSR 
2011:IV, p. 2203  
Thailand  – Cigarettes 
(Philippines)  Panel Report, Thailand  – Customs and Fiscal Measures on Cigarettes from 
the Philippines , WT/DS371/R , adopted 15 July 2011, as modified by 
Appellate Body Report WT/DS37 1/AB/R , DSR 2011:IV, p. 2299  
Thailand  – H-Beams  Appellate Body Report, Thailand  – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701  
US – 1916 Act (EC)  Panel Report, United States  – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R  and Corr.1, adopted 26 Se ptember 
2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, 
DSR 2000:X, p. 4593  
US – 1916 Act (Japan)  Panel Report, United States  – Anti-Dumping Act of 1916, Complaint by 
Japan , WT/DS162/R  and Add.1, adopted 26 September 2000, upheld by 
Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p. 
4831 
US – Animals  Panel Report, United States  – Measures Affecting the Importation of Animals, 
Meat and Other Animal Products from Argentina , WT/DS447/R  and Add.1, 
adopted 31 August 2015  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Short title  Full case title and citation  
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate Body Report, United States  – Definitive Anti -Dumping and 
Countervailing Duties on Cer tain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011: V, p. 2869  
US – Carbon Steel  Appellate Body Report, United States  – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 
3779 
US – Carbon Steel (India)  Appellate Body Report, United States  – Countervailing Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December 2014, DSR 2014:V, p. 1727  
US – Clove Cigarettes  Appellate Body Report, United States  – Measures Affecting the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24 April 2012, DSR 
2012: XI, p. 5751  
US – Clove Cigarettes  Panel Report, United States  – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R , adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS406/AB/R, DSR 2012: XI, p. 5865  
US – Continued Suspension  Appellate Body Report, United States  – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R , adopted 14 November 
2008, DSR 200 8:X, p. 3507  
US – Continued Suspension  Panel Report, United States  – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS320/R  and Add.1 to Add.7, adopted 14 
November 2008, as modified by Appellate Body Report WT/DS320/AB/R, 
DSR 2008:XI, p. 3891  
US – Continued Zeroing  Appellate Body Report, United States  – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R , adopted 19 February 2009, DSR 
2009:III, p. 1291  
US – COOL  Appellate Body Reports, United States  – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R  / WT/DS386/AB/R , adopted 23 July 
2012, DSR 2012:V, p. 2449  
US – COOL  Panel Reports, United States  – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as 
modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, 
DSR 2012:VI, p. 2745  
US – COOL (Article  21.5 –
 Canada and Mexico)  Appellate Body Reports, United States  – Certain Country of Origin Labelling 
(COOL) Requirements  – Recourse to Article  21.5 of the DSU by Canada and 
Mexico , WT/DS384/AB/RW  / WT/DS386/AB/RW , adopted 29 May 2015  
US – COOL (Article  21.5 –
 Canada and Mexico)  Panel Reports, United States  – Certain Country of Origin Labelling (COOL) 
Requirements  – Recourse to Article  21.5 of the DSU by Canada and Mex ico, 
WT/DS384/RW  and Add.1 / WT/DS386/RW  and Add.1, adopted 29 May 
2015, as modified by Appellate Body Reports WT/DS384/AB/RW / 
WT/DS386/AB/RW  
US – Corrosion -Resistant Steel 
Sunset Review  Panel Report, United States  – Sunset Review of Anti -Dumping Duties on 
Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/R , 
adopted 9 January 2004, as modified by Appellate Body Report 
WT/DS 244/AB/R, DSR 2004:I, p. 85  
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United States  – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027  
US – Countervailing Duty 
Investigation on DRAMS  Panel Report, United States  – Countervailing Duty Investigation on Dynamic 
Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/R , adopted 20 July 2005, as modified by Appellate Body Report 
WT/DS296/AB/R, DSR 2005:XVII, p. 8243  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Short title  Full case title and citation  
US – Countervailing Measures 
on Certain EC Pr oducts 
(Article  21.5 – EC) Panel Report, United States  – Countervailing Measures Concerning Certain 
Products from the European Communities  – Recourse to Article  21.5 of the 
DSU by the European Communities , WT/DS212/RW , adopted 27 September 
2005, DSR 2005:XVIII, p. 8950  
US – Customs  Bond Directive  Panel Report, United States  – Customs Bond Directive for Merchandise 
Subject to Anti -Dumping/Countervailing Duties , WT/DS345/R , adopted 1 
August 2008, as modified by Appellate Body Report WT/DS343/AB/R / 
WT/DS345/AB/R, DSR 2008:VIII, p. 2925  
US – FSC Appellate Body Report, United States  – Tax Treatment for "Foreig n Sales 
Corporations" , WT/DS108/AB/R , adopted 20 March 2000, DSR 2000:III , p. 
1619 
US – FSC Panel Report, United States  – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R , adopted 20 March 2000, as modified by 
Appellate Body Report WT/DS1 08/AB/R, DSR 2000:IV, p. 1675  
US – Gambling  Appellate Body Report, United States  – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, D SR 2006:XII, p. 5475)  
US – Gambling  Panel Report, United States  – Measures Affecting the Cross -Border Supply of 
Gambling and Betting Services , WT/DS285/R , adopted 20 April 2005, as 
modified by Appellate Body Report WT/DS2 85/AB/R, DSR 2005:XII, p. 5797  
US – Gasoline  Appellate Body Report, United States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, p. 
3 
US – Large Civil Aircraft (2nd 
complaint)  Appellate Body Report, United States  – Measures Affecting Trade in Large 
Civil Aircraft (Second Co mplaint) , WT/DS353/AB/R , adopted 23 March 2012, 
DSR 2012:I, p. 7  
US – Offset Act (Byrd 
Amendment)  Appellate Body Report, United States  – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R , WT/DS234/ AB/R, adopted 27 January 
2003, DSR 2003:I, p. 375  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States  – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257  
US – Oil Co untry Tubular 
Goods Sunset Reviews 
(Article  21.5 – Argentina)  Panel Report, United States  – Sunset Reviews of Anti -Dumping Measures on 
Oil Country Tubular Goods from Argentina  – Recourse to Article  21.5 of the 
DSU by Argentina , WT/DS268/RW , adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS2 68/AB/RW, DSR 2007:IX, p. 3609  
US – Section 110(5) Copyright 
Act Panel Report, United States  – Section 110(5) of the US Copyright Act , 
WT/DS160/R , adopted 27 July 2000, DSR 2000:VIII, p. 3769  
US – Section 211 
Appropriations Act  Appellate Body Report, United States  – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R , adopted 1 February 2002, DSR 2002:II, p. 
589 
US – Section 211 
Appropriat ions Act  Panel Report, United States  – Section 211 Omnibus Appropriations Act of 
1998, WT/DS176/R , adopted 1 February 2002, as modified by Appellate 
Body Report WT/DS176/AB/R, DSR 2002:II, p. 683  
US – Section 301 Trade Act  Panel Report, United States  – Sections 301 -310 of the Trade Act of 1974 , 
WT/DS152/R , adopted 27 January 2000, DSR 2000:II, p. 815  
US – Shrimp  Appellate Body Report, United States  – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6 November 1998, DSR 
1998:VII, p. 2755  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Short title  Full case title and citation  
US – Softwood Lumber IV  Appellate Body Report, United States  – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R , adopted 17 February 2004, DSR 2004:II, p. 571  
US – Softwood  Lumber VI  Panel Report, United States  – Investigation of the International Trade 
Commission in Softwood Lumber from Canada , WT/DS277/R , adopted 26 
April 2004, DSR 2004:VI, p. 2485  
US – Superfund  GATT Panel Report, United States  – Taxes on Petroleum and Certain 
Imported Substances , L/6175, adopted 17  June 1987, BISD  34S/136  
US – Tuna II (Mexico)  Appellate Body Report, United States  – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R , adopted 13 June 2012, DSR 2012:IV, p. 1837  
US – Tuna II (Mexico)  Panel Report, United States  – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R , adopted 13 
June 2012, as modified by Appellate Body Re port WT/DS381/AB/R, DSR 
2012:IV, p. 2013  
US – Tuna II (Mexico) 
(Article  21.5 – Mexico)  Appellate Body Report, United States  – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products  – Recourse to 
Article  21.5 of the DSU by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3 
December 2015  
US – Upland Cotton  Appellate Body Report, United States  – Subsidies on Upland Cotton , 
WT/DS 267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Upland Cotton  Panel Report, United States  – Subsidies on Upland Cotton , WT/DS267/R , 
Add.1 to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate 
Body Report WT/DS267/AB/R, DSR 2005:II, p. 299  
US – Wool Shirts and Blouses  Appellate Body Report, United States  – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Zeroing (EC)  Panel Report, United States  – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R , adopted 9 May 
2006, as modified by Appellate Body Report WT/DS294/ AB/R, DSR 2006:II, 
p. 521  
 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1  INTRODUCTION  
1.1  Complaint by Honduras  
1.1.  On 4 April 201 2, Honduras  requested consultations with Australia  with respect to the 
measures and claims set out below . This request was  made pursuant to Article  4 of the  
Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU), Article  64 of 
the Agreement on Trade -Related Aspects of Intellectual Property Rights ( TRIPS  Agreement ), 
Article  14 of the  Agreement on Technical Barriers to Trade ( TBT Agreement ) and Article  XXII of the 
General Agreement on Tariffs and Trade 1994 ( GATT  1994).1  
1.2.  Consultations were held on 1 May 2012 between Honduras and Australia . These consultations 
failed to resolve the dispute.2  
1.2  Complaint by the Dominican Republic  
1.3.  On 18 July 2012, the Dominican Republic requested consultations with Australia  with respect 
to the measures and claims set out below . This request was made pursuant to Article  4 of the 
DSU, Article  XXII of the GATT  1994, Article  64.1 of the TRIPS  Agreement , and Article  14.1 of the 
TBT Agreement .3 
1.4.  Consultations  were held on 27 Septem ber 2012  between  the Dominican Republic and 
Australia . These consultations failed to resolve the dispute.4  
1.3  Complaint by Cuba  
1.5.  On 3 May 2013, Cuba requested consultations with Australia.  This request was made 
pursuant to Article  4 of the DSU, Article  XXII of the GATT  1994, Article  64.1 of the 
TRIPS  Agreement , and Article  14.1 of the TBT Agreement  with respect to the measures and claims 
set out below .5  
1.6.  Consultations were held on 13 June 2013 between Cuba and Australia.  These consultations 
failed to res olve the dispute.6  
1.4  Complaint by Indonesia  
1.7.  On 20 September 2013, Indonesia requested consultations with Australia  with respect to the 
measures and claims set out below . This request was made pursuant to Article  4 of the DSU,  
Article  14.1 of the TBT Agreement , Article  64.1 of the TRIPS  Agreement  and Article  XXII of the 
GATT  1994.7 
1.8.  Consultations were held on 29 October 2013 between  Indonesia and Australia . These 
consultations failed to resolve the dispute.8 
1.5  Panel establishment and composition  
1.5.1   Hondu ras 
1.9.  On 15 October  2012, Honduras requested the establishment of a panel pursuant to 
Article  4.7 and  Article  6 of the DSU, Article  XXIII:2 of the GATT  1994, Article  64 of the 
TRIPS  Agreement  and Article  14 of the TBT Agreement , with standard terms of refere nce.9 At its 
                                                
1 WT/DS435/1.  
2 WT/DS435/16.  
3 WT/DS441/1.  
4 WT/DS441/15.  
5 WT/DS458/1.  
6 WT/DS458/14.  
7 WT/DS467/1.  
8 WT/DS467/15.  
9 WT/DS435/16.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  meeting on 25 September 2013, the  Dispute Settlement Body  (DSB) established a panel pursuant 
to the request by Honduras, in accordance with Article  6 of the DSU .10  
1.10.   The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Honduras in document 
WT/DS4 35/16, and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulin gs provided for in those agreements.11 
1.11.   Argentina, Brazil, Canada, Chile, China, Cuba, the Dominican Republic, Ecuador, the 
European Union, Guatemala, India,  Indonesia,  Japan, the Republic of Korea, Malawi, Malaysia, 
Mexico, New Zealand, Nicaragua, Nigeria, Norway, Oman, Panama, Peru, the Philippines, 
Singapore, South Africa, Chinese Taipei, Thailand, Turkey, Ukraine, the United States, Uruguay, 
Zambia, and  Zimbabwe  notified their interest in participating in the panel proceedings as third 
parties.  
1.12.   On 26 Marc h 2014, Australia requested the Director -General to determine the composition 
of the panel, pursuant to Article  8.7 of the DSU.12 
1.5.2   Dominican Republic  
1.13.   On 9 November 2012 , the Dominican Republic requested the establishment of a panel 
pursuant to Article  4.7 and Article  6 of the DSU, Article  XXIII of the GATT  1994, Article  64.1 of the 
TRIPS  Agreement  and Article  14.1 of the TBT Agreement , with standard terms of reference.13 At its 
meeting on 25 April 2014, the DSB established a panel pursuant to the request by the Dominican 
Republic,  in accordance with Article  6 of the DSU .14 
1.14.   The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to th e DSB by the Dominican Republic 
in document WT/DS441/15 and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements.15 
1.15.   Argentina, Brazil, Canada, Chile, China, Cuba, Ecuador, the E uropean Union, Guatemala, 
Honduras, India, Indonesia, Japan, the Republic of Korea, Malaysia, Mexico, New Zealand, 
Nicaragua, Nigeria, Norway, Peru, the Philippines, the Russia n Federation , the Kingdom of Saudi 
Arabia, Singapore, South Africa, Chinese Taipei, Thailand, Trinidad and Tobago, Turkey, Ukraine, 
the United States, Uruguay, and Zimbabwe notified their interest in participating in the panel 
proceedings as third parties.  
1.16.   On 25 April 2014,  Australia requested the Director -General to determine the composition of 
the panel, pursuant to Article  8.7 of the DSU.16 
1.5.3   Cuba  
1.17.   On 4 April 2014, Cuba requested the establishment of a panel pursuant to Article  4.7 
and Article  6 of the DSU, Article  XXIII of t he GATT  1994, Article  64.1 of the TRIPS  Agreement  and 
                                                
10 See WT/DSB/M/337.  
11 WT/DS435/18/Rev.1.  
12 WT/DS435/18/Rev.1.  
13 WT/DS441/15.  
14 See WT/DSB/M/344.  
15 WT/DS441/17/Rev.1.  
16 WT/DS441/17/Rev.1.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Article  14.1 of the TBT Agreement .17 At its meeting on 25 April 2014, the DSB established a panel 
pursuant to the request by Cuba, in accordance with Article  6 of the DSU .18 
1.18.   The Panel's terms of reference  are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Cuba in document 
WT/DS458/14 and to make such findings as will assist the DSB in making  the 
recommendations or in giving the rulings provided for in those agreements.19 
1.19.   Argentina, Brazil, Canada, Chile, China, the Dominican Republic, Ecuador, the European 
Union, Guatemala, Honduras, India, Indonesia, Japan, the Republic of Korea, Malaysia, Mexico, 
New Zealand, Nicaragua, Nigeria, Norway, Peru, the Philippines, the Russia n Federation , the 
Kingdom of Saudi Arabia, Singapore, South Africa, Chinese Taipei, Thailand, Turkey, Ukraine, the 
United States, Uruguay, and Zimbabwe notified their interest in participating in the panel 
proceedings as third parties.  
1.20.   On 25 April 2014, Australia requested the Director -General to determine the composition of 
the panel, pursuant to Article  8.7 of the DSU .20 
1.5.4   Indonesia  
1.21.   On 3 March  2014, Indonesia  requested the establishment of a panel pursuant to Articles  4.7 
and 6 of the DSU, Article  XXIII of the GATT  1994, Article  64.1 of the TRIPS  Agreement  and 
Article  14.1 of the TBT Agreement  with standard terms of reference.21 At its meeting on 26 March  
2014, the DSB established a panel pursuant to the request by Indonesia  in document 
WT/DS467 /15, in accordance with Article  6 of the DSU .22  
1.22.   The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the co vered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Indonesia in document 
WT/DS467/15 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreemen ts.23 
1.23.   Argentina, Brazil, Canada, Chile, China, Cuba, the Dominican Republic, Ecuador, the 
European Union, Guatemala, Honduras, India, Japan, the Republic of Korea, Malawi, Malaysia, 
Mexico, New Zealand, Nicaragua, Nigeria, Norway, Oman, Peru, the Philippine s, the Russia n 
Federation , Singapore,  Chinese Taipei, Thailand, Turkey, Ukraine, the United States, Uruguay, and 
Zimbabwe notified their interest in participating in the panel proceedings as third parties.  
1.24.   On 23 April  2014, Australia requested the Director -General to determine the composition of 
the panel, pursuant to Article  8.7 of the DSU.24 
1.5.5   Procedural agreement between Australia, Ukraine25, Honduras, the Dominican 
Republic, Cuba, and Indonesia  
1.25.   On 24 A pril 2014, before the establishment of the panels in the  disputes brought by the 
Dominican Republic and Cuba, Australia sent a communication  to the Chairman  of the DSB  on 
behalf of all the parties to the disputes in DS435, DS441, DS458, and DS467, as well as in relation 
                                                
17 WT/DS458/14.  
18 See WT/DSB/M/344.  
19 WT/DS458 /16/Rev.1.  
20 WT/DS458/16/Rev.1.  
21 WT/DS467/15.  
22 See WT/DSB/M/343.  
23 WT/DS467/17/Rev.1.  
24 WT/DS467/17/Rev.1.  
25 See section 1.6.6 below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  to the proceedings in DS434 .26 This commun ication  concerned certain  arrangements for the 
composition of the panels  and the panels' timetable  in these disputes . The communication stated 
that the Dominican Republic and Cuba would proceed with their panel requests at the DSB meeting 
of 25 April 2014 and that Australia would agree to the establishment at that meeting.27 
1.26.   Australia also informed that it would request the Director -General to compose the panels in 
DS441 and DS458 . The communication also stated that the pa rties had agreed to the 
harmoniz ation of the timetable for the panel proceedings in DS434, DS435, DS441, DS458, and 
DS467, pursuant to Article  9.3 of the DSU. Furthermore, the parties indicated they would 
"undertake best endeavours to agree on a timetable to propose to the Panels".28 
1.27.   On 5 May  2014, the Director -General accordingly composed the p anels as follows29: 
Chairperson:  Mr Ale xander  Erwin  
 
Members:   Mr François Dessemontet  
   Ms Billie Miller  
    
1.6  Panel proceedings  
1.6.1   General  
1.28.   On 19 May 2014, in accordance with their procedural agreement of 24 April 201430, the 
parties submitted to the Panel31 a proposed timetable for its consideration.  
1.29.   On 26 May 2014, the Panel transmitted  draft Working Procedures and  a draft timetable to 
the parties . The Panel explained that its draft timetable took "due acco unt of the timeframes 
envisaged by the parties for various stages  of the proceedings ".32 The Panel also noted its 
understanding that the timetable jointly proposed by the parties assumed tha t substantive 
meetings as well as third -party session s would not be held separately for each dispute but would 
rather be held jointly  for all disputes . Accordingly, and in the interest of facilitating the efficient 
management  of the proceedings , the Panel' s draft Working Procedures sought to integrate the 
conduct of the  proceedings to the greatest extent possible , in accordance with Article  9.3 of the 
DSU.33 
1.30.   The Panel adopted its Working Procedures34 and timetable on 17 June 2014 . These Working 
Procedures were amended on 1 October 2014, to reflect the Panel's decision conc erning the 
adoption of SCI procedures35, and 15 December 2014, to reflect the Panel's decision concerning 
enhanced third-party rights .36 
1.31.   The Panel held a first substantive meeting with the parties on 1 and 3 -5 June 2015 . A 
session with the third parties took place on 3 June 2015. The Panel held a second substantive 
meeting with the parties on 28-30 October  2015.  
                                                
26 The panel proceedings in relation to DS434 (Ukraine) were subsequently suspended. See section 
1.6.6 below.  
27 WT/DS435/17, WT/DS441/16, WT/DS458/15, and WT/DS467/16.  
28 WT/DS435/17, WT/DS441/16, WT/DS458/15, and WT/DS467/16.  
29 WT/DS434/13, WT/DS435/18/Rev.1, WT/DS458/16/Rev.1, and WT/DS467/17/Rev.1.  
30 See Section 1.5.5.  
31 For the  reader's convenience, the Panels in DS435, DS441, DS458 and DS467 are herein collectively 
referred to as the Panel.  
32 Panel's communication to the parties of 26 May 2014.  
33 Panel's communication to the parties of 26 May 2014.  
34 See Panel's Working Procedu res in Annex A -1. In these Report s, exhibits submitted by Honduras are 
referred to as HND -#, by the Dominican  Republic  as DOM -#, by Cuba are referred to as CUB -#, by Indonesia 
as IDN -#, and by Australia as AUS -#. Exhibits that have been submitted jointly by the Dominican  Republic , 
Honduras, and Indonesia are referred to as DOM/HND/IDN -#, by the Dominican and Honduras as 
DOM/HND -#, by the Dominican  Republic  and Indonesia as DOM/IDN -#, and by all of the complainan ts jointly 
as JE-#.  
35 See section 1.6.3 below.  
36 See section 1.6.4 below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.32.   On 8 April 2016 , the Panel issued the draft descriptive part of its Report s to the parties. The 
Panel issued its Interim Report s to the parties on  2 May 2017 . The Panel issued its Final Report s to 
the parties on 25 September 2017 . 
1.6.2   Preliminary rulings on  the Panel's terms of reference  
1.33.   On 7 May 2014, Australia submitted to the Panel requests for preliminary rulings  with 
respect to the consistency of the Dominican Republic's, Cuba's , and Indonesia's panel requests 
with Article  6.2 of the DSU .  
1.34.   Australia requested the Panel to make preliminary procedural rulings excluding from its 
terms of reference the " non-exhaustiv e list of related measures and measures that 'complement or 
add to' the measures explicitly identified" in Cuba's, the Dominican Republic's , and Indonesia's 
panel requests on the basis that the requests did not  "identify the specific measures at issue ".37 In 
respect of Cuba's panel request, Australia also challenged the inclusion of c laims made by Cuba 
pursuant to Article  6bis of the Paris Convention  (read with Article  2.1 of the TRIPS  Agreement ); 
Article  16.3 of the TRIPS  Agreement ; Article  15.1 of the TRIPS Agreement ; and Article  17 of the 
TRIPS  Agreement .38 Australia requested that the Panel issue preliminary rulings in respect of these 
issues before the filing of the first written submissions.  
1.35.   On 11 June 2014, the Dominican Republic, Cuba,  and Indonesia e ach responded to 
Australia's request in relation to their respective proceedings. On the same date , the Panel 
provided the third parties with an opportunity to comment on Australia's requests.  On 17 June 
2014, the Panel received comments from the European Union and o n 18 June 2014, from 
Argentina, Brazil, Canada, Guatemala, and Mexico. The Panel  also received comments from the 
Dominican Republic, Honduras,  and Indonesia in their capacity as third parties in each other's 
disputes .39 
1.36.   On 1 July 2014, the Panel received comments from Australia on the Dominican Republic's, 
Cuba's, and Indonesia's responses to Australia's requests for preliminary rulings . On 8 July 2014, 
the Dominican Republic and Cuba provided comments on Australia's comments. Indonesia did not 
submit comments.  
1.37.   On 19 August 2014 , the Panel issued its preliminary rulings to the parties and the third 
parties, with an indication that these would become an integral part of the Panel's report, subject 
to any modifications or elaboration of the reasoning , either in a subsequent ruling or in the Panel's 
report.  
1.38.   With regard  to the Dominican Republic's, Cuba's , and Indonesia's  panel request s, the Panel 
found that "the terms 'including ', 'complement' and 'add to' , as used in [these ] panel request [s], 
are not,  on their face, inconsistent with the requirement under Article  6.2 of the DSU to identify 
the specific measures at issue".40  
1.39.   In respect of Cuba's  panel request , the Panel  also held that "the additional claims introduced 
by Cuba in its panel request are closely related to those that formed the legal basis of its request 
for consultations and can, in our view, reasonably be said to have evolved from the legal basis that 
formed th e subject of consultations". The Panel therefore was "not persuaded  that Cuba's claims 
under Article  16.3 of the TRIPS  Agreement  and Article  6bis of the Paris Convention  (through 
Article  2.1 of the TRIPS  Agreement ) ha[d] the effect of  … 'changing the essen ce of the complaint '. 
We consider that their addition in Cuba's panel request remains within the bounds of the 'measure 
of flexibility ' accorded to Members in formulating their complaints in their panel request ."41 
                                                
37 Australia's request for a preliminary procedural ruling in relation to the Dominican  Republic 's panel 
request, para. 1; Australia's request for a preliminary procedural ruling in relation to Indonesia's panel request, 
para. 1; and Australia's request for a preliminary procedural ruling in relation to Cuba's panel request 
para. 1(iii). (emphasis original)  
38 Australia's request for a preliminary ruling in relation to Cuba's panel request, para. 1(i). 
39 See WT/DS441/19, WT /DS458/18, and WT/DS467/19.  
40 WT/DS441/19, para.  5.36; WT/DS458/18, para. 5.71; and WT/DS467/19, para. 5.35. 
41 WT/DS458/18, para. 3.53. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.40.   These rulings were circulated to the DSB o n 27 October 2014.42 
1.6.3   Working procedures on strictly confidential information (SCI)  
1.41.   On 15 September 2014, the parties joint ly requested that the Panel adopt addenda to its 
Working Procedures and Additional Working Procedures Concerning Strictly Confidential 
Information  pursuant to Article  12.1 of the DSU. The complainants explained  that such procedures 
were necessary to enable them to provide to the Panel proprietary company and industry data  
provided to them on the basis of an assurance of confidentiality . In addition, Australia assert ed 
that protection was necessary to provide assurances to different government agencies that 
provid ed certain information for use in these disputes. In light of the explana tions offered  by the 
parties, the Panel agreed to ado pt additional procedures for the protection of SCI and to amend its 
Working Procedures accordingly.43 
1.6.4   Requests for enhanced third -party rights  
1.42.   In May  and June 2014, t he Panel received requests for enhanced third -party rights from 
Brazil, Canada, the Europe an Union, Guatemala, Mexico, New Zealand, Nicaragua, Norway, and 
Uruguay .44 
1.43.   On 15 December 2014, after consult ing with the parties and third parties, the Panel decided 
to grant the third parties the following additional rights: (a) access to the parties' re buttal 
submissions; and (b) access to the final written versions of the parties' opening and closing 
statements at the first and second substantive meetings.  The Panel also noted that, under its 
Working Procedures, it has the discretion to pose questions t o the third parties, orally or in writing, 
at any point during the proceedings. The Panel further noted that the third parties' access to these 
documents would be subject to the Additional Working Procedures Concerning Strictly Confidential 
Information  adopted by the Panel . 
1.44.   The Panel informed the parties and third parties that in reaching its decision, it had taken 
particular account of the economic interest in the production of, and trade in, tobacco products 
identified by several of the third parties, and  the potential trade policy impact of the disputes in 
light of several third parties' ongoing policy debate concerning possible tobacco control measures, 
including plain packaging requirements.  
1.45.   The Panel considered that the combination of these factors in the present disputes 
warranted the granting of certain additional rights in the form of access to the above -mentioned 
documents. As a matter of due process, and following the approach of panels in previous cases45, 
the Panel also considered it appropriate t o extend the same enhanced rights to all third parties. 
The additional rights granted would enable third parties to engage more meaningfully in the panel 
process and allow their interests to be fully taken into account, without placing an undue burden 
on the Panel, the parties , or the Secretariat, delaying the proceedings, or upsetting the balance 
between the respective interests of the parties and third parties to the disputes.  
1.6.5   Amicus curiae  submissions  
1.46.   In a communication dated 17 June 2014, the Panel informed  the parties that it did not 
include in its timetable a deadline for the submission of amicus curiae briefs. However, the Panel 
added that  it did not anticipate being in a position to consider amicus curiae submissions 
submitted to it after the end of  March 2015 , as accepting amicus curiae  briefs after this date would 
risk causing unnecessary delays and disrupt the orderly conduct  of the panel process . The Panel 
                                                
42 WT/DS441/19, DS458/18, and WT/DS467/19.  
43 The Additional Procedures Concerning SCI were adopted on 1 October 2014 and are reproduced in 
Annex A -2. 
44 Brazil's communication of 12 May 2014; Canada's communication of 16 May 2014; the European 
Union's communication of 13 May 2014; Guatemala's communi cation of 6 May 2014; Mexico's communication 
of 16 May 2014; New Zealand's communication of 22 May 2014; Nicaragua's communication of 12 June 2014; 
Norway's communication of 27 May 2014; and Uruguay's communication of 11 June 2014.  
45 See Panel Reports, EC – Tariff Preferences , Annex A; and EC – Export Subsidies on Sugar , 
paras.  2.5-2.7. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 69 - 
  indicated that this determination was without  prejudice to the Panel's authority to rule on  the 
admissibility and relevance of any unsolicited submission.  The parties w ere invited to provide their 
views on the admissibility and relevance of any amicus curiae  submission either as part of their 
first written submissions or at the first substantive meeting.  
1.47.   On 20 August 2014, the Panel received an unsolicited amicus curiae  submission from a 
group of business organization s.46 On 1 September 201 4, the Panel forwar ded this submission to 
the parties and third parties and at the same time informed the third parties of the approach it 
would take towards amicus curiae  submissions received in the proceedings.  
1.48.   On 15 December 201 4, following certain revisions to the timet able, the Panel informed the 
parties and third parties that it "would not be in a position to consider unsolicited information 
submitted to it after 27 April 2015 ". 
1.49.   The Panel received 35 additional unsolicited amicus curiae  submissions on or before 27 Apri l 
2015 and five unsolicited amicus curiae  submissions after this date .47  
1.50.   Australia submitted  as exhibits  three amicus curiae  submissions,  provided by  the World 
Health Organization (WHO) and the WHO Framework Convention on Tobacco Control (FCTC) 
Secretariat48; the Healthy Caribbean Coalition ; and the  Union of International Cancer Control  and 
Cancer Council Australia .49 The Dominican Republic, Honduras, and Indonesia submitted  as an 
exhibit  36 amicus curiae  submissions .50 
                                                
46 This submission was made jointly by the following organizations: Emergency Committee for American 
Trade; National Association of Manufacturers of the United States; Nation al Foreign Trade Council; Paperboard 
Packaging Council; Printing Industries of America; Independent Packaging Association; United States Chamber 
of Commerce; and United States Council for International Business.  
47 The Panel received amicus curiae  submissio ns dated on or before 27 April 2015 from: Emergency 
Committee for American Trade, National Association of Manufacturers of the United States, National Foreign 
Trade Council, Paperboard Packaging Council, Printing Industries of America, Independent Packagin g 
Association, United States Chamber of Commerce, and United States Council for International Business; 
Associação Brasileira da Propriedade Intelectual; American Chamber of Commerce in the Netherlands; 
Federation of Philippine Industries; Confederação Nac ional da Indústria (Brazil) ; Federation of Attica and 
Piraeus Industries; Cámara Nacional de Comercio y Servicios del Uruguay; Federação des Industrias do Estado 
da Bahia; Japan Business Federation; A ssociation of South -East Asian Nations (ASEAN)  Intellect ual Property 
Association; Institute of Public Affairs; Cámara de Industria de Guatemala; Trade -related IPR Protection 
Association; Indonesian Chamber of Commerce and Industry; Montenegrin Employers Federation; Taxpayers 
Association of Europe; International  Trademark Association; Australian Retailers Association; Japan Intellectual 
Property Association; Association of European Businesses in Russia, American Chamber of Commerce in 
Russia, and RusBrand; International Tobacco Growers' Association; Patent and Tr ademark Attorneys 
Association – Turkey; Aegean Exporters Association; European Association of Trade Mark Owners (MARQUES); 
United States Chamber of Commerce; EU -ASEAN Business Council, EU -Malaysia Chamber of Commerce and 
Industry, European Chamber of Comme rce in  Singapore, European Chamber of Commerce of the Philippines, 
European Chamber of Commerce and Industry in Lao PDR, and European Association of Business and 
Commerce in Thailand; American Chamber of Commerce in Thailand; Romanian Small and Medium Reta ilers 
Association; Association of Trademarks and Design Rights Practitioners; Canadian Manufacturers and 
Exporters; Federation of Korean Industries; Polish Chamber of Trade; Union des Fabricants; Healthy Caribbean 
Coalition; Union for International Cancer Control; Cancer Council Australia; and World Health Organization and 
WHO Framework Convention on Tobacco Control Secretariat. The Panel received amicus curiae  submissions 
dated after 27 April 2015 from: Russian Union of Industrialists and Entrepreneurs; Gr aphic Association 
Denmark; American Chamber Mexico; Malaysian International Chamber of Commerce and Industry; and 
Confederation of Danish Industry.  
48 World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 
"Information fo r Submission to the Panel by a Non -Party", 16 February 2015, (WHO/FCTC  amici curiae  brief), 
(Exhibit AUS -42, revised).  
49 Healthy Caribbean Coalition communication to the Panel of 22 April 2015, (Exhibit AUS -515); and 
UICC and CCA  amici curiae  brief, (Exhibit AUS -38). 
50 Briefs from the following amicus curiae  were submitted as Exhibit DOM/HND/IDN -1: Emergency 
Committee for American Trade, National Association of Manufacturers of the United States, National Foreign 
Trade Council, Paperboard Packaging Council, Printing Industries of America, Independent Packaging 
Association, United States Chamber of Commerce, and United States Council for International Business; 
Associação Brasileira da Propriedade Intelectual; American Chamber of Commerce in the Nethe rlands; 
Federation of Philippine Industries;  Confederação Nacional da Indústria (Brazil) ; Federation of Attica and 
Piraeus Industries; Cámara Nacional de Comercio y Servicios del Uruguay; Federação des Industrias do Estado 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.6.6   Suspension of the proceedings and lapse of authority in DS434  
1.51.   At the t ime of adoption of the Panel's W orking Procedures and timetable, these panel 
proceedings also related to DS434, initiated by Ukraine. Ukraine participated in these proceedings 
as a party until 30 May 2015.51 On 28 Ma y 2015 , the Panel received a request from Ukraine to 
suspend the proceedings in DS434 pursuant to Article  12.12 of the DSU. In a letter dated 29 May 
2015, Australia indicated that it "support[ed] the request by Ukraine to suspend proceedings, on 
the basis that … the suspension will be 'with a view to finding a mutually agreed solution'".  
1.52.   Article  12.12 of the DSU provides that a panel may suspend its work at any time at the 
request of the complaining party for a period not exceeding 12 months. On 30 May 201 5, after 
consulting also with the parties in DS435, DS441, DS458, and DS467, the Panel sent a 
communication to the parties informing them that it had acceded to Ukraine's request and 
suspended its work in DS434. In its communication , the Panel also noted t hat Ukraine remained  
entitled to participate in the Panel's proceedings as a third party in disputes DS435, DS441, 
DS458, and DS467.  The Panel also noted that it was the shared understanding of Ukraine and the 
parties that Ukraine's first written submissio n in DS434 and related evidence would remain on the 
record as a validly filed third -party submission in DS435, DS441, DS458, and DS467.52 Pursuant 
to paragraph 9 of the Panel's Working Procedures53, the Panel also invited the parties, to the 
extent they had not already done so, to provide clear indications as to which of the arguments and 
evidence presented by Ukraine they wished to endorse.54 
1.53.   On 1 June 2015, following consultation with the parties, the Panel contacted Ecuador, Egypt,  
and Moldova, which were t hird parties in  the dispute initiated by Ukraine  but not in the disputes 
initiated by Honduras, the Dominican Republic, Cuba, or Indonesia. The Panel informed Ecuador, 
Egypt and Moldova that they would need to notify their interest to the DSB pursuant to 
Article 10.2 of the DSU in respect of  DS435, DS441, DS458 , and DS467  should they wish to 
participate  in one or more of these proceedings, including the third -party session of the first 
substantive meeting. On 1 June 2015, Ecuador notified its third -party interest in respect of DS435, 
DS441, DS458, and DS467 to the Chairman of the DSB. On 2 June 2015, Moldova informed the 
Panel that it did not wish to participate in the other disputes as a third party.55 
                                                                                                                                                  
da Bahia; Japan Business Federati on; ASEAN Intellectual Property Association; Institute of Public Affairs; 
Cámara de Industria de Guatemala; Trade -related IPR Protection Association; Indonesian Chamber of 
Commerce and Industry; Montenegrin Employers Federation; Taxpayers Association of Eu rope; International 
Trademark Association; Australian Retailers Association; Japan Intellectual Property Association; Association of 
European Businesses in Russia, American Chamber of Commerce in Russia, and RusBrand; International 
Tobacco Growers' Associa tion; Patent and Trademark Attorneys Association – Turkey; Aegean Exporters 
Association; European Association of Trade Mark Owners ("MARQUES"); United States Chamber of Commerce; 
EU-ASEAN Business Council, EU -Malaysia Chamber of Commerce and Industry, Euro pean Chamber of 
Commerce in Singapore, European Chamber of Commerce of the Philippines, European Chamber of Commerce 
and Industry in Lao PDR, and European Association of Business and Commerce in Thailand; American Chamber 
of Commerce in Thailand; Romanian Small and Medium Retailers Association; Association of Trademarks and 
Design Rights Practitioners; Canadian Manufacturers and Exporters; Federation of Korean Industries; Polish 
Chamber of Trade; Union des Fabricants; Russian Union of Industrialists and Ent repreneurs; American 
Chamber Mexico; and Malaysian International Chamber of Commerce and Industry.  
51 On 19 August 2014, the Panel issued a preliminary ruling on its terms of reference in DS434, further 
to a request by Australia (See WT/DS434/15).  
52 Paragra ph 20 of the Panel's Working Procedures provides that "a complaining party's first written 
submission in one dispute shall be deemed to be an exercise of its third -party rights in the other four disputes. 
Arguments presented as a third party only shall be clearly identified as such." Ukraine's arguments as 
presented in its first written submission are cited in the Findings section of th ese Report s as "Ukraine's first 
written submission", as originally filed, but with the understanding that its status in the se disputes is of a 
third-party submission.  
53 Paragraph 9 of the Panel's Working Procedures states that "[a] party wishing to incorporate by 
reference or rely upon arguments and/or evidence submitted by another party or third party may do so 
provided that it clearly identifies the specific arguments and/or evidence it refers to and their source."  
54 Honduras, the Dominican  Republic , Cuba, and Indonesia communicated this information in separate 
correspondence dated 8 July 2015. Cuba sent an additional communi cation on this matter on 13 July 2015.  
55 The text of Moldova's third -party submission was also submitted by Honduras, the 
Dominican  Republic,  and Indonesia as an exhibit in these proceedings on 1 June 2015 . See Exhibit 
DOM/HND/IDN -2. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 71 - 
  1.54.   On 2 June 2015 , the Panel notified the Chairman of the  DSB of its decision to grant 
Ukraine's request and suspend its work in DS434, and requested that its communication be 
circulated to Members. The Panel's decision was circulated to Members on 3 June 2015.56 The 
Panel was not requested to resume its work in DS434 during the 12 months following suspension. 
Pursuant to Article  12.12 of the DSU, the authority for the establishment of the Panel in DS434 
lapsed as of 30 May 2016. The Secretariat issued a note informing the Membership on 
30 June 2016.57 
1.6.7   Requests for  information under Article  13 of the DSU  
1.55.   Article  13 of the DSU states:  
1. Each panel shall have the right to seek information and technical advice from 
any individual or body which it deems appropriate. However, before a panel seeks 
such information or advice from any individual or body within the jurisdiction of a 
Member it shall inform the authorities of that Member. A Member should respond 
promptly and fully to any request by a panel for such information as the panel 
considers necessary and appropriat e. Confidential information which is provided shall 
not be revealed without formal authorization from the individual, body, or authorities 
of the Member providing the information.  
2. Panels may seek information from any relevant source and may consult expe rts 
to obtain their opinion on certain aspects of the matter.  With respect to a factual issue 
concerning a scientific or other technical matter raised by a party to a dispute, a panel 
may request an advisory report in writing from an expert review group. Rules for the 
establishment of such a group and its procedures are set forth in Appendix 4 . 
1.56.   As detailed below, i n the course  of the  proceedings, the parties requested the Panel to 
exercise its authority to seek information under Article  13 on various occas ions, regarding  
information relating to evidence submitted by another party.  
1.57.   The Panel also exercised its authority to seek information from the WHO and the FCTC 
Secretariat , the International Bureau of the World  Intellectual Property  Organization (WIPO) , 
Cancer Council Queensland (CCQ) , and Cancer Council Victoria (CCV) . 
1.6.7.1   Request for information from the WHO  and the FCTC Secretariat  
1.58.   During the proceedings , the parties made reference to the FCTC and to the FCTC Guidelines 
for Implementation of the FCTC (FCTC  Guidelines) , particularly with respect to Articles  11 and 13  
of the Convention .58 
1.59.   On 16 February 2015, t he WHO  and the FCTC Secretariat  addressed a joint communication 
to the Panel, requesting permission to submit information to the Panel and providing certain 
                                                
56 WT/DS434/16.  
57 WT/DS434/17.  
58 See WHO Framework Convention on Tobacco Control: Guidelines for Implementation (2013 edition),  
(FCTC Guidelines for Implementation (2013 edition)), (Exhibits AUS -109, DOM -44), p p. 55-69 and 95 -114; 
"Guidelines for implementation of Article  11 (Packaging and labelling of tobacco products)", document 
FCTC/COP3(10), excerpted from Conference of the Parties to the WHO Framework Convention on Tobacco 
Control, "Decisions", Third Session, Durban, South Africa (17 -22 November 2008), document 
FCTC/CO P/3/DIV/3 of 16 February 2009, ( Article  11 FCTC Guidelines, FCTC/COP/3(10)), (Exhibit JE -20); and 
"Guidelines for implementation of Article  13 (Tobacco advertising, promotion and sponsorship)", document 
FCTC/COP3(12), excerpted from Conference of the Parti es to the WHO Framework Convention on Tobacco 
Control, "Decisions", Third Session, Durban, South Africa (17 -22 November 2008), document 
FCTC/COP/3/DIV/3 of 16 February 2009, ( Article  13 FCTC Guidelines, FCTC/COP/3(12)), (Exhibit JE -21). See 
details of the FCTC and related instruments in section 2.4 below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  information concerning the FCTC.59 This communication also indicated that the  WHO and  FCTC 
Secretariat were prepared to provide additional information  at the request of the Panel.60 
1.60.   Pursuant to Article  13 of the DSU, and after consulting with the parties, the Panel 
considered that , in light of the competencies of the WHO and the FCTC Secretariat with respect to 
the FCTC, it would benefit from further factual information from them concerning the FCTC and, in 
particular, the FCTC Guidelines for Implementation of Article  11 of the FCTC and the FCTC 
Guidelines for the Implementation of Article  13 of the FCTC (Article 11 and Article 13 FCTC 
Guidelines) .61 The Panel also too k into account a request by Indonesia for the Panel to seek certain 
additional information from the WHO and the FCTC Secretariat.62 
1.61.   Thus, o n 14 September 2015, the Panel invited the WH O and the FCTC Secretariat to 
provide factual information relating to (i) the process through which the Article  11 and Article  13 
FCTC Guidelines were adopted; (ii) the nature and intended function of the Article  11 and 
Article  13 FCTC Guidelines with respect to plain packaging of tobacco products; (iii) the speci fic 
aspects of the text of the Article  11 and Article  13 FCTC Guidelines with respect to the 
implemen tation of pla in packaging of tobacco products; and (iv) any available preparatory 
materials (including scientific or technical evidence) considered by the FCTC Conference of the 
Parties ( COP) in its deliberations preceding the adoption of the Article  11 and Article  13 FCTC 
Guidelines.  
1.62.   On 5 October 2015, the WHO  and the FCTC Secretariat  provid ed additional  information in 
response to the Panel's request , which t hey indicated should be read in the context of the 
information submitted on 16 February 2015.  The WHO and the FCTC Secretariat explained that, 
because the working groups were closed to the public, "the Convention Secretariat does not have 
a standi ng mandate to disclose preparatory materials from the working groups " preceding the 
adoption of the Article  11 and Article  13 FCTC Guidelines.63 The WHO and the FCTC Secretariat 
further explained that, with regard to the Article  11 FCTC Guidelines, the rest riction to share 
information was partially lifted by FCTC COP Decision FCTC/COP3(10), and the Convention 
Secretariat subsequently made a list of resources publicly available.64 The WHO and the FCTC 
Secretariat also explained that, with regard to the Article  13 FCTC Guidelines , "there has not been 
a COP decision mandating that the Convention Secretariat make preparatory materials public ".65  
1.6.7.2   Request for information from the International Bureau of WIPO  
1.63.   During the proceedings, t he complainants raised cer tain provisions of the Stockholm Act of 
the Paris Convention  for the Protection of Industrial Property ( Paris Convention  (1967) )66 as 
relevant to the interpretation of Australia's obligations under the TRIPS  Agreement .  
1.64.   On 14 September 2015, pursuant to Article 13 of the DSU,  and after consulting  with the 
parties,  the Panel requested the assistance of the International Bureau of WIPO with regard to 
                                                
59 WHO/FCTC  amici curiae  brief, (Exhibit AUS -42, revised).  
60 World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 
"Request for Permission to Submit Information to the Panel by a Non -Party", 16 February 2015, (WHO/FCTC 
Request for Permission to Submit Information), (Exhibit AUS -42, revised), para. 15. 
61 For simpl icity and convenience, when mentioned individually , we will refer to the FCTC  Guidelines for 
Implementation of Article  11 of the FCTC and  the FCTC  Guidelines for Implementation of Article  13 of the 
FCTC, as, respectively, the Article  11 FCTC Guidelines and  Article  13 FCTC Guidelines. See also 
paras.  2.107 -2.109 below . 
62 Indonesia's communication to the Panel of 22 April 2015. The Dominican  Republic  had previously 
requested information from the WHO FCTC Secretariat on the material relied on by the WHO FCTC W orking 
Parties in adopting the two Guidelines. Dominican  Republic 's communication of 25 April 2014 to the Head of 
the WHO FCTC Secretariat, (Exhibit DOM -46). The WHO FCTC Secretariat declined to provide this information, 
citing the"consultative and intergo vernmental nature of the process of developing guidelines". Head of the 
WHO FCTC Secretariat's communication of 26 May 2014 to the Dominican  Republic , (Exhibit DOM -47). 
63Additional Information for Submission to the Panel by a Non -Party on behalf of the Wor ld Health 
Organization and the WHO Framework Convention on Tobacco Control Secretariat, 5 October 2015, 
(WHO/FCTC Additional Information to Panel), para. 68. 
64 WHO/FCTC Additional Information to Panel, para. 69, at fn 63 above.  
65 WHO/FCTC Additional Information to Panel, para. 68, at fn 63 above.  
66 Paris Convention  for the Protection of Industrial Property, done at Paris, 20 March 1883, revised at 
Stockholm, 14 July 1967, amended 28 September 1979, 828 UNTS 305.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  factual information relevant to the interpretation of Article  6bis, Article  6quinquies  (and in 
particular paragraph (A)(1)  thereof) , Article  7, and Article  10bis, in particular as reflected in the 
materials of diplomatic conferences and subsequent developments in the framework of the Paris 
Union.  
1.65.   On 8 October 2015, WIPO provid ed material  related to these provi sions in response to the 
Panel's request . 
1.6.7.3   Data requests  by the parties  
1.66.   In the course of  the proceedings, t he parties made a number of requests to each other to 
provide data relied upon in certain expert reports and other material submitted to the Panel. In  
addition, the parties requested the Panel to exercise its authority pursuant to Article  13 of the DSU 
to seek data underlying different exhibits submitted by other parties during the proceedings.  
1.6.7.3.1   Requests by Australia in relation to evidence submitted by the Dominican 
Republic and Ukraine67 in the context of their first written submissions  
1.67.   On 17 October 2014, Australia requested the Panel to exercise its authority pursuant to 
Article  13 of the DSU to seek information from the Dominican  Republic and  Ukraine with regard to 
datasets relied upon in certain expert reports submitted with their first w ritten submissions . 
Specifically, Australia requested the datasets underlying an expert report subm itted by the 
Dominican Republic68 (IPE Report ), and two expert repor ts submitted by Ukraine69 (Neven Report 
and Klick Report ).  
1.68.   On 24 October 2014, the Dominican Republic undertook to provide the data requested by 
Australia relating to the IPE Report. On 31 October 2014, it provided this information70 and offered 
to provide certain other data and computer programming language relied upon in the IPE Report 
not requested by Australia, if so requested by the Panel. On 24 October 2014 , Ukraine indicated 
that it was not in principle opposed to providing the  requested datasets but stated that Article  13 
of the DSU was intended to provide the Panel , not Australia,  with the right to request the 
additional information and that the Panel should therefore be "led only by its own needs ".  
1.69.   On 31 October 2014 , the Pa nel took note of the fact t hat the Dominican Republic had 
undertaken to provide the requested datasets and that Ukraine was not opposed to providing the 
datasets  requested by Australia . The Panel further noted that Article  13.1 of the DSU  grants to 
panels "'significant investigative authority '71 and that this authority is 'comprehensive ' in nature ".72 
Moreover, the DSU "accords to a panel 'ample and extensive authority to undertake and to control 
the process by which it informs itself both of the relevant facts of the dispute and of the legal 
norms and principles applicable to such facts '".73 The Panel also noted that in US – Large Civil 
Aircraft (2nd Complaint) , the Appellate Body had discussed the use of this authority for the purpose 
                                                
67 On Ukraine's participation in these proceedigns, see section 1.6.6  above.  
68 This request concerned retail scanner data as relied upon in D. Afshartous, M. Hagedo rn, A. Kaul, and 
M. Wolf, "Empirical Assessment of Australia's Plain Packaging Regime", Institute for Policy Evaluation, 
(7 October 2014 ), (IPE Report ), (Exhibit DOM -100).  
69 This reque st concerned retail sales data for cigarette sales as well as retail revenue and volume data 
in Australia and New Zealand provided by Nielsen, as relied upon in D. Neven, "The Effects of Plain Packaging 
Regulation on Competition and Tobacco Consumption: An  Economic Assessment" (2 October 2014), 
(Neven  Report ), (Exhibit UKR -3) (SCI) (relied upon by Indoneisia: see Indonesia's communication to the Panel 
of 8 July 2015); and J. Klick, "The Effect of Australia's Plain Packaging Law on Smoking: Evidence from Sur vey 
and Market Data" (26 July 2014 ), (Klick Report ), (Exhibit UKR -5) (relied upon by Honduras, the 
Dominican  Republic , Cuba, and Indonesia: see Honduras's communication to the Panel of 8 July 2015; 
Dominican  Republic 's responses to Panel questions followin g the first substantive meeting, para. 1; Cuba's 
communication to the Panel of 8 July 2015; and Indonesia's communication to the Panel of 8 July 2015).  
70 See Exhibit DOM -100.A (SCI).  
71 Panel's communication of 31 October 2014, para. 8 (quoting Appellate Body Reports, US – Continued 
Suspension , para. 439; Canada  – Continued Suspension , para. 439; and Japan  – Agricultural Products II , 
para. 129).  
72 Panel's communication of 31 October 2014, para. 8 (quoting Appellate Body Report, US – Shrimp, 
para. 104).  
73 Panel's communication of 31 October 2014, para. 8 (quoting Appellate Body Report, Canada  –
 Aircraft , para. 185).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 74 - 
  of obtaining informat ion requested by another party to a dispute. In this regard the Appellate Body  
had observed that one aspect of ensuring that proceedings are fairly conducted is that each party 
is entitled to know the case it has to make or answer and is given a reasonable  opportunity to do 
so. Accordingly, it advised that panels take into account the following considerations:  
[W]hat information is needed to complete the record, whose possession it lies within, 
what other reasonable means might be used to procure it, why it  has not been 
produced, whether it is fair to request the party in possession of the information to 
submit it, and whether the information or evidence in question is likely to be 
necessary t o ensure due process and a proper adjudication of the relevant cla im(s).74 
1.70.   The Panel noted that the datasets requested by Australia underlay reports that Ukraine had 
submitted and relied upon in the presentation of its case , and that this reliance formed the basis 
for Australia's argument that acces s to the data was neces sary to allow it "to test the veracity of 
the assertions based on the data and consequently to ensure due process and a proper 
adjudication of [the] disputes ."75 The Panel also noted that Australia had attempted unsuccessfully 
to obtain the data in question from the private entities responsible for its collection . The Panel was 
mindful of the Appellate Body's observation that due process is connected, inter alia, to the right 
of parties to be afforded an adequate oppor tunity to pursue their cla ims, make out their defenc es 
and establish the facts, and that there may be circumstances in which a party cannot meet its 
burden by adducing all relevant evidence , most nota bly when the  information is in the exclusive 
possession of an opposing  party.76 
1.71.   The Panel further noted that  Ukraine had not suggested that it would be unable or unwilling 
to provide the  requested  information , if requested to do so , and that t he Panel had a dopted 
additional working procedures for the protection of SCI. The Panel concluded that the provision of 
the data was appropriate and requested Ukraine to provide the datasets  at issue , without prejudice 
to any later finding by the Panel concerning the ir relevance to the Panel's assessm ent of the 
matter before it .77 The data sets, along with select related computer codes,  were provided to the 
Panel and the parties on 13 November 2014 . Additional related computer codes were provided on  
28 November 2014 and 5  December 2014 .78 
1.72.   On 10 November 2014, Australia requested the Panel to exercise its discretion under 
Article  13 of the DSU to request additional information relating to the IPE Report from the 
Dominican Republic. On 12 November 2014, the Dominican Republic communicated that it would 
provide certain information , which it subsequently submitted on 24 November 201479, but required 
a ruling from the Panel under Article  13.1 of the DSU to obtain the remainder of the requested 
information from private entities . On 20 November 2014, the Panel exercised its discretion under 
Article  13 of the DSU and requested that the outstanding data in question be provided to the 
Dominican Republic in order to facilitate its production by the Dominican Republic to the Panel and 
the other parties. The Dominican Republic provided this information on 12 December 2014.80 
1.6.7.3.2   Request s by Ukraine81 and the Dominican Republic in relation to evidence 
submitted by Australia in the context of its first written submission  
1.73.   On 24 October 2014, Ukraine requested that the Panel exercise its authority pursuant to 
Article  13 to request Austral ia to provide , no later than the ti me of Australia's filing of its first 
written submission,  certain data sets that were not in the public d omain and that "could be 
relevant" to the dispute.  Specifically, Ukraine identified certain studies "on the alleged 
effectiveness of plain packaging to impact smoking behaviour of consumers in Australia" conducted 
                                                
74 Panel's communication of 31 October 2014, para. 9 (quoting Appellate Body Report, US – Large Civil 
Aircraft (2nd Complain t), para. 1140).  
75 Panel's communication of 31 October 2014, para. 11. 
76 Panel's communication of 31 October 2014, para. 12 (referring to Appellate Body Reports, Thailand  –
 Cigarettes (Philippines) , para. 147; and US – Large Civil Aircraft (2nd Complaint) , para. 1139).  
77 Panel's communication of 31 October 2014, paras.  13-14. 
78 See Exhibits UKR -199(1) to UKR -199(12), UKR -200(1) to UKR -200(10), and UKR -201(1) to 
UKR-201(2), respectively. Ukraine designated the entirety of each of these exhibits as SCI.  
79 See Exhibit DOM -100.B (SCI).  
80 See Exhibit DOM -100.C (SCI).  
81 On Ukraine's participation in these proceedigns, see section 1.6.6 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  by Cancer Institute New South Wales (CINSW) and CCV . Ukraine requested the Panel to request 
the underlying data from these studies in order for the Panel to "elucidate its u nderstanding of the 
facts and assist it in making an objective assessment of the fact s … whether or not Australia relies 
on these studies in its submission". Ukraine argued that these datasets were known to Australia 
via these two governmental agencies and were not in the public domain or otherwise available to 
the Panel or other parties i n these dispute s. Ukraine also requested that the Panel request 
Australia to provide any data underlying its own expert  reports and other argumentation in its first 
written submission, at the time it would file such submission.82  
1.74.   In response, r eferring to its own requests for datasets relating to arguments submitted with 
the Dominican Republic's and Ukraine's first written submissions83, Australia noted that it was 
aware of the specific challenges in properly considering materials based on datasets, when the  
underlying datasets are not provided in a prompt and timely manner. To avoid this situation going 
forward, A ustralia was "willing to provide data  sets upon which its expe rt repo rts are based " at the 
time of filing its first written submission ". However, i t considered that "any claim for data in 
advance of that date is purely speculative".84 
1.75.   On 20 Nov ember 2014, the Panel declined the request,  noting that Ukraine had stated that 
the data "could" be relevant to its dispute and that it should be available "whe ther or not Australia 
relies on these studies in its submission".85 The Panel was not persuaded that the circumstances 
required it to request Australia to submit this information  at this stage of the proceedings . The 
Panel considered  that it would be better placed to assess the need to seek additional information 
from the parties, including, if relevant, the information identified by Ukraine,  after Australia had 
presented its first written submission. The Panel therefore declined to r equest Australia to submit 
the requested information, without prejudice to any later decision concerning the relevance or 
otherwise of the datasets at issue.86 
1.76.   On 30 March 2015, Ukraine requested the Panel to request , pursuant to Article  13 of the 
DSU, that Australia submit "certain tracking survey data and information".87 According to Ukraine, 
"not all relevant data and information presented as evidence and relied upon by Australia have 
been provided ", contrary to Australia's undertaking to provide the datas ets upon which its expert 
reports are based at the time of filing its first written submission .88 On 7 April 2015, Honduras, the 
Dominican Republic, and Indonesia expressed their support for Ukraine's request. On 10 April  
2015, the Dominican Republic also requested the Panel to  request  Australia to submit, pursuant to 
Article  13 of the DSU, certain "information referenced and relied upon in its first written 
submission … and in expert reports submitted as exhibits to that submission"89, including  data and 
computer codes "associated with a series of studies referenced and relied upon by Australia and its 
experts to assert the effectiveness of the challenged plain packaging measure".90 
                                                
82 Ukraine's communication to the Panel of 24 October 2014, section III.  
83 See section 1.6.7.3.1  above.  
84 Australia's communication to the Panel of 30 October 2014, p. 2. 
85 Panel's communication of 20 November 2014, paras.  4-5. 
86 Panel's communication of 20 Novemb er 2014, paras.  7 and 9.  
87 Ukraine's communication to the Panel of 27 March 2015, para. 1. 
88 Ukraine's communication to the Panel of 27 March 2015, paras.  10-11. 
89 Dominican  Republic 's communication to the Panel of 10 April 2015, para. 1. 
90 Dominican  Republic 's communication to the Panel of 10 April 2015, para. 6. The Dominican  Republic' s 
request pertained to the datasets  underlying the following fourteen published studies: NTPPTS:  M. Wakefield, 
K. Coomber, M. Zacher, S. Durkin, M. Brennan, a nd M. Scollo, "Australian Adult Smokers' Responses to Plain 
Packaging with Larger Graphic Health Warnings One Year After Implementation: Results from a National 
Cross -Sectional Tracking Survey", Tobacco Control  (2015) , Vol. 24, (Wakefield et al. 2015 ), (Exhibits AUS-206, 
DOM-306), pp. ii17-ii25; S. Durkin, E. Brennan, M. Coomber, M. Zacher, M. Wakefield, and M. Scollo, 
"Short -Term Changes in Quitting -Related Cognitions and Behaviours After the Implementation of Plain 
Packaging with Larger Health Warnings: F indings from a National Cohort Study with Australian Adult Smokers", 
Tobacco Control  (2015), Vol. 24, (Durkin et al. 2015 ), (Exhibits AUS -215 (revised), DOM -305), p p. ii26-ii32; 
E. Brennan, S. Durkin, K. Coomber, M. Zacher, M. Scollo, and M. Wakefield, "Are Quitting -Related Cognitions 
and Behaviours Predicted by Proximal Responses to Plain Packaging with Larger Health Warnings? Findings 
from a National Cohort Study with Australian Adult Smokers", Tobacco Control  (2015), Vol. 24, (Brennan et al. 
2015), (Exhibit s AUS-224, DOM -304), pp. ii33-ii41. School -based surveys : V. White, T. Williams, and M. 
Wakefield, "Has the Introduction of Plain Packaging with Larger Graphic Health Warnings Changed Adolescents' 
Perceptions of Cigarette Packs and Brands?" Tobacco C ontrol  (2015), Vol. 24, (White et al. 2015a ) (Exhibit s 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.77.   Australia considered "misleading" Ukraine's claim that the requested data is of a category 
that Australia underto ok to provide , and added that the data were not analysed by Australia's 
experts but instead were analysed in academic journals or independent papers, the conclusions of 
which were relied on by Australia and one its exper ts.91 Australia also argued, in its response to 
the Dominican Republic of 16 April 2015, that the datasets requested by the Dominican Republic 
were not relied upon by Australia or its experts, but rather were  analysed in independent 
peer-reviewed journal ar ticles, which were relied on by Australia and its experts.92 Such 
publications were not, in Australia's view, properly the object of requests under Article  13 of the 
DSU. 
1.78.   Notwithstanding this position, Australia provided certain data requested by Ukraine an d the 
Dominican Republic in the context of further exchanges on this issue  on 7, 16 and 24 April 2015, 
and 12 May 2015 . On 22 April 2015, the Dominican Republic submitted additional comments to 
the Panel, including  an identification of  data that it conside red had still not been supplied. On 
24 April 2015, Australia submitted further additional comments.  
1.79.   On 13 May 2015 , the Panel  responded to Ukraine's and the Dominican Republic's requests , 
while taking note of the aspects of these requests that had already been addressed  in the context 
of Australia's communications of 7, 16 and 24 April and 12 May 2015 . The Panel first recalled that, 
as observed in its communication of 31 October 2014, it was :  
[W]ithin the scope of its discretion under Article  13 of the DSU to seek information 
from a party pursuant to a request from another party and that, in determining 
whether to exercise such authority, it should have regard to considerations such as 
what information is needed to complete the record, whose po ssession it lies within, 
what other reasonable means might be used to procure it, why it has not been 
produced, whether it is fair to request the party in possession of the information to 
                                                                                                                                                  
AUS-186, DOM -235), pp. ii42-49; V. White, T. Williams, A. Faulkner, and M. Wakefield, "Do Larger Graphic 
Health Warnings on Standardised Cigarette Packs Increase Adolescents' Cognitive Processing of Co nsumer 
Health Information and Beliefs about Smoking Related Harms?", Tobacco Control  (2015), Vol. 24, (White et al. 
2015b), (Exhibits HND -135, DOM -236, DOM -288), pp. ii50-ii57. Data on cigar smoking : C. Miller, K. Ettridge, 
and M. Wakefield, "'You're Made to Feel like a Dirty Filthy Smoker When You're Not, Cigar Smoking is Another 
Thing All Together.' Responses of Australian Cigar and Cigarillo Smokers to Plain Packaging", Tobacco Control  
(2015), Vol . 24, (Miller et al. 2015 ), (Exhibits AUS -102, DOM -315), p p. ii58-ii65. Data on personal pack 
display : M. Zacher, M. Bayly, E. Brennan, J. Dono, C. Miller, S. Durkin, M. Scollo, and M. Wakefield, "Personal 
Tobacco Pack Display Before and After the Introduc tion of Plain Packaging with Larger Pictorial Health Warnings 
in Australia: An Observational Study of Outdoor Café Strips", Addiction  (2014), Vol. 109, (Zacher et al. 2014 ), 
(Exhibits AUS -222 (revised), JE -24(68), DOM -286), p p. 653-662; M. Zacher, M. Bayly , E. Brennan, J. Dono, C. 
Miller, S. Durkin, M. Scollo, and M. Wakefield, "Personal Pack Display and Active Smoking at Outdoor Café 
Strips: Assessing the Impact of Plain Packaging 1 year Post Implementation", Tobacco Control  (2015), Vol. 24, 
(Zacher et al.  2015) (Exhibits AUS -223 (revised), DOM -287), p p. ii94-ii97. The ITC Project Four Country 
Survey : H.H. Yong, R. Borland, D. Hammond, J. Thrasher, K. Cummings, and G. Fong, "Smokers' Reactions to 
the New Larger Health Warning Labels on Plain Cigarette Packs  in Australia: Findings from the ITC Australia 
Project", Tobacco Control  (2015), doi:10.1136/tobaccocontrol -2014-05197, ( Yong et al. 2015 ), (Exhibit 
DOM-382); E. Swift, R. Borland, K. Cummings, G. Fong, A. McNeill, D. Hammond, J. Thrasher, T.R. Partos, and 
H.H. Yong, "Australian Smokers' Support for Plain or Standardised Packs Before and After Implementation: 
Findings from the ITC Four Country Survey", Tobacco Control  (2014), 
doi:10.1136/tobaccocontrol -2014-051880. VSHS : M. Scollo, M. Zacher, S. Durkin, and M. Wakefield, "Early 
Evidence about the Predicted Unintended Consequences of Standardised Packaging of Tobacco Products in 
Australia: A Cross -Sectional Study of the Place of Purchase, Regular Brands and Use of Illicit Tobacco", BMJ 
Open (2014), Vol. 4, doi:10.1136/bmjopen -2014-005873, (Scollo et al. 2014 ), (Exhibits AUS -507, JE -24(57)); 
M. Wakefield, L. Hayes, S. Durkin, and R. Borland, "Introduction Effe cts of the Australian Plain Packaging Policy 
on Adult Smokers: A Cross -Sectional Study", BMJ Open  (2013), Vol. 3, doi:10.1136/bmjopen -2013-003175, 
(Wakefield et al. 2013 ), (Exhibits AUS -184, JE -24(64)). Cancer Institute Tobacco Tracking Survey (CITTS):  S. 
Dunlop, T. Dobbins, J. Young, D. Perez, and D. Currow, "Impact of Australia's Introduction of Tobacco Plain 
Packs on Adult Smokers' Pack -Related Perceptions and Responses: Results from a Continuous Tracking 
Survey", BMJ Open  (2014), Vol.4, doi:10.1136/bmjo pen-2014-005836, (Dunlop et al. 2014 ), (Exhibits 
AUS-207, HND -132, DOM -199). Data regarding calls to the Quitline : J.M. Young, I. Stacey, T.A. Dobbins, S. 
Dunlop, A.L. Dessaix, and D.C. Currow, "Association Between Tobacco Plain Packaging and Quitline Call s: A 
Population -Based, Interrupted Time -Series Analysis", Medical Journal of Australia (2014), Vol. 200, ( Young et 
al. 2014 ), (Exhibits AUS-214, JE -24(67), DOM -285), p p. 29-32.  
91 Australia's communication to the Panel of 7 April 2015, p. 1. 
92 Australia's communication to the Panel of 16 April 2015, p. 1. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  submit it, and whether the information or evidence in question is li kely to be 
necessary to ensure due process and a proper adjudication of the relevant claim(s).93 
1.80.   The Panel observ ed that, as expressed in its earlier communication in respect of A ustralia's 
own request for data94, it was mindful of the fact that due process is connected to, inter alia, the 
rights of parties to be afforded an adequate opportunity to pursue their claims, make out their 
defences, and establish the facts, and that there may be circumstances in which a party cannot 
meet its burden by adducing all relevant evidence, most notably when that information is in the 
exclusive possession of an opposing party.95  
1.81.   The Panel also noted Australia's recognition, prior to the filing of its first written submission, 
of "'the challenges in properly considering mate rials based on data sets, when the underlying data 
sets are not provided in a prompt and timely manner ' and its commitment  … to provide datasets 
upon which its expert reports are based at the time of filing its first written submission ".96 The 
Panel further  noted that the requests at issue were "based on Australia's reliance, in its first 
written submission, on certain published research results relating to the impact of the challenged 
measures, including in relation to smoking behaviours since the entry int o force of the Plain 
Packaging measures ", and that the complainants also sought  access to additional related datasets 
not expressly relied upon in the cited publications.97  
1.82.   An important consideration guiding the Panel,  in deciding whether an exercise of it s 
authority under Article  13 of the DSU was warranted, was a consideration of in whose possession 
the information is , whether the information was in the exclusive possession of the other party, 
whether other reasonable means could be used to procure it , and whether the requesting party 
had availed itself of or tried to avail itself of such means. The Panel noted that Ukraine and the 
Dominican Republic had provided no indication of having taken steps to obtain the requested 
information directly fro m the inst itutions they identified  as the source of the data, or from the 
persons identified as contact point s in each of the cited publications, following Australia's filing of 
its first written submission. Based on the information before it and without prejudice t o the 
potential relevance of the requested information, the Panel was also not per suaded that this 
information  could, as the complainants' arguments suggested, "be assumed to be in the sole 
possession of, or directly accessible to, the Government of Austra lia, solely on the basis that the 
underlying research was publicly funded or conducted in publicly -funded institutions ".98  
1.83.   Without prejudice to the potential relevance of such information, the Panel was therefore 
not persuaded that the circumstances at that point of the proceedings warranted an exercise of its 
authority under Article  13 of the DSU to request Australia to produ ce it, and invited Ukraine and 
the Dominican Republic to seek to obtain data directly from the relevant sources through 
appropriate channels .99  
1.84.   On 16 June 2015, the Dominican Republic informed the Panel that, pursuant to the Panel's 
ruling, it had sent let ters to the author s of the fourteen studies to which its request pertained , as 
well as to the institutions that it understood to be in possession of the data,  and that its efforts 
had "met  with very limited success".100 It requested that the Panel seek, firs t, from Australia, any 
requested information that was in its possession and control,  and second, concurrently exercise its 
authority under Article  13 of the DSU by seeking information from the individuals and institutions 
designated as contacts in the stud ies in question.  
                                                
93 Panel's communication of 13 May 2015, para. 6. See also Panel's communication of 31 October 2014, 
para. 9 (quoting Appellate Body Report, US – Large Civil Aircraft (2nd Complaint) , para. 1140). 
94 See Panel's communication of 31 October 2015, and section 1.6.7.3.1  above.  
95 Panel's communication of 13 May 2015, para. 8. 
96 Panel's communi cation of 13 May 2015, para. 9 (quoting Australia's communication to the Panel of 
30 October 2014, p. 2). 
97 Panel's communication of 13 May 2015, para. 11. 
98 Panel's communication of 13 May 2015, para. 14. 
99 Panel's communication of 13 May 2015, para. 15. The Panel addressed in the same communication a 
similar request by Ukraine, dated 30 March 2015. Australia provided certain information in response to this 
communication. See Australia's communication to the Panel of 7 April 2015. This request became moot 
following the suspension of proceedings in DS434 on 30 May 2015. See section 1.6.6 above.  
100 Dominican  Republic 's communication to the Panel of 16 June 2015, p. 3. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.85.   Between 17 June 2015 and 10 August 2015, CINSW provided , through Australia,  certain 
requested data concerning the Cancer Institute New South Wales Tobacco Tracking Survey 
(CITTS), and data regarding calls to Australia's natio nal smoking cessation helpline,  Quitline .101 
During this period , CCV also provided certain information , directly to the Dominican Republic or 
through Australia , concerning the National Tobacco Plain Packaging Tracking Survey  (NTPPTS) , 
cross-sectional school -based survey s, and data from the Victorian Smoking  and Health  Survey  
(VSHS).102 
1.86.   On 21 August 2015, the Dominican Republic provided a further clarification of the status of 
its request, in light of recent communications. On 26  August  2015, Australia addressed an 
additional communication to the Panel, observing that despite the "firm po sition " it maintain s 
concerning the "inappropriateness of the Dominican Republic's Article  13 requests ", it had 
nonetheless provided all of the requested information in its possession.103 On 29 August 2015, the 
Dominican Republic addressed a further communic ation to CINSW concerning the data and 
information it had provided.  
1.87.   On 7 September 2015, t he Panel communicated to the parties its understanding that, as a 
result of the parties' exchanges , certain information ha d been provided by CINSW and CCV, 
through Au stralia, to the Panel and the other parties  and that, as a result, a number of aspects of 
the Dominican Republic's request were moot .104  
1.88.   With respect to  outstanding aspects of the request, t he Panel first addressed Australia's 
argument that the Dominican Republic was not requesting information prepared specifically for use 
in these proceedings , but information underlying " 'certain peer -reviewed journal articles prepared 
by independent academics that Australia has referred to in its submissions '" which, in Australia's 
view, " 'are not the proper subject of an Article  13 request '".105 
1.89.   The Panel first observed  that the information requested was comparable in nature to that 
previously requested by Australia. It recalled that on 17 October and 10  November 2014, Aus tralia 
had requested that the Panel exercise its discretion under Article  13 of the DSU to seek 
information  from the Dominican Republic106, with respect to various exhibits submitted by the  
complainants107, including unprocessed source data and programming lan guage/computer 
codes .108 The Panel also noted Australia's recent requests for similar data in relation to the 
Dominican Republic's statement at the first substantive meeting and responses to questions.109 
Similarly, in its requests, the Dominican Republic soug ht access to "data and computer codes 
underlying the conclusions presented"110 in various studies relied upon by Australia to "'test the 
veracity of the assertions made' by Australia"111 in reliance on these studies.112 
                                                
101 Australia's communications to the Panel of 17 June 2015, 28 July 2015, and 10 August 2015. On 18 
June 2015, the Dominican  Republic  informed the Panel that it had received this information and clarified  a 
"clerical error" in its communication of 16 June 2015 and, in light of this correction, clarified the precise 
content of its request.  
102 On 22 June 2015, the Dominican  Republic  indicated that it had received a communication from CCV 
"offering to provide certain information to the Panel but refusing to provide other information". On 28 July 
2015 and 7 August 2015 Australia provided certain information on behalf of CCV.   
103 Australia's communication to the Panel of 2 6 August 2015, p. 2. 
104 Panel's communicati on of 7 September 2015, para. 2.11. 
105 Panel's communication of 7 September 2015,  para. 2.20 (quoting Australia's communication to the 
Panel of 19 June 2015, p. 2). 
106 Australia also addressed this request in respect of Ukraine, see fn 99 above.  
107 Klick Report , (Exhibit UKR -5); Neven Report , (Exhibit UKR -3) (SCI);  IPE Report , (Exhibit DOM -100); 
and Exhibit DOM -100.B (SCI) . See section 1.6.7.3.1  above.  
108 Panel's communication of 7 September 2015, para. 2.21 (quoting Australia's communication to the 
Panel of 10 Novem ber 2014, p. 2). 
109 Panel's communication of 7 September 2015, para. 2.21 (referring to  Australia's communication to 
the Panel of 2 June 2015, p. 1; and Australia's communication to the Panel of 20 July 2015, p. 2). See also 
section 1.6.7.3.3  below.  
110 Dominican  Republic 's communication to the Panel of 16 June 2015, p.1.  
111 Dominican  Republic 's communication to the Panel of 26 June 2015, paras.  22, 27, 32, 39, and 42 -43 
(quoting Australia's communication to the Panel of 10 November 2014, p. 2). 
112 Panel's communication of 7 September 2015, para. 2.21. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.90.   The Panel noted  that Australia's and the Dominican Republic's respective requests, as well 
as their first written submissions, indicate d that, notwithstanding the fact that the information 
requested by Australia formed the basis of commissioned expert reports rather than of published 
studies, bot h parties consider  that the scrutiny of information at this level of detail is necessary, in 
these proceedings, for them " 'to know the case that [they have] to make or to answer '".113 In light 
of this, and without prejudice to the Panel's own assessment of t he level of scrutiny that will be 
required for it to make an objective assessment of the matter before it, the Panel considers that its 
obligation to ensure the right of the parties to be afforded an adequate opportunity to " 'pursue 
their claims, make out their defences, and establish the facts in the context of proceedings 
conducted in a balanced … manner '", mandates that the Panel allow the parties the opportunity to 
engage in comparable levels of review of the information on the record.114 
1.91.   With respect to Australia's argument that data underlying independent, peer -reviewed 
journal articles (as opposed to data underlying commissioned expert reports) is not properly the 
subject of a request for information under Article  13 of the DSU, the Panel noted that  Articles 13.1 
and 13.2 of the DSU permit panels to request and obtain information from " 'any individual or body 
which it deems appropriate ' and from 'any relevant source '" and the Panel did not see any a priori 
restriction on the individual to whom, or body t o which, we might direct a request.115 The Panel 
therefore considered that the fact that the requested information underlay published articles did 
not, in itself, shield it from scrutiny under Article  13 of the DSU.116  
1.92.   The Panel further noted that in the part icular circumstances of these proceedings, the 
studies at issue were relied on by Australia in direct support of its arguments that the challenged 
tobacco plain packaging measures are fulfilling their objective and specifically address, in various 
ways, the effects of the measures, which  is a strongly disputed issue. The Panel observed  that 
these publications were specifically intended to evaluate the effects of the challenged tobacco plain 
packaging  measures, and were based on data collected in the conte xt of surveys and research 
programmes dedicated to the study of tobacco control, including programmes receiving public 
funding.117 
1.93.   The Panel further noted that CCV, which responded to the Dominican Republic's request on 
behalf of the authors of most of the s tudies at issue, and which holds most of the requested 
information, was established by statute in the State of Victoria as a non -profit organization and 
reports to Parliament, though it is not classified as a public entity or part of the public service.118 
The Panel explained that the Dominican Republic also observes, and Australia does not dispute, 
that many of the authors of the cited studies, including those affiliated with CCV, have been part of 
various bodies advising the Australian Government on tobacco  control, including on plain 
packaging legislation.119 Finally, the Panel noted that Professor Fong, one of Australia's 
                                                
113 Panel's communication of 7 September 2015, para. 2.22 (quoting Appellate Body Report, US – Large 
Civil Aircraft (2nd complaint) , para. 1140).  
114 Panel's communication of 7 September 2015, para. 2.22 (quoting Appellate Body Report, Thailand  –
 Cigarettes (Philippines) , para. 147).  
115 Panel's communication of 7 September 2015, para. 2.23 ( referring to  Appellate Body Reports,  
Argentina  – Textiles and Apparel , para. 84; and  Canada  – Aircraft , para. 185).  
116 Panel's communication of 7 September 2015, para. 2.23. 
117 Panel's communication of 7 September 2015,  paras.  2.24-2.25. See Department of Health's online 
evaluation of Plain Packaging, (Exhibit DOM -297), p. 1:  
 
The 15 peer -reviewed articles in the British Medical Journal (BMJ) Tobacco Control special 
supplement outline the results of the first comprehensive evaluation of tobacco plain packaging 
legislation. The special supple ment contains a number of studies undertaken by various authors, 
including articles relating to work commissioned by the Department: the National Monthly 
Tracking Survey, the adolescent plain packaging evaluation and cigar research.  
 
See also Dominican  Republic's communication to the Panel of 10 April 2015, paras.  11 and 14. For example, as 
explained in several of the studies, the NPPTS was funded under a contract with the Australian Department of 
Health and Ageing  (DHA) . See Brennan et al. 2015,  (Exhibit s AUS-224, DOM -304), p. ii41; Wakefield et al. 
2015, (Exhibit s AUS-206, DOM -306), p. ii24; and White et al. 2015a , (Exhibit s AUS-186, DOM -235), p. ii48. 
118 Panel's communication of 7 September 2015,  para. 2.26 ( referring to  Cancer Council Victoria, "About 
us: Governance", available at: <http://www.cancervic.org.au/about/governance >, accessed 2 October 2014, 
(Exhibit HND -62)). 
119 Panel's communication of 7 September 2 015, para. 2.26 ( referring to  Dominican  Republic 's 
communication to the Panel of 10 April 2015, para. 14 fn 26).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  commissioned experts in these proceedings, is the founder and principal chief investigator of the 
International Tobacco Control Policy Eva luation Project120 (ITC Project ) and a co -author of the two 
studies referred to in his expert report that draw on data from the ITC Project, which are the 
object of some of the Dominican Republic's requests.121 In light of the above, the Panel concluded 
that i nformation underlying these  studies was not a priori  beyond the scope of what the Panel  may 
request in these proceedings.122 Nevertheless, the Panel also noted  that the fact that it consider ed 
that it may request the information at issue , did not necessarily mean it should do so. The Panel 
therefore consider ed further the details of the Dominican Republic's request in light of the other 
considerations that should inform its decision, including the relevance of the specific information at 
issue, due process, in whose possession the information lay , and the reasons for which it ha d not 
been provided. The Panel was  also mindful, in this context, of the fact that an orderly conduct of 
the proceedings should also take due account of the need to ensu re, in accordance with the 
objectives of the DSU, the prompt settlement of disputes.123  
1.94.   The Panel concluded  that the provision of some of the information sought by the Dominican 
Republic in respect of the studies that Australia relied on in its first writte n submission would be 
appropriate, with a view to affording the Dominican Republic and other complaining parties a 
meaningful opportunity to comment on the arguments and evidence adduced by Australia, thereby 
contributing to ensuring due process and the Pa nel's ability to make an objective assessment of 
the matter before it in accordance with Article  11 of the DSU.124  
1.95.   The Panel also noted the Dominican Republic's efforts to obtain this information directly 
from the individuals and institutions holding it and  the reasons for which CCV declined to provide 
it, including: (a) the undue burdens and complexities that CCV considered would arise for itself 
from the provision of detailed information on the N TPPTS and the V SHS; (b) the appropriateness 
of disclos ing for the purposes of these proceedings any data with respect to cross -sectional 
school -based surveys, consider ing its legal, ethical and other obligations vis -à-vis its stakeholders ; 
and (c) the future viability of school -based surveys .125  
1.96.   The Panel did not question CCV's assessment as to the legal, practical or other constraints 
that it would face in providing some of the additional information at issue for the purposes of these 
proceedings. Nonetheless, with respect to some of the informat ion at issue, the Panel considered it 
appropriate to seek to "confirm further the extent to which reasonable means would be available , 
through which additional information could be provided , in a form that could assist in the conduct 
of these proceedings w ithout compromising the interests expressed by CCV (and potential similar 
interests of CCQ, as relevant) ".126  
1.97.   The Panel also understood that Australia did  not have in its possession any of the data and 
information not already provided to the Dominican Repub lic and to the Panel and the other 
parties.127 Against this context, the panel considered it appropriate to seek, pursuant to 
Article  13.1 of the DSU, the further collaboration of CCV and CCQ , as holders of the relevant 
information, to the extent practicable  and to the extent compatible with their legal and other 
                                                
120 Panel's communication of 7 September 2015,  para. 2.26 ( referring to  "Expert Report of G. Fong", 4 
March 2014, ( Fong Report ), (Exhibit AUS -14), para. 3 and Appendix A).   
121 Panel's communication of 7 September 2015,  para. 2.26 ( referring to  Fong Report , (Exhibit AUS -14), 
Appendix D; E. Swift, R. Borland, K. Cummings, G. Fong, A. McNeill, D. Hammond, J. Thrasher, T.R. Partos, 
and H.H. Yong, "Australian Smokers' Support for Plain or Standardised Packs Before and After Implementation: 
Findings from the ITC Four Country S urvey", Tobacco Control (10 November 2014), 
doi:10.1136/tobaccocontrol -2014-051880 (Swift et al.); and H.H. Yong, R. Borland, D. Hammond, J. Thrasher, 
K. Cummings, and G. Fong, "Smokers' Reactions to the New Larger Health Warning Labels on Plain Cigarette 
Packs in Australia: Findings from the ITC Australia Project", Tobacco Control (19 February 2015), 
doi:10.1136/tobaccocontrol -2014-05197, (Yong et al.)).  
122 Panel's communication of 7 September 2015, para. 2.27. 
123 Panel's communication of 7 September 2015, para. 2.27 ( referring to  Appellate Body Report, US –
 Large Civil Aircraft (2nd complaint) , para. 1140).  
124 Panel's communication of 7 September 2015, para. 2.63. 
125 Panel's communication of 7 September 2015 , para. 2.65. 
126 Panel's communication of 7 September 2015, para. 2.66. 
127 Panel's communication of 7 September 2015,  para. 2.67 (referring to Australia's communication to 
the Panel of 16 June 2015).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  obligations.128 The Panel also expected that, as the party relying on the studies at issue, some of 
which were commissioned by its own Department of Health, Australia would actively collaborate 
with CC V and CCQ to facilitate the establishment of the relevant facts129 and ensure that relevant 
information underlying its own arguments could be presented in these proceedings promptly and 
to the fullest extent practicable.130 
1.98.   Finally, in light of the considerable amount of evidence already exchanged and bearing in 
mind the already unusually long timeframes in these panel proceedings, the Panel reminded all 
parties that, pursuant to Article  12.2 of the DSU, panel procedures "sho uld provide sufficient 
flexibility so as to ensure high -quality panel reports, while not unduly delaying the panel process". 
The Panel considered it important that, at that stage of the proceedings, any further exchange of 
evidence take place as expeditiou sly as possible, in the interest of a prompt settlement of these 
disputes in accordance with Article  3.3 of the DSU.131  
1.99.   On 24 September 2015, CCQ informed  the Panel that the requested data from the 
school -based surveys could not be presented in a de -identifiable form , and that it was therefore 
prevented by binding legal and ethical agreements from releasing it. 
1.100.   On 2 5 September 2015, CCV informed the Panel that it was able to provide  certain 
requested information relating to the N PPTS but was unable to  provide the requested information 
in respect of the V SHS due to funding constraints . CCV stated that it  was also unable to provide 
the requested information in respect of school -based  surveys , due to undertakings provided to the 
participating schools, stu dents and parents , and concerns that providing the information would 
jeopardize CCV's ability to conduct future surveys.   
1.6.7.3.3   Additional data requests  
1.101.   On 2 June 2015, Australia requested that the Panel exercise its authority under Article  13 
of the DSU to request certain information relating to a report prepared  by Professor List  (List 
Report) , submitted as an exhibit by the Dominican Republic and Indonesia at the  first substantive 
meeting with the parties.132 On 5 June 2015, the Dominican Re public indicated that it would 
voluntarily provide data and codes underlying the report, including calculations Professor List 
generated in reliance upon the "Klick mimeo ".133 The Dominican Republic also stated  that the data 
underlying the Klick mimeo were already in Australia's possession and that it was not in a position 
to share this document itself as it did not have a "direct relationship" with Professor Klick.134 The 
Panel invited the parties to continue bilateral discussions  on this matter  and to revert to the Panel 
in the event that an agreement could not be reached.135 The parties met on 8 June 2015.136 
                                                
128 Panel's communication of 7 September 2015, para. 2.68. See also Panel's communications of 
9 September 2015 to  CCV and CCQ, respectively.  
129 Panel's communication of 7 September 2015, para. 2.69 (noting that the Australian Department of 
Health website indicates that requests for access to data collected in the N TPPTS may be directed to a 
Department of Health email address, tobacco.control@health.gov.au,  and referring to Department of Health's 
online evaluation of Plain Packaging, (Exhibit DOM -297)).  
130 Panel's communication of 7 September 2015, para. 2.69 (quoting in a footnote the Appellate Body's 
statement at paragraph 197 in Canada  – Aircraft  that "a panel has broad legal authority to request information 
from a Member that is a party to a dispute, and … a party so requested has a legal duty to provide such 
information").  
131 Panel's communication of 7 September 2015,  para. 2.70. T he Panel also drew the attention of the 
parties to the fact that, as observed by the Appellate Body, a panel's efforts to protect due process need to 
factor in a number of considerations, which may inclu de "the need for a panel, in pursuing prompt resolution of 
the dispute, to exercise control over the proceedings in order to bring an end to the back and forth exchange of 
competing evidence by the parties".  Appellate Body Report, Thailand  – Cigarettes (Ph ilippines) , para. 155. 
132 J. List, "A Consideration of the Empirical Evidence on the Effects of Australia's Tobacco Plain 
Packaging Legislation", 1 June 2015, (List Report), (Exhibit DOM/IDN -1). 
133 The Klick mimeo is a draft response to a critique of Profess or Klick's original report, which was 
submitted by Ukraine as Exhibit UKR -5. The Panel suspended proceedings in DS434 at Ukraine's request before 
Professor Klick completed his response, but after Professor Klick, in his capacity as Ukraine's expert, shared  his 
draft with Professor List.  See Honduras's communication to the Panel of 19 June 2015, p. 1; and 
Dominican  Republic 's communication to the Panel of 19 June 2015, p. 1. 
134 First substantive meeting, 5 June 2015.  
135 First substantive meeting, 5 June 2015.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  1.102.   On 19 June 20 15, Australia noted that it was  awaiting data and backup materials 
underlying the List R eport and reiterated its request for the Klick mimeo in a letter to the 
Dominican Republic. On the same day, the Dominican Republic explained that Professor List did 
not have control of the Klick mimeo  and that it would be inappropriate  for him to assert control 
over it by sharing it with third parties.  The Dominican Republic however provided certain other 
data requested by Australia from the List Report  (including details of the calculations for which 
Professor List relied on the Klick mimeo).137 Also on 19 June 2015 , Honduras informed the Panel 
that the Klick mimeo, in draft form when provided to and relied upon by Professor List, was being 
finalized and would be submitted as Honduras's exhibit  in its responses to questions on 8 July 
2015.   
1.103.   Australia responded that i t require d the "specific version of Professor Klick's mimeo that 
was relied upon and referred to by Professor List  in his report" and asked that the Panel exercise 
its authority under Article  13 of the DSU to request it from the Dominican Republic or in th e 
alternative, Honduras.138 On 8 July 2015, Honduras submitted a new report authored by Professor 
Klick, along with related data and codes used to prepare it.139  
1.104.   On 7 September 2015 ,140 the Panel noted  that, as a result of the exchanges described 
above,  it underst ood Australia's request in relati on to data underlying the List R eport to have been 
addressed.141 In relation to the Klick mimeo, the Panel's understanding was that the document 
submitted by Honduras on 8 July 2015 was intended to satisfy this req uest.142 On 14 September 
2015, the Dominican Republic and Honduras confirmed that the entirety of the requested data and 
analysis relied upon in the List Report  and presentation had been provided to Australia.  
1.105.   On 20 July 2015, Australia asked the Dominican R epublic to provide the data, computer 
codes, and programming language underlying two figures contained  in the Dominican Republic's 
response to Panel question No. 8.143 The parties subsequently had several further exchanges in 
relation to this information.144 On 4 September 2015, the Dominican Republic indicated that 
Australia had all of the data needed to test the conclusion draw n in the response to Panel question 
No. 8. 
1.106.   On 30 September 2015, Australia requested Honduras to provide the backup data and 
coding used by Professor Neven in the preparation of his rebuttal report, which had been 
submitted by Honduras as part of its second written submission .145 On 1 October  2015, Honduras 
provided the requested material .146 
1.107.   On 7 October 2015, Australia requested that Honduras provide the complete backup 
material that accompanied Professor Klick's Supplemental R ebuttal Report147, submitted by 
Honduras together with its second written sub mission. According to Australia, the backup materials 
provided were incomplete and in particular did not contain the original unprocessed data , 
                                                                                                                                                  
136 See Dominican  Republic 's communication to the Panel of 19 June 2015, p. 1; and Australia's 
communication to the Panel of 2 July 2015, p. 3. 
137 See Dominican  Republic 's communication to the Panel of 19 June 2015 ; and Exhibit DOM/IDN -1.A 
(SCI).  
138 Australia' s communication to the Panel of 2 July 2015, p. 2. (emphasis original)  
139 Klick Rebuttal Report, (Exhibit HND -118).  
140 See paras.  1.87-1.98 above .  
141 Panel's communication of 7 September 2015, para. 1.13. 
142 Panel's communication of 7 September 2015, para. 1.13. 
143 Australia's communication to the Dominican  Republic  of 20 July 2015, p. 2.  
144 Australia's communication to the Dominican  Republic  of 20 July 2015, p. 2; Dominican  Republic 's 
communication to the Panel of 13 August 2015; Australia's communication to the Dominican  Republic  of 14 
August 2015; Dominican  Republic 's communication to the Panel of 21 August 2015; Dominican  Republic 's 
communication to the Panel of 28 August 2015; Australia's communication to the Panel of 24 August 2015; 
Dominican  Republic 's communication to the Panel of 28 August 2015; Australia's communication to the Panel of 
31 August 2015; and Dominican  Republic 's communication to the Panel of 4 September 2015.  
145 D. Neven, "The effect of plain packaging regulation on competition and tobacco consumption: a 
Response to Professor Katz's report", 16 September 2015, ( Neven Rebuttal Report ), (Exhibit HND -123).  
146 See Exhi bits HND -123(1) -HND-123(2) (SCI).  
147 J. Klick, "Supplemental Rebuttal Report – A Review of New and Updated Australian Survey and 
Market Data", 16 September 2015, ( Klick Supplemental Rebuttal Report ), (Exhibit HND -122).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  metadata, or program files  upon which Professor Klick's analyses relied.  On 9 October 2015, 
Honduras provid ed the requested materials .148  
1.108.   On 13 November 2015 , the Dominican Republic requested Australia to provide additional 
backup production materials in respect of a report authored by Professor Chaloupka  and submitted 
by Australia at the second substantive meetin g.149 Australia provided this information on 18 
November 2015 .150 
1.109.   On 14 January 2016 , Australia  requested that Honduras provide backup production 
underlying calculations contained in a report by Professor Klick submitted by Honduras with its 
responses to quest ions following  the second substantive meeting .151 On 15 January 2016, 
Honduras provided  the relevant backup production .152 
1.6.8   Evidence and arguments presented subsequent to the comments on responses to 
questions following the second substantive meeting  
1.6.8.1   Additional comments relating Dr Chipty's Third Rebuttal R eport  
1.110.   On 17 February 2016, the Dominican Republic addressed a communication to the Panel 
with respect to certain  issues of due process that it claimed arose regarding new material 
submitted by Austra lia in the context of its comments on responses to questions following the 
second substantive meeting. The Dominican Republic considered that "there are many comments 
that could now be made in respect of Australia's new arguments  and evidence". The Dominic an 
Republic identified "as an example" a specific issue relating to an  expert report  by Dr  Chipty153 
provided by Australia with its final comments on responses to the Panel's questions.  The 
Dominican Republic invited the Panel to "take appropriate steps, at its discretion, to ensure that 
the parties' due process interests are respected".154 Australia considered that it was "entirely 
inappropriate for the Dominican Republic to submit additional rebuttal arguments " after the 
conclusion of the final exchange of ar guments and evidence and that it would be appropriate for 
the Panel to deem them  inadmissible. If the Panel were to consider the Dominican Republic's 
additional comments to be admissible, Australia requested an opportunity to submit a response 
limited to t he specific criticisms made of Dr Chipty's report, in recognition of Australia's due 
process interests.155 
1.111.   On 2 March 2016, the Panel addressed a communication to the parties, in which it noted 
that submission  of evidence at this stage of the proceedings  fell outside of the scope of the first 
sentence of paragraph 8 of its Working Procedures, and that it may consider evidence filed by the 
parties outside of the context of the first sentence of paragraph 8 "upon a showing of good cause". 
The Panel further observed that both parties had referred to their due process interests in this 
matter and that the Panel would therefore consider the appropriate course of action in light of 
these due process concerns, as well as other relevant factors as pertinen t.  
1.112.   The Panel noted that the Panel's timetable already extended far beyond that which is 
envisaged by the DSU and that, though this timetable was adopted taking into account the 
requests of all parties to these disputes, the requirement of securing a " 'prompt settlement ' of 
these disputes that is not 'unduly delay[ed] '" weighed in favour of bringing the exchange of 
argumentation and evidence to a close.156 The Panel further noted that a considerable amount of 
argumentation and evidence had already been exchan ged concerning the robustness of the various 
experts' reports, and that a panel, in pursuing prompt resolution of a dispute, needed to " 'exercise 
control over the proceedings in order to bring an end to the back and forth exchange of competing 
                                                
148 See Exhibits HND -122(i) -HND-122(ae) (SCI).  
149 Chaloupka Rebuttal Report , (Exhibit AUS -582).  
150 See Exhibit AUS -582.A.  
151 Klick Third Supplemental Rebuttal Report, (Exhibit HND -166).  
152 See Exhibit HND -166(n) (SCI).  
153 See T. Chipty, "Third Rebuttal Report of Dr. Tasneem Chipty", 1 February 2016, (Chipty Third 
Rebuttal Report), (Exhibit AUS -605).  
154 Dominican  Republic 's communication to the Panel of 17 February 2016, p p. 1-3. 
155 Australia's communication to the Panel of 19 February 2016.  
156 Panel's communication of 2 March 2016, p. 3 (quoting Articles  3.3 and 12.2 of the DSU, and 
Appellate Body Report, Thailand  – Cigarettes (Philippines) , para. 150).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  evidence by the parties '".157 Finally, the Panel noted that the Dominican Republic had not 
requested the opportunity to comment on Dr Chipty's report, but had nonetheless identified 
certain criticisms of it.  
1.113.   The Panel decided to accept the Dominican Republic's comments  with respect to the 
specific criticisms expressly identified in its communication of 17 February 2016, and requested 
the Dominican Republic to provide the results mentioned in this communication . Australia (and the 
other complainants, strictly if necessar y), was offered  an opportunity to comment , strictly limited 
to addressing the specific criticisms identified in the Dominican Republic's communication . The 
Panel  stressed the very limited scope of these opportunities to provide further comments, noting 
that the volume of evidence already submitted by the parties, and the imperative of bringing t hese 
proceedings to a close, were  such that it would consider further requests of this kind only in the 
most exceptional of circumstances.158 
1.114.    On 4 March 2016, the Dom inican Republic provided the requested information. On 
16 March 2016, Australia provided comments.  
1.6.8.2   Additional comments relating to Australia's Post -Implementation Review  
1.115.   On 26 February 2016, Australia submitted a document containing a post-implementation 
review (PIR) of its tobacco plain packaging  measures, as anticipated in its response to the Panel's 
question No. 149.159 In its comments on Australia's responses to questions, Honduras had asked 
for an opportunity to comment on this document "if and when it is provided to the Panel and the 
parties".160 The Panel agreed that it was appropriate to provide Honduras and the other 
complainants with an opportunity to comment on this newly submitted document and invited the 
complainants to submit comments by 21 March 2016.161 The complainants submitted comments 
on 21 March 2016. On 22 March 2016, Australia indicated that it did not seek to prolong the 
written proceedings any further by requesting a right to reply to the complainants ' comments, but 
that its silence on thi s matter should in no way be taken as accepta nce by Australia of the 
complain ants' arguments.  
2  FACTUAL ASPECTS  
2.1.  In this section, the Panel will d escribe the measures at issue (s ection 2.1), as well as 
elements of the domestic and international regulatory background against which they were 
adopted and are maintained, including other tobacco control -related measures in Australia (s ection  
2.2), the general framework for the protection of trademarks162 and geograph ical indications (GIs) 
in Australia (s ection 2.3), other measures  (section  2.2.5), and the FCTC (s ection 2.4).163  
2.1  The measures at issue  
2.2.  The measures at issue in th ese proceedings are the following : 
a. the Tobacco Plain Packaging Act 2011  (Cth)164 (TPP Act); 
                                                
157 Panel's communication of 2 March 2016, p. 3 (quoting Appellate Body Report, Thailand  – Cigarettes 
(Philippines) , para. 155).  
158 Panel's communication of 2 March 2016, p. 3. 
159 See Tobacco Plain Packaging PIR, (Exhibit AUS -624).  
160 Honduras's comments on Australia's response to Panel question No. 149. 
161 Panel's communication of 2 March 2016, p. 3. 
162 In keeping with the language of th e TRIPS Agreement, we refer to trademark(s) as a single term 
throughout th ese Report s, unless quoting from material which refers to "trade mark(s)".  
163 The parties disagree on a number of factual issues. To the extent it is necessary for the Panel to 
addre ss those disputed factual issues, it will do so in its Findings.  
164 Tobacco Plain Packaging Act 2011  (Cth) ( TPP Act), (Exhibits AUS -1, JE-1). The reference to "(Cth)" 
denotes legislation that was enacted at the Commonwealth level. State or territory legisl ation contains a 
commensurate reference, depending on the state or territory in question, which will be identified as applicable. 
In these Reports, references to the Australian Government or Commonwealth Government are references to 
government at the feder al level. References to legislation enacted at the state and territory level are specified, 
as applicable.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  b. the Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco Plain 
Packaging Amendment Regulation 2012  (No. 1) (Cth)165 (TPP Regulations ); and  
c. the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011  (Cth)166 (TMA Act). 
2.3.  In addition to the above measures, the complainants indicated in their panel requests that 
the measures at issue also incl uded additional instruments described, respectively, as:  
a. "any amendments, extensions, related instruments or practices" (Honduras)167; and  
b. "[a]ny related measures adopted by Australia, including measures that implement, 
complement or add to these laws and re gulations, as well as any measures that amend 
or rep lace these laws and regulations " (Dominican Republic, Cuba, and Indonesia).168  
2.4.  As explained in section 1.6.2 above , the Panel held in preliminary rulings that these 
references in the panel requests of the Dominican Republic, Cuba,  and Indonesia were "not, on 
their face, inconsistent with the requirement under Article  6.2 of the DSU to identify the sp ecific 
measures at issue". However, we reserved the right to assess whether any particular measure (in 
addition to those expressly listed above in paragraph  2.2) that may be invoked on the basis of this 
language in the course of the proceedings would or would not be covered by those references and, 
consequently, fall within our terms of reference.169 
2.5.  In the course of the proceedings, none of the complainants sought rulings with respect to 
additional measures within the descriptions quoted above. We therefore consider that the 
measures at issue in these proceedings are those listed in paragraph  2.2. The Panel will hereafter 
use the term " TPP measures " to refer to these instruments taken together.170 
2.1.1   Preparation, adoption, and entry into force of the TPP measures  
2.6.  The legislative process that led  to the adoption of the TPP measures  started in 2008 with the 
establishment of the National Prevent ative Health Taskforce (NPHT).171 The NPHT was responsible 
for developing a "National Preventive Health Strategy", to "provide a blueprint for tackling the 
                                                
165 Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco Plain Packaging 
Amendment Regulation 2012  (No. 1) (Cth), (TPP Regulations ), (Exhibits AUS -3, JE-2). 
166 The Trade Marks Amendment (Tobacco Plain Packaging) Act 2011  (Cth), (TMA Act), (Exhibits AUS -4, 
JE-3). 
167 WT/DS435/16, p. 2. 
168 Respectively, WT/DS441/15, p. 2; WT/DS458/14, p. 1; and WT/DS467/15, p. 1. 
169 We consider that the same observation applies to the reference to "any amendments, extensions, 
related instruments or practices" in the panel request of Honduras, which was not the object of a preliminary 
ruling request by Australia.  
170 We note that partie s have used different terms when referring collectively to the measures at issue. 
See, e.g. Honduras's first written submission, paras.  81 and 847 (using the terms "plain packaging measures" 
and "PP  measures", respectively); Dominican  Republic 's first writ ten submission, para. 161 (identifying that the 
Dominican  Republic  refers to the measures "individually, and collectively, as the 'plain packaging' or 'PP' 
measures"); Cuba's first written submission, para. 40 (identifying that Cuba refers to the instrumen ts 
collectively as the "PP measures"); Indonesia's first written submission, para. 23 (using the term 
"PP measures", but without identifying whether it refers to individual measures with this title); and Australia's 
first written submission, para. 3 (using  the term "tobacco plain packaging measure").  
The use of "the TPP measures ", in the plural, is not intended to signal that the Panel considers these 
three legal instruments to constitute distinct measures that would need to be considered separately for the  
purposes of its analysis of the claims before it. As described in the Appellate Body's observations quote d at 
para. 7.180  below , whether distinct legal instruments  should be treated as a "single measure" or as separate 
measures for the purposes of its analysis will depend on the claim at issue and the manner in which the Panel 
considers it most appropriate to address that claim.  
171 Between 1994 and 1995 the Australia n Senate's Community Affairs References Committee discussed, 
held hearings and reviewed submissions with respect to various tobacco -related matters, in particular the level 
of regulation of tobacco products at that time. Submissions were received concernin g the possibility of 
introducing "neutral or generic packaging". In its final report, the Senate Committee recommended that 
"additional research be undertaken into the efficacy of generic packaging of tobacco products as a means of 
addressing the problems of juvenile smoking". Australian Parliament, Senate Community Affairs References 
Committee, The Tobacco Industry and the Costs of Tobacco -Related Illness , (15 December  1995),  (Exhibit 
DOM-49), pp. 68-71. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  burden of chronic disease currently caused by obesity, tobacco, and excessive consumption of 
alcohol".172 A Tobacco Working Group (TWG) was also created.173 The NPHT published in 2009 a 
discussion paper, accompanied by a Technical Report by the TWG that recommend ed a range of 
measures.174 
2.7.  In September  2009, the NPHT released its final report, entitled Australia: The Healthiest 
Country by 2020  – National Preventative Health Strategy – The Roadmap for Action .175 With 
respect to tobacco control, this report identified 11  "key action areas": "Make tobacco products 
significantly more expensive"; "Increase the frequency, reach and intensity of social marketing 
campaigns"; "End all remaining forms of advertising and promotion of tobacco products" (which 
included a specific "a ction" to "Eliminate promotion of tobacco products through design of 
packaging")176; "Eliminate exposure to second -hand smoke in public places"; "Regulate 
manufacturing and further regulate packaging and supply of tobacco products"; "Ensure all 
smokers in co ntact with health services are encouraged and supported to quit …"; "boost efforts to 
reduce smoking and exposure to passive smoking among Indigenous Australians"; "Boost efforts 
to discourage smoking among people in other highly disadvantaged groups"; "As sist parents and 
educators to discourage tobacco use and protect young people from second -hand smoke"; "Ensure 
that the public, media, politicians and other opinion leaders remain aware of the need for 
sustained and vigorous action to discourage tobacco use"; and "Ensure Implementation and 
measure progress against and towards targets".177 
2.8.  On 29 April 2010, the Australian Government announced four measures to "deliver on [the] 
recommendations of the [NPHT]"178, which it identified as a tobacco excise increase of 25%179; 
legislation requiring that "all cigarettes … be sold in plain packaging by 1 July 2012"; restrictions 
on Australian internet advertising of tobacco products; and extra expenditure on anti -smoking 
campaigns.180 In May 2010, the Australian Government released a response to the NPHT final 
report, in which it elaborated on these four measures.181 
2.9.  On 7 April 2011, the Australian Government released an Exposure Draft of the Tobacco Plain 
Packaging Bill 2011 (Cth) (TPP Bill) for public consultations, which la sted until 6 June 2011.182 The 
TPP Bill and Trade  Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) (TMA Bill)183 were 
passed by the Parliament in November 2011 and received Royal  Assent on 1 December 2011, thus 
becoming, respectively, the TPP Act and the TMA  Act.184 The TPP Regulations  were adopted on 
7 December 2011 and amended on 8 March 2012.185 As indicated above186, taken together, the 
TPP Act, the TMA Act and the TPP Regulations  form the TPP measures  at issue in th ese dispute s.  
                                                
172 NPHT Terms of Reference , (Exhibits HND -2, DOM -50). 
173 Australia's first written submission, para. 115. 
174 NPHT Technical Report 2, (Exhibits AUS -52, JE -12), pp.  vii-ix. Recommended measures were 
categorized as follows: "Revenue measures that would reduce the affordability of tobacco products"; 
"Legislative reforms to address current deficiencies in tobacco regulation" (which included "Mandate plain 
packaging of cigarettes" and an increase in the required size of graphic health warnings); "Expenditure 
measures"; "Indigenous tobacco control"; "Other initiative s to reduce social disparities in smoking"; "Health 
system interventions"; "Reinvigoration of the Australian National Tobacco Strategy"; and "Overseas 
development".  
175 NPHT, The Roadmap for Action, (Exhibits AUS -67, JE -14). 
176 NPHT, The Roadmap for Action, ( Exhibits AUS -67, JE -14), p. 182. 
177 NPHT, The Roadmap for Action, (Exhibits AUS -67, JE -14), p. 174. 
178 PM Rudd, Anti-Smoking Action Media Release, (Exhibit s AUS-115, HND -4, DOM -52). 
179 See section 2.2.3 below . 
180 PM Rudd, Anti-Smoking Action Media Release, (Exhibit s AUS-115, HND -4, DOM -52). 
181 Response to NPHT, The Roadmap for Action, (Exhibits AUS -116, JE -15), p p. 61-85.  
182 Exposure Draft , Tobacco Plain Packaging Bill 2011  (Cth) (7 April 2011 ), (Exhibit JE -9). This was 
released alongside a consultation paper. See Australian Department of Health and Ageing, "Consultation Paper: 
Tobacco Plain Packaging Bill 2011 Exposure Draft", 7 April 2011, (Exhibits AUS -120, JE -10). 
183 TMA Bill, (Exhibits AUS -6, JE-4). 
184 TPP Act, (Exhibits JE -1, AUS -1); TMA Act (Exhibits AUS -4, JE-3). The TPP Bills were also notified to 
TBT Committee. See World Trade Organization, Australia's Notification to the Committee on Technical Barriers 
to Trade, G/TBT/N/AUS/67 (8 April 2011), (Exhibit AUS -130).  
185 TPP Regulations, (Exhibits AUS -3, JE-2). The amendment to the TPP Regulations was adopted on 8 
March 2012. See the  Tobacco Plain Packaging Amendment Regulations 2012 (No. 1) (Cth) (Exhibit AUS -125). 
The "purpose of the regulation is to amend the Principal Regulations to expand their application to 
non-cigarette tobacco products and to prescribe specific requirements for the retail packaging and appearance 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  2.10.   Tobacco products manufa ctured or packaged in Australia for domestic consumption were 
required to comply with the TPP measures  from 1 October 2012. A s of 1 December 2012, all 
tobacco products sold, offered for sale, or otherwise supplied in Australia were required to comply 
with the TPP measures .187 
2.1.2   The TPP measures  
2.1.2.1   Introduction  
2.11.   The TPP Act is, by its own terms, "[a]n Act to discourage the use of tobacco products , and 
for related purposes ". A simplified outline contained in the TPP Act itself describes it as follows:  
 This Act regulates the retail packaging and appearance of tobacco products in 
order to:  
(a) improve public health; and  
(b) give effect to certain obligations in the Convention on Tobacco Control.  
 Part 2 of Chapter 2 specifies requirements for the retail packaging a nd appearance 
of tobacco products. (If there is an acquisition of property otherwise than on just 
terms, regulations made under section 15 might also specify requirements.)  
 The retail packaging and appearance of tobacco products must comply with the 
requirements of this Act.  
 Offences and civil penalties apply if tobacco products are supplied, purchased or 
manufactured and either the retail packaging, or the products themselves, do not 
comply with the requirements.188 
2.12.   The term "tobacco product" is define d in the TPP Act to mean "processed tobacco, or any 
product that contains tobacco" that is "manufactured to be used for smoking, sucking, chewing or 
snuffing " and "not included in the Australian Register of Therapeutic Goods maintained under the 
Therapeuti c Goods Act 1989 ".189 This definition encompasses not only cigarettes, but also 
"non-cigarette" products, such as cigars,  little cigars (also known as cigarillos) and bidis.190 To the 
extent that some of the products covered by this definition may be prohibite d in Australia, either 
by the Commonwealth or states  and territories, the TPP Act does not affect their legality.191  
                                                                                                                                                  
of non -cigarette tobacco pr oducts". Explanatory Statement to the Tobacco Plain Packaging Amendment 
Regulation 2012  (No. 1)  (Cth), (TPPA Regulation Explanatory Statement), (Exhibit JE -22). 
186 See section 2.1 above.  
187 Australia's first written submission, para. 123. Section 2 of the TPP Act specifies the date on which 
each provision would enter into force, beginning 1 December 2011, with the last provisions taking effect on 
1 December 2012. The TPP Regulations took effect on 1 October 2012. See TPP Regulations, (Exhibit AUS -3, 
JE-2), Regulation 1.1.2; and TPP Act, (Exhibit AUS -1, JE-1), Section 9.   
188 TPP Act, (Exhibits AUS -1, JE-1), Section 12.  
189 TPP Act, (Exhibits AUS -1, JE-1), Section  4(1) (containing various definitions for the purpose of the 
Act). These definitions are also applicable to the TPP Regulations, in addition to its own list of definitions. 
TPP Regulations, (Exhibits AUS -3, JE-2), Note to Regulation  1.1.3. The d efinition of "tobacco products" is based 
on the definition for the term found in Article  1(f) of the FCTC. Explanatory Memorandum, Tobacco Plain 
Packaging Bill 2011 (Cth), (TPP Bill Explanatory Memorandum), (Exhibits AUS -2, JE-7), p. 9. See WHO 
Framework C onvention on Tobacco Control, done at Geneva, 21 May 2003, UN Treaty Series, Vol. 2302, 
p. 166, (FCTC), (Exhibits AUS -44, JE -19), Article  1(f). 
190 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 9. See also Australia's response to 
Panel question  No. 13, para. 60. Other covered "non -cigarette" products also include roll -your-own (RYO)  
tobacco, kreteks, and dissolvable tobacco products, such as tablets containing tobacco for sucking. Ibid. Some 
of these types of tobacco products (such as cigarettes , cigars and bidis), and their specific packaging, are also 
defined in the TPP Act and TPP Regulations. See TPP Act, (Exhibits AUS -1, JE-1), Section 4(1); and TPP 
Regulations, (Exhibits AUS -3, JE-2), Regulation  1.1.3.  
191 TPP Bill Explanatory Memorandum, (Ex hibits AUS -2, JE-7), pp. 4 and 9. For instance, chewing 
tobacco and snuffs intended for oral use  have been permanently banned in Australia since 1991. See 
para. 2.64 below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  2.13.   The TPP Bill and TMA Bill were accompanied by Explanatory Memoranda.192 Such documents 
are "documents that assist members of Parliament, offic ials and the public to understand the 
objectives and detailed operation of the clauses of a Bill".193 In Australia, an E xplanatory 
Memorandum  may also serve as "extrinsic material" t hat can be used as an aid to  judicial 
interpretation of Acts.194 The TPP Regul ations  were accompanied by a similar document, an 
Explanatory Statement, which may also serve as an extrinsic aid to judicial interpretation.195 
2.14.   Section 109 of the TPP Act provides that "[t]he Governor -General may make regulations 
prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or 
convenient to be prescribed for carrying out or giving effect to this Act".196 The TPP Regulations  
were made pursuant to this provision.197 
2.1.2.2   "Objects" of the TPP Act  
2.15.   Section  3 of the TPP Act, entitled "Objects of this Act", provides:  
(1)  The objects of this Act are:  
(a) to improve public health by:  
(i) discouraging people from taking up smoking, or using tobacco 
products; and  
 
(ii) encouraging people to give up smoking, and to stop using tobacco 
products; and 
 
(iii) discouraging people who have given up smoking, or who have 
stopped using tobacco products, from relapsing; and  
 
(iv) reducing people's exposure to smoke from tobacco products; and  
 
(b) to give effect to certain obligations that Australia has as a party to the 
Convention on Tobacco Control.  
 
(2) It is the intention of the Parliament to contribute to achieving the objects in 
subsection (1) by regulating the retail packaging and appearance of tobacco 
products in order to:  
 
(a) reduce the appeal of tobacco products to cons umers; and  
 
(b) increase the effectiveness of health warnings on the retail packaging of 
tobacco products ; and 
 
(c) reduce the ability of the retail packaging of tobacco products to mislead 
consumers about the harmful effects of smoking or using tobacco 
products.198 
                                                
192 TPP Bill Explanatory Memorandum,  (Exhibits AUS -2, JE-7); and Explanatory Memorandum, Trade 
Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth), (TMA Bill Explanatory Memorandum) , (Exhibits 
AUS-5, JE-5). 
193 P. O'Neill, "Was There an EM?: Explanatory Memoranda and Explanatory Statements in the 
Commonwealth Parliament" (12  September 2006), (Exhibit AUS -260), Executive Summary (cited in Australia's 
first written submission, para. 601 fn 775).  
194 Acts Interpretation Act 1901 (Cth), (Exhibit AUS -259), Section 15AB(2)(e). See also Australia's first 
written submission, para. 601 fn 775. 
195 TPPA Regulation Explanatory Statement, (Exhibit JE -22); and P. O'Neill, "Was There an EM?: 
Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament" (12  September 2006), 
(Exhibit AUS -260), Explanatory Statements to Commonwealth Regulations. See also fn 185 above.  
196 TPP Act, (Exhibits AUS -1, JE-1), Section 109(1).  
197 See TPPA Regulation Explanatory Statement, (Exhibit JE -22), p. 2. 
198 TPP Act, (Exhibits AUS -1, JE-1), Section 3. See also TPP  Bill Explanatory  Memorandum, (Exhibits 
AUS-2, JE-7), pp. 1-2 and 6 -7; TPPA Regulation Explanatory Statement, (Exhibit JE -22), p p. 1 and 10.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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2.16.   The term "Convention on Tobacco Control" is defined as meaning the WHO Framework 
Convention on Tobacco Control (FCTC).199 The TPP Bill Explanatory Memorandum  states that the 
"introduction of plain packaging for tobacco products is one of the means by which  the Australia 
Government will give effect to Australia's obligations under the [FCTC]" and, in this context, refers 
to Articles  5, 11 and  13 of the FCTC.200 The TPP Bill Explanatory Memorandum  adds that Section 
3(2) "is not intended to be an exhaustive list  of ways in which … Australia's obligations under the 
WHO FCTC may be met".201  
2.1.2.3   Requirements for retail packaging of tobacco products  
2.17.   The TPP Act specifies requirements for the retail packaging of tobacco products. The Act 
defines "retail packaging" as:  
(a) any container for retail sale in which the tobacco product is directly placed; or  
(b) any container for retail sale that contains a smaller container in which the tobacco 
product is directly placed; or  
(c) any plastic or other wrapper that covers any reta il packaging of the tobacco 
product (within the meaning of paragraph (a) or (b) of this definition); or  
(d) any plastic or other wrapper that covers the tobacco product, being a tobacco 
product that is for retail sale; or  
(e) any insert that is placed insi de the retail packaging of the tobacco product (within 
the meaning of any of paragraphs (a) to (d) of this definition); or  
(f) any onsert that is affixed or otherwise attached to the retail packaging of the 
tobacco product (within the meaning of any of par agraphs (a) to (d) of this 
definition).202 
2.18.   As elaborated in the TPP Bill Explanatory Memorandum , the TPP Act regulates "any 
container that a tobacco product is packed in for retail sale, including the package immediately 
around the tobacco product, any carton that contains one or more packages of tobacco products 
for retail sale, any wrapper that covers the pack aging of a tobacco product or a tobacco product 
itself, and anything placed in the packaging apart from the tobacco product and anything attached 
to or forming part of the packaging".203 
2.19.   Sections 18 to 25 of the TPP Act set out requirements for retail packag ing of tobacco 
products204 and Section 26 sets out the requirements for appearance of tobacco products.205 
Section 27 of the TPP Act provides that regulations may prescribe additional requirements in 
                                                
199 TPP Act, (Exhibits AUS -1, JE-1), Section  4(1). 
200 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 2. 
201 TPP Bill Explanatory Memorandum, (Exhib its AUS -2, JE-7), p. 7. 
202 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1). The TPP measures  also contain specific definitions for 
certain types of tobacco packaging, such as "cigarette pack", "cigarette carton", "cigar tube", and "pouch". A 
cigarette pack is  "any container for retail sale in which cigarettes are directly placed". Ibid. Additionally, a 
reference to an outer surface of a cigarette pack (such as its "front outer surface"), "is a reference to all of that 
outer surface, including the part of that outer surface that forms part of the flip -top lid". Ibid. Section  6(1). 
Further, the "inside lip" of a cigarette pack "means the part of the outer surfaces of the pack that is obscured 
when the flip -top lid is closed". Ibid. Section  4(1). A cigarette carto n is "any container for retail sale that 
contains smaller containers in which cigarettes are directly placed". Ibid. Additionally, "[i]f a cigarette carton 
has one or more flaps with surfaces that become visible only when the carton is opened, those surfac es are 
taken to be inner surfaces of the carton". Ibid. Section  6(2). A cigar tube means "a tube for packaging one 
cigar". TPP  Regulations, (Exhibits AUS -3, JE-2), Regulation  1.1.3. A pouch means "primary packaging" that "is 
made from flexible material" an d "takes the form of a rectangular pocket with a flap that covers the opening". 
TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  1.1.3.  
203 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 8. 
204 TPP Act, (Exhibits AUS -1, JE-1), Sections 18 -25. 
205 TPP Act, (Exhibits AUS -1, JE-1), Section 26.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  relation to the retail packaging of tobacco products, and th e appearance of tobacco products.206 
These requirements are in the TPP Regulations .207 The cumulative effect of the TPP Act and 
TPP Regulations  as applied to the packaging of tobacco products are summarized below.208 
2.1.2.3.1   Physical features of retail packaging  
2.20.   Section 18(1) of the TPP Act provides that the outer and inner surfaces of the retail 
packaging of all tobacco products must not have any "decorative ridges, embossing, bulges or 
other irregularities of shape or texture, or any other embellishments" (other  than as permitted by 
the TPP Regulations ).209 Additionally, "any glues or other adhesives used in manufacturing the 
packaging must be transparent and not coloured".210 The TPP Regulations  set out other 
specifications for the physical features of tobacco packa ging for retail sale211, including 
requirements for cigarette packs212, cigarette cartons213, cigar tubes214, and any other type of 
packaging.215 
2.21.   Cigarette packs and cigarette cartons must be rigid and made only of cardboard.216 When 
closed, each  outer  surface of the pack or carton must be rectangular, and the surfaces of the pack 
or carton must meet at a 90 -degree angle.217 All edges of the pack or carton must be rigid, 
straight, and not rounded, bevelled, or otherwise shaped or embellished (unless permitted by the 
TPP Regulations ).218 The dimensions of cigarette packs are determined by the TPP Regulations .219 
2.22.   The opening of a cigarette pack must be a flip -top lid.220 The inside lip of the cigarette pack 
must have straight edges, other than the corners which may be rounded, and neither the lip nor 
the edges of the lip may be rounded, bevelled or otherwise shaped or embellished.221 Any lining in 
the pack must be made only of foil backed with paper (unless prescribed by the 
TPP Regulations ).222 
2.1.2.3.2   Colour and finish of retail packaging  
2.23.   Section 19 of the TPP Act sets out additional requirements for all outer and inner surfaces of 
certain retail packaging of tobacco products , including both sides of any lining of a cigarette 
                                                
206 TPP Act, (Exhibits AUS -1, JE-1), Section 27.  
207 TPP Regulations, (Exhibits AUS -3, JE-2). 
208 See generally TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7). 
209 TPP Act, (Exhibits AUS -1, JE-1), Section 18(1)(a).  
210 TPP Act, (Exhibits AUS -1, JE-1), Section 18(1)(b).  
211 See TPP Regulations, (Exhibits AUS -3, JE-2), Division 2.1.  
212 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.1.1.  
213 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.1.2.  
214 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.1.4. Cigar tubes must be cylindrical and 
rigid, and may have one or both ends tapered or rounded. The opening to a cigar tube must be at least 15 
millimetres in diameter.  
215 See TPP Regulations, (Ex hibits AUS -3, JE-2), Regulation 2.1.5.  With the exception of cigarette packs 
and cigar tubes, the largest dimension of a container for retail sale in which the tobacco product is directly 
placed must be at least 85 millimetres, and the second largest dimen sion at least 55 millimetres. Ibid. See also 
TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.3 (defining "primary packaging"); and TPP Act, 
(Exhibits AUS -1, JE-1), Section 4(1)(a) (defining "retail packaging").  
216 TPP Act, (Exhibits AUS -1, JE-1), Se ction 18(2)(a).  
217 TPP Act, (Exhibits AUS -1, JE-1), Section 18(2)(b).  
218 TPP Act, (Exhibits AUS -1, JE-1), Section 18(2)(c).  
219 The dimensions of closed cigarette packs must be between 85 -125 millimetres (height), 55 -82 
millimetres (width), and 20 -42 millimetr es (depth). TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 
2.1.1(1).  
220 TPP Act, (Exhibits AUS -1, JE-1), Section 18(3)(b). The lid must be hinged only at the back of the 
pack; have straight edges; and neither the lid, nor the edges of the lid, may be rounded, bevelled or otherwise 
shaped or embellished in any way, other than corners which may be rounded. Regulations 2.1.1(2) -2.1.1(3) 
also set out requirements concerning the opening of the packet. TPP Regulations, (Exhibits AUS -3, JE-2). 
221 TPP Act, (Exh ibits AUS -1, JE-1), Section 18(3)(c).  
222 TPP Act, (Exhibits AUS -1, JE-1), Section 18(3)(d). Regulation 2.1.3 sets out requirements concerning 
the lining of containers of tobacco products for retail sale. Such lining may be embossed with dots or squares, 
provided they meet certain conditions, including that they do not form an image or other symbol, or constitute 
tobacco advertising and promotion. TPP Regulations, (Exhibits AUS -3, JE-2). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  pack.223 These surfaces must have a matt finish  and must be drab dar k brown224, though th e 
colour  requirement does not apply to health warnings, the text of the brand, business or company 
name, or variant name, or the text of relevant legislative requirements.225 The TPP Regulations  
further stipulate that the outer surfaces of these packages must be the colour Pantone 448C (drab 
dark brown), and that the inner surfaces of a cigarette pack or cigarette carton must be white. The 
inner surface of these packages (other than a cigarette p ack or cigarette carton) must be either 
white or the colour of the packaging material in its natural state. The lining of a cigarette pack 
must be silver coloured foil with a white paper backing.226  
2.1.2.3.3   Trademarks and other marks on retail packaging  
2.24.   Section 20 of the TPP Act prohibits the appearance of trademarks and marks anywhere on 
the retail packaging of tobacco products, with the exception of the brand  name , business or 
company name, variant name,  the relevant legislative requirements , and other trademarks and 
marks permitted by the TPP Regulations .227 The TPP Regulations  make provision for the 
appearance of origin marks, calibration marks, a measurement mark and trade description, a 
barcode, a fire risk statement, a locally made product statement, the name an d address of the 
person who packed the product or on whose behalf it was packed, and a consumer contact 
number.228 These markings must not obscure any relevant legislative requirement, or constitute or 
provide access to tobacco advertising and promotion.229 
2.25.   Section 21 of the TPP Act, operating together with the TPP Regulations , prescribes the 
requirements for the manner in which the brand, business, company or variant names for tobacco 
products may appear on the retail packaging of a tobacco product.230 With resp ect to cigarette 
packaging, any of these names must be printed in the L ucida Sans typeface in fonts no larger than 
14-point size (for a brand, business or company name) or  10-point size (for a variant name). The 
font must be normal weighted and in the colo ur Pantone Cool Gray 2C.231 With respect to retail 
packaging other than retail packaging of cigarettes, names must meet the same specifications, but 
can be printed on the packaging or on an adhesive label fixed to the packaging.232 Such adhesive 
label must be in the colour Pantone 448C (drab dark brown), no larger than reasonably necessary 
to print the permitted names, be fastened firmly to the retail packaging so as not to be easily 
removable233, and must not obscure any relevant legislative requirement.234  
2.26.   Section 21(3) of the TPP Act specifies the location and orientation of these names with 
respect to cigarette packaging:  
                                                
223 Section 19 applies only to the elements of the definition of "retail p ackaging" set out in 
subparagraphs (a) to (b) of the definition in para. 2.17 above. See TPP Act, (Exhibits AUS -1, JE-1), Sections 
19(1)(a) and 4(1 ) (defining "retail packaging").  
224 TPP Act, (Exhibits AUS -1, JE-1), Section 19(2).  
225 TPP Act, (Exhibits AUS -1, JE-1), Section 19(3).  
226 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.2.1.  
227 TPP Act, (Exhibits AUS -1, JE-1), Sections 20(1) -20(3). Section 20(3) also permits the appearance of 
relevant legislative requirements. Section 20(4) stipulates that Section 20 does not apply to wrappers, which 
are regulated by Section 22.  
228 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation s 2.3.1(1) -2.3.1(2)  and 2.3.8(1). The specific 
conditions governing each of these marks are elaborated in Regulations 2.3.2 to 2.3.9.  
229 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.3.1(5).  
230 TPP Act, (Exhibits AUS -1, JE-1). Section 21(5) stipulates that Section 21 d oes not apply to wrappers, 
which are governed by Section 22.   
231 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.1. In addition, the first letter in each word 
must be capitalised. No other upper case letters may be used.  
232 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.2(2).  
233 Regulation 2.4.2(4) explains that an adhesive label is easily removable if it is not likely to stay 
fastened during the expected life of the retail packaging, or if it can be removed without damaging the label or 
the retail packaging. TPP Regulations, (Exhibits AUS -3, JE-2). 
234 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.2(3).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Table 1: Requirements for brand, business, company or variant names  
Requirements for brand, business, company or variant names  
 
Item  If this name … appears on this surface … the name … 
 
1 a brand, 
business or 
company name  the front outer surface of a 
cigarette pack  must appear:  
(a) horizontally below, and in the same 
orientation as, the health warning; and  
(b) in the centre of the space remaining 
on the front outer surface beneath the 
health warning.  
 
2 a brand, 
business or 
company name  the front outer surface of a 
cigarette carton  must appear:  
(a) in the same orientation as the 
health warning; and  
(b) in the cent re of the space on the 
front outer surface that is not occupied 
by the health warning.  
 
3 a brand, 
business or 
company name  any outer surface of a 
cigarette pack or cigarette 
carton (other than a front 
outer surface)  must appear:  
(a) horizontally; and  
(b) in the centre of the outer surface of 
the pack or carton.  
 
4 variant name  any outer surface of a 
cigarette pack or cigarette 
carton  must appear:  
(a) horizontally and immediately below 
the brand, business or company name; 
and 
(b) in the same orientation as the 
brand, business or company name.  
 
Source:  TPP Act, (Exhibits AUS -1, JE-1), Section 21(3).  
 
2.27.   With respect to cigar tubes, a brand, business or company name, or variant name, may only 
appear once, across a single line only, and must not obscure any relevant legislative 
requirement.235 Where a cigar tube contains a brand, business or company name only, or a variant 
name only, the name must appear in the same orientation as, and immediately below, the health 
warnings. Where a cigar tube contains a brand,  business or company name, together with a 
variant name, the brand, business or company name must appear in the same orientation as, and 
immediately below, the health warnings on the surface, and the variant name must appear parallel 
to, in the same orient ation as, and immediately below the brand, business or company name.236 
2.28.   Brand, business or company names or variant names may appear on other retail 
packaging237 across one line only on each of the front and back outer surfaces (and no others), in 
the same ori entation as, and not above, the health warnings on the surface, and must not obscure 
any relevant legislative requirement. Variant names on  such packages must appear parallel to, in 
the same orientation as, and immediately below the brand, business or comp any name.238 
2.1.2.3.4   Wrappers  
2.29.   Section 22 of the TPP Act concerns requirements for wrappers.239 Wrappers must be 
transparent and not coloured, marked, textured or embellished in any way, other than as 
permitted by the TPP Regulations . Neither trademarks nor marks may appear anywhere on the 
                                                
235 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.3(1).  
236 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.3(2).  
237 That is, other than cigarette packs, cigarette cartons, and cigar tubes. See TPP Regulations, (Exhibits 
AUS-3, JE-2), Regulation 2.4.4(1).  
238 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.4.4(2).  
239 TPP Act, (Exhibits AUS -1, JE-1), Section 22. This Section applies only to plastic or other wrappers 
that cover the retail packaging of tobacco products that are within the scope of subparagraphs (a) and (b) of 
the definition of "retail packaging" presented in paragraph 2.17. See ibid. Sections 22(1) and 4(1) (defining 
"retail packaging").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  wrapper, except  as permitted by the TPP Regulations .240 These requirements are elaborated in the 
TPP Regulations .241 
2.1.2.3.5   Inserts and onserts  
2.30.   Section 23 of the TPP Act applies to certain types of retail packaging, and provides that 
these pack ages must not have any inserts or onserts, other than as permitted by the 
TPP Regulations .242 The TPP Regulations  provide that retail packaging of tobacco products may 
include an adhesive label bearing a health warning243, and, except with respect to cigarette s and 
cigarette cartons, may contain an insert if it is used to avoid damage to the tobacco product during 
transportation or storage, and is white or the colour of the packaging material in its natural 
state.244 Packages of tobacco products other than cigare ttes may include a tab for resealing the 
package, provided that it is either black, transparent and not coloured, or the colour Pantone 448C 
(drab dark brown).245 
2.1.2.3.6   Other requirements concerning retail packaging  
2.31.   The retail packaging of tobacco products  must no t make a noise, or contain or produce a 
scent, that could be taken to constitute tobacco advertising and promotion246, and must not 
include features designed to change the packaging after retail sale .247 
2.1.2.3.7   Summary of requirements on retail packaging  
2.32.   As describe d below, the requirements set out in the TPP Act and the TPP Regulations  
operate in conjunction with other legislative requirements that are not challenged in these 
disputes, including graphic health warnings  (GHWs) . The cumulative effects of the requireme nts 
set out in the TPP Act and the TPP Regulations , and other legislative requirements with respect to 
the packaging of cigarettes and cigars, are shown below:  
                                                
240 TPP Act, (Exhibits AUS -1, JE-1), Section 22(2).  
241 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulations 2.5.1 -2.5.2.  
242 TPP Act, (Exhibits AUS -1, JE-1), Section 23. This Section applies only to the retail packaging of 
tobacco products that are within the scope of any of the subparagraphs (a) through (d) of the definition of 
"retail packagin g" produced in paragraph 2.17. See ibid. Sections 23 and 4(1) (defining "retail packaging").  
243 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.6.1. These warnings must comply with Trade 
Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 (Cth), (Exhibits AUS -297, 
DOM-43); and Competition and Consumer (Tobacco) Information Standard 2011  (Cth), (Information 
Standard), (Exhibits AUS -128, JE -8). 
244 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.6.2.  
245 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 2.6.3.  
246 TPP Act, (Exhibits AUS -1, JE-1), Section 24.  
247 TPP Act, (Exhibits AUS -1, JE-1), Section 25. Section 25 provides the following examples of such 
features: (a) heat activated inks; (b) inks or embellishments designed to appear gradually over time; (c) inks 
that appear fluorescent in certain light; (d) panels designed to be scratched or rubbed to reveal an imag e or 
text; (e) removable tabs; and (f) fold -out panels.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 1: TPP  Act and TPP  Regulations as applied to the front, top, and  side of a 
cigarette pack  
 
 
Source:  Australia's first written submission, Annexure A, Figure 1; Dominican  Republic's first written 
submission, Annex I, Figure 25; and DHA Guide to Tobacco Plain Packaging, (Exhibits HND -50, 
DOM-161).  
 
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  Figure 2: TPP Act and the TPP Regulations as applied to the back, base and side of a 
cigarette pack  
 
Source:  Australia's first written submission, Annexure A, Figure 1; Dominican  Republic's first written 
submission, Annex I, Figure 26; and DHA Guide  to Tobacco Plain Packaging, (Exhibits HND -50, 
DOM-161).  
Figure 3: TPP Act and TPP Regulations as applied to the front, top and side of a cigarette 
carton  
 
 
Source:  Dominican  Republic's first written submission, Annex I, Figure 2 7; and DHA Guide to Tobacco Plain 
Packaging, (Exhibits HND -50, DOM -161).  
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Figure 4: TPP Act and TPP Regulations as applied to the back, base and side of a 
cigarette carton  
 
 
Source:  Dominican  Republic's first written submission, Annex I, Figure 28; and DHA Guide to Tobacco Plain 
Packaging, (Exhibits HND -50, DOM -161).  
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 5: TPP Act and TPP Regulations as applied to cigar tubes  
 
Source:  Australia's first written submission, Annexure A, Figure 4. See also Dominican  Republic's first written 
submission, Annex I, Figures 29 and 30; and DHA Guide to Tobacco Plain Packaging, (Exhibits 
HND-50, DOM -161).  
Figure 6: TPP Act and TPP Regulations as applied to the front and side of a cigar  box 
 
 
Source:  Dominican  Republic's first written submission, Annex I, Figure 31; and DHA Guide to Tobacco Plain 
Packaging, (Exhibits, HND -50, DOM -161).  
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 7: TPP Act and TPP Regulations as applied to the back of a cigar box  
 
Source:  Dominican  Republic's first written submission, Annex I, Figure 32; and DHA Guide to Tobacco Plain 
Packaging, (Exhibits HND -50, DOM -161).  
 
2.1.2.4   Requirements for the appearance of tobacco products  
2.33.   The TPP measures  regulate various elements affecting th e appearance of tobacco  products 
themselves. Section 26 of t he TPP Act provides that no trademark or mark may appear anywhere 
on a tobacco product, other than as permitted by the TPP Regulations .248 Section 27 of the TPP Act 
provides that the TPP Regulations  may prescribe additional requirements in relation to the 
appearance of tobacco products  to further the objects of the TPP Act.249 
2.1.2.4.1   Requirements with respect to cigarettes  
2.34.   Division 3.1 of the TPP Regulations  specifies requirements with respect to cigarettes. The 
paper casing and lowered permeability band (if any) must be white, or white with an imitation cork 
tip.250 A cigarette may be marked with an alphanumeric code, which may appear only once on the 
cigarette. The code must be printed parallel to, and not mor e than 38 millimetres from the end of 
the cigarette that is not designed to be lit in black, normal -weighted Lucida Sans typeface with a 
maximum 8 -point font size.251 The alphanumeric code must not constitute, or provide access to, 
tobacco advertising and pr omotion; be "false, misleading, deceptive or likely to create an 
erroneous  impression about the cigarette' s characteristics, health effects, hazards or emissions"; 
"directly or indirectly create a false impression that a particular tobacco product is less harmful 
than other tobacco products"; "represent, or be linked or related in any way to, the emission yields 
of the cigarette"; or "represent, or be related in any way to, the brand or variant name of the 
cigarette".252 If a cigarette includes a filter tip, the filter tip must be white.253  
                                                
248 TPP Act, (Exhibits AUS -1, JE-1), Section 26.  
249 TPP Act, (Exhibits AUS -1, JE-1), Section 27(1)(b).  
250 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.1.1.  
251 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.1.2(2).  
252 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.1.2(3).  
253 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.1.3.  
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  2.1.2.4.2   Requirements with respect to cigars  
2.35.   With respect to cigars, the TPP Regulations  prescribe that a single band may appear around 
the circumference of a cigar in the colour Pantone 448C (drab dark brown). The band may be an 
adhesive band that completely covers another band or bands, provided it is fastened firmly to, and 
not easily removable from, that band.254 
2.36.   The band may feature the brand, company or business name, and variant name of the 
cigar, the name of the country in which  the cigar was made or produced, and an alphanumeric 
code.255 These marks must appear only once on the band; and be printed in normal weighted 
Lucida Sans typeface, in maximum 10 -point font size, in the colour Pantone Cool Gray 2C.256 The 
brand, business or co mpany name and variant name must be placed horizontally along the length 
of the band so that they run around the circumference of the cigar.257 The alphanumeric code must 
not constitute, or provide access to, tobacco advertising and promotion; be "false, mis leading, 
deceptive or likely to create an erroneous impression about the cigar 's characteristics, health 
effects, hazards or emissions"; "directly or indirectly create a false impression that a particular 
tobacco product is less harmful than other tobacco products"; or "represent, or be linked or related 
in any way to, the emission yields of the cigar".258 
2.37.   The band may also contain a covert mark that is not visible to the naked eye and does not 
provide access to tobacco advertising and promotion.259 
2.1.2.4.3   Summary of requirements on the appearance of tobacco products  
2.38.   The cumulative effects of the requirements set out in the TPP Act and the TPP Regulations , 
and the other legislative requirements set out in Sections 2.1.2.4.1  and 2.1.2.4.2  with respect to 
the appearance of cigarettes and cigars, are depicted as follows:  
Figure 8: TPP Act and TPP Regulations as applied to the appearance of cigarettes  
 
Source:  Australia's first written submission, Annexure A, Figure 3; Dominican  Republic's first written 
submission, Annex I, Figure 33; and DHA Guide to Tobacco Plain Packaging, (Exhibits HND -50, 
DOM-161).  
                                                
254 TPP Regulations, (Exhibits AUS -3, JE-2), Regulations 3.2.1(1) -3.2.1(2).  
255 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(3).  
256 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(5).  
257 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(6).  
258 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(7).  
259 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(4).  
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 9: TPP Act and TPP Regulations as applied to the appearance of cigars  
 
Source:  Australia's first written submission, Annexure A, Figure 4; Dominican  Republic's first written 
submission, Annex I, Figure 34; and DHA Guide to Tobacco Plain Packaging, (Exhibits HND -50, 
DOM-161). 
 
2.1.2.5   Section 28 of the TPP Act 
2.39.   Section 28(1) of the TPP Act provides that, for the purposes of the Trade  Marks  Act 1995 
(Cth) (TM Act), and the regulations made under that Act, "an applicant for the registration of a 
trademark in respect of tobacco products  is taken to intend to: (a) use the trademark in Australia 
in relation to those products; or (b) authorise another person to use the trade mark in Australia in 
relation to those products; or (c) assign the trade mark to a body corporate that is about to be  
constituted with a view to [it] using the trade mark in Australia in relation to those products".260  
2.40.   The TPP Bill Explanatory Memorandum  states that Section 28 "preserves a trade mark 
owner's ability to protect a trade mark, and to register and maintain re gistration of a trade mark". 
It elaborates that , for example,  "a tobacco manufacturer that applies for the registration of a trade 
mark in respect of tobacco products is taken to intend to use the trade mark in Australia, if it 
would use it on the products  or retail packaging, but for the operation" of the TPP Act. It further 
states that, in the event of an application to remove a trademark from the register on the basis 
that it has not been used, th e allegation of non -use "will be rebutted by evidence that  the 
registered owner would have used the trade mark, but for the operation" of the TPP Act.261 The 
complainants contest the effect s of Section 28(1) of the TPP Act. 
2.1.2.6   Offences and civil penalties  
2.41.   Chapter 3 of the TPP Act is entitled "Offences and civil penalt y provisions".  This Chapter 
identifies a variety of acts that attract either civil or criminal penalties. Section 30, which is 
contained in Part I of Chapter 3, provides a simplified outline of the provisions of the Chapter. It 
provides, inter alia, that:  
 A person must not:  
(a) supply or purchase tobacco products in retail packaging that does not comply 
with the requirements of this Act; nor  
(b) be involved in the packaging of tobacco products for retail sale if the 
packaging does not comply with those requ irements; nor  
                                                
260 TPP Act, (Exhibits AUS -1, JE-1), Section 28(1).  
261 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 15. 
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  (c) supply, purchase or manufacture tobacco products that do not comply with 
those requirements; nor  
(d) supply tobacco products that are not packaged for retail sale without certain 
contractual prohibitions.  
 A person who does so:  
(a) may com mit a fault -based offence (that is, an offence where fault elements 
apply to the physical elements of the offence); and  
(b) may also commit a strict liability offence (that is, an offence where no fault 
elements apply to the physical elements of the offenc e); and  
(c) may also contravene a civil penalty provision.262 
2.42.   Each of the prohibitions identified in Chapter 3 stipulates the applicable criminal penalties 
(for fault -based and strict liability offences) and civil penalties.263 Part 4 of Chapter 3 creates an 
exception to certain offences and civil penalty provisions in that Chapter for non -compliant tobacco 
products that are for export.264 
2.1.2.7   Relationship with other legislation  
2.43.   Section 10 the TPP Act makes provision for inconsistencies between the Act and other 
Commonwealth legislation, and identifies certain safety or information standards which prevail to 
the extent of any inconsistency between them and the TPP Act.265 Section 11 of the TPP Act 
provides, inter alia, that the Act "does not exclude or limit the operat ion of a relevant tobacco law 
of a State or Territory that is capable of operating concurrently with this Act".266 The TPP Bill 
Explanatory Memorandum  explains that the TPP Bill does not:  
[L]imit the operation of State or Territory laws relating to packaging  and appearance 
of tobacco products, where those laws are capable of operating concurrently with the 
provisions of the Bill. It is expected that Commonwealth and State and Territory 
tobacco control laws will continue to operate alongside each other. Howeve r, if there is 
any conflict between State and Territory laws and the plain packaging requirements, 
the Bill will prevail. 267 
2.44.   Furthermore, the Explanatory Memorandum  explains that:  
It is intended that this Bill will operate alongside other regulatory mechani sms for 
tobacco products, and packaging generally. Although the Bill regulates information 
that may appear, and the ways in which certain required information may appear, [it] 
is not intended to interfere with other regulation of tobacco products, includin g any 
regulation creating a requirement for packaging generally that is applicable to retail 
packaging for tobacco products. […] The Bill is not intended to detract from any form 
of regulation of advertising of tobacco products, but is intended to support existing 
advertising restrictions in so far as it creates requirements to restrict advertising on 
tobacco products themselves or on their packaging.268 
                                                
262 TPP Act, (Exhibits AUS -1, JE-1), Section 30. The details of these prohibitions are elaborated in 
Sections 31-50, which are contained in Parts 2 -4 of Chapter 3.  
263 TPP Act, (Exhibits AUS -1, JE-1), Sections 31 -48. 
264 TPP Act, (Exhibits AUS -1, JE-1), Chapter 3, Part 4.  
265 TPP Act, (Exhibits AUS -1, JE-1), Section 10. See, e.g. Trade Practices (Consumer Product 
Information Standards) (Tobacco) Regulations 2004 (Cth), (Exhibits AUS -297, DOM -43). 
266 TPP Act, (Exhibits AUS -1, JE-1), Section 11(1).  
267 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 4. See also ibid. p. 10. 
268 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 4. See also ibid. p. 10. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  2.1.2.8   The TMA Act  
2.45.   The TMA Act inserts into the TM Act a new provision, namely Section  231A. This provision 
provides as follows:  
(1) The regulations may make provision in relation to the effect of the operation of the 
Tobacco Plain Packaging Act 2011 , and any regulations made under that Act, on:  
 
(a) a provision of this Act; or  
 
(b) a regulation made under this Act, including:  
 
(i) a regulation that applies a provision of this Act; or  
 
(ii) a regulation that applies a provision of this Act in modified form.  
 
(2) Without limiting subsection (1), regulations made for the purposes of that subsection 
may clarify or state the effect of the operation of the Tobacco Plain Packaging Act 
2011, and any regulations made under that Act, on a provision of this Act or a 
regulation made under this Act, including by taking or deeming:  
 
(a) something to have (or not to have) happened; or 
 
(b) something to be (or not to be) the case; or  
 
(c) something to have (or not to have) a particular effect.  
 
(3) Regulations made for the purposes of subsection (1):  
 
(a) may be inconsistent with this Act; and  
 
(b) prevail over this Act (including any  other regulations or other instruments 
made under this Act), to the extent of any inconsistency.269 
 
2.46.   The TMA Bill Explanatory Memorandum  explains that:  
The [ TMA Bill] is being introduced so, if necessary, the government can quickly 
remedy any unintended interaction between the [ TPP Act] and the Trade Marks Act 
1995 …. The objective of any such exercise of power under the Bill will be to ensure 
that applicants for trade mark registration and registered owners of trade marks are 
not disadvantaged by the pra ctical operation of the Plain Packaging Act.270 
2.47.   The Explanatory Memorandum  continues that:  
[T]he proposed Bill will insert a new section 231A to allow regulations to be made 
under the Trade Marks Act in relation to the effect of the operation of the [ TPP Act] 
and regulations made under that Act on (a) a provision of the Trade Marks Act or (b) 
of a regulation made under that Act.  
Regulations made under new section 231A are not intended to have any effect on the 
operation of the Trade Marks Act in relation to goods or services not governed by the 
Plain Packaging Act.271 
2.48.   The TMA Act entered into force on 1 December 2011.272 
                                                
269 TMA Act, (Exhibits AUS -4, JE-3), Schedule 1(2) . (note omitted)  
270 TMA Bill Explanatory Memorandum, (Exhibits AUS -5, JE-5), p. 1. 
271 TMA Bill Explanatory Memorandum, (Exh ibits AUS -5, JE-5), p. 1. 
272 See TMA Act, (Exhibits AUS -4, JE-3), Section 2.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  2.1.2.9   Regulatory impact analysis  
2.49.   The Australian regulatory impact analysis process involves a three -tier system for assessing 
regulations, including " in-depth analysis, documented in a Regulation Impact Statement (RIS), for 
all proposals that will have a significant impact on business and individuals or the economy".273 
The process also allows for a PIR in circumstances where a RIS is not completed in rel ation to a 
regulatory proposal.  
2.50.   In April 2009, the Department of Health and Ageing (DHA) submitted to the Office of Best 
Practice Regulation (OBPR) a draft RIS for a Tobacco Control Act that would have contained, 
inter alia, provisions on plain packaging of tobacco products.274 The OBPR advised the DHA that 
the draft RIS required more work to satisfy the Australian Government's Best Practice Regulation 
requirements and offered comments to assist in finalizing it.275 In April 2010, the DHA transmitted 
to the OB PR a second  draft RIS on plain packaging of tobacco products.276 In May 2010, after it 
was announced that the Government would adopt a comprehensive package of tobacco control 
measures targeting smoking, including plain packaging277, the OBPR informed the DHA that the 
second draft RIS did not satisfy the Best Practice Regulation requirements  and that the DHA was 
required to commence a  PIR within one to two years of implementation.278 
2.51.   According to the Best Practice Regulation Handbook, a PIR "should be similar in scale and 
scope to what would have been prepared for the decision -making stage" and "should focus on the 
way the policy was implemented, whether the implementation is proving effective in meeting the 
policy objectives, and whether implementation or ongoing  delivery methods might be adjusted to 
manage the policy's ongoing delivery more efficiently and/or effectively".279 The DHA was granted 
an extension, from December 2014 to June 2015, to complete  its PIR of the TPP measures .280 In 
November 2015 , the "Department of Health received advice that it would  be reported as 
'non-compliant ' on the Office of Best Practice Regulation's website in relation to the 
post-implementation review of the tobacco plain packaging measure ".281 The Department of Health 
                                                
273 See Australian Government, "Best Practice Regulation Handbook", August 2007, (Best Practice 
Regulation Handbook), (Exhibit AUS -126), p. 16. 
274 Email correspondence dated 7 April 2009 from D. Sloane, Assistant Director, Department of Health 
and Ageing , to R. Ristic, S. Rowley, and C. Toyne, Office of Best Practice Regulation , attaching Department of 
Health and Ageing, "DRAFT Regulation Impact Stat ement – Tobacco Control Act"( April 2009 ), 
(Exhibit  UKR-51). 
275 Letter of 23 April 2009 from OBPR to DHA , (Exhibits HND -12, IDN -6). The OBPR provided "general 
comments" on the definition of the problem, the structure of the RIS, the range of sources relied o n, and the 
need to target the information to the measures proposed to be introduced, including an analysis of the degree 
to which the proposed measures will contribute to the health benefits of quitting smoking.  Ibid. p. 2. With 
respect to plain packaging,  it commented that "[t]he idea that cigarettes are held in the same social cues to 
style and display one's status like designer clothing seems overstated." Ibid. p.  6. 
276 Letter of 4 May 2010  from OBPR to DHA , (Exhibit HND -16). 
277 See PM Rudd, Anti-Smoking A ction Media Release, (Exhibit s AUS-115, HND -4, DOM -52). 
278 Letter of 4 May 2010  from OBPR to DHA , (Exhibit HND -16). Under the Government's Best Practice 
Regulation Handbook:  
 
Where the OBPR detects a regulation may have been introduced or amended without th e 
appropriate level of analysis being undertaken, it will, in the first instance, contact the 
department or agency to obtain additional information. Following consultation with the 
department or agency, the OBPR will determine that:  
 
• the best practice regu lation requirements have been met and no further action is required; 
or 
 
• the requirements to prepare a RIS or quantitative assessment of compliance costs have not 
been met and the department or agency must undertake a post -implementation review. In 
additio n, the department or agency will be reported as non -compliant in the Best Practice 
Regulation Report  for that year.  
 
Australian Government, "Best Practice Regulation Handbook", August 2007, (Best Practice Regulation 
Handbook), (Exhibit AUS -126), p. 37. See also ibid. p p. 32 and 36 -38. The tobacco plain packaging proposal 
was reported as non -compliant in 2012. Best Practice Regulation  Report  2011–12, (Exhibits HND -18, CUB -9), 
p. 33.  
279 Best Practice Regulation Handbook, (Exhibit AUS -126), p. 37. 
280 Evidenc e to Senate Finance and Public Administration Legislation Committee, (Exhibit DOM -371).  
281 Australia's response to Panel question No. 149, para. 31. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  compl eted the PIR for the TPP measures  in February 2016.282 This PIR  seeks to assess "the 
effectiveness and efficiency of the tobacco plain packaging measure to meet its objective in order 
to determine if it is an appropriate regulatory intervention".283 
2.2  Other toba cco control -related measures in Australia  
2.52.   Australia maintains a number of measures at the Commonwealth, state and territory levels 
regulating the use, sale, advertisement and promotion of tobacco products  that are not challenged 
in these proceedings . A number of th ese measures have however been referred to and discussed 
by the parties. A general description of this regulatory context is therefore provided below.  
2.2.1   Mandatory text and GHW s 
2.53.   Tobacco health warning requirements, enacted by all Australian states an d territories in 
1973, initially applied only to the retail packaging of cigarettes and involved textual health 
warnings.284 Subsequent measures at the federal level were enacted, expanding the scope of the 
warnings with respect to their form (i.e. to include textual and graphic/pictorial warnings), size 
(i.e. as a percentage of the surface of the pack), position (i.e. on the f ront and/or back of packs), 
modalities (i.e. the variation and rotation of text and images) and scope (i.e. application of the 
requirements to other categories of tobacco products).285 As of 1  March  2006, GHWs were required 
for almost all tobacco products.286 
2.54.    On 1 January 2012, the Competition and Consumer (Tobacco) Information Standard 
2011 (Cth) (Information Standard) entered into force; it applied to all tobacco products as of 
1 December 2012.287 This measure requires all tobacco products sold288, offered for s ale or 
otherwise supplied in Australia to feature new and expanded health warnings, including warning 
statements and corresponding graphics, an explanatory message and information messages.289 
Pursuant to the Information Standard, the package area covered by  health warnings was 
expanded, such that textual and graphic warnings must cover 75% of the front surface and 90% 
                                                
282 See Australia's communication to the Panel of 26 February 2016 (referring to 
http://ris.dpmc.gov.au/2016/ 02/26/tobacco -plain-packaging/ ). 
283 See Tobacco Plain Packaging PIR, (Exhibit  AUS-624), p. 2. 
284 Australia's first written submission, Annexure B, Section  A(1); Cigarette Containers (Labelling) 
Ordinance 1972 (Cth) (as made), (Exhibit AUS -299), Section 5(1); Cigarette Containers (Labelling) Ordinance 
1972 (NT), (Exhibit AUS -300), Section 4; Cigarette Package Labelling Regulations 1972 (Vic), (Exhibit 
AUS-301), Regulations 3 -4 and 6; Cigarettes (Labelling) Regulations 1972 (WA), (Exhibit AUS -302), 
Regulations 3 -6; Cigarettes (Labelling) Act 1972 (NSW), (Exhibit AUS -303), Section 4; Cigarettes (Labelling) 
Regulations 1973 (NSW), (Exhibit AUS -304), Regulation 4; Cigarettes (Labelling) Act 1972 (Tas), (Exhibit 
AUS-305), Sections 3 -4; (Cigarettes  (Labelling) Regulations 1973 (Tas), (Exhibit AUS -306), Regulation 3; 
Cigarettes (Labelling) Regulations 1971 -1972 (SA), (Exhibit AUS -307), Regulations 2 and 3; Food and Drug 
Amendment Regulations 1973 (Qld), (Exhibit AUS -308).  
285 Australia's first written submission, Annexure B, Section  A(1). See, e.g. Trade Practices (Consumer 
Product Information Standards) (Tobacco) Regulations 1994 (Cth), (Exhibit AUS -322), Regulations 7, 9, 10(1), 
11(1)(b), 11(2)(b), and 15(1); Trade Practices (Consumer Product Informat ion Standards) (Tobacco) 
Regulations 2004 (Cth), (Exhibit AUS -323), Regulations 35, 42, 47, 51, and Schedule 2.  
286 An exception was made for cigars sold singly and tobacco for export. Trade Practices (Consumer 
Product Information Standards) (Tobacco) Regula tions 1994 (Cth), (Exhibit AUS -322), Regulation 4(2)(b).  
287 Information Standard,  (Exhibits AUS -128, JE -8), Section  1.5. 
288 Prior to the Information Standard, an exception to the warning requirements was made for cigars 
sold individually, as well as tobacco for export. See Australia's first written submission, para. 133 and 
Annexure B, Section  A(1); Information Standard, (Exhibit s AUS-128, JE-8), Section 9.16. It is noted that 
Information Standard  requires warning statements, but not GHWs, for single cigar tubes, bidis and smokeless 
tobacco. See Information Standard, (Exhibit s AUS-128, JE-8), Parts 6, 7 and 8.  
289 For example, Section 3.2(4) offers the following "explanatory message":  
 
Smoking during pregnancy reduces blood flow in the placenta and limits the oxygen and 
nutrients that reach the growing baby. Smoking increases the risk of miscarriage, stillbirth, 
premature birth, problems during the birth or the baby having a smaller brain and body.  
 
You CAN quit smoking. Call Quitline 13 7848 , talk to your doct or or pharmacist, or visit 
www.quitnow.gov.au  
 
Information Standard, (Exhibits AUS -128, JE -8), Section  3.2(4). (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  of the back surface of cigarette packs and cartons. Cigar tubes require only textual warnings; such 
statements must occupy 95% of the total le ngth of the outer surface, and extend to at least 60% 
of the circumference of the outer surface.290 The warning on other tobacco products (except cigars 
tubes and bidis) was increased to 75% on the front and back of the package.291 Warning 
statements on the fr ont surface of a cigarette package must feature upper case, bold type, in the 
largest font size available to fit the set area, and must be set in white against black background. 
Furthermore, the side warning statements must have "WARNING" in uppercase and several lines 
of a specified message below in regular capitalization, in black lettering on a bright yellow 
background.292 
2.55.   In 2013, amendments were made to the Information Standard, with the effect that rotation 
of the health warnings on the retail packaging  of tobacco products became the responsibility of 
manufacturers and importers of tobacco products rather than retailers.293 
Figure 10: Current GHWs used on the front of cigarette packaging  
 
Source:  Australia's first written submiss ion, para.  133. 
 
2.2.2   Restrictions on advertisement and promotion of tobacco products  
2.56.   Since 1992, Australia has maintain ed restrictions and prohibitions concerning advertising 
and promotion of tobacco products across various media.294 It has also maintained prohibitions on 
tobacco advertising at the point of sale. As described in paragraph 2.7 above , the NPHT, in its final 
                                                
290 Information Standard, (Exhibits AUS -128, JE -8), Part 6.  
291 Information Standard, (Exhibits AUS -128, JE -8), Sections 9.13, 9. 14, and 9.24.  
292 Information Standard,  (Exhibits AUS -128, JE -8), Sections 9.10 -9.12. 
293 Competition and Consumer (Tobacco) Amendment (Rotation of Health Warnings) Information 
Standard 2013 (Cth), (Exhibit AUS -325).  
294 This includes restrictions on advertising  in various print media; advertisements in film, videos, 
television or radio; advertising on tickets; the sale or supply or offer or hire of any item containing a tobacco 
advertisement to the public; displays that could be seen or heard from a public place , or from public transport 
or workplaces; and advertising of sponsorshi p. See Tobacco Advertising Prohibition Act 1992  (Cth), (Exhibits 
AUS-64, IDN -14), Sections 9, 10(1), and 15; and Smoking and Tobacco Products Advertisements (Prohibition) 
Act 1989 (Exhibit AUS -62). 
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  report of June 2009295, identified " [e]nd(ing) all forms of advertising and promotion of tobacco 
products" as one of 11 "key action areas".296  
2.57.   In response to the NPHT's recommendations, the  Prime  Minister and the Minister for Health 
and Ageing announced reforms to furth er restrict tobacco advertising and promotion. The reforms 
announced included the introduction of legislation to restrict internet advertising of tobacco 
products; working with Australian states and territories to develop an action plan for ending other 
forms of tobacco promotion, and possible mandatory reporting of promotion expenditure, in the 
next iteration of the National Tobacco Strategy ; and a proposal for legislation concerning the plain 
packaging of tobacco products .297 
2.58.   In addition, Australia indicate d in these proceedings that legislation prohibiting tobacco 
advertising may include retailer advertising or over -the-counter word -of-mouth promotion and that 
some states and territories provide guidelines about what a retailer can say to a customer.298  
2.59.   In 2012, the Tobacco Advertising Prohibition Act 1992  (Cth) was amended so as to extend 
existing tobacco advertisement restrictions to internet and other electronic media (e.g. mobile 
phones), with the exception of advertising on websites that sell tobacco pro ducts.299 
Advertisements on these w ebsites must comply with r egulations accompanying these amendments 
in respect of their content, format, and location.300 These amendments took effect on 6 September 
2012.301 
2.60.   All Australian states and territories prohibit retail ers from selling food, toys or other 
products designed to resemble tobacco products or that might encourage young people to 
smoke.302 
2.2.3   Taxation measures  
2.61.   On 1 November 1999, Australia amended the Excise Tariff Act 1921 (Cth) such that excise 
tax was applied to  cigarettes, cigars and other tobacco products on a per stick basis (for products 
in stick form not exceeding 0.8 grams of tobacco per stick), or on a per kilogram basis (for 
products exceeding 0.8 grams per stick).303  
2.62.   In addition to indexation adjustments304, the excise rate has been increased on several 
occasions. On 29 April 2010, Australia announced an increase in the tobacco excise rate of 25% to 
                                                
295 NPHT, The Roadmap for Action, (Exhibits AUS -67, JE -14). 
296 Australia's first written submission, Annexure C, para. 15. See NPHT, The Roadmap for Action, 
(Exhibits AUS -67, JE -14), p p. 179-182. See para. 2.67 below.  
297 Response to NPHT, The Roadmap for Action,  (Exhibits AUS -116, JE -15), pp. 65-66. 
298 Australia's first written submission, para. 56 and Annexure C, paras.  25-26. Austral ia cites the 
"Guide to the Sale of Tobacco Products in the ACT  [Australian Capital Territory ]" restricting the ability of 
retailers to say anything that would constitute the promotion of particular products or of smoking generally and 
the "Victorian Tobacc o Retailer Guide", which provides that if a customer does not request a specific brand the 
retailer may ask general questions such as "What brand do you want?" or "What flavour are they?" but may 
not mention a specific brand themselves. See Australia's fir st written submission, Annexure C, para. 26. 
299 Tobacco Advertising Prohibition Amendment Act 2012  (Cth), (Exhibit AUS -473). See also 
footnote  311, below.  
300 More specifically, online tobacco advertisement should be "presented in a plain, text -only format, 
without product images, and accompanied by health warnings and age warnings". Aust ralia's first written 
submission, para. 56; Tobacco Advertising Prohibition Amendment Regulation 2012  (Cth), (Exhibit AUS -68), 
Section 8A . 
301 Tobacco Advertising Prohibition Amendment Act 2012  (Cth), (Exhibit AUS -473), Section 2.  
302 Tobacco Products Control Act 2006 (WA), (Exhibit AUS -350), Section 106; Tobacco Act 1927 (ACT), 
(Exhibit AUS -453), Section 18; Tobacco Control Act 2002 (NT), (Exhibit AUS -374), Section 46; Tobacco and 
Other Smoking Products Act 1998 (Qld), (Exhibit AUS -454), Section 26ZS; Tobacco Act 1987 (Vic), (Exhibit 
AUS-455), Sections 15N, 15O(2)(a); Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS -404), Section 21; 
Public Health Act 1997 (Tas), (Exhibit AUS -456), Section 68A; Tobacco Products Control Act 1986 (SA), 
(Exhibit AUS -366), Sect ion 10; Tobacco Products Regulation Act 1997 (SA), (Exhibit AUS -457), Section 
34A(2)(b).  
303 Australia's first written submission, Annexure B, Section D(1); Excise Tariff Amendment Act (No 1) 
2000 (Cth), Schedule 1 (Exhibit AUS -417).  
304 Excise Tariff Amendment (Tobacco) Act 2014  (Cth), (Exhibit HND -86), Section 6AA;  Excise Tariff 
Working Pages , (Exhibit IDN -23), p. 4. From 1 March 2014, the indexation of tobacco excise changed from 
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  be applied from 30 April 2010.305 On 1 August 2013, Australia announced four additional 12.5% 
increases in excis e tax, effective on 1  December 2013, 1  September 2014, 1 September 2015, and 
1 September 2016.306  
2.2.4   Restrictions on the sale of tobacco products  
2.63.   Australia regulates, mostly through state and territory legislation, what kind of tobacco 
products may be sold, w ho can buy and sell and purchase tobacco products, and how they can be 
sold.307  
2.64.   The supply of chewing tobacco and snuff has been banned in Australia since 1991. A 
number of states and territories have also introduced prohibitions on the sale of flavoured 
cigarettes or fruit or confectionery -flavoured cigarettes, or enacted legislation allowing their 
prohibition.308 
2.65.   By 1998, all Australian States and Territories had increased the m inimum age limit 
restricting the sale of cigarettes to persons under 18 years of age.309  
2.66.   All Australian states also regulate the modalities of sale through vending machines, online 
and other forms of "indirect sales", or via "mobile  sales" in places such as nightclubs or dance 
events310, though these restrictions are not applied uniformly  across all states and territories.311 
Some Australian states and territories require tobacco retailers and wholesalers to be licensed.312 
                                                                                                                                                  
bi-annual indexation based on the Consumer Price Index to bi -annual ind exation based on average weekly 
ordinary time earnings. Budget Paper No. 2 – 2013-2014, (Exhibit AUS -266).  
305 PM Rudd, Anti-Smoking Action Media Release, (Exhibit s AUS-115, HND -4, DOM -52); Excise Tariff 
Amendment (Tobacco) Act 2010  (Cth), (Exhibit AUS -418),  Schedule 1; and  Tobacco Excise Increase PIR , 
(Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), paras.  24-26. 
306 Tobacco Excise Media Release, (Exhibits AUS -421, HND -85, DOM -114, IDN -5); Statements of the 
Hon. Chris Bowen MP, Treasurer, and Senator the H on. Penny Wong, Minister for Finance and Deregulation, 
(Exhibit AUS -265), p.  33. 
307 Australia's first written submission, para. 51 and Annexure B, Section B.  
308 Australia's first written submission, para. 51, Annexure B, Section  B(3)(b), Annexure C, Section  A(5), 
para. 13; Tobacco Products Regulation (Prohibited Tobacco Products) Notice 2006  (SA), (Exhibit AUS -362); 
Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS -267), Section 29; Tobacco Act 1987 (Vic), (Exhibit 
AUS-363), Sections 15N and 15O; Tobacco Act 1927 (ACT), (Exhibit AUS -347), Section 21; Tobacco Products 
Regulation Act 1997  (SA), (Exhibit AUS -348), Section 34A; Public Health Act 1997  (Tas), (Exhibit AUS -456), 
Section 68A; and Health Legislati on Amendment Act 2011  (Qld), (Exhibit AUS -364), Section 72. Western 
Australia prohibits the display of any package that contains tobacco with fruit or confectionery flavours. 
Tobacco Products Control Regulations 2006 (WA), (Exhibit AUS -365), Regulation 33.  
309 Australia's first written submission, para. 710 and Annexure B, Section B(2)(a).  Tobacco 
(Amendment) Act 1990 (ACT), (Exhibit AUS -351), Section 5; Public Health Act 1991 (NSW), (Exhibit 
AUS-352), Section 59; Tobacco Products (Prevention of Supply to Chi ldren) Act 1998 (Qld), (Exhibit AUS -353), 
Schedule (defining "child" as someone under 18 years of age); Tobacco Products Control (Miscellaneous) 
Amendment Act 1993 (SA), (Exhibit AUS -354), Section 3(a); Tobacco Act 1992 (NT), (Exhibit AUS -355), 
Sections 3,  9; Public Health Amendment Act 1996 (Tas), (Exhibit AUS -356), Section 4; and Tobacco 
(Amendment) Act 1993 (Vic), (Exhibit AUS -357), Section 4. According to Australia, the legal purchase age in 
Western Australia has been 18 years since 1916. Australia's second written submission, para. 557 fn 623. 
310 Tobacco Products Control Act 1986 (SA), (Exhibit AUS -366), Section 11(2); Tobacco Act 1987 (Vic), 
(Exhibit AUS -462), Section 13; Tobacco Advertising Prohibition Act 1991 (NSW), (Exhibit AUS -372), Section 9; 
Tobacco (Amendment) Act 1990 (ACT), (Exhibit AUS -351), Section 5; Tobacco Products (Prevention Of Supply 
To Children) Act 1998 (Qld), (Exhibit AUS -353), Section 15; Tobacco Products Control (Miscellaneous) 
Amendment Act 1993 (SA), (Exhibit AUS -354), Section 8; Public Health Amendment Act 1996 (Tas), (Exhibit 
AUS-356), Section 4. The Northern Territory prohibits vending machines except  within areas of licensed 
premises where children are not permitted. Tobacco Control Act 2002 (NT), (Exhibit AUS -374), Section 26. 
Western Australia restricts tobacco vending machines to licensed premises or mines amenities. Tobacco 
Products Control Act 20 06 (WA), (Exhibit AUS -350), Section 27. On 1 September 2006, the ACT banned 
tobacco vending machines completely. Tobacco (Vending Machine Ban) Amendment Act 2004 (ACT), (Exhibit 
AUS-375), Sections 2(2) and 9.  
311 For example, only Western Australia and South  Australia prohibit sale by internet, telephone, and 
facsimile. See Tobacco Products Control Act 2006 (WA), (Exhibit AUS -376), Section 18; Tobacco Products 
Regulation (Miscellaneous) Amendment Act 2007 (SA), (Exhibit AUS -377), Section 4.  
312 This is the case  for the ACT, South Australia, Tasmania, Western Australia and the Northern 
Territory.  See Australia's first written submission, Annexure B, Section B(1); Tobacco Act 1927 (ACT), (Exhibit 
AUS-347), Part 7, Sections 61 and 63; Tobacco Products Regulation Ac t 1997 (SA), (Exhibit AUS -348), Section 
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  Others have what Australia describes as "'negative' licensing schemes that similarly assist in the 
enforcement of tobacco  laws".313  
2.67.   All Australian states and territories have implemented requirements concerning the point of 
sale of tobacco products , including bans on the display of tobacco products and tobacco 
advertising at retail premises .314 Certain exemptions  to display ban s are maintained in Victoria for 
specialist tobacconist outlets and duty -free shops315, and in Western Australia for specialist 
tobacconist outlets .316 A typical point -of-sale display ban in Australia requires that tobacco 
products be kept in an opaque, closed  cabinet that is inaccessible to consumers and is behind the 
counter of a retail outlet.317 
2.68.   Australian states and territories also regulate other means through which information about 
the tobacco products available in a given retail outlet can be communicate d to consumers. In all 
states and territories except Queensland and the Australian Capital Territory ( ACT), price boards 
are visible and display certain information. The information displayed varies from jurisdiction to 
jurisdiction, as does the size, font , and other features of the board.318 Retailers may also, or 
alternatively, use price tickets.319 The information displayed varies from jurisdiction to jurisdiction, 
and limitations apply to the font and other features of each ticket.  
                                                                                                                                                  
6; Public Health Act 1997 (Tas), (Exhibit AUS -349), Section 74A; Tobacco Products Control Act 2006 (WA), 
(Exhibit AUS -350), Sections 16 -18; Tobacco Control Act 2002 (NT), (Exhibit AUS -346), Section 28.  
313 Australia's first written submission, Annexure B, Section B(1).  
314 Australia's first written submission, paras.  56 and 354 and Annexure C, paras.  15-16; Tobacco 
Amendment Act 2008  (ACT), (Exhibit AUS -470), Section 10; Public Health (Tobacco) Act 2008  (NSW), 
(Exhibit  AUS-404), Section 9; Tobacco Control Legislation Amendment Act 2010 (NT), (Exhibit AUS -395), 
Section 20; Hospital and Health Boards Act 2011  (Qld), (Exhibit AUS -471), Sections 26A and 26C; SA Health, 
"Point of sale restrictions for tobacco  retailers",  
<http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/protecting+public+hea
lth/tobacco+laws+and+businesses/requirements+for+licensed+tobacco+premises/point+of+sale+display+res
trictions+for+tobacco+retailers >, accessed  4 Mar ch 2015, (Exhibit AUS -481); Department of Health and 
Human Services, Tobacco Retailers Guide and Guidelines for the Sale of Tobacco products, (February 2012), 
(Exhibit AUS -477); Department of Health (Vic), "Tobacco Retailers Fact Sheet", October 2010, (Exh ibit 
AUS-478); VIC Department of Health, "Tobacco Retailer Guide", February 2013, (Exhibit AUS -279); Tobacco 
Products Control Act 2006 (WA), (Exhibit AUS -376), Section 22; Tobacco (Amendment) Act 1999 (ACT), 
(Exhibit AUS -463), Sections 4 -5, 12 and 13; Public Health (Tobacco) Regulation 1999 (NSW), (Exhibit 
AUS-466), Regulations 8, 9 and 11; Tobacco Control Regulations 2002 (NT), (Exhibit AUS -385), Regulation 21; 
Tobacco and Other Smoking Products (Prevention of Supply to Children) Amendment Act 2001 (Qld) 
(Exhibit  AUS-387), Section 26; Tobacco Products Variation Regulations 2006 (SA), (Exhibit AUS -467), 
Regulation 4(3); Public Health Act 1997 (Tas), (Exhibit AUS -360), Sections 70 -72; Tobacco (Amendment) Act 
2000 (Vic), (Exhibit AUS -390), Sections 8 and 9; Tobacco Products Control Act 2006 (WA), (Exhibit AUS -350), 
Sections 22 -23 and 31 -32; Public Health Amendment (Tobacco Advertising) Act 1997 (NSW), (Exhibit 
AUS-450), Schedule 1, item 10; Tobacco Control Act 2002 (NT) (as made), (Exhibit AUS -374), Section 15; and 
Tobacco Products Regulation (Further Restrictions) Amendment Act 2004 (SA), (Exhibit AUS -402), Section 15.  
315 Australia's first written submission, Annexure C, paras.  15-16; Dominican  Republic 's second written 
submission, para. 754; Honduras' s second written submission, para. 315; and VIC Department of Health, 
"Tobacco Retailer Guide", February 2013, (Exhibit AUS -279), Section 5.  
316 Australia's first written submission, Annexure C, paras.  15-16; Dominican  Republic 's second written 
submis sion, para. 754; Honduras' s second written submission, para. 315; and Tobacco Products Control Act 
2006 (WA), (Exhibit AUS -376), Sections 22 -23. 
317 Australia's first written submission,  para. 354; Dominican  Republic 's second written submission, 
para. 755; a nd Tobacco in Australia 2012, CUB excerpts, (Exhibit CUB -13), p. 39. 
318 See Australia's first written submission, Annexure C, para. 24. See also Tasmanian Department of 
Health and Human Services, "Tobacco Retailers Guide and Guidelines for the Sale of Tobac co products",  
(Exhibit AUS -477); Department of Health (Vic), "Tobacco Retailers Fact Sheet", October 2010, (Exhibit 
AUS-478); and  VIC Department of Health, "Tobacco Retailer Guide", February 2013, (Exhibit AUS -279); 
Department of Health (NSW), Retailer Factsheet 5, "Ban on Display of Tobacco and Smoking Products in Retail 
Outlets from 1 July 2013", May 2013, (Exhibit AUS -479); Queensland Government, "Requirements for 
retailers", October 2011, (Exhibit AUS -480); SA Health, "Point of sale restrictions for tobacco retailers" (Exhibit 
AUS-481); WA Department of Health, "Tobacco Products Control Act 2006 Guideline: Price Tickets", (Exhibit 
AUS-482); WA Department of Health, "Retailer Fact Sheet No 2: New Tobacco Display Laws for all Restailers", 
October 2010, (Exhibit AUS -483); NT Government, "Displays and Point of Sale Banning Tobacco Retail 
Displays, Frequently Asked Questions", 2010, (Exhibit  AUS-484); and Department of Health (ACT), "Guide to 
the Sale of Smoking Products in the ACT", May 2012, (Exhibit  AUS-485).  
319 Australia's first written submission, Annexure C, para. 24. See also Tasmanian Department of Health 
and Human Services, "Tobacco Retailers Guide and Guidelines for the Sale of Tobacco products",  February 
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  2.69.   A number of states and territories have different requirements for the storage or display of 
cigars. For example, in Queensland, customers may view cigars in a humidified room, 
accompanied by the tobacco retailer. In Victoria, cigars may be displayed in a humidor. In Western 
Australia, certain tobacco retailers may keep cigars in cigar cabinets. New South Wales (NSW) and 
Western Australia allow tobacco retailers to open cigar packages to sell single cigars. Western 
Australia permits additional signage to pr ovide information about the availability and price of 
cigars in a cigar cabinet.320 
2.2.5   Other measures  
2.70.   Full or partial bans on the consumption of tobacco products in various locations have also 
been implemented in Australia at the Commonwealth and state and terr itory levels. These bans 
apply in various places, including enclosed public places, certain outdoor public areas (outdoor 
eating areas, beaches, outdoor swimming areas and around playground equipment, areas used for 
outdoor spectacles and events), airplane s, train stations, vehicles carrying minors, restaurants, 
bars, workplaces, cafes, shopping and community centres, public transport, bus stops, taxi ranks, 
and wharves.321  
2.71.   The Australian Government has undertaken to invest AUD  135 million in anti -smoking social 
marketing campaigns between 2009 and 2016.322 It has also invested in campaigns that use 
different media (such as direct mail and online resources) and campaigns targeting certain groups 
                                                                                                                                                  
2012, (Exhibit AUS -477); Department of Healt h (Vic), "Tobacco Retailers Fact Sheet", October 2010, (Exhibit 
AUS-478); VIC Department of Health, "Tobacco Retailer Guide", February 2013, (Exhibit AUS -279); 
Department of Health (NSW), Retailer Factsheet 5, "Ban on Display of Tobacco and Smoking Product s in Retail 
Outlets from 1 July 2013", May 2013, (Exhibit AUS -479); Queensland Government, "Requirements for 
retailers", October 2011, (Exhibit AUS -480); SA Health, "Point of sale restrictions for tobacco retailers",  
(Exhibit AUS -481); WA Department of Hea lth, "Tobacco Products Control Act 2006 Guideline: Price Tickets", 
(Exhibit AUS -482); WA Department of Health, "Retailer Fact Sheet No 2: New Tobacco Display Laws for all 
Restailers", October 2010, (Exhibit AUS -483); NT Government, "Displays and Point of S ale Banning Tobacco 
Retail Displays, Frequently Asked Questions", 2010, (Exhibit  AUS-484); and Department of Health (ACT), 
"Guide to the Sale of Smoking Products in the ACT", May 2012, (Exhibit  AUS-485).  
320 Australia's first written submission, Annexure C, Section B(4), paras.  27-28. See, with respect to 
NSW, Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS -267), Section 6(3).   
321 These restrictions are not uniformly applicable across all states and territories. See Australia's first 
written submission, A nnexure B, Section  C. See also Air Navigation Regulations (Amendment) 1987 (Cth), 
(Exhibit AUS -378); Air Navigation Regulations (Amendment) 1990 (Cth), (Exhibit AUS -379); Smoke -free Areas 
(Enclosed Public Places) Act 1994 (ACT), (Exhibit AUS -383), Section 5; Tobacco Control Act 2002 (NT), (Exhibit 
AUS-374), Sections 5, 7, 9, 11; Tobacco Control Regulations 2002 (NT), (Exhibit AUS -385), Regulation 11; 
Smoke -Free Environment Act 2000 (NSW), (Exhibit AUS -386), Sections 6, 7(1), Schedule 1; Tobacc o and 
Other Smoking Products (Prevention of Supply to Children) Amendment Act 2001 (Qld), (Exhibit AUS -387), 
Section 26, Part 2B; Tobacco Products Regulation Act 1997 (SA), (Exhibit AUS -388), Section 47; Public Health 
Amendment (Smoke -free areas) Act 2001 (Tas), (Exhibit AUS -389), Section 5; Tobacco (Amendment) Act 
2000 (Vic), (Exhibit AUS -390), Section 7; Occupational Safety and Health Amendment Regulations (No 2) 1997 
(WA), (Exhibit AUS -391), Regulation 6; Health (Smoking in Enclosed Public Places) Regula tions 1999 (WA), 
(Exhibit AUS -392), Regulations 4 -10; Smoking (Prohibition in Enclosed Public Places) Amendment Act 2009 
(ACT), (Exhibit AUS -393), Section 11; Tobacco Legislation Amendment Act 2012 (NSW), (Exhibit AUS -394), 
Schedule 1 item 8; Tobacco Contr ol Legislation Amendment Act 2010 (NT), (Exhibit AUS -395), Section 16 -18; 
Tobacco and Other Smoking Products Amendment Act 2004 (Qld), (Exhibit AUS -396), Section 40; Tobacco 
Products Regulation (Further Restrictions) Amendment Act 2012 (SA), (Exhibit AUS -397), Section 4; Public 
Health Amendment Act 2004 (Tas), (Exhibit AUS -398), Section 6; Tobacco (Amendment) Act 2005 (Vic), 
(Exhibit AUS -399), Sections 5 and 24; Tobacco Products Control Amendment Act 2009 (WA), (Exhibit 
AUS-400), Section 9; Smoking (Prohibi tion in Enclosed Public Places) Act 2003 (ACT) (as made), (Exhibit 
AUS-401), Section 6; Tobacco Products Regulation (Further Restrictions) Amendment Act 2004 (SA), (Exhibit 
AUS-402), Section 17; Tobacco Products Regulation (Smoking in Cars) Amendment Act 2007 (SA), (Exhibit 
AUS-403); Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS -404), Section 30; Public Health Amendment 
Act 2007 (Tas), (Exhibit AUS -405), Section 4; Tobacco Amendment (Protec tion of Children) Act 2009 (Vic), 
(Exhibit AUS -406), Section 19; Health and Other Legislation Amendment Act 2009 (Qld), (Exhibit AUS -407), 
Sections 180 and 181; Smoking in Cars with Children (Prohibition) Act 2011 (ACT), (Exhibit AUS -408), Section 
7; Tobac co and Other Smoking Products Regulation 2010 (Qld), (Exhibit AUS -409), Regulations 14 -15, 
Schedules 1 -2; Public Health Amendment Act 2011 (Tas), (Exhibit AUS -410), Section 12; Tobacco Products 
(Smoking Bans in Public Areas – Longer Term) Regulations 2012 (SA) (AUS -411), Regulation 4; and Tobacco 
Amendment (Smoking at Patrolled Beaches) Act 2012 (Vic), (Exhibit AUS -412), Section 3.  
322 In 1997, the Australian Government initiated a mass  media anti -smoking campaign, the "National 
Tobacco Campaign"  (NTC) . Backg round Paper , National Tobacco Strategy 1999 to 2002 -03, (Exhibit AUS -435), 
para. 4.7; Australia's National Tobacco Campaign: Evaluation Report, (Exhibit AUS -436).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and sectors of the population (for example, pregnant women, cult urally and linguistically diverse 
groups, prisoners, people with mental illness, socially disadvantaged groups, and Aboriginal and 
Torres Strait Islander communities).323  
2.72.   The Australian Government has implemented measures to provide access to nicotine 
replacement therapies and other smoking cessation medicines (such as nicotine patches and 
gums).324 It has enacted several initiatives that target Aboriginal and Torres Strait Islander 
communities.325 All Australian states and territories have put in place "Quitlin es" and other 
smoking cessation support services.326  
2.73.   In 2000, the Australian Government introduced measures with respect to illicit tobacco 
trade, which created offences and penalties for unlicensed manufacture, production, possession, 
dealing with or movin g tobacco seed, tobacco plant or tobacco leaf.327 In 2012, the Australian 
Government introduced legislation that created criminal offences under the Customs Act 1901 
specifically in relation to the smuggling of tobacco products.328  
2.3  Protection of trademarks an d GIs in Australia  
2.74.   In the course of the proceedings, the parties have referred to various aspects of the 
framework for the protection of trademarks and GIs in Australia. General aspects of this 
framework are described below.  
2.75.   Trademarks and GIs are protecte d in Australia through a range of mechanisms, including 
statutory protections under the TM Act329, other statutory protections against unfair competition, 
and common law actions such as passing off that protect the reputation associated with a 
trademark.   
2.76.   The TM Act establishes the legal requirements for the registration of trademarks for goods 
and services (which may, as discussed below, also include signs that constitute GIs). It also 
provides for the corresponding rights accorded to owners and authorised  users of registered 
trademarks.  
2.77.   Section 17 of the TM Act defines a trademark as:  
[A] sign used, or intended to be used, to distinguish goods or services dealt with or 
provided in the course of trade by a person from goods or services so dealt with or 
provided by another person.330  
2.78.   The TM Act defines a "sign" as including "any letter, word, name, signature, numeral, 
device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent", or any 
combination thereof.331  
2.79.   A trademark must be re gistered unless the application is rejected. An application must be 
rejected if the trademark consists of or includes a sign prohibited under the Regulations332; cannot 
be represented graphically333; is not capable of distinguishing between goods and services of the 
                                                
323 Response to NPHT, The Roadmap for Action,  (Exhibits AUS -116, JE -15), p. 10-11. 
324 Australian  Department of Health and Ageing, Pharmaceutical Benefits Scheme, "New Listings and 
Changes 1 January 2012", (Exhibit AUS -443).  
325 Australia's first written submission, Annexure  B, Section  F(6). 
326 "Quitlines" are smoking cessation helplines. See Young et al . 2014, (Exhibits AUS -214, JE -24(67), 
DOM-285), p. 29. 
327 Excise Amendment (Compliance Improvement) Act 2000  (Cth) (Exhibit AUS -426); and Excise Act 
1901 (Cth), (Exhibit AUS -428), Sections 25, 28, 33, 117C -117H.  
328 Customs Act 1901  (Cth), (Exhibit AUS -429), Section 233BABAD.  
329 Trade Marks Act 1995 (Cth), ( TM Act), (Exhibit s JE-6). Exhibit JE -6 includes all amendments to the 
TM Act through Act No. 13 of 2013. Australia provided a version of the TM Act current through Act No. 174 of 
2011 as Exhibit AUS -244.  
330 TM Act, (Exhibit JE -6), Section 17.  
331 TM Act, (Exhibit JE -6), Section 6.  
332 TM Act, (Exhibit JE -6), Section 39.  
333 TM Act, (Exhibit JE -6), Section 40.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  applicant and those of other persons334; contains or consists of scandalous matter or its use would 
be contrary to law335; is likely to deceive or cause confusion336; or is substantially identical or 
deceptively similar to a prior registered trademark.337 The TM Act makes the registrability of 
non-inherently distinctive marks such as colours dependent on distinctiveness acquired through 
use.338 
2.80.   The registration of a trademark can also be opposed on these grounds339 as well as certain 
additional grounds.340 
2.81.   The reg istration of a trademark expires ten years after the filing date341, unless renewed.342 
The registration of a trademark may be cancelled, revoked, amended and the Register may be 
rectified under specific circumstances.343 A trademark owner can oppose an applicat ion for removal 
for non -use in "circumstances (whether affecting traders generally or only the registered owner of 
the trade mark) that were an obstacle to use of the trade mark during that period".344  
2.82.   Section 20 of the TM Act states that the owner of a reg istered trademark has the "exclusive 
rights" "to use", and "to authorise other persons to use", that trademark in relation to the goods 
and/or services in respect of which the trademark was registered.345 They also include "the right to 
obtain relief under t his Act if the trade mark has been infringed"346 as well as the right to assign or 
transfer the trademark.347 Under the TM Act, a person infringes a registered trademark if the 
person  uses as a trademark a sign that is substantially identical with, or deceptively similar to, the 
trademark in relation to (a) goods or services in respect of which the trademark is registered ; (b) 
goods or services of the same description as those in respe ct of which the trademark is registered; 
(c) services that are closely related to the registered goods; or (d) goods that are closely related 
to the registered services.348 
2.83.   In addition to the rights accorded to registered trademarks under the TM Act, owners of 
trademarks that are "well known in Australia" may pursue infringement action against 
unauthorized use of that sign , or of substantially identical or deceptively similar signs,  by third 
parties if certain conditions are met.349 Owners of well -known tradema rks may pursue 
                                                
334 TM Act, (Exhibit JE -6), Section 41.  
335 TM Act, (Exhibit JE -6), Section 42.  
336 TM Act, (Exhibit JE -6), Section 43. 
337 TM Act, (Exhibit JE -6), Section  44. The application must also be rejected if it was not made in 
accordance with the TM Act or if it is successfully opposed. See TM Act, (Exhibit JE -6), Sections  27(1), 33. 
338 TM Act, (Exhibit JE -6), Section 41(3).  
339 TM Act, (Exhibit JE -6), Section 57.  
340 Additional grounds include: if the applicant is not the owner of the trademark; the applicant does not 
intend to use the trademark; another trademark had acquired a reputation in Australia and the use of the 
trademark  being registered would be likely to deceive or cause confusion , or the trademark contains or consists 
of a false geographical indication. TM Act, (Exhibit JE -6), Sections 58 -61. 
341 TM Act, (Exhibit JE -6), Section 72(3).  
342 TM Act, (Exhibit JE -6), Part 7, Di vision 2.  
343 TM Act, (Exhibit JE -6), Part 8. For instance, a registered trademark (other than a certification 
trademark) may be removed from the Register for non -use where, at the time of registration, the trademark 
was never intended to be used in Australi a. It may also be removed where it has not been used in Australia for 
a continuous period of three years or more . TM Act, (Exhibit JE -6), Sections 92(4)(a) and 92(4)(b).  
344 TM Act, (Exhibit JE -6), Section 100(3)(c).  
345 TM Act, (Exhibit JE -6), Section  20(1).  
346 TM Act, (Exhibit JE -6), Section  20(2).  
347 TM Act, (Exhibit JE -6), Section  106. 
348 TM Act, (Exhibit JE -6), Sections 120(1) -120(2).  
349 TM Act, (Exhibit JE -6), Section 120(3). The Act provides that a person infringes a registered 
trademark if:  
 
(a) the trade mark  is well known in Australia; and  
(b) the person uses as a trade mark a sign that is substantially identical with, or deceptively 
similar to, the trade mark in relation to:  
(i) goods ( unrelated goods ) that are not of the same description as that of the goods in 
respect of which the trade mark is registered ( registered goods ) or are not closely 
related to services in respect of which the trade mark is registered ( registered 
services ); or 
(ii) services ( unrelated services ) that are not of the same description as that of  the 
registered services or are not closely related to registered goods;  
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  infringement actions beyond those available to owners of trademarks that are not well known.350 
In deciding whether a trademark is "well known in Australia", "one must take account of the extent 
to which the trade mark is known within the rele vant sector of the public, whether as a result of 
the promotion of the trade mark or for any other reason".351  
2.84.   Under the TM Act, a sign that constitutes a GI may be eligible for registration as a 
trademark in Australia. Pursuant to the TM Act, a GI is defin ed as follows:  
[I]n relation to goods, means a sign that identifies the goods as originating in a 
country, or in a region or locality in that country, where a given quality, reputation or 
other characteristic of the goods is essentially attributable to th eir geographical 
origin.352  
2.85.   To the extent that GIs are registered as trademarks in Australia, they  are generally 
registered as certification trademarks353, which are defined as:  
[A] sign used, or intended to be used, to distinguish goods or services: (a) deal t with 
or provided in the course of trade; and (b) certified by a person … or by another 
person approved by that person, in relation to quality, accuracy or some other 
characteristic, including (in the case of goods) origin, material or mode of 
manufacture ; from other goods or services dealt with or provided in the course of 
trade but not so certified.354 
2.86.   A person who has filed an application for the registration of a certification trademark must, 
in accordance with the regulations, file a copy of the rules g overning the use of the certification 
trademark.355 The Registrar may only reject an application for registration of a certification 
trademark on certain grounds, which are, with some exceptions, the same as those applied to for 
other trademark registration applications.356 Certification trademarks are subject to the same 
provisions concerning duration and renewal as trademarks.357 However, a certification trademark 
is not liable to be removed from the register for non -use, because the owner of the certification 
trademark is not required to use the trademark.358 
2.87.   Collective trademarks may also provide protection for signs that are GIs in Australia. Most 
of the provisions of the TM Act concerning trademarks, including registration and grounds of 
opposition, apply to c ollective trademarks.359 A collective  trademark is defined under the TM Act 
as:  
                                                                                                                                                  
(c) because the trade mark is well known, the sign would be likely to be taken as indicating a 
connection between the unrelated goods or services and the registered owner of the trade 
mark; and  
(d) for that reason, the interests of the registered owner are likely to be adversely affected.  
 
Ibid. (emphasis original)  
350 Compare TM Act, (Exhibit JE -6), Section 120(3) , with ibid. Sections 120(1) and 120(2).   
351 TM Act, (Exhibit JE -6), Section 120(4) . 
352 TM Act, (Exhibit JE -6), Section  6. 
353 Australia's first written submission, Annexure D, para. 8. 
354 TM Act, (Exhibit JE -6), Section 169.  
355 TM Act, (Exhibit JE -6), Section 173.  
356 These exceptions are the following: (a) the application cannot be rejected o n the ground that the 
trademark is not capable of distinguishing the designated goods or services from the goods or services of other 
persons (rather, the relevant ground is that the trademark "is not capable of distinguishing goods or services 
certified b y the applicant … from goods or services not so certified" ); (b) an applicant for registration of a 
certification trademark need not itself intend to use the trademark; and (c) a certificate from the Australian 
Competition and Consumer Commission ( ACCC), as per Section 175(2), is required. TM Act, (Exhibit JE -6), 
Sections 170, 176(1)(c), and 177.  
357 TM Act, (Exhibit JE -6), Section 170. See also Part 7, Division 2.  
358 TM Act, (Exhibit JE -6), Section 170. See also fn 343 above.  
359 TM Act, (Exhibit JE -6), Section 163. There are some exceptions and variations, for example, the use 
of a registered collective trademark by a member of the association th at is the registered owner of the 
collective trademark is taken to be a use of the collective trademark by the registered owner. See ibid. 
Section  163(2)(b).   WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  [A] sign used, or intended to be used, in relation to goods or services dealt with or 
provided in the course of trade by members of an association to distinguish those 
goods or services from goods or services so dealt with or provided by persons who are 
not members of the association.360  
2.88.   Finally, in the same way as with other registered trademarks, an owner of a registered 
certification  trademark or registered collective trademark  is able to pursue infringement action 
against unauthorized use of a sign by third parties.361  
2.89.   Australia also maintains protection with respect to trademarks and GIs under other areas of 
Australian law , including through consumer protection measures address ing misleading 
representations in Australia.362 
2.90.   The Competition and Consumer Act 2010  (Cth) (CCA) establishes a general ban on 
misleading or deceptive conduct in trade or commerce. T he Australian Consumer Law  (ACL) 
constitutes Schedule 2 of the CCA. Section  18 of the ACL provides that "[a]  person must not, in 
trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or 
deceive".363 Similarly, Section 29(1) prohibits the making of a range of false or misleading 
representations in connection with the supply, possible supply or promotion of goods or services, 
including statements concerning the place of origin of goods.364 Sections 33 and 34 address goods 
and services, respectively, and provide that a person must not, in trade or co mmerce, engage in 
conduct "that is liable to mislead the public  as to the nature, … the characteristics … of any 
goods".365 
2.91.   A special division of the Australian Competition and Consumer Commission (ACCC) 
undertakes investigations of possible breaches of the ACL. The ACCC has a number of enforcement 
powers, including the power to initiate proceedings in the Federal Court of Australia.366 Practices in 
contravention of the ACL may give rise to both criminal and civil liabilities, including damages, 
injunction and rescission of contract.367 
2.92.   Under the Commerce Trade Descriptions Act 1905 (Cth), Australia also prohibits the 
importation of any good bearing a false trade description.368 A false trade description is defined as 
"a trade description which, by reason of anythin g contained therein or omitted therefrom, is false 
or likely to mislead in a material respect as regards the goods to which it is applied, and includes 
every alteration of a trade description, whether by way of addition, effacement, or otherwise, 
                                                
360 TM Act, (Exhibit JE -6), Section 162.  
361 TM Act, (Exhibit JE -6), Sections 163 and 170. However, with respect to certification trademarks, the 
registered owner must exercise his or her exclusive rights "only in accordance with the rules governing the use 
of the certification trade mark". See Section  171. With respect to collective  trademarks, a member  of an 
association in whose name a collective trademark is registered does not have the right to prevent another 
member of the association from using the collective trademark in accordance with the rules of the association. 
See ibid. Section  165. 
362 We note , but do not address, certain protections included in the Australian Grape and Wine Authority 
Act 2013 (Cth), (Exhibit AUS -490), and the Australia New Zealand Food Standards Code, Standard 1.2.11 
Country of Origin Labelling  (Australia Only)  (Cth), (Exhibit  AUS-568). These measures address, respectively, 
wine and certain food items, which are not at issue in th ese proceedings . 
363 Competition and Consumer Act  2010 (Cth), Schedule 2 (Australian Consumer Law), (ACL), (Exhibit 
DOM-110), Section 18. The Dominican  Republic 's exhibit includes amendments through Act No. 83 of 2014. We 
note that Australia and Honduras also submitted as exhibits excerpts from the Competition and Consumer Act 
2010 (Cth), which included amendments up to Act No. 148 of 2010. See Exhibits A US-127 and HND -66. 
364 ACL, (Exhibit DOM -110), Section 29(1).  
365 ACL, (Exhibit DOM -110), Sections 33 -34. 
366 D. Shavin, "Prohibitions against misleading and deceptive conduct pursuant to the Australian 
Consumer Law, and the Australian Competition & Consumer Com mission's history of effective enforcement 
thereof", 26 September 2014, ( Shavin Report ), (Exhibit DOM/HND -1), paras.  73-74. 
367 Australia's first written submission, Annexure D, para. 20. The ACCC has used its power in the 
context of tobacco products, specifically with respect to cigarettes marketed as "light", "mild", "medium ", 
"ultra -light", and "micro". The ACCC concluded that the use of these representations were misleading and likely 
to breach Section 52 of the Trade Practices Act 1974 (Cth) (now S ection 18 of the ACL, (Exhibit DOM -110)). 
See R. Sims, "Report Concerning the Australia Consumer Law and the Packaging of Tobacco Products", 24 
February 2015, ( Sims Report ), (Exhibit AUS -22) (SCI), para. 4.9. 
368 Commerce (Trade Descriptions ) Act 1905  (Cth),  (CTD Act), (Exhibit AUS -248), Section 9.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  which mak es the description false or likely to mislead in a material respect".369 A "trade 
description" means any description, statement, indication, or suggestion, direct or indirect, as to, 
inter alia, the country or place in or at which the goods were made or prod uced.370 
2.93.   Australia also maintains "common law " protection for the reputation of a business through 
the tort of "passing off", which can provide additional protection against misrepresentations. 
Australia has described the elements of the tort of passing off as "(a) a misrepresentation (b) by a 
trader in the course of trade to prospective customers of the trader (c) calculated to injure the 
business reputation of another trader, and (d) resulting in damage or the probability of damage to 
that other trader's bu siness reputation".371 Neither trademarks nor GIs are protected per se under 
this tort, though they may be probative with respect to the existence of, and damage to, a trader's 
reputation in the relevant market.372 
2.4  The FCTC  
2.94.   The FCTC, negotiated under the auspices of the WHO, has been referred to by the parties in 
the course of the proceedings. As described above, the TPP Act states that one of its objectives is 
"to give effect to certain obligations that Australia has as a pa rty to the Convention on Tobacco 
Control".373  
2.95.   This section provides a general description of the FCTC and relevant guidelines adopted in 
the framework of the FCTC, taking into account information provided to the Panel by the WHO and 
FCTC Secretariat.374  
2.4.1   Back ground  
2.96.   In 1995, the 49th World  Health Assembly (WHA) of the WHO launched the negotiation of an 
international tobacco control instrument.375 These negotiations concluded with the adoption of the 
FCTC by the WHA in May 2003.376 The Convention entered into force  in February  2005.377  
2.97.   The FCTC has 180 parties  (FCTC Parties) .378 149 of the FCTC  Parties are also Members of 
the World Trade Organization ( WTO). Among  the five parties to these disputes,  Australia and 
Honduras have signed and ratified the FCTC.  Cuba has signed, but not ratified, the FCTC, and the 
Dominican Republic and Indonesia are not signatories.379 Thus Cuba, the Dominican Republic and 
Indonesia are not FCTC Parties .  
2.4.2   Structure and governance  
2.98.   The FCTC is served by a Secretariat, which is hoste d in the WHO, with an independent 
workplan and budget adopted by the COP.380 The main functions of the FCTC  Secretariat are 
governed by the FCTC itself as well as COP decisions.381 
                                                
369 CTD Act, (Exhibit AUS -248), Section 3.  
370 CTD Act, (Exhibit AUS -248), Section 3.  
371 Australia's first written submission, para. 458 and Annexure D, para. 23 (referring to Shanahan 's 
Law of Trade Marks , (Exhibit AUS -104), p. 688).  
372 Shanahan 's Law of Trade Marks, ( Exhibit AUS -104), p p. 687-699. 
373 TPP Act, (Exhibits JE -1, AUS -1), Section 3.  
374 See discussion in sections 1.6.5 and 1.6.7.1 , above.  
375 Pursuant to Article  19 of the WHO  Constitution, the WHA i s empowered to adopt "conventions and 
agreements with respect to any matter within the competence of the Organization". WHO/FCTC Request for 
Permission to Submit Information , (Exhibit AUS -42 (revised)) , para. 7. 
376 FCTC, (Exhibits AUS -44, JE -19), Annex 2.  
377 FCTC, (Exhibits AUS -44, JE -19), Foreword, p. vi. 
378 WHO/FCTC Request for Permission to Submit Information , (Exhibit AUS -42 (revised)), para. 7; 
WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 12. 
379 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 12. 
380 FCTC, (Exhibits AUS -44, JE -19), Article  24; and WHO/FCTC Request for Permission to Submit 
Information, (Exhibit AUS -42 (revised)), paras.  8 and 12.  
381 The FCTC  Secretariat's functions are (a) to make arrangements for sessions of t he COP and any 
subsidiary bodies and to provide them with services as required; (b) to transmit reports received by it pursuant 
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  2.99.   The FCTC COP is the governing body of, and comprises all parties to, the FCTC.382 The FCTC 
COP, inter alia, "keep[s] under regular review the implementation of the Convention and take[s] 
the decisions necessary to promote its effective implementation".383 It may also adopt protocols384, 
annexes385 and amendments386 to the FCTC as well as other  documents and instruments, such as 
guidelines with respect to particular topics.387 International intergovernmental organizations and 
nongovernmental organizations "whose aims and activities are in conformity with the spirit, 
purpose and principles" of the FCTC may be granted "observer status" by the COP. The Rules of 
Procedure of the COP  limit participation by tobacco companies other than through the relevant 
bodies  of States.388  
2.4.3   Selected provisions  of the FCTC  
2.100.   The FCTC's objective, as set out in Article  3, is to:  
[P]rotect present and future generations from the devastating health, social, 
environmental and economic consequences of tobacco consumption and exposure to  
tobacco smoke by providing a framework for tobacco control measures to be 
implemented by the Parties at the national, regional and international levels in order 
to reduce continually and substantially the prevalence of tobacco use and exposure to 
tobacco smoke.389 
2.101.   Article  5, entitled "General Obligations", provides the following in its first paragraph:  
Each Party shall develop, implement, periodically update and review comprehensive 
multisectoral national tobacco control strategies, plans and programmes in accordance 
with this Convention and the Protocols to which it is a party.390  
2.102.   The Convention defines "tobacco control" as "a range of supply, demand and harm 
reduction strategies that aim to improve the health of a population by eliminating or reducing their  
consumption of tobacco products and exposure to tobacco smoke".391  
2.103.   Part III of the Convention, entitled "Measures relating to the reduction of demand for 
tobacco", contains provisions entitled "Packaging and labelling of tobacco products" ( Article  11) 
and "Tobacco advertising, promotion and sponsorship" ( Article  13). 
2.104.   Article  11 addresses "packaging and labelling of tobacco products" and provides as follows:  
                                                                                                                                                  
to the Convention; (c) to provide support to the Parties, particularly developing country Parties and Parties 
with economies in transition, on request, in the compilation and communication of information required in 
accordance with the provisions of the Convention; (d) to prepare reports on its activities under the Convention 
under the guidance of the COP and submit them to the COP ; (e) to ensure, under the guidance of the COP, the 
necessary coordination with the competent international and regional intergovernmental organizations and 
other bodies; (f) to enter, under the guidance of the COP, into such administrative or contractual arrangements 
as may be required for the effective discharge of its functions; and (g) to perform other secretariat functions 
specified by the Convention and by any of its protocols and such other functions as may be determined by the 
COP. FCTC, (Exhibits A US-44, JE -19), Article  24. 
382 FCTC, (Exhibits AUS -44, JE -19), Article  23; WHO/FCTC Request for Permission to Submit 
Information, (Exhibit AUS -42 (revised)), para. 8. 
383 FCTC, (Exhibits AUS -44, JE -19), Article  23.5. 
384 FCTC Protocols are only binding on parties to the protocol in question. FCTC, (Exhibits AUS -44, 
JE-19), Article  33. 
385 FCTC, (Exhibits AUS -44, JE -19), Article  29. 
386 FCTC, (Exhibits AUS -44, JE -19), Article  28. 
387 For example, with respect to "n on-price measures to reduce the demand for tobacco", the COP "shall 
propose appropriate guidelines for the implementation of the provisions of these Articles". FCTC, (Exhibits 
AUS-44, JE -19), Article  7.  
388 FCTC, (Exhibits AUS -44, JE -19), Article  23.6; WHO/FCT C Additional Information to Panel , 
paras.  26-30, at fn  63 above . 
389 FCTC, (Exhibits AUS -44, JE -19), Article  3. 
390 FCTC, (Exhibits AUS -44, JE -19), Article  5.1. 
391 FCTC, (Exhibits AUS -44, JE -19), Article  1(d). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Article  11 
Packaging and labelling of tobacco products  
1. Each Party shall, within a period of three years after entry into force of this 
Convention for that Party, adopt and implement, in accordance with its national law, 
effective measures to ensure that:  
(a) tobacco product packaging and labelling do not promote a tobacco 
product by any means that are false, misleading, deceptive or likely to create an 
erroneous impression about its characteristics, health effects, hazards or 
emissions, including any term, descriptor, trademark, figurative or any other 
sign that directly or indirectly creates the false impression that a particular 
tobacco product is less harmful than other tobacco products. These may include 
terms such as "low tar", "light", "ultra -light", or "mild"; and  
(b) each unit packet and package of tobacco products and any outside 
packaging and l abelling of such products also carry health warnings describing 
the harmful effects of tobacco use, and may include other appropriate 
messages. These warnings and messages:  
(i) shall be approved by the competent national authority,  
(ii) shall be rotating,  
(iii) shall be large, clear, visible and legible,  
(iv) should be 50% or more of the principal display areas but shall be no 
less than 30% of the principal display areas,  
(v) may be in the form of or include pictures or pictograms.  
2. Each unit packet and p ackage of tobacco products and any outside packaging 
and labelling of such products shall, in addition to the warnings specified in paragraph 
1(b) of this Article, contain information on relevant constituents and emissions of 
tobacco products as defined by  national authorities.  
3. Each Party shall require that the warnings and other textual information 
specified in paragraphs 1(b) and paragraph 2 of this Article  will appear on each unit 
packet and package of tobacco products and any outside packaging and la belling of 
such products in its principal language or languages.  
4. For the purposes of this Article, the term "outside packaging and labelling" in 
relation to tobacco products applies to any packaging and labelling used in the retail 
sale of the product.392 
2.105.   Article  13 addresses "tobacco advertising, promotion and sponsorship" and reads as 
follows:  
Article  13  
Tobacco advertising, promotion and sponsorship  
1. Parties recognize that a comprehensive ban on advertising, promotion and 
sponsorship would reduce the consumption of tobacco products.  
2. Each Party shall, in accordance with its constitution or constitutional principles, 
undertake a comprehensive ban of all tobacco advertising, promotion and 
                                                
392 FCTC, (Exhibits AUS -44, JE -19), Article  11. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  sponsorship. This shall include, subject to the legal environmen t and technical means 
available to that Party, a comprehensive ban on cross -border advertising, promotion 
and sponsorship originating from its territory. In this respect, within the period of five 
years after entry into force of this Convention for that Pa rty, each Party shall 
undertake appropriate legislative, executive, administrative and/or other measures 
and report accordingly in conformity with Article  21. 
3. A Party that is not in a position to undertake a comprehensive ban due to its 
constitution or constitutional principles shall apply restrictions on all tobacco 
advertising, promotion and sponsorship. This shall include, subject to the legal 
environment and technical means available to that Party, restrictions or a 
comprehensive ban on advertising, promotion and sponsorship originating from its 
territory with cross -border effects. In this respect, each Party shall undertake 
appropriate legislative, executive, administrative and/or other measures and report 
accordingly in conformity with Article  21. 
4. As a minimum, and in accordance with its constitution or constitutional 
principles, each Party shall:  
(a) prohibit all forms of tobacco advertising, promotion and sponsorship that 
promote a tobacco product by any means that are false, misleading or 
decep tive or likely to create an erroneous impression about its characteristics, 
health effects, hazards or emissions;  
(b) require that health or other appropriate warnings or messages 
accompany all tobacco advertising and, as appropriate, promotion and 
sponsor ship; 
(c) restrict the use of direct or indirect incentives that encourage the 
purchase of tobacco products by the public;  
(d) require, if it does not have a comprehensive ban, the disclosure to 
relevant governmental authorities of expenditures by the toba cco industry on 
advertising, promotion and sponsorship not yet prohibited. Those authorities 
may decide to make those figures available, subject to national law, to the 
public and to the Conference of the Parties, pursuant to Article  21; 
(e) undertake a comprehensive ban or, in the case of a Party that is not in a 
position to undertake a comprehensive ban due to its constitution or 
constitutional principles, restrict tobacco advertising, promotion and sponsorship 
on radio, television, print media and, as appropriate, other media, such as the 
internet, within a period of five years; and  
(f) prohibit, or in the case of a Party that is not in a position to prohibit due 
to its constitution or constitutional principles restrict, tobacco sponsorship of 
internati onal events, activities and/or participants therein.  
5. Parties are encouraged to implement measures beyond the obligations set out 
in paragraph  4. 
6. Parties shall cooperate in the development of technologies and other means 
necessary to facilitate the e limination of cross -border advertising.  
7. Parties which have a ban on certain forms of tobacco advertising, promotion 
and sponsorship have the sovereign right to ban those forms of cross -border tobacco 
advertising, promotion and sponsorship entering their  territory and to impose equal 
penalties as those applicable to domestic advertising, promotion and sponsorship 
originating from their territory in accordance with their national law. This paragraph 
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  8. Parties shall consider the elaboration of a protocol setting out appropriate 
measures that require international collaboration for a comprehensive ban on 
cross-border advertising, promotion and sponsorship.393 
2.4.4   FCTC Guidelines  
2.106.   The FCTC provides that the COP shall propose guidelines for the implementation of the 
provisions of Articles  8 to 13 of the FCTC. FCTC  Guidelines are "intended to assist the Parties in 
meeting their obligations and in increasing the effectiveness of measur es adopted".394  
2.107.   The FCTC COP adopted FCTC Guidelines for the Implementation of  Article  11 (Article  11 
FCTC Guidelines) and FCTC Guidelines for the Implementation of Article  13 (Article  13 FCTC 
Guidelines) in November 2008.395 Although "plain packaging" is not  referred to in Articles  11 and 
13 of the FCTC, it is referred to in both of these Guidelines.396  
2.108.   The Article  11 FCTC Guidelines, entitled " Packaging and labelling of tobacco products ", 
provide:  
46. Parties should consider adopting measures to restrict or p rohibit the use of 
logos, colours, brand images or promotional information on packaging other than 
brand names and product names displayed in a standard colour and font style (plain 
packaging). This may increase the noticeability and effectiveness of healt h warnings 
and messages, prevent the package from detracting attention from them, and address 
industry package design techniques that may suggest that some products are less 
harmful than others.397 
2.109.   The Article  13 FCTC Guidelines, entitled " Tobacco advertisin g, promotion and sponsorship ", 
provide:  
15. Packaging is an important element of advertising and promotion. Tobacco pack 
or product features are used in various ways to attract consumers, to promote 
products and to cultivate and promote brand identity, for  example by using logos, 
colours, fonts, pictures, shapes and materials on or in packs or on individual cigarettes 
or other tobacco products.  
16. The effect of advertising or promotion on packaging can be eliminated by 
requiring plain  packaging: black and white or two other contrasting colours, as 
prescribed by national authorities; nothing other than a brand name, a product name 
and/or manufacturer's name, contact details and the quantity of product in the 
packaging, without any logos or other features apa rt from health warnings, tax 
stamps and other government -mandated information or markings; prescribed font 
style and size; and standardized shape, size and materials. There should be no 
advertising or promotion inside or attached to the package or on indiv idual cigarettes 
or other tobacco products.  
17. If plain packaging is not yet mandated, the restriction should cover as many as 
possible of the design features that make tobacco products more attractive to 
                                                
393 FCTC, (Exhibits AUS -44, JE -19), Article  13. Also relevant to the above FCTC provisions are the 
definitions of "tobacco advertising and promotion" ("any form of c ommercial communication, recommendation 
or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or 
indirectly"), "tobacco products" ( "products entirely or partly made of the leaf tobacco as raw material  which are 
manufactured to be used for smoking, sucking, chewing or snuffing"), and "tobacco sponsorship" ("any form of 
contribution to any event, activity or individual with the aim, effect or likely effect of promoting a tobacco 
product or tobacco use ei ther directly or indirectly"). See ibid. Articles  1(c), 1(f) and 1(g) , respectively . 
394 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 22. 
395 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 19; WHO/FCTC Additional 
Information to Panel , pp. 7-8, at fn  63 above ; Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20); 
and Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21). 
396 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para.  46; and Article  13 FCTC 
Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, paras.  16-17 and "Recommendation" following para. 17. 
397 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para.  46. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  consumers such as animal or other figures, "fun" p hrases, coloured cigarette papers, 
attractive smells, novelty or seasonal packs.  
Recommendation  
Packaging and product design are important elements of advertising and 
promotion. Parties should consider adopting plain packaging requirements to 
eliminate the  effects of advertising or promotion on packaging. Packaging, 
individual cigarettes or other tobacco products should carry no advertising or 
promotion, including design features that make products attractive.398 
2.4.5   FCTC provisions concerning the r elationship be tween the FCTC  and other 
international agreements and bodies  
2.110.   Article  2.1 of the FCTC states that th is Convention  does not prevent Parties "from imposing 
stricter requirements that are consistent with [the provisions of the FCTC and its protocols] and 
are in accordance with international law".399 Article  2.2 further provides that the FCTC does not 
"affect the right of Parties to enter into bilateral or multilateral agreements, including regional or 
subregional agreements, on issues relevant or additional to th e Convention and its protocols, 
provided that such agreements are compatible with their obligations under the FCTC and its 
protocols".400 
2.111.   Additionally, Article  15.2 of the FCTC (on illicit tobacco trade) requires that Parties 
"adopt  … measures to ensure that  all [tobacco product packaging is] marked to assist Parties in 
determining the origin of tobacco products, and in accordance with national law and relevant 
bilateral or multilateral agreements, assist Parties in determining the point of diversion and 
monitor, document and control the movement of tobacco products and their legal status".401 
2.112.   Finally, the FCTC contains various provisions on the cooperation between the FCTC  Parties 
and other international organizations and bodies. For instance, Article  5.5 states that the 
FCTC Parties "shall cooperate, as appropriate, with competent international and regional 
intergovernmental organizations and other bodies to achieve the objectives of the Convention and 
the protocols to which they are Parties".402 Article  7 provides that, in implementing, inter alia, 
Articles  11 and 13, FCTC  Parties "shall cooperate, as appropriate, with each other directly or 
through competent international bodies".403 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1  Honduras (DS435)  
3.1.  Honduras  requests that the Panel find that:  
a. Australia's plain packaging trademark restrictions in the TPP measures  are inconsistent 
with Article  15.4 of the TRIPS  Agreement ; 
b. Australia's plain packaging trademark restrictions in the TPP measures  are inconsistent 
with Article  16.1 of the TRIPS  Agreement ; 
c. Australia's plain packaging trademark restrictions in the TPP measures  are not justified 
under Article  17 of the TRIPS  Agreement ; 
                                                
398 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, paras.  15-17 and 
"Recommendation" following para. 17. 
399 FCTC, (Exhibits AUS -44, JE -19), Article  2.1. See also FCTC, (Exhibits AUS -44, JE -19), Article  13(5) 
("Parties are encouraged to implement measures beyond the obligations set out in paragraph 4.").  
400 FCTC, (Exhibits AUS -44, JE -19), Article  2.2. 
401 FCTC, (Exhibits AUS -44, JE -19), Article  15.2. 
402 FCTC, (Exhibits AUS -44, JE -19), Article  5.5. 
403 FCTC, (Ex hibits AUS -44, JE -19), Article  7. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  d. Australia's plain packaging trademark restrictions in the TPP measures  are inconsiste nt 
with Article  2.1 of the TRIPS  Agreement , which incorporates provisions of the 
Paris Convention , in particular, Article  6quinquies  of the Paris Convention ; 
e. Australia's plain packaging trademark restrictions in the TPP measures  are inconsistent 
with Article  20 of the TRIPS  Agreement ; 
f. Australia has acted inconsistently with Article  10bis of the Paris Convention , as 
incorporated by Article  2.1 of the TRIPS  Agreement ; 
g. Australia infringes Article  24.3 of the TRIPS  Agreement ; 
h. Australia contravenes Article  22.2(b) of the TRIPS  Agreement ; and  
i. Australia 's plain packaging measures are inconsistent with Article  2.2 of the 
TBT Agreement .  
3.2.  Honduras further requests the Panel to recommend, in accordance with Article  19.1 of the 
DSU, that the DSB request Australia t o bring the measures at issue into conformity with the 
TRIPS  Agreement  and the TBT Agreement .404 
3.2  Dominican Republic (DS441)  
3.3.  The Dominican Republic requests that the Panel find that by virtue of its adoption and 
imposition of the TPP measures , Australia viola tes: 
a. Article  15.4 of the TRIPS  Agreement ; 
b. Article  16.1 of the TRIPS  Agreement ; 
c. Article  16.3 of the TRIPS  Agreement ; 
d. Article  20 of the TRIPS  Agreement ; 
e. Article  22.2(b) of the TRIPS  Agreement ; 
f. Article  24.3 of the TRIPS  Agreement ; 
g. Article  10bis of the Paris Convention  (as incorporated into the TRIPS  Agreement  through 
Article  2.1); and  
h. Article  2.2 of the TBT Agreement . 
3.4.   The Dominican Republic requests that the Panel recommend to the DSB that Australia be 
required to bring its TPP measures  into conformity with the above -mentioned provisions of the 
TRIPS  Agreement  and the TBT Agreement .405 
3.3  Cuba (DS458)  
3.5.  Cuba requests the Panel to find that the TPP measures  violate:  
a. Article  20 of the TRIPS  Agreement ; 
b. Article  24.3 of the TRIPS  Agreement ; 
c. Article  10bis of the Paris Convention  (read with Article  2.1 of the TRIPS  Agreement ); 
                                                
404 Honduras's first written submission, paras.  936 and 938 -939. 
405 Dominican  Republic 's first written submission, paras.  1032-1033.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  d. Article  2.2 of the TBT Agreement ;  
e. Article  IX:4 of the GATT  1994; 
f. Article  15.4 of the TRIPS  Agreement ; 
g. Article  16.1 of the TRIPS  Agreement ; 
h. Article  16.3 of the TRIPS  Agreement ; 
i. Article  22.2(b) of the TRIPS  Agreement ; and  
j. Article  6quinques  of the Paris Convention  (read with Article  2 of the TRIPS  Agreement ). 
3.6.  Cuba further requests the Panel to recommend, in accordance with Article  19.1 of the DSU, 
that the DSB request Australia to bring i ts measures into conformity with the TRIPS  Agreement  
and the GATT  1994.406 
3.4  Indonesia (DS467)  
3.7.  Indonesia requests the Panel to find that the TPP measures , collectively and individually, 
violate Australia's obligations under the following provisions:  
a. Article  2.2 of the TBT Agreement ; 
b. Article  2.1 of the TRIPS  Agreement , which incorporates the provisions of the 
Paris Convention , in particular Article  10bis; 
c. Article  15.4 of the TRIPS  Agreement ; 
d. Article  16.1 of the TRIPS  Agreement ;  
e. Article  16.3 of the TRIPS  Agreement ; 
f. Article  20 of the TRIPS  Agreement ; 
g. Article  22.2(b) of the TRIPS  Agreement ; and  
h. Article  24.3 of the TRIPS  Agreement . 
3.8.  Indonesia also requests that the Panel find that Australia's TPP measures , collectively and 
individually, are inconsistent  with Australia's obligations under Article  XXIII:1(a) of the GATT  
because it has  nullified or impaired benefits accruing directly or indirectly to Indonesia under the 
TBT Agreement .  
3.9.  Indonesia further reque sts that the Panel recommend that  Australia bring  its measures into 
conformity with its obligations under the TRIPS and TBT Agreement s.407 
3.5  Australia  
3.10.   Australia requests that the Panel reject the complainants' claims under Articles  2.1 
(incorporating Article  6quinquies  A(1) and Article  10bis of the Paris Convention ), 15.1, 15.4, 16.1, 
16.3, 20, 22.2(b), and 24.3 of the TRIPS  Agreement , Article  2.2 of the TBT Agreement , and 
Article  IX:4 of the GATT  1994 in their entirety.408 
                                                
406 Cuba's first written submission, paras.  429-430. 
407 Indonesia's first written submission, paras.  463-465. 
408 Australia's first written submission, paras.  762-763. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accordance with paragraph 27 of the Working Procedures adopted by the Panel (see 
Annex B).  
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Argentina, Brazil, Canada, China, the European Union, Japan, the Republic 
of Kore a, Malawi, New Zealand, Nicaragua, Norway, Oman, Singapore, South Africa, Turkey, 
Uruguay, Zambia, and Zimbabwe are reflected in their executive summaries, provided in 
accordance with paragraph 28 of the Working Procedures adopted by the Panel (see Annex C ).  
5.2.  Chile, Ecuador, Egypt, India, Malaysia, Mexico, Panama, the Russian Federation, the Kingdom 
of Saudi Arabia, Trinidad and Tobago and the United States did not submit written or oral 
arguments to the Panel. Guatemala, Nigeria, Peru, the Philippines, Chi nese Taipei, and Thailand 
provided arguments in these proceedings. These third parties did not provide an executive 
summary of their arguments as envisaged in paragraph 28 of the Panel's Procedures and item (n) 
of the Panel's timetable. However as their wr itten submissions and/or oral statements are within 
the page limits specified in the Panel's Working Procedures for the third parties' executive 
summaries, they have been included as a substitute for an executive summary (see Annex C).   
5.3.  Ukraine409 submitted a third -party written submission in these proceedings. However, it did 
not provide an executive summary of its arguments as envisaged in paragraph 28 of the Panel's 
Working Procedures and item (n) of the Panel's timetable. Ukraine's written submission exce eded 
the page limits specified in the Panel's Working Procedures for the third parties' executive 
summaries. Therefore, it cannot be annexed to the se Panel Report s. Nonetheless , Ukraine's 
written submission is reflected in the se Panel Report s pursuant to Article 10 of the DSU.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  On 2  May 2017, the Panel issued its Interim Reports to the parties. On 6  June 2017, 
Honduras, the Dominican  Republic, Indonesia, and Australia each submitted written requests for 
the Panel to review aspects  of the Interim Reports. On 4  July 2017, Honduras, the Dominican 
Republic, and Indonesia submitted comments on Australia's requests for review, and Australia 
submitted comments on the complainants' requests for review. Cuba did not submit any requests 
for review and did not comment on any other party's requests for review. None of the parties 
requested an interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Reports describes the parties' 
requests for review at the interim review stage and the Panel's response to them. In addition, the 
Panel made some typographical and other corrections, including those identified by the parties.  In 
this context, th e Panel in particular modified  footnote 1 to Table A  to clarify the manner in  which 
Table  A describes the outcomes of the papers that it refers to and adjusted some o f the language 
in section 7.2.5.3.6 to align the text in this section to that of the related Appendices.   
6.3.  Australia made several requests to amend or add additional fo otnotes. These requests have 
been considered in light of comments made by Honduras, the Dominican Republic, and Indonesia, 
and have been implemented as deemed appropriate, resulting  in modifications to, or additional 
references at, paragraph s 7.231 , 7.1446 , and 7.2566 , and footnotes 269, 515, 653, 710, 866 to 
868, 871, 872, 891, 914, 916, 1339, 1352, 1358, 1359, 1450, 1518, 1661, 1669, 1671, 1761, 
1763, 1780, 1795, 1806, 2111, 2256, 2402, 2443, 2570, 2571, 2609, 2617, 2695, 2855, 2857, 
2885, 3198, 3201, 3486, 3596, 3613, 3620, 3623, 3625, 3656, 3728, 3804, 3807, 4042, 4043, 
4045, 4824, 5004, 5088, and 5200.  
                                                
409 See section 1.6.6 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  6.4.  The numbering of some of the paragraphs and footnotes in the Final Reports is different from 
the numbering in the Interim Reports. Unless otherwise indicated, refe rences to sections, 
paragraph numbers , and footnotes in this section relate to those of the Final Report s.  
6.2  Requests for review of s ection 7.1 (Order of Analysis)  
6.5.  Honduras  request ed the Panel to modify th e second sentence of paragraph 7.11 to more 
closely reflect the language used in Article 15.4 of the TRIPS Agreement and Article  6quinquies  of 
the Paris Convention (1967). In response, we adjusted the wording of paragraph 7.11 to describe 
the relevant provisions with reference to their titles in the TRIPS Agreement.  Regarding the 
addition al language suggested by Honduras, we note that the phrase "protectable subject matter", 
which is contained in the h eading of Article 15, is already used in the sentence at issue , while 
"protection of marks registered in one country of the Union in the other countries of the Union" is 
not used in the title of either of the provisions in question .410 We therefore decline t o add these 
phrases as suggested . 
6.3  Requests for review of section 7.2.5.1  (Whether the TPP  measures pursue a 
"legitimate o bjective ") 
6.6.  Honduras request s the Panel to add a specific reference to its arguments at paragraph 7.52, 
which the Panel has accepted  as reflected at paragraph 7.52 and footnote 493.  
6.7.  Honduras also request s the Panel to reflect more completely its arguments on th e objectives 
of the TPP measures in paragraph 7.200 , which the Panel has accepted partially  only, as the 
argument at issue is already reflected elsewhere , including  at paragraph 7.208 .  
6.8.  Honduras request s the Panel to add a further reference to its rebuttal arguments relating to 
the "mechanisms" and "objectives" of the  measures in paragraph 7.208 . The Panel d oes not find it 
necessary to make this addition, given the detailed analysis of this issue in the paragraphs that 
follow.  
6.9.  Honduras request s the Panel to modify the language in paragraph 7.213  describing 
"undisputed" aspects of the objectives of the TPP measure s, in relation to the objec tive of reduced 
"exposure" as distinct from reducing "consumption". Australia did not object to this request but 
requested that its arguments on the objective of reducing exposure to tobacco products be also 
considered, if the Panel agree s to Honduras's pr oposed edits. We have modified the first sentence 
in paragraph 7.213  to avoid creating any misunderstanding in respect of its implications with 
respect specifically to "consumption" or "exposure" to tobacco products.  
6.10.   Australia request s the Panel to m odify parts of paragraphs 7.212 , 7.214 , 7.215  and 7.227  to 
reflect that "Australia and the parties were … in agreement  that reducing the appeal of tobacco 
products to consumers; increasing the effectiveness of health warnings; and reducing the ability of 
the retail packaging of tobacco products to mislead consumers" were the specific mechanisms 
through which the TPP measu re contributes to achieving its public health objectives. Honduras, the 
Dominican Republic and  Indonesia opposed this request,  disagreeing with Australia that there has 
been any agreement between the parties, during the course of the proceedings, on whethe r the 
three "mechanisms" of the TPP Act were "objectives" of the measures. The Panel considers that 
the existing text correctly reflects the exchanges of the parties in the course of the proceedings on 
this issue. We accordingly decline to make the request ed changes at paragraphs 7.212 , 7.214 , and 
7.215 but have edited relevant parts of paragraph 7.227  for further clarity .  
6.4  Requests for review o f section 7.2.5.2  (Whether the TPP measures are "in 
accordance with relevant international standards" under Article 2.5 (second sentence))  
6.11.   Honduras request s the Panel to modify the description of its arguments  on the 
interpretation of the term "relevant international standards", to avoid incorrectly suggesting that 
                                                
410 We note that, in some published versions of the Paris Convention (19 67), its articles have been given 
titles by the WIPO Secretariat to facilitate their identification. In such published versions, these titles are 
indicated in square brackets. There are no titles in the authentic French text of the Paris Convention (1 967).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Honduras modified its arguments on this issue in the course of the proceedings. While the Panel 
does not consider its initial description of Hondura s's arguments to have been incorrect, it has 
simplified the description of the relevant arguments at paragraph 7.265 . 
6.12.   Honduras request s that the description of key arguments of the parties on the meaning of 
the terms "in accordance with" in the second sentence of Article 2.5 be expanded. In response, the 
Panel has expanded this discussion at paragraph 7.274  and footnotes  958 and 959. 
6.13.   Honduras  request s that the Panel expand its summary of Honduras's arguments on the 
elements relevant to a determination on the existence of "international standards" under the 
second sentence of Article 2.5. The Panel has expanded this description  in paragraph 7.277  and 
footnote 963, to a level of detail comparable with that provided  in respect of the related 
arguments of other parties.  
6.14.   Honduras request s the Panel to clarify the description of the nature of commitments under 
the FCTC and its Guidelines  at paragraph 7.305 , to avoid a suggestion that certain actions "must" 
be taken under the FCTC Guidelines. Australia commented that it did not understand the Panel's 
use of terms in this paragraph to suggest that the FCTC Guidelines are binding bu t suggests that 
the language be clarified to avoid any confusion. In response to these comments, the Panel has 
adjusted the language of this paragraph to clarify the distinction between obligations under the 
FCTC itself and the role of the related FCTC Gui delines.  
6.15.   Honduras request s the Panel to add a reference to its arguments that it "does not consider 
that the FCTC or its Guidelines have any legal or factual relevance to the questions raised under 
Article 2.2 of the TBT Agreement or the relevant provision  of the TRIPS Agreement". In response, 
the Panel has expanded its description and discussion of all parties' arguments on the relevance of 
the FCTC and relevant FCTC Guidelines if they do not constitute an "international standard" for 
tobacco plain packagi ng for the purposes of Article 2.5 of the TBT Agreement. This is reflected at 
paragraphs 7.404  to 7.417 . 
6.5  Requests for review of section 7.2.5.3  (The degree of contribution of the TPP 
measures to their objective)  
6.16.   Honduras request s the P anel to amend the description of its arguments on the lack of 
contribution of the measures to their objectives. In particular, Honduras states that its argument is 
not that smoking prevalence increased, but rather that the measures did not contribute to th e 
reduction of smoking. Honduras considers that the Panel's attribution to Honduras of arguments 
about an increase in prevalence is  based on a misrepresentation of what Honduras has argued, as 
the reference to an increase in smoking preva lence, Honduras ex plains, is "nothing but a reference 
to the possible effect of another phenomenon, namely downtrading and its effect on prices". 
Honduras therefore request s the Panel to delete  "the suggestion that Honduras' argument is 
essentially that smoking increased as  a result of plain packaging, even if for some groups of the 
population there seems to have been such a correlation ". Honduras states that it has pointed out 
that the downward substitution that plain packaging is causing may lead to lower prices, which in 
turn may mean higher consumption and that this is the only impact that can be expected of plain 
packaging. It argues that this, h owever, is different from a position that plain packaging caused an 
increase in smoking prevalence when it is clear that the ov erall smoking trend is negative and has 
been for many years.  
6.17.   Australia considers the Panel's summaries to be accurate reflections of Honduras' s 
submissions. It observes that in its first written submission Honduras repeatedly argue s that the 
TPP measures either have, would or are "likely to" result in an increase in smoking prevalence.411 
While some of Honduras' s arguments relate to downtrading, Honduras also provide s distinct 
arguments relating to social theory, the analysis of post -implementation data, and  illicit tobacco 
trade . To the extent that the Panel agrees to Honduras' s request in regard to these paragraphs, 
Australia request s that the Panel fully reflect Honduras' s arguments on these points. In response 
to these comments, the Panel has amended para graph 7.430  and expanded its description of the 
                                                
411 See Honduras's first written submission, paras. 346, 347, 372, 392 -400, 888, and p. 89 subheading 
5(c), titled "research in social sciences theories indicate that the trademark requirements will not only fail to 
contribute to Aus tralia's objective but will also lead to an increase in smoking prevalence ". (emphasis added)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  relevant arguments at paragraphs 7.426  to 7.429  to provide additional context for the statements 
of Honduras in respect of the effects of the TPP measures, including  in relation to  their possible 
impact on smoking prevalence.  
6.18.   Honduras also request s the Panel to amend its description of its arguments on the drivers of 
cessation and relapse and the impact of pla in packaging . Specifically, Honduras explains that its 
"forbidden fruit" argume nt was made "as a 'final' point" and "is not the essence" of the argument it 
developed. Honduras request s the Panel to replace its initial text with a summary of its position 
taken from its second written submission, highlighting the complexity of drivers of smoking 
behaviours and the absence of credible evidence that logos, branding and other aspects of tobacco 
packaging contribute, or may in principle contribute, to smoking behaviours such as cessation or 
relapse. In response to this request, the Panel has expanded its description of Honduras's 
arguments  at paragraph 7.428 , to better distinguish the different aspects referred to by Honduras, 
including arguments  relating to the drivers of cessation and relapse and to a possible  "forbidden 
fruit" effect.  
6.19.   Honduras  request s the Panel to remove a reference to its arguments on the expected 
impact of the TPP measures on smoking prevalence at para graph 7.430 . Australia considers  the 
existing language to be an accurate reflection of Honduras's submissions. In response to this 
comment, the Panel has deleted the sentence at issue, as the relevant argument is adequate ly 
reflected in paragraph 7.427 , as modified in reponse to Honduras's separate comments described 
above in relation to the description of its arguments on the effects of the TPP measures on tobacco 
consumption.  
6.20.   Honduras request s the Panel to delete a reference, in its summary of arguments at 
paragraph 7.431 , to two studies relating to the assessment of actual behaviours in the presence of 
plain packaging, or to complement the reference to avoid possible misleading implications in 
respect of the outcomes of these studies. In response, the Panel has removed the reference to 
these studies, which  was not necessary at this stage of the description  of arguments, as  specific 
studies are discussed in later parts of the Panel's analysis.  
6.21.   Honduras request s the Panel to add a reference to some of its arguments in rebuttal, 
concerning Australia's reliance on behavioural theories. The Panel added a sentence to paragraph 
7.433  and footnote 1299 to address this comment.  
6.22.   Australia request s the Panel to clarify Australia's arguments and its reference to prior 
jurisprudence concerning the role of qualitative evidence in demonstrating co ntribution. Honduras, 
the Dominican Republic,  and Indonesia request that, if the Panel agrees to the requested changes, 
Australia's arguments be reflected in full, including by citing more completely the relevant findings 
in EC – Seal Products  relied on by  Australia. In response to this comment, the Panel has expand ed 
the description of Australia's arguments  in paragraph  7.455 , including the additional detail 
identi fied by Honduras and the Dominican  Republic.  
6.23.   Australia request s the Panel to amend the final sentence of paragraph  7.486 , to add a 
reference to its argument that a determination in qualitative terms is the methodology best suited 
to a correct assessment of contribution in the circumstances of this case. The Dominican Republic 
and Indonesia object to the requested modification, as the argument at issue is already re flected 
in other paragraphs. In response to these comments, the Panel has only partially accepted the 
insertion requested by Australia, in light of the fact that, as pointed out by the Dominican Republic 
and Indonesia, this argument is already reflected in  other surrounding paragraphs.  
6.24.   Australia also request s the Panel to clarify that it explicitly acknowledged that quantitative 
analysis of the post -implementation effects of the TPP measures is relevant to the Panel's 
contribution analysis, by including add itional references to its arguments . The Dominican  Republic 
object s to the additional reference  suggested by Australia , as the argument is already adequately 
summarized elsewhere. Honduras also d oes not consider necessary the changes requested by 
Australia , as the existing text correctly reflects the Panel's agreement with the position of the 
complainants that evidence of actual smoking behaviour is to be an integral part of the 
contribution assessm ent. The Dominican Republic d oes not object to  some of  the modification s 
requested by Australia, provided that Australia's position is clarifi ed. The Dominican Republic note s 
that Australia fundamentally changed its position on the rel evance of post -implementation  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  evidence relating to actual smoking behaviour, so that if the Panel accepts Australia's 
amendments, it should add text at the end of the paragraph to reflect the evolution of Australia's 
position over the course of t he proceedings in this respect.  In response to these comments, the 
Panel has elaborated  the description of Australia's  arguments at paragraph  7.494  and footnote 
1448 and rephrased the formulation of its conclusion  at paragraph  7.497 . 
6.25.   Australia request s a modification of the second sentence of paragraph 7.510  to reflect that 
it has not rel ied upon the White et al. 2015b paper referred to in this sentence. Honduras 
considers however that this text refers back to the descriptive se ction of the se Report s, which the 
parties have already had an opportunity to comment on. The Dominican Republic and Indonesia 
observe that Australia's experts rely on the paper at issue, and thus request that if the Panel 
modifies this text,  it modify it t o indicate this.  In response, the Panel has modified the relevant 
text to clarify that the material at issue relate s to studies relied on by Australia or its experts.  
6.26.   Australia request s the Panel  to add, at  paragraph 7.535 , a reference to Professor Fong's 
point that an analysis of post -implementation evidence by the complainants' own experts confirm s 
that the measures ha ve had the effects predicted by the pre -imple mentation studies. The 
Dominican Republic and Indonesia observe that this section of the se Report s does not address 
post-implementation evidence and request that, if the Panel adds the arguments requested by 
Australia, the response to these arguments by the Dominican Republic's and Honduras's experts 
also be reflected. The Panel decline s to make the re quested edits since , as noted  by Honduras and 
Indonesia, this section of the se Report s does not address post -implementation evidence, which is 
addressed separately in section 7.2.5.3.6 . 
6.27.   Australia request s the Panel to amend the first sentence of paragraph 7.536  to avoid 
incorrectly suggesting that Australia's arguments regard ing the analysis of the TPP literature were 
confined to the challenges inherent in evaluating national -level policies. The Dominican Republic 
object s to Australia's request, noting that the existing language summarize s almost verbatim 
Professor Fong's argu ment, while the requested addition is not part of this argume nt and would 
alter its meaning.  In response, the Panel has modified the text at issue to avoid the potential 
implication identified by Australia but decline s to add the additional argument reques ted by 
Australia, which is addressed separately later in th e same section.  
6.28.   Honduras request s the Panel to add a reference , at paragraph 7.557 , to Professor Klick's  
observations on the use of randomized field experiments to inform pub lic policy "in other 
contexts".  Australia request s that if the Panel accepts the requested reference, it also reflect 
Australia's evidence and arguments on the unique public health conte xt for testing tobacco control 
measures. The Panel d oes not find it necessary to expand, in this part of its analysis, on the role of 
randomized experiments in "other contexts" , as the focus of discussion is limited to the specific 
context before the Panel , i.e. the TPP measures.  
6.29.   Australia request s the Panel to include at paragraph 7.557  a cross -reference to the Panel's  
later conclusion on the practical and ethical constraints on the conduct of an "ideal" study. The 
Dominican Republic d oes not object to this request. Honduras consider s it neither necessary nor 
appropriate to insert the requested reference, as it would co nfuse the discussion of the focus of 
the TPP studies with the more general "overall assessment" that follows. The Panel d oes not 
consider it necessary to add the cross -reference requested by Australia, given that a detailed 
discussion of the practical and ethical constraints on the conduct of "ideal" experimental studies in 
the context of tobacco plain packaging follows immediately after this paragra ph, concluding at 
paragraph 7.561 .  
6.30.   Honduras request s the Panel to modify paragraph 7.562 , to avoid a suggestion that the lack 
of an ideal experiment was the only reason for which t he complainants argued that the pre -
implementation studies should be rejected as the evidentiary base for the adoption of the TPP 
measures. Australia s ees no basis for removing the passage at issue, as it d oes not, in its view, 
suggest the implication that  Honduras asserts. In response to this comment, the Panel has 
clarified the wording of the relevant passage.  
6.31.   Honduras request s the Panel to consider reformulating its general summary of the 
conclusions of its expert reviews of the TPP literature to show th e focus of the complainants on the 
fact that the studies "do not provide a sound basis upon which to base claims about the expected WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  effects of plain packaging on smoking  behaviour". Australia consider s that the existing text 
accurately reflect s a conclusio n of the reviewers of the studies at issue. In response to this 
comment, the Panel has reformulated  its description  of the conclusions of the complainants' 
experts on the TPP literature  at paragraph s 7.583  and 7.626 . 
6.32.   Honduras request s the Panel to revise its reference to the medical qualifications of Sir Cyril 
Chantler, in paragraph 7.598 , to reflect the statement of Professor Klick qualifying t he relevance of 
this medical training for the purposes of reviewing the methodological soundness of the p re-
implementation TPP studies. In response, the Panel has removed the reference to Sir Cyril 
Chantler's qualifications, in line with its overall approa ch, which does not refer to  the individual 
qualificatio ns of specific experts .  
6.33.   Australia request s that the Panel add, at paragraph 7.608 , a reference to its argum ents 
that, when adopting tobacco plain packaging "as a world first public health measure", it relied on 
the explicit recommendation of FCTC parties and on the nearly unanimous consensus  on the causal 
link between tobacco advertising and smoking behaviour r eflected in published analyses conducted 
by highly respected internat ional bodies. Honduras consider s that if the Panel accept s to include 
the arguments by Australia "in which it seeks to justify" the absence of a systematic or other 
thorough review of the  evidence before adopting the measures, the Panel then also need s to 
address whether these arguments are relevant and pertinent in this context, and address the 
many counter -arguments of the complainants on these poi nts. The Dominican Republic d oes not 
object to Australia's reques t, provided that Australia's  arguments and the Dominican Republic's 
responses are both  fully reflected . Indonesia observe s that the ad ditions requested by Australia 
are unrelated to the subject -matter of the paragraph at issue, and  requests that, if the Panel 
accept s the additions requested by Australia, it also add s Indonesia's and the other complainants' 
arguments on these points. In response, the Panel has added a reference, in footnote 1687, to 
Australia's indications as to the evidentiary base that it relied upon in adopting the TPP measures. 
The Panel did not find it necessary however to engage in a detailed discussion of the relative 
merits or limits of each of these sources as evidentiary basis for the measures in this section of its 
Reports, which reviews  surveys of the TPP  literature. These questions are discussed in other parts 
of the Panel's analysis, including, with resp ect to the FCTC and associated instrumen ts, in 
paragraphs 7.404  to 7.417 , which , as described above,  have been expanded in response to a 
separate request for review by Honduras .  
6.34.   Honduras request s the Panel to clarify the subject of on e of the sentences in paragraph  
7.634 . The Panel has modified the sentence to clarify its subject.  
6.6  Requests for review of section 7.2.5.3.5.2  (First mechanism: i mpact of plain 
packaging on the appeal of tobacco products to consumers)  
6.35.   Honduras request s the Panel to mention in paragraph 7.656  the distinction it has outlined 
between communication and advertising. Although this distinction was already reflected in earlier 
paragraphs, the Panel has added a reference to it in this paragraph.  
6.36.   Honduras request s the Panel to add a further reference, at paragraph 7.692 , to its 
argument that the behavioural theories referred to by Australia are intention -based and not action -
based theories. Australia noted that this point was already re flected in a preceding paragraph and 
asked that, if the Panel accepted Honduras's addition, it also include a reference to the sentence 
immediately following that referred to by Honduras in its arguments, to the effect that these 
theories may generate usef ul hypotheses about the possible presence or absence of a causal link 
between certain constructs and specific behaviours. In response, the Panel has expanded its 
reference to Professor Ajzen's relevant points in the paragraph where these were already 
discussed, at paragraph 7.696 . 
6.37.   Australia request s the Panel to ame nd the references, in paragraph  7.693 , to its reliance on 
behavioural theories. Australia explains that it has not rel ied on Professor  Ajzen's TRA or TPB and 
that Professor Fong, rather, made a single reference to the TRA as part of his review of existing 
evidence on  the link between the appeal of tobacco products and smoking behaviours. Honduras 
objects to Australia's request, noting that Australia and its experts have undoubtedly relied on this 
theory and related behavioural theories. The Dominican Republic similarl y objects to the requested 
modification, citing to Professor Fong's report stating that " [s]ocial psychological theories, notably WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the 'Theory of Reasoned Action' (Fishbein & Ajzen 1975) , and rese arch arising from such theories,  
have demonstrated clearly th at attitudes are indeed related to behaviour" and the associated 
figure relied on by Professor Fong, describing the TPB. In this light, the Dominican Republic 
considers that the Panel correctly f inds that Australia has relied on Professor Ajzen's behaviour al 
theories during the proceedings. Indonesia also objects to Australia's request, similarly pointing to 
the reference, in Professor Fong's report, to Professor Ajzen's TRA as a basis for an explanation of 
why attitudes are important to behaviour and the argument that achieving changes to attitudes 
and behaviour through specific objectives will lead to changes in smoking behaviour over time. In 
response, the Panel has rephrased its description of Australia's reliance on the relevant theories at 
paragraphs 7.693  and 7.697 , to track more closely the terminology used by Professor Fong, who 
refers to "social psychological theories", including the TRA and related research.  
6.38.   Honduras request s the Panel to revise it s summary of the level of "disagreement" between 
the parties in relation to the relationship between attitudes and perceptions, on the one hand, and 
intentions and subsequent behaviours, on the other hand. Australia consider s the Panel's summary 
to be an a ccurate assessment of the evidence before the Panel and of the points of difference 
between the parties. In response to these comments, the Panel has modified the formulation of 
this passage in paragraph 7.699 , to focus more directly on what the Panel understands to be the 
key relevant point of disagreement.  
6.39.   Honduras request s the Panel to review the formulation of its description of certain elements 
of the expert r eports submitted by the Dominican Republic and Honduras  relating to the role of 
branding  elements such as colours or logos on the salience of a pack. Australia c onsiders that the 
passage of Honduras's  submission  referred to by Honduras in support of this r equest does not 
contradict the Panel's conclusions. In response to these comments, we have clarified the relevant 
passages in paragraphs 7.768  and 7.769 .  
6.7  Requests for review of section 7.2.5.3.5.3  (Second mechanism: impact of the TPP 
measures on the effectiveness of graphic health warning)  
6.40.   Honduras request s the Panel to add a reference to Professor Viscusi's discussion of the 
results of the study based on eye movements in respect of regular smokers (i.e. that "the results 
of the study failed to indicate any advantage of plain packs for regular smokers even though the 
nature of the eye tracking test would make the study predisposed to finding such an effect for 
plain packs"). In response, we have introduced the requested reference  in foo tnote 2228 to 
paragraph 7.818  and added a summary of the main findings and conclusion s of Munafò et al. 2011 
(Exhibits AUS -199, JE-24(47)) with respect to  the three studied subgroups.   
6.41.   Australia request s the addition of the term "avoidance" in the description of the conceptual 
model for the assessment of the effectiveness of GHWs in the second sentence of paragra ph 
7.851 . Honduras observes that the exhibit cited by Australia in support of this request does not 
contain this term and that in any event the existing text fits w ell with the title of the section (which 
concerns quit intentions and smoking behaviours), making  the requested addition neither 
necessary no r appropriate. The Dominican Republic did not object to the request. In response, the 
Panel has accepted the additi on of the term "avoidance" in the sentence at issue. While, as noted 
by Honduras, the exhibit reference cited by Australia does not shed light on the relevance of this 
term, its inclusion in the description of the model is consistent with its depiction at Figure  14.  
6.42.   Honduras request s the Panel to revise the text of paragraph 7.862 , which it consider s 
contain s two "logical leaps" in the analysis and incorrectly reflect s the views of Honduras and its 
experts. Australia contends that  Honduras's arguments in support of thi s request for review are  
consistent with the Panel's statements in the preceding paragraph of these Reports and submits 
that Honduras has misconstrued the Panel's conclusion. In response to these comments, the Panel 
has revised paragraph  7.862  to clarify its reasoning.  
6.8  Requests for review of section 7.2.5.3.5.4  (Third mechan ism: reducing the ability of 
the pack to mislead consumers about the harmful effects of smoking)  
6.43.   Honduras submits that paragraph 7.892  does not accurately reflect its "primary argument" 
with respect to the capacity of the TPP measures to reduce the ability of the pack to mislead 
consumers regarding the harmful effects of smo king. Honduras states that its "primary argument" WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  with respect to this issue is that there is no likelihood that a trademark appearing on the remaining 
space of a pack with a 75% GHW will generate misleading effects, and not that the TPP measures 
are unnec essary because Australia's existing regulatory framework provides a legal mechanism 
through which any misleading packaging elements can be removed from the market. We note that 
Honduras provides no specific reference to support its assertion regarding the primacy of this 
argument over its argument that any misleading packaging design elements can be effectively 
dealt with under the Australian Consumer Law.412 The parties' argu ments on the ability of the 
TPP measures to contribute through their mechanisms to t heir public health objective in the 
specific Australian context, where a 75% GHW covers the front of the pack, are acknowledged and 
discussed at paragraphs 7.615  to 7.620  as part of the discussion  of the TPP  literature and the 
evidentiary base  underlying the design and structure of the measures.  Nevertheless, in light of 
Honduras's request, we have clarified our cross -reference to the discussion of the TPP  literature in 
paragraph 7.872 , added cross -reference s to this discussion to paragraphs 7.896  and 7.918 , and 
expanded our summary of the findings of Parr  et al. 2011b at footnote 1718 to paragraph 7.620 . 
We also added clarifying sentences at paragraph  7.660  and footnote 1813 regarding the 
communicative capacity of a pack with a 7 5% GHW. We also  made additional edits to paragraphs 
7.876 , 7.892  to 7.894 , 7.896  to 7.899 , 7.902 , 7.905 , 7.907 , 7.918 , and 7.928  to clarify the 
Panel's conclusions and the parties'  arguments in respect of this mechanism.  
6.44.   Honduras request s the Panel to add a reference to its own argument similar to that of the 
Dominican Republic  reflected in paragraph 7.935 . The Panel has accepted this request.  
6.45.   Honduras request s the Panel to either include in footnote 2546 at para graph  7.979  a 
reference to Professor Neven's rebuttal arguments or delete the footnote. Australia note s that it 
has filed a surrebuttal report from Professor Katz that respond s in detail to Professor Nev en's 
rebuttal. While Australia considered that the existing text of the footnote represents an accurate 
assessment of the evidence before the Panel, it request s that the Panel also include a reference to 
Professor Katz's surrebuttal report, if it accept s Honduras's request to refer to Professor Neven's 
rebuttal report. In response to these comments, the Panel has expanded its analysis to include 
references to both Professor Neven's rebuttal report and Professor Katz's surrebuttal report.  
6.9  Requests for review of section 7.2.5.3.7  (Impact of the TPP measures on illicit 
trade)  
6.46.   Australia requests the Panel to clarify the source of the data used by Profes sor Chaloupka to 
estimate illicit tobacco use at paragraph 7.1005 . The Panel has modified the paragraph as 
requested.  
6.10  Requests for review of section 7.2.5.4  (The trade -restrictiveness of the TPP 
measures)  
6.47.   Honduras request s the Panel to consider relying on a different text, taken from its second 
written submission, as the basis for the summary of its arguments on the trade -restrictiveness of 
the measures at paragraph 7.1090 . The Panel has accepted the requested change.  
6.48.   Australia requests the Panel to revise  the final sentence of paragraph 7.1131.    to clarify 
that its argument regarding evidence of actual trade effects was made specifically  in light of the 
Appellate Body's statements in US – COOL (Article 21.5 – Canada and Mexico) . Honduras 
considers the requested revision to be unnecessary, as the Panel reflects this jurisprudence 
elsewhere. The Dominican Republic and Indonesia do not objec t to Australia's request, provided 
that Australia's original argument is accurately reflected.  The Panel has modified this  paragraph 
partly as requested, considering the comments of the complainants.  
                                                
412 We note that in its first written submission, Honduras states, " the plain packaging measures seem to 
be based on the assumption that the residual portions of th e package  that they regulate could mislead 
consumers about the harmful effects of smoking or using tobacco products. " Honduras's first written 
submission, para. 518  (emphasis original). This statement appears in an introductory paragraph to a section 
entitled, "[t]he plain packaging measures are superfluous because Australia already has a robust legislative 
framework to address misleading or deceptive conduct".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  6.49.   Honduras request s the Panel to "more accurately summariz e" its arguments regarding the 
impact of the measures on barriers to entry and participation in the market at paragraph 7.1172 , 
at the beginning of section on "Whet her the TPP measures raise barriers to entry onto the 
Australian market". The Panel decline s to make this change, as this section is concerned with 
barriers to entry rather than barriers to "participation" in the market more generally, which is 
addressed i n other parts of section 7.2.5.4.2.3 .  
6.50.   Honduras request s the Panel to modify paragraph 7.1189  to start with an overview of its 
arguments on downtrading with reference to its second written submission. The Panel has added 
references to the passage identified by Honduras, though not at the level of detail that it 
requested.  
6.11  Requests for review of section 7.2.5.5.2.2  (The gravity of the consequences of 
non-fulfilment)  
6.51.   Australia requests that the Panel modify its description of the opera tion of Section 15 of the 
TPP Act in paragraph 7.1320  to reflect that it is a "savings provision" that is intended to preserve 
the requirements of the TPP Act to t he greatest extent possible in the event that it was found to be 
inconsistent with the Australian Constitution. Indonesia asserts that Australia's request is 
unnecessary and maintains that the paragraph at issue  correctly describes the practical effect of 
Section 15. The Panel has rephrased this paragraph to more clearly distinguish the purpose of 
Section 15 from its practical consequences.  
6.12  Requests for review of section 7.2.5.6.1  (Whether less trade -restrictive alternative 
measures are reasonably available to Australia: Approach of the Panel)  
6.52.   Australia requests that the Panel clarify that the arguments Australia  has advanced in 
relation to trade -restrictiveness and " competitive opportunities" or "freedoms", as set forth in the 
fourth sentence of paragraph 7.1361 , have been  made in response to arguments articulated by the 
complainants . Honduras and Indonesia object  to Australia's proposed characterization of the 
complainants' arguments . The Dominican Republic  and Indonesia also submit that the proposed 
clarification is unnecessary as it is clear from the context of the sent ence at issue that Australia's 
arguments are in response to those of the complainants. The Panel partly accepts Australia's 
request and has modified the sentence at issue to indicate that Australia's arguments are in 
response to those of the complainants o n the limitation of "competitive opportunities" and 
"freedoms".  
6.53.   Honduras request s the Panel to add, at paragraph 7.1379 , a reference to its arguments 
similar to th at of the Dominican Republic with reference to the panel rulings in China – Rare 
Earths . The Panel has added this reference at footnote 3349.  
6.13  Requests for review  of section 7.2.5.6.2  (First proposed alternative measure: 
Increase in the MLPA)  
6.54.   Honduras requests  additional detail of the proposed increase in the MLPA and the r easons 
for which Honduras  proposes  it at paragraph 7.1395 . The Panel has accept ed to include some of 
the requested additional detail, to a level comparable with that provided in relation to other 
complainants.  
6.55.   Australia request s the Panel to clarify , at paragraph 7.1412 , that its argument in relation to 
the impact of an increase in the MLPA on competitive opportunities was made in response to the 
complainants ' interpretation of trade -restrictiveness. Honduras had no objection to the request, 
but the Dominican Republic and Indonesia objected to is as unnecessary. The Panel accepted to 
insert the requested clarification.  
6.56.   Australia requested the Panel to add a re ference in paragraph 7.1433  to its reliance on the 
Chaloupka Public Health Report. The Panel has accept ed to make the requested addition.  
6.57.   Australia requested the P anel to clarify that its argument on the absence of certainty of the 
immediate impact of the proposed alternative was made in response to arguments by the 
complainants and more closely reflect the formulation of its arguments in this respect. The Panel WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  clarified the relevant text of paragraph 7.1440  to reflect more closely the terms of Australia's 
argument.  
6.58.   Australia  request s that the Panel  delete the reference to  a "meaningful " contribution  from 
the first sentence of paragraph 7.1453  and from the first half of the second sentence of paragraph 
7.1470  and instead find that an increase in the MLPA to 21  years would , in principle , be apt to 
contribute to Australia's objective. The Dominican Republic, Honduras, and Indonesia request ed 
the Panel to reject Australia's request because it , inter alia , contradicts the Panel's stated approach  
of assessing first whether the  proposed alternative measure would make any contribution to the 
TPP measure's objective , and then  the degree of such contribut ion. In paragraphs 7.1366 -7.1370 , 
we explain our approach to assessing whether a proposed alternative measure makes a 
contribution to the objective equivalent to that of  the challeng ed measure and state that this 
assess ment relies on ascertaining "as precisely as possible, in light of the  entirety of the  relevant 
evidence before us, the degree of contribution that the proposed alternatives would make to the 
objective" . As some complainants note, the language that Australia se eks to modify reflects the 
Panel's assessment of the degree of contribution that this alternative is apt to make to Australia's 
objective, as a component of the Panel's overall assessment of this proposed measure as a 
potential less trade -restrictive alter native to the TPP measures. We therefore  declin ed to modify 
the first sentence of paragraph 7.1453  and the first half of the second sentence of paragraph 
7.1470 . 
6.59.   Australia request s the Panel to consider adding, in its overall conclusion on an increased 
MLPA as an alternative to the TPP measures, a reference to its earlier finding that "an increase in 
the MLPA would not address initiation, cessation or relapse in any age group over 2 1". The 
Dominican Republic request s the Panel to reject this request, as Australia does not explain why the 
Panel should single out this intermediate finding to include i n this paragraph where it was merely 
reflecting its overall conclusions. Indonesia sim ilarly requests the Panel to reject this request, as 
this sentence would be unnecessary to the Panel's summary of its overall conclusion. The Panel 
declined to add the requested sentence to paragraph 7.1470 , which is intended to reflect its 
overall conclusion rather than the detail of its earlier findings that are the basis for this conclusion. 
This in no way diminishes, however, the Panel's determinations made at pa ragraphs 7.1459  and 
7.1460  or their importance to the Panel's assessme nt of whether an increase in the MLPA to 21 
years would make a contribution to Australia's objective equivalent  to that of the TPP measures.  
6.60.   Australia requests the Panel to amend paragraph 7.1505  to clarify its arguments regarding 
the distinction between the objectives and specific mechanisms of the TPP  measures and reflect its 
further arguments on assessing the equivalent degree of contribution in the context of a 
comprehensive policy. Australia further requests the Panel to add, in this paragraph, a reference to 
Professor Chaloupka's rebuttal of the Dominican Republic's assertion that he did not consider 
taxation to be effective in relation to smoking initiation. H onduras, the Dominican Republic,  and 
Indonesia opp ose these requests, observing that the passages that Australia requests to be 
removed are an accurate reflection of its arguments. The Dominican Republic notes that the 
arguments that Australia requests be added in relation to the Appellate Body's findings in Brazil – 
Retreaded Tyres are addressed elsewhere in the Panel's analysis. In response, the Panel declin es 
to delete and replace the references in this paragraph to arguments made in Australia's first 
written submission, but has accepted the addition of a reference to Professor Chaloupka's response 
to the Dominican Republic's statements concerning his conclusi ons on the effect of taxation on 
smoking initiation  and has added supplementary reference s at footnotes  3581 and 3583.  
6.14  Requests for review of section 7.2.5.6.3  (Second proposed alternative measure: 
Increased taxation of tobacco pro ducts)  
6.61.   Honduras requests the Panel to reflect at paragraph 7.1497  its argument that Australia 
failed to rebut Honduras's submissions that Australia's tobacco taxes  are below the level 
recommended by the WHO. Australia disagrees with Honduras's assertion that it failed to rebut 
this argument and refers to a number of its submissions and relevant expert reports addressing 
this point. The Panel declines to make additio nal references to these arguments in the requested 
paragraph, as this issue is discussed later in i ts analysis, at paragraph 7.1521 . 
6.62.   Australia request s the Panel to remove the term "meaningful" from paragraphs 7.1523  and 
7.1544  of the Panel's  analysis of the contribution that increased taxation would be apt to make to 
Australia's o bjective. Honduras, the Dominican Republic,  and Indonesia object to these requests, WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  for reasons similar to those  described above in relation to the same term as used in relation to the 
first proposed alternative measure. For the same reasons provided in response  to the same 
request made in the context of the MLPA, the Panel decline s to modify the language of these 
paragraphs as requested. However, the Panel slightly amended  paragraph 7.1523  for consistency 
of language across the analyses of all four alternatives .  
6.63.   Australia requests the Panel to amend some of the language of paragraph 7.1682  to align it 
with the description of the pre -vetting scheme in previous paragraphs. Th e Panel has accepted to 
amend this text as proposed by Australia.  
6.64.   Australia requests the Panel to include in paragraph 7.1694  a reference to its arguments 
that litigation costs under the pre -vetting scheme would make it prohibitively costly. The Panel has 
accepted to add this reference.  
6.65.   Australia request s the Panel to add in paragraph 7.1719  a reference to its argument that 
since the complainants' proposed alternatives are unable to stand alone and must be implemented 
cumulatively to make an equivalent contribution to that of the TPP mea sures, their trade -
restrictiveness must be evaluated cumulatively, which will necessarily increase the degree of 
trade -restrictiveness of the alternatives relative to the TPP measures. Honduras considers that as 
this paragraph sets forth the Panel's assess ment of the main arguments, it would not appear 
appropriate to add a description of an argument "buried in a comment on a reply" or seek to 
modify the Panel's findings in respect of this argument. The Dominican Republic did not object to 
this request. The Panel did not find it necessary to amend paragraph 7.1719  to reflect this 
argument, in light of its other determinations in this section.  
6.15  Requests for review of s ection 7.3.2  (Article 15.4 of the TRIPS Agreement ) 
6.66.   Honduras  requests that the Panel's summary of the complainants' argument s under 
Article  15.4 of the TRIPS Agreeme nt in paragraph 7.1879  be expanded to include an argument  
that signs which have already acquired distinctiveness and have been registered could not 
maintain distinc tiveness or remain registered, and will thus lose the protection flowing from 
registration  as a result of the TPP measures . Honduras submits that it referred to this effect in  
paragraphs 245 and 261 of  its second written submission. Honduras refers to two passages of its 
submissions to support its request. The first expresses Honduras's disagreement with Australia's 
argument that Section 28 of the TPP Act remed ies the TPP measures' negative effects on the 
registrability  of inherently non-distinctive marks but does not refer to already registered  marks.413 
In the second passage, Honduras argues that the distinctiveness of registered trademarks that 
include a non -inherently distinctive sign will be  diminished by the TPP measures, and the 
trademark owner w ill thus lose its ability to restrain infringing use in violation of Article  16.1. This 
paragraph does not relate to Article  15.4, nor does it refer to an inability of a registered trademark 
to remain registered .414 We therefore decline to mo dify the description of Honduras's arguments 
under Article 15.4. Nonetheless, we have made additional references to the passages referred to 
by Honduras in footnotes 4252 and 4302 to paragraphs 7.1879  and 7.1919 , respectively.  
6.16  Requests for review of s ection 7.3.3  (Article 16.1 of the TRIPS Agreement ) 
6.67.   Hondura s requests that the Panel amend its summary of Cuba's argument in paragraph 
7.1916  to reflect that it also argued that the TPP measure s violate Article  16.1 of the 
TRIPS  Agreement by reducing the distinctiveness of non -inherently distinctive trademarks and 
thus making them liable to cancellation procedures . Honduras also requests that paragraph  7.2033  
be similarly amended .  
6.68.   In paragraph 7.1916 , we provide a n overview of the arguments made by the complainants 
regarding Article 16.1. In this overview , we identif y only Cuba as having explicitly argued that the 
fact that certain tradem arks may be liable to cancellation  procedures as a result of the TPP 
                                                
413 The view expressed in paragraph 245 of Honduras's second written submission is reflected i n the 
fourth sentence of paragraph 7.1879  of these Reports and referred to in corresponding footnote 4252. 
414 The view expressed in paragraph 261 of Honduras's second written submission is reflected in 
paragraph 7.1919  of these Report s in the section summarizing the complainants' main arguments with respect 
to their claims under Article  16.1. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  measures constitutes a violation of Article 16.1. Paragraph  7.2033  summarizes more fully this set 
of arguments by Cuba. Honduras submits that it also made this argument in paragraph 261 of its 
second written submission, as supported by paragraph 243 of its first written submission. We note 
that in paragraph 261 of its second written submission, Hon duras argues that, as a result of the 
TPP measures, the distinctiveness of a registered trademark will be diminished to the extent that it 
will no longer be considered distinctive , and the owner of that registered trademark w ill lose its 
ability to restrai n infringing use . Paragraph 243 of Honduras's first written submission elaborates 
that this is because " the universe of similar trademarks that a consumer could confuse with the 
original trademark … shrinks", and that the trademark owner's right to prevent  third parties from 
unauthorized use  will be compromi sed since other trademarks will no longer be considered 
"similar" to the original trademark. Honduras has also argue d that Section 28 of the TPP Act does 
"not address the … erosion of distinctiveness, an d consequently the scope of protection ", or the 
"maintenance of protection of tobacco -related marks vis-à-vis their potential use by third 
parties ".415 We have summarized and addressed in section  7.3.3.4.2  the arguments by the 
complainants, including Honduras, on whether the TPP measures violate Article 16.1 because the 
prohibition on the use of certain trademarks reduces their distinctiveness and thus the trademark 
owner's ability to demonstrate a likelihood of confusion.416  
6.69.   Given that  we have addressed the arguments presented in the paragraphs referred to by 
Honduras in another section, and that none of those paragraphs mention the TPP measures ' 
potential implications relating to cancellation of a registered trademark , we decline to modify 
paragraphs 7.1916  and 7.2033 . In response to Honduras's requests, we have , however,  modified 
footnote 4526 to paragraph 7.2033 , including by adding a cross -reference to section 7.3.3.4.2 .  
6.70.   Honduras  requests that, in paragraph 7.1919 , the Panel refer to Professor Dinwoodie not as 
"Ukraine's expert", but as an expert "relied upon" by the complainants , as it do es in paragraph 
7.1752 . We note that Honduras itself refers to Professor Dinwoodie as Ukraine's expert in 
paragraphs 240 and 244 of its first written submission. Nonetheless, we have amended paragraph 
7.1919  for further clarity and to align the language with that of paragraph 7.1752 .  
6.71.   Honduras  alleges  that the Panel's focus on the ability to show confusion in the first sentence 
of paragraph  7.1966  is not an accurate reflection of its argument which, it submits, focuse s on the 
impact of the strength of the mark on the normative assessment of the likelihood of confusion that 
is relevant in the context of infringement proceedings. Honduras requests that the phrase "to show 
confusion in the market, and thus infringement" be replaced by the phrase "to protect the mark 
and thus defend against infringement ". Australia  objects to this request as it sees the  relevant text  
as an accurate reflection of Hondu ras's previous submissions. Australia points out that, in its 
second written submission, Honduras itself refers to the responsibility of the trademark owner to 
demonstrate a likelihood of confusion.   
6.72.   We note that  Honduras has argue d that "the 'likelihood of confusion' is a normative 
assessment that is relevant in the context of any infringement proceeding", and that "[t]he 
strength of the mark is a key aspect of such a 'likelihood of confusion'  assessment".417 Honduras 
adds that "[t]he  'likelihood of confusion' must always be demonstrated by the trademark owner  in 
the context of an infringement proceeding when trying to prevent the use of similar signs on 
similar products by unauthorized third parties and protect the distinctiveness of the mark ."418 In 
response to this request, we have amended paragraph 7.1966  to reflect more closely the language 
used by Honduras on the ability to demonstrate a lik elihood of confusion and i ncluded additional 
references in footnotes 4448 and 4471 to paragraphs  7.1982  and 7.1999  to more fully reflect 
Honduras's argument s. 
                                                
415 Honduras's second written submission, para. 262. (emphasis added)  
416 Honduras's main arguments relating to its claim under Article 16.1 are summarized in greater detail 
in section 7.3.3.2  of these Reports. 
417 Honduras's second written  submission , para. 259. 
418 Honduras's second written submission, para. 259 (emphasis added) . This corresponds to another 
formulation by Honduras of its claim under Article 16.1, which asserts that the TPP measures void rights 
conferred under Article  16.1 because , "[c]ontrary to this provision, the legitimate owner of a tobacco -related 
trademark will not be able to prevent unauthorised third -party use of the trademark as he or she will not be 
able to demonstrate  a likelihood of confusion with its original tra demark ." Honduras's first written submission, 
para. 249. (emphasis added)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  6.73.   With respect to the Panel's quote from Professor Dinwoodie's expert report in 
paragraph  7.1990 , Honduras  requests  that the Report s also reflect certain other statements by 
Professor Dinwoodie that provide context for  the quoted remark. In paragraphs 7.1989  to 7.1993 , 
we discuss the complainants' allegation that the TPP measures' prohibition of use of certain 
registered trademarks will cause these marks to lose their distinctiv eness and thus reduce the 
occurrence of situations in which right owners can demonstrate  a "likelihood of confusion" between 
the registered trademarks and similar or identical signs on similar products.419 In response to 
Honduras's request  to provide further context  for a statement made by Professor Dinwoodie , we 
have expanded footnote 4463 to paragraph  7.1990 .  
6.74.   Honduras  also asks the Panel to revise paragraph 7.2003  to reflect that it has made an 
argument similar to that attributed to the Dominican Republic, Cuba, by reference, and Indonesia. 
In support of this request, it refers to paragraphs 260 and 263 of its second written submission.   
6.75.   In its second written submission, Honduras argues that an owner of a tobacco -related 
trademark will not be able to demonstrate a likelihood of confusion because the trademark has lost 
much of its strength as a result of the TPP measures. We have referred to th e relevant  paragraph 
in footnotes 4457 and 4459 to paragraph 7.1986 , which summarizes the complainants' arguments 
relating to the alleged reduction  of the effective scope of the right. In its second written 
submission, Honduras cites MARQUES's amicus curiae  submission, according to which "[a] 
measure that prevents the mark from maintaining its scope of protection or from growing its 
notoriety and str ength through use as intended is thus inconsistent with the rights conferred on 
registered trademark owners under Article 16.1". In response to Honduras's request, we have 
added a reference to  this text in footnote  4459 to paragraph 7.1986 . We address the 
complainants' arguments, including those made by Honduras, relating to the alleged reduction in 
the effective scope of the right  as a result of a reduction  in the instances in which a "likelihood of 
confusion" can be demonstrated in paragraphs 7.1994  to 7.2002 .  
6.76.   In paragraph 7.2003  and those that follow , we summarize a  separate set of arguments, 
according to which Article  16.1 protects a trademark owner 's ability to develop and maintain the 
distinctiveness of a trademark by means additional to third -party infringement actions and thus 
contains a general obligation for Members to refrain from adopting measures  that undermine or 
eliminate the distinctiveness of trademarks. As we have addressed the arguments to which 
Honduras refers in paragraphs 7.1994  to 7.2002 , we decline to add a further  reference to them in 
paragraph 7.2003 .  
6.77.   With respec t to the Panel's quote from Professor Dinwoodie's expert report in 
paragraph  7.2012 , Honduras  requests that, to put the statement in context, the Panel also quote 
the paragraph immediately preceding it and the sentences that follow it. In response, we have  
modified footnote 4489 to paragraph 7.2012  to reflect the sentences that follow the quoted 
statement. In the preceding paragraph o f his expert report, Professor Dinwoodie argues that, due 
to the nature of IP rights as private rights, Australia could not claim to achieve through regulation 
what Article 16 requires to be achieved by trademark rights. In our view, this point is not rele vant 
to the issue under discussion in this paragraph, i.e. whether trademark distinctiveness may vary in 
the market.  
6.17  Requests for review of s ection 7.3.5  (Article 20 of the TRIPS Agreement)  
6.78.   Honduras  request s that the Panel more fully reflect Honduras's position on the meaning of 
the term "unjustifiably" in paragraph 7.2134 .420 The overview of the claims in section 7.3.5.1  is 
intended to capture the elements  that the parties identified as needing to be established to find a 
violation of the core obligation contained in the first sentence of Article 20  of the TRIPS 
                                                
419 See para. 7.1988  below.  
420 Honduras identifes  "the three different points why it considers Australia's  TPP measures to be an 
unjustifiable encumbrance  … i.e.  (i) TPP measures are the 'ultimate encumbrance '; (ii) TPP measures are 
unjustifiable by their nature because they are not based on an individual asse ssment ; and (iii) in the 
alternative, the Panel should determine  whether the TPP measures make a material contribution to the 
achievement of the public policy objective and whether these measures constitute the least -restrictive means 
to achieve that objec tive." Honduras's requests for review of the Interim Report, para. 59 (referring to 
arguments found at paragraphs 2 69-272 of Honduras's  second written submission ). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Agreement . It does not elaborate on arguments on whether and, if so, why the parties consider 
that these elements in fact are established in this particular case. We have, nonetheless, reflected 
in footnote 4645 Honduras's arguments in its fir st written submission on why it considers that the 
TPP measures are, by nature, unjustifiable and additional arguments from its second written 
submission.   
6.79.   Honduras  request s that the Panel  add a reference in paragraph 7.2140  to Honduras's 
arguments on the need to conduct an individual assessment and the need for a proportionate and 
limited exception. In response, we have included in paragraph 7.2140  language from Honduras's 
first written submission and added references in the related footnotes to paragraphs  7.2436  and 
7.2443  to 7.2449 , where Honduras's arguments on the need for individual assessment and the 
extreme nature of the encumbrance are more fully summarized.  
6.80.   Honduras also request s that the Panel modify the order in which it summarizes Honduras's 
arguments on the meaning of the term "unjustifiably" in section 7.3.5.5.1.1  and emphasizes  that 
paragraph  7.2296  contains its rebuttal argument. Honduras also requests that t he Panel include 
references to Honduras's arguments why it considers the TPP measures to be unjustifiable by their 
very nature. We have maintained the order of the summary of Honduras's arguments in this 
section, consistently with the order in which relate d arguments of other parties are summarized. 
However, we amended  paragraph 7.2296 , to clarify that Honduras ma kes its argument in response 
to Australia's arguments  and added text to paragraph  7.2305  to reflect  additional arguments by  
Honduras . We have also added a reference in a footnote to the related arguments in Honduras's 
second written submission. We decline to reflect  in this section additional arguments  identified  by 
Honduras concern ing the unjustifiability of the TPP measures  specifical ly, which are ref erenced  and 
addressed in subsequent sections.421 
6.81.   Australia  consider s that the Panel's discussion in paragraphs 7.2414  and 7.2415 incorrectly 
suggest ed that Australia ha d argued that the proper meaning of the term "unjustifiably" should be 
discerned primarily in opposition to any other term, rather than from the  proper meaning of the 
term actually used. Australia adds that it has applied a Vienna Convention analysis to determine 
the meaning of "unjustifiably" and that its arguments in relation to the interpretative distinction 
between "necessity" and "justifiable " are rebuttal points in response to what it sees as the 
complainants' attempts to conflate the two terms. Accordingly, Australia request s the Panel to 
make certain amendments to these paragraphs. The Dominican Republic  and Indonesia  object to 
the sugges ted changes. In their view, they  are unnecessary given that  the Panel present s in detail 
the parties' positions in paragraphs  7.2294 -7.2348  and it is clear from the context that, in 
paragraphs 7.2414  and 7.2415 , the Panel is focusing on a specific area of contention between the 
parties, namely the dif ference between the "necessity " and "justifiable " standards.   
6.82.   In response, we have clarified in  paragraph 7.2413  that the parties first described their 
understandin g of the ordinary meaning of the term "unjustifiably" in Article 20 and then sought 
contextual guidance, inter alia , by contrasting it to certain other terms. We also added a sentence 
in paragraph 7.2414 , clarifying that Australia made the argument reflected in that paragraph in 
response to the complainants' arguments. We also slightly modified paragraph  7.2415 . As 
indicated in footnote 5012 to paragraph 7.2412 , the parties' arguments on the meaning of the 
term "unjustifiably" are summarized more extensively in section 7.3.5.5.1.1 . 
6.83.   Australia  considers that the Panel's analysis in paragraph 7.2420  incorrectly states that 
Australia ha s argued that the term "unjustifiably" in Article 20 of the T RIPS Agreement should be 
assumed to have "exactly the same meaning" as the term "unjustifiable" in the chapeau  of 
Article  XX of the GATT 1994. It request s the Panel to amend the first sentence of that paragraph 
accordingly. The Dominican Republic  and Indonesia  do not object to the modification suggested by 
Australia but request that the Panel also add  a sentence indicating that Australia argues that the 
                                                
421 See paragraphs 269 -270 of Honduras's second written submission regarding the three primary  
reasons why Honduras considers the TPP measures to be an unjustifiable encumbrance . These arguments 
concern  the unjustifiability of the TPP measures in particular and appear to cover the same ground as the 
general interpretative arguments contained in par agraph  315 of Honduras's first written submission and 
paragraphs 361 -372 of its second written submission , to which we have added references in para . 7.2305  
below. Honduras's related main arguments concerning the TPP measures are summarized in subsequent parts 
of the se Report s, including in sections 7.3.5.3.1.1  and 7.3.5.5.2.1  below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  meaning of the term "unjustifiably" in Article 20 of the TRIPS Agreement must be at least as 
permiss ive as the meaning of the term "unjustifiable" in Article XX of the GATT 1994.  In response 
to these comments, w e have modified paragraph 7.2420  and added footnote 5020 to paragraph 
7.2420  containing a cross -reference to paragraph  7.2329 . In addition, we have complemented the 
reference in footnote  4903 to paragraph 7.2329  with an additional reference to Australia's 
response to Panel question No . 107. 
6.18  Requests for review of s ection 7.3.6  (Article 10 bis of the Paris Convention (1967), 
as incorporated by Article 2.1 of the TRIPS Agreement)  
6.84.   Honduras  requests that the term "constitutive" be added to the last sentence of 
paragraph  7.2634 . We have made the requested change and have made minor adjustments to the 
references in related footnote 5285. 
6.85.   Indonesia requests the Panel to add a reference to its related arguments from its first 
written submission regarding Article 10 bis to paragraph 7.2693 . We have adjusted the text by 
moving details regarding the arguments of Honduras, the Dominican Republic, and  Indonesia, 
formerly contained in a footnote, into the main body of the text. The complainants' arguments are 
now summarized in paragraphs 7.2693  to 7.2696 . We further note that Indonesia's arguments  are 
also cited at paragraph  7.2708  in the section that summarizes the parties' main arguments 
relating to Article 10 bis(3)(1).  
6.86.   Honduras  requests that the phrase "does not render" in what was footnote 5297 of the 
Interim Report s be corrected to  "renders". We have corrected the text , which n ow appears in 
paragraph 7.2694 .422 We have also made the same correction to the third sentence of paragraph 
7.2790 . 
6.87.   Referring to paragraph 7.2701 , Honduras  requests that the Panel change its order of 
analysis by presenting and assessing Honduras's claims under Article 10 bis of the 
Paris Convention  (1967), as incorporated by Article 2.1 of the TRIPS Agreement, in the order set 
out in its submissions, namely first the claim under paragraph 1 of Article 10 bis and then the claim 
under paragra ph 3(3) of that Article. In response, we have expanded our discussion of the order of 
analysis under Article 10 bis in paragraph 7.2691 . For the reasons set out therein, we decline to 
change the order of our analysis.  
6.88.   Honduras  suggests that paragraph 7.2764  be modifie d to reflect that it is unaware of an 
empirical study assessing whether consumers have been unable to distinguish the commercial 
source of tobacco products of one undertaking from those of other undertakings following the 
implementation of the TPP measures but considers that such quantitative data would not assist the 
Panel in resol ving the claims in the present disputes.  We expanded footnote 5488 to paragraph 
7.2764  to include an additional reference to this argument and t o the parts of the se Report s where 
the complainants' responses to Panel question  No. 168 on this subject are more fully reflected. We 
have also made minor corresponding adjustments to footnote 5210 at paragraph 7.2548 . 
6.19  Requests for review of the Appendices  
6.89.   In Appendix A , the Panel has added references or made corrections at paragraphs 12, 35, 
37, 54, 67 , and 68, in response to r equests for review  by Australia  that the complainants have  not 
object ed to.  
6.90.   The Panel has also amended the summary of the parties' arguments at paragraphs 12, 16, 
36, 41, and 76 to reflect fu rther arguments in response to  request s for review by Australia, taking 
into account also the comments of the Dominican Republic and Indonesia. The Panel has declined 
to make some of the r equested additions, as they are  already reflected at paragraphs 4, 12, 36 , 
and 76.  
                                                
422 We moved this text from the footnote to the main body of the text in response to a request by 
Indonesia, as  describ ed at para. 6.85 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  6.91.   In paragraph s 38, 41, a nd 54, the Panel has added  additional reference s to evidence from 
Australia's expert , Professor Chaloupka , and the Dominican Republic and Indonesia's  experts , 
Ajzen et al., in response to a request by Australia  that the Dominican Republic d oes not object t o, 
provided that it s own arguments in response are also incorporated. The Panel declines  to 
incorporate some of the additional references requested by the  Dominican Republic as they are  
already discussed at paragraph 83.  
6.92.   At footnote 58 , the Panel has added references to the third rebuttal report by Professor 
Chaloupka, in response to a request by Australia. Indonesia object s to this request on the basis 
that the exhibit referred to by Australia does not address the questions that its request relates to. 
We understand Australia to have misidentifed, in its request, the title of the exhibit at issue, 
referring to the "second" rather than the "third" rebuttal report by Professor Chaloupka.  
6.93.   In paragraph 56, the Panel has amended its reference to White at al. 2 015b in res ponse to a 
request by Australia that the Domi nican Republic and Indonesia d o not object to, provided that the 
findings of the study are accurate ly described. The Panel declines  to include two additional 
sentences proposed by the Dominican Republ ic, to paragraph 56, as the issues covered by these 
sentences are already discussed at s ections 1.1.3 and 2.1.4 of Appendix A. However, the Panel has 
added a sentence to paragraph 64 of Appendix B in response to the Dominican Republic's 
comments.  
6.94.   In Append ix B, the Panel has added a reference at footnote 165 , in response to  a request 
for review b y Australia  that the complainants have  not object ed to. 
6.95.   At footnotes 27, 29, 30, 31 , and 140  of Appendix B, the Panel has added references to the 
third rebuttal report by Professor Chaloupka, in response to a request by Australia. The 
Dominican  Republic and Indonesia object  to this request on the basis that the exhibit referred to 
by Australia does not provide support for the ref erenced statements, as they address  different 
issues. We understand Australia to have misidentifed, in its request, the title of the exhibit at 
issue, referring to the "second" rather than the "third" rebuttal report by Professor Chaloupka but 
to paragraph numbers corresponding to the relev ant aspects addressed in the third rebuttal 
report.  
6.96.   In paragraphs 25 and 57, the Panel has amended its description  of the conclusions of 
Ajzen et al. and Australia's response. T he Domi nican Republic and Indonesia do  not object to  this 
request for review b y Australia , provided that the Panel likewise reflects the Dominican Republic's 
response to this argument, whic h the Panel has done  at paragraphs 25 and 56 .  
6.97.   In Appendix C , the Panel has added references or made corrections at paragraph s 11, 12, 
23, 36, 38 , 65, and 117, footnotes 15, 24, 25, 34, 42 , and 64, and Figures C.1, C.13, C.15, and 
C.17 in response to r equests for review by Australia that the complainants have  not object ed to. 
6.98.   The Panel has also correct ed Figure C.19 , in response to requests for rev iew by Australia 
and the related comments by Honduras and the Dominican Republic. Specifically, the Panel has 
clarified the source of Figure C.19  and adjusted the time -frame reflected in it, to match the range 
reflected in Figure 2 in the Chipty Second Reb uttal R eport (Exhibit AUS -591).  
6.99.   The Panel has amended paragraph s 4, 59, and 62  to clarify the manner  in which Australia's 
expert Dr  Chipty used the RMSS data, in response to a request for review by Australi a that the 
Dominican Republic does  not object to, provided  that Australia's arguments are  accurately 
reflected.  
6.100.   The Panel  has also amended paragraph 72 to clarify the nature of t he use by Australia's 
expert Dr  Chipty of the RMSS data and her re -estimation of Professor List 's micro -economic model, 
in resp onse to a request  for review by Australia and the Dominican Republic's comments on this 
request.  
6.101.   The Panel has clarified, in paragraph 95, its description of Professor Chaloupka's discussion 
of issues relevant to Professor Klick's analysis of the NTPPTS d ata, in response to a request for 
review by Australia and Honduras's related comments , which have been endorsed by the 
Dominican Republic and Indonesia.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  6.102.   In Appendix D , the Panel has added references or made corrections at paragraph s 62, 66, 
73, 82,  footnotes 14 , 63, and 109, and Figure D.4  in response to r equests for review by Australia 
that the complainants have  not object ed to. 
6.103.   The Panel has clarified, in paragraph 96, its description of Professor Chaloupka's discussion 
of issues relevant to Profe ssor Klick's analysis of the NTPPTS data, in response to a request for 
review by Australia and  Honduras's related comments,  which have been endorsed by the 
Dominican Republic and Indonesia.  
7   FINDINGS  
7.1  Order of analysis  
7.1.  The complainants have made claims unde r the TRIPS  Agreement  and the TBT Agreement . In 
addition, Cuba has made a claim under the GATT  1994. We therefore first consider the order in 
which we should address these claims.  
7.2.  Honduras , the Dominican Republic  and Cuba agree that panels are in general f ree to 
structure the order of their analysis of multiple claims in the manner they see fit. They add that 
there is no hierarchy between the agreements raised in these proceedings (and in particular 
between the TRIPS  Agreement  and the TBT Agreement ), and th at they apply cumulatively and 
concurrently. Though suggesting that the Panel begin its analysis with the claims under the 
TRIPS  Agreement , they do not express a firm preference.423 Indonesia  argues that it is " a general 
principle of international law that claims concerning multiple treaties be considered in the order of 
specificity to the underlying facts, beginning with the highest degree of specificity"424, and that 
there "is no particular order in which the Panel should address the claims under the 
TBT Agreement  and TRIPS  Agreement  because these agreements are equally specific to the 
measures at issue".425 Australia  argues that the Panel is free to structure the order of its analysis 
as it sees fit but, because Article  20 of the TRIPS  Agreement  "deals 'more s pecifically, and in 
detail' with the subject matter falling within its scope", the Panel would need to begin its analysis 
of the trademark requirements in the TPP measures  with that provision.426 
7.3.  As observed by some of the complainants, panels are free to structure the order of their 
analysis as they see fit, and may find it useful to do so taking account of the manner in which a 
claim is presented to them by a complaining Member.427 However, this is true only to the extent 
that, based on the "structure and l ogic" of the provisions at issue, there is no "mandatory 
sequence of analysis which, if not followed, would amount to an error of law" or would "affect the 
substance of the analysis itself".428  
7.4.  We note that there is no explicit hierarchy between the TRIPS  Agreement  and the 
TBT Agreement , which appear in distinct parts of Annex 1 of the Marrakesh Agreement 
Establishing the World Trade Organization ( WTO Agreement ). We therefore see nothing on the 
face of those two agreements that would suggest that the adoption of a specific sequence of 
analysis is mandated. We also note that the complainants have presented arguments, first, under 
the TRIPS  Agreement ; second, under  the TBT Agreement ; and third (in Cuba's complaint) under 
the GATT  1994. Australia has also presented its responses to these claims in the same order. The 
complainants generally see the cumulative nature of the obligations invoked as indicating that 
there is no obligation for us to address their claims in a particular order, and none of them 
contends that there is any mandatory sequence of analysis which, if not followed, would amount to 
an error of law.  
                                                
423 Honduras's response to Panel question No. 1; Dominican  Republic 's response to Panel question 
No. 1; and Cuba's response to Panel question No. 1 (annexed to its response to Panel question No. 138). 
424 Indon esia's response to Panel question No. 1 (referring to  Panel Report, US – 1916 Act (EC) , 
para. 6.76).  
425 Indonesia's response to Panel question No. 1. 
426 Australia's response to Panel question No. 1. 
427 Appellate Body Report, Canada  – Wheat Exports and Grain Imports , paras.  126-127. 
428 Appellate  Body Report, Canada  – Wheat Exports and Grain Imports , para. 109. See also 
Appellate  Body Report s, Canada  – Renewable Energy / Feed -in Tariff Program , para. 5.5; and Panel Reports, 
EC – Seal Products , para. 7.63. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.5.  It has also been established that a claim under the more sp ecific and detailed 
WTO agreement should be addressed before a claim under a similar more general provision in 
another agreement.429 In line with this principle, the panel in EC – Sardines stated that, "if the 
[measure at issue] is a technical regulat ion, then  the analysis under the TBT Agreement  would 
precede any examination under the GATT  1994".430 Accordingly, to the extent that the challenged 
measure was found to be covered by the TBT Agreement , several panels  have addressed claims 
under the TBT Agreement  before addressing concurrent claims under the GATT  1994.431 
7.6.  In respect of the claims before us under the TBT Agreement  and under the GATT  1994, this 
reasoning would suggest that we consider the former before the latter. Such an approach would 
also be c onsistent with the fact that the TBT Agreement  and the GATT  1994 both form part of 
Annex 1A (entitled "Multilateral Agreements on Trade in Goods"), and that the TBT Agreement  
articulates in its preamble that it sets out "to further the objectives of the GA TT 1994".432 The 
obligation in the TBT Agreement  invoked by the complainants in these disputes ( Article  2.2) 
applies to "technical regulations", thereby setting out an obligation in respect of that subset of 
measures that sati sfies the definition in Annex  1.1 of the TBT Agreement .  
7.7.  In respect of the claims before us under the TBT Agreement  and under the TRIPS  Agreement , 
Australia considers that, by virtue of its understanding of the relationship between Article  20 of the 
TRIPS  Agreement  and Article  2.2 of the TBT Agreement , the Panel should consider Article  20 first, 
ultimately to the exclusion of Article  2.2 of the TBT Agreement  in respect of those aspects of the 
TPP measures  that relate to the use of trademarks on tobacco products and their retail packaging. 
Australia argues that the TRIPS  Agreement  deals more specifically and in detail with those aspects 
of the TPP measures  that relate to the use of trademarks433, and adds that the TBT Agreement  is 
not concerned with measures that address the exploit ation of intellectual property (IP) rights.434 
We do not wish to prejudge, at this stage of our analysis, our own analysis of the questions raised 
by Australia , namely (i) whether those aspects of the TPP measures  that affect the use of 
trademarks are covere d by the disciplines of Article  2.2 of the TBT Agreement  or fall exclusively 
within the purview of the TRIPS  Agreement , and (ii) the interpretation of the term "unjustifiably" in 
Article  20 and its relationship with the term "necessary" in Article  2.2 of the TBT Agreement . 
7.8.  For the purpose of determining our order of analysis, however, we note that certain claims 
before us relate to the same aspects of the measures at issue, and that the complainants use 
much of the same evidence in connection with a  number of their claims, in particular in respect of 
their claims under Article  20 of the TRIPS  Agreement  and Article  2.2 of the TBT Agreement . In 
particular, we note that the complainants rely on essentially the same body of evidence in respect 
of a numbe r of aspects of the effects of the challenged measures, under both covered agreements. 
Without prejudice to our assessment of whether the trademark requirements in the TPP measures  
are (contrary to Australia's argument) covered by the disciplines of Article 2.2 of the 
TBT Agreement , a finding that they are covered by those disciplines would render evidence in 
relation to the effect of both the "trademark -related" and "format" requirements relevant in the 
context of our assessment under Article  2.2 of the TBT Agreement .  
                                                
429 The Appellate Body in EC – Bananas III stated:  
 
Although Article  X:3(a) of the GATT  1994 and Article  1.3 of the Licensing  Agreement  both apply, 
the Panel, in our view, should have applied the Licensing  Agreement  first, since this agreement 
deals specifica lly, and in detail, with the administration o f import licensing procedures. If the 
Panel had done so, then there would have been no need for it to address the alleged 
inconsistency with Article  X:3(a) of the GATT  1994.  
 
Appellate  Body Report, EC – Bananas III, para. 204. See also Panel Report, EC – Sardines , paras.  7.15-7.16; 
and Panel Report, EC – Asbestos , paras.  8.16-8.17. 
430 Panel Report, EC – Sardines , para.  7.16. See also Panel Report, EC – Asbestos , paras.  8.16-8.17; 
Panel Reports, US – COOL , para. 7.73. 
431 See Panel Reports, EC – Sardines ; US – Clove Cigarettes ; US – Tuna II (Mexico) ; EC – Seal 
Products ; US – COOL ; and US – COOL ( Article  21.5 – Canada/Mexico) . We also note that, in accordance with 
the General interpretative note to Annex 1A, in the e vent of a conflict between a provision of the GATT 1994 
and the TBT Agreement , the provisions of the TBT Agreement  would prevail to the extent of the conflict.  
432 TBT Agreement , preamble, 2nd recital.  
433 Australia's response to Panel question No. 1. 
434 Austra lia's first written submission, para. 509. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.9.  It seems to us, therefore, that a more practical approach to our analysis would be one in 
which we consider, first, the evidence concerning the combined operation of both the trademark 
and format requirements in the TPP measures  and then, to the extent necessary, relevant aspects 
of the evidence for the purpose of our analysis under Article  20. On this basis, we consider first the 
complainants' claim that the TPP measures  are inconsistent with Article  2.2 of the TBT Agreement . 
7.10.   We will then ass ess the complainants' claims under the various provisions of the 
TRIPS  Agreement  that they identify as legal bases for their claims.  
7.11.   We will start by considering the complainants' claims relating to the provisions of the 
TRIPS  Agreement  that concern the protection of trademarks. We will first take up the provisions 
that concern the protectable subject matter, namely Article  2.1 of the TRIPS  Agreement  in 
conjunction with Article  6quinquies  of the Paris Convention  (1967)  and then Article  15.4 of the 
TRIPS  Agreement . We will next turn to the provisions concerning the rights conferred to the owner 
of a trademark, namely Article  16.1 and then Article  16.3. Finally, we will address the claims under 
Article  20 that concern "other requirements" r elating to the use of a trademark. As noted above, 
the complainants use essentially the same set of evidence in respect of their claims under 
Article  2.2 of the TBT Agreement  and some aspects of their claims under Article  20 claims of the 
TRIPS  Agreement .  
7.12.   We will then address the complain ants' claims under Article  2.1 of the TRIPS  Agreement  in 
conjunction with Article  10bis of the Paris Convention  (1967) . We then turn to the complainants' 
claims relating to the protection of geographical indications ( GIs) under Articles  22.2(b) and 24.3 
of the TRIPS  Agreement . In light of the reference in Article  22.2(b) to "use which constitutes an 
act of unfair competition within the meaning of Article  10bis of the Paris Convention  (1967) ", we 
consider it appropriate to t ake up the claims under Article  22.2(b) after first addressing the claims 
under Article  10bis of the Paris Convention  (1967) . 
7.13.   Finally, we will consider Cuba's argument that the TPP measures  are inconsistent with 
Article  IX:4 of the GATT, in accordance with the approach of past panels that addressed claims 
under the TBT Agreement  before addressing concurrent claims under the GATT  1994.435 
7.14.   In the context of our examination of the claims under the TRIPS  Agreement  and the 
GATT  1994, we will refer, as appropriate, to our analysis of the evidence and our factual findings in 
the context of our assessment under Article  2.2 of the TBT Agreement . 
7.2  Article  2.2 of the TBT Agreement   
7.15.   Article  2.2 of the TBT Agreement  provides that:  
Member s shall ensure that technical regulations are not prepared, adopted or applied 
with a view to or with the effect of creating unnecessary obstacles to international 
trade.  For this purpose , technical regulations shall not be more trade -restrictive than 
necessary to fulfil a legitimate objective, taking account of the risks non -fulfilment 
would create. Such legitimate objectives are, inter alia: national security 
requirements; the prevention of deceptive practices; protection of human health or 
safety, animal  or plant life or health, or the environment. In assessing such risks, 
relevant elements of consideration are, inter alia: available scientific and technical 
information, related processing technology or intended end -uses of products.  
7.16.   Honduras, the Dominic an Republic, Cuba and Indonesia claim that the TPP measures  are 
inconsistent with Article  2.2 because they are "more trade -restrictive than necessary to fulfil a 
legitimate objective" within the meaning of Article  2.2. Australia considers that some aspects  of 
the TPP measures  should not be reviewed under Article  2.2 of the TBT Agreement  and, to the 
extent that they do fall within the purview of this provision, it considers that the complainants 
have not made a prima  facie case that they are inconsistent wit h Article  2.2. 
                                                
435 Panel Reports, EC – Sardines ; US – Clove Cigarettes ; US – Tuna II (Mexico) ; EC – Seal Products ; 
US – COOL ; and US – COOL ( Article  21.5 – Canada/Mexico) . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.1   Overview of the claims  
7.17.   Honduras  submits that the trademark and format restrictions stipulated in Australia's plain 
packaging legislation are inconsistent with Article  2.2 of the TBT Agreement  as these measures 
constitute a technical regulation that is more trade -restrictive than necessary to fulfil a legitimate 
objective, taking account of the risks of non -fulfilment.436 
7.18.   The Dominican Republic  claims that Australia violates Article  2.2 of the TBT Agreement  
because the TPP measures  are severely trade -restrictive and are not necessary in view of their 
failure to contribute to Australia's objective and the reasonable availability of more effective and 
less trade -restrictive alternatives.437 
7.19.   Cuba claim s that the TPP measures  violate Article  2.2 of the TBT Agreement , as they are 
technical regulations, are "trade -restrictive" and are "more trade -restrictive than necessary" to 
achieve Australia's public health objective.438 
7.20.   Indonesia  claims that the TPP meas ures violate Australia's obligations under Article  2.2 of 
the TBT Agreement , because the technical regulations at issue create unnecessary obstacles to 
trade as they are more trade -restrictive than necessary to fulfil a legitimate objective.439 
7.21.   Australia  accepts that the "physical requirements" under the TPP measures  are technical 
regulations within the scope of the TBT Agreement440 but expresses "significant concerns" with the 
"systemic implications" of the complainants' contention that the "trademark requirem ents" under 
the TPP measures  can also be reviewed under the TBT Agreement . It argues that the 
TBT Agreement  addresses technical regulations and does not, on its face, appear to be concerned 
with the exploitation of IP.441 Australia considers that, should the  Panel take the view that 
requirements affecting the use of trademarks can be "technical regulations" within the scope of the 
TBT Agreement , Article  20 of the TRIPS  Agreement  would remain "the applicable provision in 
respect of the trademark requirements i mposed by the tobacco plain packaging measure", to the 
exclusion of Article  2.2 in respect of those requirements.442 
7.22.   Australia further argues that the TPP measures  are "in accordance with relevant 
international standards" for tobacco plain packaging and therefore must be, by virtue of the 
second sentence of Article  2.5, rebuttably presumed not to be more trade -restrictive than 
necessary: a presumption, it claims, th e complainants did not rebut.443 As a consequence, 
Australia claims, the Panel "need not proceed any further with its analysis of the complainants' 
claims under Article  2.2".444 
7.23.   Australia argues that the complainants have failed to establish that the TPP measu res are 
"trade -restrictive" at all. As a result, even if the Panel concludes that the presumption under 
Article  2.5 is inapplicable, Australia submits that any further relational  analysis with respect to the 
substance of the claim under Article  2.2 would n ot be required to examine the inconsistency of the 
TPP measures , as the complainants have failed to establish a prima facie case that they are 
inconsistent with Article  2.2.445 
                                                
436 Honduras's first written submission, para. 787. 
437 Dominican  Republic 's first written submission, para. 35. 
438 Cuba's first written submission, para. 390. 
439 Indonesia's first written submission, para. 463. 
440 Australia's first written submission, para. 507. 
441 Australia's first written submission, para. 509. 
442 Australia's first written submission, para. 511. 
443 See Australia's first written submission, paras.  519 and 584; second written submission, para. 356; 
opening statement at the first meeting of the Panel, paras.  82 and 84; opening statement at the second 
meeting of the Panel, para. 143; and response to Panel question No. 76, para. 209. 
444 Australia's second written submission, para. 357. See also Australia's first written submission, 
paras.  519 and 584; second written submission, para. 320; opening statemen t at the second meeting of the 
Panel, para. 143; and response to Panel question No. 76, para. 209. 
445 See Australia's first written submission, para. 585; second written submission, para. 358; and 
opening statement at the second meeting of the Panel, para. 144. See also response to Panel question No. 76, 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.24.   The complainants reject these arguments by Australia. They consider that the meas ures 
cannot enjoy the rebuttable presumption under the second sentence of Article  2.5 because they 
are not "in accordance with relevant international standards" for tobacco plain packaging; and 
even if they were, such presumption has been successfully rebu tted by them.446 They also consider 
that the TPP measures  are not only trade -restrictive, but "highly" so.447 The complainants 
therefore request these two preliminary substantive arguments be rejected and, as a 
consequence, that the Panel proceed into a full a nalysis of the consistency of the TPP measures  
with Article  2.2. 
7.25.   Australia argues that, even if the Panel considered that the complainants had established 
some degree of trade -restrictiveness, and assuming that the measures cannot enjoy the 
presumption und er the second  sentence of Article  2.5, the complainants have nonetheless failed to 
establish that the measures are inconsistent with Article  2.2, i.e. that they are more 
trade -restrictive than necessary to fulfil a legitimate objective, taking account of t he risks 
non-fulfilment would create. Therefore, the Panel would still need to reject the complainants' 
claims under Article  2.2 of the TBT Agreement  in their entirety.448 
7.2.2   Overall approach of the Panel  
7.26.   We recall that Article  2.2 of the TBT Agreement  provides that:  
Members shall ensure that technical regulations are not prepared, adopted or applied 
with a view to or with the effect of creating unnecessary obstacles to international 
trade. For this purpose , technical regulations shall not be more trad e-restrictive than 
necessary to fulfil a legitimate objective, taking account of the risks non -fulfilment 
would create. Such legitimate objectives are, inter alia: national security 
requirements; the prevention of deceptive practices; protection of human h ealth or 
safety, animal or plant life or health, or the environment. In assessing such risks, 
relevant elements of consideration are, inter alia: available scientific and technical 
information, related processing technology or intended end -uses of products.  
7.27.   It is undisputed that, in accordance with the applicable rules on burden of proof449, the 
burden of establishing that the TPP measures  are inconsistent with Article  2.2 rests on the 
complainants:  
With respect to the burden of proof in sho wing that a technical regulation is 
inconsistent with Article  2.2, the complainant must prove its claim that the challenged 
measure creates an unnecessary obstacle to international trade. In order to make a 
prima facie  case, the complainant must present ev idence and arguments sufficient to 
establish that the challenged measure is more trade restrictive than necessary to 
achieve the contribution it makes to the legitimate objectives, taking account of the 
risks non -fulfilment would create.450 
7.28.   Article  2.2 appli es to measures that are "technical regulations" within the meaning of the 
TBT Agreement . The first step of an analysis of the consistency of the TPP measures  with 
Article  2.2 must therefore be to determine whether they constitute a "technical regulation". In this 
respect, Australia argues that the TBT Agreement  "addresses technical regulations and does not, 
on its face, appear to be concerned with the exploitation of intellectual property"451, so that the 
                                                                                                                                                  
para. 210 (noting that trade -restrictiveness need only be demonstrated with respect to the portion of the 
TPP measures  that constitute "technical regulations").  
446 See, e.g. Honduras's response to Panel quest ion No. 67, pp. 27 and 29; Dominican  Republic 's 
response to Panel question No. 66, paras.  292-294; Cuba's response to Panel question No. 67 (annexed to its 
response to Panel question No. 138) (agreeing with Honduras's response  to Panel question No. 67); an d 
Indonesia's response to Panel question No. 66, para. 84.  
447 Honduras's second written submission, paras.  328-580; and Dominican  Republic 's second  written 
submission, paras.  924-961. See also Cuba's second written submission, paras.  225-253; and Indonesia's 
second written submission, paras.  220-273. 
448 Australia's first written submission, para. 513. 
449 See Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, p. 335 . 
450 Appellate Body Report, US – Tuna II (Mexico) , para. 323. (footnote omitted)  
451 Australia's first written submission, para. 509. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "trademark requirements" under the TPP measures  do not  fall within the scope of the 
TBT Agreement . We will therefore first consider, to the extent necessary to address Australia's 
arguments in this respect, whether such impediment to the applicability of the TBT Agreement  
exists.  
7.29.   Should we determine that the TBT Agreement  may be applicable, we will consider the 
extent to which the TPP measures  constitute a "technical regulation" within the meaning of the 
TBT Agreement .452 To the extent that we find that the measures are a technical regulation, such 
that the obli gation in Article  2.2 applies to them, we will then need to consider whether they are 
inconsistent with that provision.  
7.30.   As described by the Appellate Body, an assessment of whether a technical regulation is 
"more trade -restrictive than necessary" within t he meaning of Article  2.2 involves a number of 
considerations:  
In sum, we consider that an assessment of whether a technical regulation is "more 
trade -restrictive than necessary" within the meaning of Article  2.2 of the TBT 
Agreement  involves an evaluation  of a number of factors.  A panel should begin by 
considering factors that include: (i) the degree of contribution made by the measure 
to the legitimate objective at issue; (ii) the trade -restrictiveness of the measure; and 
(iii) the nature of the risks at issue and the gravity of consequences that would arise 
from non -fulfilment of the objective(s) pursued by the Member through the measure.  
In most cases, a comparison of the challenged measure and possible alternative 
measures should be undertaken.  In parti cular, it may be relevant for the purpose of 
this comparison to consider whether the proposed alternative is less trade restrictive, 
whether it would make an equivalent contribution to the relevant legitimate objective, 
taking account of the risks non -fulfilment would create, and whether it is reasonably 
available.453 
7.31.   An assessment of the consistency of a technical regulation with Article  2.2 thus involves in 
the first instance a "relational analysis"454 of three factors:  
i. the degree of contribution made by the measure to the legitimate objective at issue;  
ii. the trade -restrictiveness of the measure; and  
iii. the nature of the risks at issue and the gravity of consequences that would arise 
from non -fulfilment of the objective(s) pursued by the Member through the measure.   
7.32.   These factors will, in turn, inform the "comparative analysis" that is, in most cases455, 
required to determine whether the challenged measure is more trade -restrictive than necessary:  
The use of the comparative "more … than" in the second sentence  of Article  2.2 
suggests that the existence of an "unnecessary obstacle[] to international trade" in 
the first sentence may be established on the basis of a comparative analysis of the 
above -mentioned factors. In most cases, this would involve a comparison  of the 
trade -restrictiveness and the degree of achievement of the objective by the measure 
at issue with that of possible alternative measures that may be reasonably available 
and less trade restrictive than the challenged measure, taking account of the r isks 
non-fulfilment would create. The Appellate Body has clarified that a comparison with 
reasonably available alternative measures is a conceptual tool for the purpose of 
                                                
452 Appellate Body Report, US – Tuna II (Mexico) , para. 323. 
453 Appellate Body Report, US – Tuna II (Mexico) , para.  322. (footnote omitted)  
454 See Appellate Body Reports, US - COOL, para. 374 ( referring to  Appellate Body Report, US – Tuna II 
(Mexico) , para. 318).  
455 We note in this regard that it is "not mandatory in respect of Article  2.2 of the TBT Agreement  for a 
panel to draw a preliminary conclusion on 'necessity' based on the factors with respect to the technical 
regulation itself before engaging further in a comparison with proposed alternative measures". Appellate Body 
Reports, US – COOL ( Article  21.5  – Canada and Mexico ), para. 5.235. See also ibid. paras.  5.227 -5.229. In 
respect of Article  XX of the GATT 1994, see Appellate Body Reports , EC – Seal Products , para. 5.215 fn 1299.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  ascertaining whether a challenged measure is more trade restrictive than 
necessary.456 
7.33.   As described above, in the present proceedings, the complainants argue that the 
TPP measures  are trade -restrictive, and that they are more trade -restrictive than necessary to 
fulfil the legitimate objective they pursue, taking into account the risks that non-fulfilment of this 
objective would create. The complainants address all elements of the above test, including the 
three factors forming part of the "relational analysis", and identify certain alternative measures 
that are, in their view, reasonably ava ilable to Australia, would make an equivalent contribution to 
its objective, and would be less trade -restrictive than the TPP measures .  
7.34.   Australia considers, however, that the complainants have not established that the measures 
are trade -restrictive457 in the first place, and that therefore, to the extent that the TPP measures  
are examined under this provision, the Panel should reject these claims "at the threshold".458 
Australia also argues, in the context of its analysis of the "trade -restrictiveness" of the measures, 
that the complainants have failed to address the fact that, since the TPP measures  were adopted in 
accordance with the Article  11 and  Article  13 FCTC Guidelines, these measures are "in accordance 
with relevant international standards" within the meaning of the second sentence of Article  2.5 of 
the TBT agreement.459 Consequently, it claims that, to the extent that the definition of a "technical 
regulation" also encompasses measures affe cting the use of a trademark, the TPP measures  are 
"rebuttably presumed" not to create an unnecessary obstacle to international trade under the 
second sentence of Article  2.5 and that the complainants have not rebutted this presumption.460  
7.35.   Australia conclud es that, given the complainants' failure to establish that the measures are 
trade –restrictive, the Panel should conclude its analysis under Article  2.2 at that stage and is not 
required to engage in any further "relational" analysis under Article  2.2.461 Australia submits in the 
alternative, i.e. only in the event that the Panel would determine that the complainants have made 
a prima facie  case that the TPP measures  are trade -restrictive, that the complainants have failed 
to establish a violation of article 2 .2, with reference to the additional factors of the "relational 
analysis" described above.462 In particular, Australia argues that the measure pursues a legitimate 
public health objective and is not more trade -restrictive than necessary to achieve that objec tive. 
Australia further considers that the complainants have not established that alternative measures 
would be reasonably available to it, that would achieve an equivalent contribution to its objective 
and be less  trade -restrictive than the TPP measures .463 
7.36.   We consider that the possibility that the challenged measures may benefit from the 
rebuttable presumption conferred by the second  sentence of Article  2.5, as invoked by Australia, 
may have significant implications for the manner in which we must conduct o ur analysis of the 
claims under Article  2.2.  
7.37.   The second  sentence of Article  2.5 of the TBT Agreement  provides as follows:  
Whenever a technical regulation is prepared, adopted or applied for one of the 
legitimate objectives explicitly mentioned in paragrap h 2, and is in accordance with 
relevant international standards, it shall be rebuttably presumed not to create an 
unnecessary obstacle to international trade.  
                                                
456 Appellate Body Report, US – Tuna II (Mexico) , para.  320 (emphasis origi nal; footnote omitted). See 
also ibid. para. 318. 
457 Australia's first written submission, para. 583. 
458 Australia's first written submission, para. 513. 
459 Australia's first written submission, paras.  567 and 584.  
460 Australia's first written submission, paras. 519, 567 -568 and 584.  
461 Australia's first written submission, para. 585. 
462 Australia's first written submission, paras.  586-590. 
463 Australia's first written submission, paras.  21, 595, and 700 -742. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.38.   By its express terms, therefore, the second  sentence of Article  2.5 embodies a "rebuttable" 
presu mption, which applies in respect of measures meeting the following two sets of cumulative 
conditions464: 
a. that they are "technical regulations"465 prepared, adopted or applied "for one of the 
legitimate objectives explicitly mentioned" in Article  2.2; and  
b. that they are "in accordance with relevant international standards".  
7.39.   The requirement to ensure that technical regulations are not prepared, adopted or applied 
"with a view to or with the effect of creating unnecessary obstacles to trade" is contained in the 
first sentence of Article  2.2.466 In turn, the second sentence of Article  2.2 provides that " [f]or this 
purpose , technical regulations shall not be more trade -restrictive than necessary to fulfil a 
legitimate objective, taking account of the risks non -fulfilmen t would create" (emphasis added).  
7.40.   There is therefore a close nexus between the first and second sentences of Article  2.2, both 
of which establish certain obligations with which WTO Members must comply when preparing, 
adopting, and applying technical regul ations.467 Specifically, the requirement for technical 
regulations not to be "more trade -restrictive than necessary" (in the second sentence) qualifies 
and elaborates on the scope of the requirement for technical regulations not to create 
"unnecessary obstac les to trade" (in the first sentence):  
Both the first and second sentence of Article  2.2 refer to the notion of "necessity". 
These sentences are linked by the terms "[f]or this purpose", which suggests that the 
second sentence qualifies the terms of the first sentence and elaborates on the scope 
and meaning of the obligation contained in that sentence.468 
7.41.   Against this context, it appears to us that if a technical regulation benefits from a 
"rebuttable presumption" that it does not create "unnecessary obstac les to trade" pursuant to the 
second  sentence of Article  2.5, this would have a direct impact469 on the content and structure of 
the analysis to be conducted in relation to a claim that the same measure is "more 
trade -restrictive than necessary" within the meaning of the second sentence of Article  2.2. 
7.42.   The presumption established under the second sentence of Article  2.5 only applies with 
respect to technical regulations that are adopted "for one of the legitimate object ives explicitly 
mentioned" in Article  2.2. An early consideration of this factor will therefore allow us to determine 
                                                
464 The parties seem to follow this same approach of perceiving the second sentence of Article  2.5 as 
containing two broad set of cumulative conditions. See, e.g. Honduras's response to Panel question No. 66, 
p. 26; Dominican  Republic 's response to Panel ques tion No. 66, para. 288; Cuba's response to Panel 
question  No. 66, p. 16 (annexed to its response to Panel question No. 138) (endorsing Honduras's response to 
question No. 66); Australia's first written submission, para. 569; and Australia's second written submission, 
para. 314. 
465 The second sentence of Article  2.5 does not therefore concern the other two types of TBT measures: 
"standards" and "conformity assessment procedures". We also note that the second  sentence of Article  2.5, on 
its face, only concerns  technical regulations that, like the TPP measures , have been prepared, adopted or 
applied by central government bodies . Technical regulations from local or non-governmental  bodies are 
disciplined in a separate provision, Article  3. The present proceedings , we note, do not involve such types of 
measures. Therefore, we need not, and do not, examine the question of whether Article  2.5 can be also 
invoked with respect technical regulations from local or non-governmental  bodies.  
466 The text of Article  2.2 is set  out at paras.  7.15 and 7.26 above.  
467 See Appellate Body Reports, US – COOL , para. 369: 
 
In accordance with the first sentence, [Members] must ensure that such preparation, adoption, 
and application is not done "with a v iew to or with the effect of creating unnecessary obstacles to 
international trade"; and, in accordance with the second sentence, they must ensure that their 
technical regulations are "not … more trade -restrictive than necessary to fulfil a legitimate 
objective, taking account of the risks non -fulfilment would create".  
 
468 Appellate Body Report, US – Tuna II (Mexico) , para. 318. 
469 What precisely the impact of this presumption will be, and when and how it can be rebutted, is a 
question we need not decide now.  Instead, we may return to it later, as needed, after we have considered all 
elements of the two sets of conditions under the second sentence of Article  2.5. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  whether the TPP measures , to the extent that we will have found them to be a technical 
regulation, fall within the scope of measures to wh ich the presumption of the second  sentence of 
Article  2.5 applies. As described above, the "legitimate objective" at issue is also one of the 
aspects to be considered in an assessment of whether a technical regulation is "more 
trade -restrictive than necess ary" within the meaning of the second sentence of Article  2.2, 
independently of the applicability of the rebuttable presumption embodied in the second  sentence 
of Article  2.5. 
7.43.   In light of these elements, we consider it appropriate, in the circumstances of this case, to 
start our analysis  with a consideration of whether the TPP measures , in whole or in part, constitute 
a technical regulation within the meaning of the TBT Agreement .470 If this is the case, we will 
consider further whether they pursue a "legitim ate objective" within the meaning of Article  2.2 of 
the Agreement, and, if so, more specifically whether they have been prepared, adopted or applied 
"for one of the legitimate objectives explicitly mentioned" in Article  2.2. 
7.44.   Should we determine that the TPP measures  are a technical regulation and have been 
prepared, adopted or applied "for one of the legitimate objectives explicitly mentioned" in 
Article  2.2, we would need to consider further whether they are, as Australia argues, "in 
accordance with releva nt international standards", such that the "rebuttable presumption" under 
the second  sentence of Article  2.5 is applicable. If this is the case, we will also need to determine 
what this implies for the remainder of our analysis of the claims before us unde r Article  2.2, 
including how the complainants may "rebut" this presumption.471  
7.45.   Should we determine that the TPP measures  are a technical regulation but that the 
rebuttable presumption embodied in Article  2.5 does not apply, we would then need to pursue our 
analysis on the basis of the general approach described above, to determine whether the 
measures are "more trade -restrictive than necessary" within the meaning of Article  2.2. This would 
include a consideration of the degree to which the measures contribut e to a legitimate objective, 
their trade -restrictiveness and the nature and gravity of the risks that non -fulfilment of the 
objective would create ("relational analysis"). This would be followed, as relevant, by a 
consideration of possible alternative meas ures that may be reasonably available to Australia and 
would make an equivalent contribution to the objective while being less trade -restrictive 
("comparative analysis").  
7.46.   As described above, we first consider, as a preliminary matter, Australia's argument that the 
TBT Agreement  "does not, on its face, appear to be concerned with the exploitation of intellectual 
property"472, and whether this constitutes an impediment to the application of the TBT Agreement  
to the "trademark requirements" of the TPP measures . 
                                                
470 On the approach to be followed in considering Australia's arguments under Article  2.5, see, e.g.  
Honduras's response to Panel question No. 66, p. 26; Dominican  Republic 's response to Panel question No. 66, 
paras.  288-289 and 292; Cuba's response to Panel question  No. 66, p. 216 (annexed to its response to Panel 
question No. 138) (endorsing Honduras's response to question No. 66); Indonesia's response to Panel question 
No. 66, para. 73; Australia's response to Panel question No. 66, para. 156; and Australia's second written 
submission, para. 313. With the exception of Indonesia (w hich considers that we should first make all our 
determinations under the second sentence of Article  2.5 before even "commencing" assessing Article  2.2), we 
do not consider that the parties' views on this matter are in contradiction with the approach we ta ke here, that 
is: first, considering the elements that belong to both Articles  2.2 and 2.5 (whether the measures constitute a 
"technical regulation" and the identification of their "objectives"); and then proceeding, as relevant, to the 
remaining elements that determine the applicability of the rebuttable presumption under the second  sentence 
of Article  2.5 (whether the measures are "in accordance with relevant international standards" and if they are, 
what the consequences of the presumption conferred are and how it can be rebutted). Finally, having 
considered the applicability of the presumption under the second sentence of Article  2.5, we would then return 
to the completion of our analysis under Article  2.2 in light of our earlier determinations in relati on to 
Article  2.5. 
471 See also para. 7.187  and fn 824 below.  
472 Australia's first written submission, para. 509. See also para. 7.21 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.3   Applicability of the TBT Agreement  to measures relating to trademarks  
7.2.3.1   Main arguments of the parties  
7.47.   Australia  expresses "significant concerns about the systemic implications" of the 
complainants' contention that the trademark requirements of the TPP measures  are covered by the 
TBT Agreement .473 It considers that an interpretation according to which a measure affecting the 
use of IP may fall within the scope of the TBT Agreement  "has the potential to expand the scope of 
the TBT Agreement  to encompass  matters that … were meant to be reserved for the domestic law 
of each Member".474 As an example, Australia refers to the exclusion, under Article  27.2 of the 
TRIPS  Agreement , of certain inventions from the scope of patentability in certain circumstances.475 
7.48.   In Australia's view, the TBT Agreement  addresses technical  regulations and does  not, on  its 
face, appear to be concerned with the exploitation of IP.476 Contrary to Article  20 of the 
TRIPS  Agreement , "Article  2.2 of the TBT Agreement  does not refer to the use  of a trademark at 
all, but instead encompasses all manner of 'technical regulations'".477 Should the Panel agree that 
the trademark requirements are outside of the scope of the TBT Agreement , Australia submits that 
the Panel must dismiss the complainants' c laim under this provision, as the complainants have not 
advanced or substantiated a claim that the non -trademark requirements alone are inconsistent 
with Article  2.2.478 Australia also notes that its claim that the TPP measures  constitute a relevant 
"interna tional standard" under Article  2.5 is independent of whether the Panel finds that the 
trademark requirements constitute "technical regulations" under Article  2.2.479  
7.49.   Australia adds that "if the Panel takes the view that requirements affecting the use of 
trademarks can be 'technical regulations' within the scope of the TBT Agreement , Article  20 of the 
TRIPS  Agreement  would remain the applicable provision in respect of the trademark  requirements 
imposed by the tobacco plain packaging measure".480 According to Au stralia, " Article  20 of the 
TRIPS  Agreement  would apply to the exclusion of Article  2.2 [of the TBT Agreement ] in respect of 
th[e] requirements [affecting the use of trademarks]"481, for " Article  20 of the TRIPS  Agreement  
would clearly address this subject matter more 'specifically, and in detail' as compared to 
Article  2.2 of the TBT Agreement ".482 Australia recalls "the statement by the Appellate Body in 
EC – Bananas  III that, as  between two agreements or norms addressing the same subject matter, 
a panel should apply the agreement or norm that 'deals specifically, and in detail' with the 
particular subject matter".483 Australia refers to other disputes as examples of the application of 
the lex specialis  principle484, arguing th at "the correct application of the principle of lex specialis  is 
to apply the agreement or norm that 'deals specifically, and in detail' with the particular subject 
matter, which, in respect of the trademark  requirements, is Article  20 of the TRIPS  Agreeme nt".485 
7.50.   While maintaining that "it is possible to comply with both agreements simultaneously and 
indeed the [tobacco plain packaging] measure does so"486, in Australia's view, "the application of 
two very different standards of review to the same subject matte r would constitute a conflict."487 
According to Australia, "the concurrent application of Article  20 of the TRIPS  Agreement  and 
Article  2.2 of the TBT Agreement  to the trademark requirements of the tobacco plain  packaging 
measure would mean 'in effect' that the standard of 'unjustifiability' under the former would be 
supplanted by the standard of 'necessity' under the latter."488 In other words, "[a]  measure that a 
                                                
473 Australia's first written submission, para. 509. 
474 Australia's response to Panel question No. 62, para. 128. 
475 Australia's response to Panel question No. 62, para. 128. 
476 Australia's first written submission, para. 509. 
477 Australia's first written submission, para. 510. 
478 Australia's response to Panel question No. 62, para. 129; and response to Panel question No. 76, 
para. 208. 
479 See Australia's response to Panel question No. 73, para. 200. 
480 Australia's first written submission, para. 511. 
481 Australia's first written submission, para. 511. 
482 Australia's first written submission, para. 511. 
483 Australia's first written submission, para. 511. 
484 Australia's response to Panel question No. 74. 
485 Australia's response to Panel question No. 89, para. 21. 
486 Australia's response to Panel question No. 145, para. 1. 
487 Australia's response to Panel question No. 75, para. 206. 
488 Australia's response to Panel  question No. 145, para. 2. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Member is allowed to maintain under Article  20 of the TRIPS  Agreement  as long as it is not 
unjust ifiable could be found to be inconsistent with the standard of least trade -restrictiveness 
under Article  2.2 of the TBT Agreement ."489 
7.51.   According to Australia, such an "approach would not do justice to the separate requirements 
of the different standards embo died in the two provisions".490 For Australia, " Article  20 of the 
TRIPS  Agreement  requires that the use of a trademark in the course of trade shall not be 
unjustifiably encumbered by special requirements, whereas Article  2.2 of the TBT Agreement  
requires that technical regulations not create unnecessary obstacles to trade and not be more 
trade -restrictive than necessary to fulfil a legitimate objective."491 According to Australia, 
"[t]he  Panel should resist the temptation to think that every measur e taken by a Member must be 
challengeable in every respect under the covered agreements and to try to interpret the 
WTO agreements to achieve such an end"; "[t]he covered agreements have simply not been 
designed in such a manner to ensure a uniform coverag e whereby every aspect of every measure 
taken by a Member can be challenged before the WTO."492 
7.52.   For Honduras and the Dominican Republic , by raising this preliminary defense, Australia 
"tries to shield [the TPP measures ] from WTO  scrutiny".493 According to Honduras and the 
Dominican Republic, "it is Australia's arguments that give rise to systemic concerns" because 
"Australia's line of argument effectively removes the trademark requirements from scrutiny under 
both Article  20 of the TRIPS  Agreement , and Article  2.2 of the TBT Agreement "494, thus "allow[ing] 
Members to defeat the basic treaty function of a trademark without any scrutiny under the 
WTO agreements".495 For the Dominican  Republic, " Article  27.2 of the TRIPS  Agreement  serves 
only to highlight that, when th e drafters intended to reserve specific matters to domestic law they 
did so expressly."496 
7.53.   According to Honduras , the Dominican  Republic  and Cuba, Australia "selectively quotes 
from, and misstates" the Appellate Body Report in EC – Bananas  III.497 Honduras adds that 
"the order of analysis bears no relation with the issue of applicability of one provision to the 
exclusion of another ": "[o] n various occasions, the Appellate Body has recalled its findings in EC –
 Bananas  III to reiterate the rule conc erning the order of analysis, which is that panels should 
examine first the provision that deals with specifically and in detail with a certain issue".498 
The Dominican Republic also addresses some of the other disputes referenced by Australia.499  
7.54.   Referencing  the concurrent applicability of the covered agreements as a cardinal principle of 
the interpretation of the covered agreements, the Dominican  Republic, supported by Indonesia500, 
argues that it is Australia's contrary position that raises serious systemic c oncerns.501 For the 
Dominican  Republic, the same measure is, in principle, subject to all of the different obligations 
                                                
489 Australia's response to Panel question No. 75, para. 206. 
490 Australia's response to Panel question No. 89, para. 20. 
491 Australia's response to Panel question No. 89, para. 20. 
492 Australia's response to Panel question No. 116, para. 107. 
493 Dominican  Republic 's opening statement at the first meeting of the Panel, para. 57. See also 
Honduras's second written submission, paras. 11 and 13.  
494 Dominican  Republic 's second written submission, para. 840. See also Honduras's second written 
submission, paras.  13 and 18.  
495 Dominican  Republic 's second written submission, para. 841 (also recalling that, when asked by the 
Panel, in question No. 116, whether prohibitions on the use of a trademark on a produ ct that is lawfully on the 
market are covered by either the TRIPS  Agreement or the TBT Agreement , Australia responded that "such 
measures are not subject to scrutiny".)  
496 Dominican  Republic 's response to Panel question No. 115. See also second written subm ission, 
paras.  838-839. 
497 Dominican  Republic 's second written submission, para. 835. See also Honduras's second written 
submission, para. 455; Dominican  Republic 's opening statement at the first meeting of the Panel, para. 58; 
and Cuba's second written sub mission, para. 201. 
498 Honduras's second written submission, para. 458 ( referring to  Appellate Body Reports, Canada  –
 Renewable Energy /Canada  – Feed-in Tariff Program , para. 5.6; US – Softwood Lumber IV , para. 134; and 
Chile – Price Band System , para. 183).  
499 Dominican  Republic 's second written submission, paras.  835-836 (addressing Panel Reports, US –
 Customs Bond Directive ; and US – 1916 Act ). 
500 Indonesia's comments on Australia's response to Panel question No. 145, para. 2. 
501 Dominican  Republic 's response to Panel question No. 115, para. 203. See also second written 
submission, para. 829. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  under the covered agreements, unless the contrary is stated in the text of the agreements, or 
there is conflict in the application of the a greements.502 According to the Dominican  Republic, the 
"principle of effectiveness" dictates that covered agreements be read harmoniously, as a whole.503 
7.55.   Cuba adds that the  application of various WTO Agreement s to the same measure does not 
raise any major prob lem for the WTO system of trade rules.504 Cuba points out that the Appellate 
Body in EC – Bananas  III discussed the possibility that the GATT  1994 and the GATS could apply 
to a single measure505, and that in EC – Trademarks and Geographical Indications  (Austra lia) the 
panel assessed the same measure under the TBT and TRIPS  Agreement s.506 
7.56.   Honduras further argues that, by virtue of the principle of the Single  Undertaking, as a 
general rule, WTO  obligations apply cumulatively.507 WTO jurisprudence confirms that differ ent 
obligations contained in different agreements can co -exist since one does not override the other, 
and that there is no hierarchy between different WTO Agreement s.508 
7.57.   Cuba argues that neither the WTO Agreement  nor the case  law make clear which law is 
more specific between the TBT and the TRIPS  Agreement s.509 Honduras adds that d epartures from 
the rule that WTO  agreements apply cumulatively are rare and, where applicable, are clearly 
stipulated in the text of the covered agreements510, and that in contrast, there is no provision in 
WTO law indicating that, as argued by Australia, the TRIPS  Agreement  applies to the exclusion of 
the TBT Agreement .511 Honduras maintains that if this had been the drafters' intention, they would 
have included a specific clause to that effect.512 The Dominican Republic and Indonesia similarly 
argue if Members had wanted to exclude the application of the TBT Agreement  to measures falling 
under the TRIPS  Agreement , they would have done so express ly, as was done in Article  1.5 of the 
TBT Agreement  with respect to measures covered by the Agreement  on the Application of Sanitary 
and Phytosanitary Measures  (SPS Agreement) .513 
7.58.   According to the Dominican  Republic, a  conflict arises when it is impossible to comply 
concurrently with the obligations in two different provisions, and in this case, it is perfectly 
possible for a Member to comply concurrently with its obligations under Article  20 of the 
TRIPS  Agreement  and Article  2.2 of the TBT Agreement .514 
7.2.3.2   Arguments of the third parties  
7.59.   Argentina  agrees with Australia that the TPP measures ' "trademark requirements" should be 
only examined under the TRIPS  Agreement  because it is the Agreement that "deals specifically" 
                                                
502 Dominican  Republic 's second written submission, para. 829. 
503 Dominican  Republic 's second written submission, para. 829. See also opening statement at the first 
meeting of the Panel, para. 58; response to Panel question No. 115; and Appellate Body Report,  US – Tuna II  
(Mexico) , para. 322. 
504 Cuba's second written submission, para. 200. 
505 Cuba's second written submission,  para. 199 ( quoting Appellate Body Report, EC – Bananas III , 
paras.  220 and 221).  
506 Cuba's second written submission, para. 202 fn 115 ( referring to  Panel Report, EC – Trademarks and 
Geographical Indications  (Australia) , paras.  7.450 -7.459).  
507 Honduras's second written submission, para. 455 ( referring to  Appellate Body Report, Korea  – Dairy , 
paras.  74, 80, and 89).  
508 Honduras's second written submission, para. 455 ( referring to  Appellate Body Report , Canada  –
 Periodicals , p. 17, DSR 1997:I ; and Panel Report, EC – Trademarks and Geographical Indications (Australia) , 
para. 7.244).  
509 Cuba's second written submission, para. 201. 
510 Honduras's second written submission, para. 456. 
511 Honduras's second written submission, para. 457. 
512 Honduras's se cond written submission, para. 457. 
513 Dominican  Republic 's response to Panel question No. 115, para. 202; Indonesia's second written 
submission, para. 214; Indonesia's response to Panel question No. 115, para. 44; and Indonesia's comments 
on Australia's re sponse to Panel question No. 145, para. 4. 
514 Dominican  Republic 's second written submission, para. 831. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  with t he issue of the relationship between Members' right to regulate health and the protection of 
trademarks.515 
7.60.   Brazil  "understands that a measure may fall under more than one of the Covered 
Agreements. In this sense, a measure dealing with intellectual property  issues may also be a 
technical regulation within the meaning of the TBT Agreement  insofar as it deals with product 
characteristics, labelling or other TBT -related matters concerning trade in products."516 Brazil also 
believes that analysis of the TBT Agreem ent and the TRIPS  Agreement  should be independent 
from one another, as there is not a relationship of lex specialis  between them. While the 
TBT Agreement  deals with technical regulations and their effects on the trade of goods, the 
TRIPS  Agreement  establis hes IP right s relating to trade. Brazil continues that each agreement 
integrates different annexes of the Marrakesh Agreement and deals with substantially different 
obligations. Inconsistency with the obligations in one agreement does not bring about neces sarily 
a violation of the other.517 
7.61.   Canada  considers that the TBT and TRIPS  Agreement s "are  not mutually exclusive" in the 
sense that both can apply to the same measure, including a measure that deals with IP. Moreover, 
says Canada, "intellectual property measures have not been carved out of the TBT Agreement  and 
may constitute, inter alia, 'technical regulations', within the meaning of the term under Annex 1.1 
of that Agreement."518 Canada considers that becaus e both the TRIPS and TBT Agreement s can 
apply to IP measures, "it would be incorrect  for the Panel to employ the lex specialis principle in 
this case." Canada says that, in fact, "[b]oth the TBT and TRIPS  Agreement s are lex specialis and 
discipline defined  categories of measures." The lex specialis principle, notes Canada, "does  not 
apply if the two treaties in issue deal with the same subject matter from different points of view, 
apply in different circumstances, or one provision is more far -reaching than,  but is not inconsistent 
with, the other." In this respect, Canada does not see the relationship between the TRIPS and 
TBT Agreement s as indicating that "one is not more specialized than the other", as both 
agreements "have the potential to apply to the sa me subject matter from different points of view, 
and the provisions under these covered agreements are cumulative and are not in conflict".519 
Canada thus concludes that the Panel "must make an assessment of whether the measure in issue 
satisfies the thresho ld elements under both [the TBT and TRIPS  Agreement s]", i.e. whether the 
TPP measures  constitute a "technical regulation" and are trade -restrictive for the purposes of the 
TBT Agreement , and whether, inter alia, they are "special requirements" for the purp oses of 
Article  20 of the TRIPS  Agreement . Should the TPP measures  satisfy these threshold elements 
under both the TBT and TRIPS  Agreement s, "the measure must then be assessed for consistency 
with the relevant provisions under these agreements."520 
7.62.   China  first notes that it is undisputed that the TPP measures' "form requirements" are 
technical regulations under the TBT Agreement .521 With respect to the measures' 
"trademark  requirements", in particular, China considers that they meet the definition in Annex 1.1 
of the TBT Agreement  because they are mandatory requirements in respect of "product 
characteristics" and/or "packaging, marking or labelling".522 China also considers the lex specialis  
principle inapposite to the present dispute s and says that it is "wel l established by the Appellate 
Body that different aspects of a measure(s) at issue can be scrutinized under different provisions 
of the WTO covered agreements". Therefore, says China, "[w]hile the trademark requirements are 
subject to Article  20 of the TRIPS Agreement , these requirements, as technical regulations, are 
concurrently subject to Article  2.2 of the TBT Agreement , although the two provisions apply to 
different aspects of the trademark requirements."523 
                                                
515 Argentina's third -party submission, para. 37; Argentina's third -party response to Panel question 
No. 1, paras.  1-8 (agreeing with Australia's first written submission, para. 511); and Argentina's third -party 
statement, para. 15 (agreeing with Australia's first written submission, para.  511).  
516 Brazil's third -party response to Panel question No. 1a, p. 1. 
517 Brazil's third-party response to Panel question No. 1b, p. 1. 
518 Canada's third -party response to Panel question No. 1, paras.  1-2. 
519 Canada's third -party response to Panel question No. 1, para. 3.  
520 Canada's third -party response to Panel question No. 1, para. 5. 
521 China's third -party submission, para. 72. 
522 China's third -party response to Panel question No. 1a, p. 1. 
523 China's third -party response to Panel question No. 1b, pp. 1-2. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.63.   The European Union  considers that if a "docum ent prohibits, restricts or conditions the use 
of terminology, symbols, packaging, marking or labelling requirements as they apply to a product, 
process or production method, it falls within the definition of technical regulation, assuming that 
the other e lements of the definition are fulfilled". For the European Union, the fact that any such 
requirement "is also a trademark or a geographical indication (terms that are not used in the 
TBT Agreement ) does  not, without more, take the document outside the scop e of Article  2.2 of the 
TBT Agreement ". The same is also true, claims the European  Union, when terminology, symbol, 
packaging, marking or labelling requirements also fall within the scope of Article  20 (or other 
provisions) of the TRIPS  Agreement : this "do es not, without more, remove [those requirements] 
from the scope of Article  2.2 of the TBT Agreement ". This indicates, therefore, that the respective 
obligations under these two agreements "apply concurrently",524 as evidenced by the fact that the 
TBT Agreement  has been applied with respect to both "geographical indications" and 
"origin  labelling", when neither of these terms are "expressly referenced" in the TBT Agreement 's 
definition of technical regulations.525 As to the lex specialis  principle, wh ile the European  Union 
considers it as "a useful analytical tool", it also believes that it is "not to be mechanistically 
applied". The European Union, more specifically, believes that the lex specialis  principle "does not, 
without more, lead to the disapp lication of Article  2.2 of the TBT Agreement , in favour of Article  20 
or other provisions of the TRIPS  Agreement ".526 If anything,  the European Union sees this issue 
"more in terms of order of analysis, a matter with respect to which the Panel has significan t 
discretion, provided that it faithfully addresses all of the issues that need to be resolved for the 
purposes of this dispute".527 
7.64.   Guatemala  considers that the provisions of the TRIPS  Agreement  are not "applicable to the 
exclusion of the provisions of the TBT Agreement ".528 Guatemala says that, consistent with 
Article  II of the WTO Agreement  as well as Appellate  Body jurisprudence, "covered agreements 
must be interpreted in a coherent and consistent manner", in the sense that "[w]henever a 
measure imposed by a Member falls within the scope of two or more covered agreements, the 
analysis of such measure should be made in a way that all the covered agreements concerned are 
taken into account and the obligations contained in each of them are carefully observed."529 
Guatemala considers, as it says Australia does also, that the TBT and TRIPS  Agreement s deal with 
different subject -matter.530 In Guatemala's view, even assuming arguendo  that these Agreements 
"might deal with the same subject matter, they do that from a dif ferent point of view and apply in 
different circumstances".531 
7.65.   Japan  believes that "[t]here is nothing in the TBT Agreement  that a priori excludes 
measures regulating the use of a trademark from the scope of Article  2.2 of the Agreement. Thus, 
whether the measures' "trademark requirements" fall within the scope of that TBT  provision 
"depends on whether they constitute a technical regulation".532 In this sense, Japan considers that 
the TPP measures  meet the definition of "technical regulation" in Annex  1.1 of the TBT Agreement  
because they not only lay down "product characteristics" for tobacco products themselves, but also 
for their packaging.533 As to the relationship between the TRIPS and TBT Agreement s, Japan first 
posits that the Appellate Body  decision in EC – Bananas , cited by Australia, only relates "to the 
order of analysis and do[es] not stand for the proposition that a provision of one covered 
                                                
524 European Union's third -party submission, para. 43. See also European Union's third -party response 
to Panel question No. 1, paras.  1-13. 
525 European Union's third -party response to Panel question No. 1, para. 1. For the European Union, "[a] 
similar approach has been followed with respect to origin labelling, origin also being something no t expressly 
mentioned in the definition of a technical regulation, and origin marking being specifically regulated by 
Article  IX of the GATT and origin by the Agreement on Rules of Origin." European Union's third -party 
submission, para. 44 (referring to  Appellate Body Reports, US – COOL , para. 256).  
526 European Union's third -party submission, para. 44. See also European Union's third -party response 
to Panel question No. 1, paras.  2-13. 
527 European Union's third -party response to Panel question No. 1, para. 1. 
528 Guatemala's third -party submission, para. 15.  
529 Guatemala's third -party submission, paras.  8-10 (re ferring to  Appellate Body Reports, US –
 Countervailing and Anti -Dumping Measures  (China) , and Argentina  – Footwear (EC) ). 
530 Guatemala's third -party submission, para. 11 (referring to Australia 's first writt en submission, 
paras.  508-510).  
531 Guatemala's third -party submission, para. 14. 
532 Japan's third -party submission, para. 39. 
533 Japan's third -party submission, paras.  40-42. See also Japan's third-party response to Panel 
question No. 1a, p. 1. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 152 - 
  agreement which 'deals specifically, and in detail' with the particular subject matter applies to the 
exclusion  of a provision on another agreement which also deal with the same matter".534 Japan 
then draws attention to the Appellate Body decision in China  – Publications and Audiovisual 
Products , which it considers more appropriate to this case535, and supports the vie w that both the 
TRIPS and TBT Agreement s are "integral part[s]" of the same treaty  – the WTO Agreement  – and, 
consequently, their provisions should be interpreted in a way "that gives meaning to all of them, 
harmoniously" .536  
7.66.   Nicaragua  argues that i n the present dispute, it is "clear" that the TPP measures  constitute a 
technical regulation. Nicaragua finds that the distinction between the trademark and the format 
requirements is not entirely clear because format elements and physical features of pack aging 
(e.g. types of opening, edges or embossing) can also be trademarked. Similarly, format elements, 
like colors of logos or figurative trademarks, are part and parcel of the "terminology, symbols, 
packaging, marking or labelling requirements" that make up physical product characteristics. Thus, 
while descriptively convenient, Nicaragua does not find it analytically helpful to distinguish 
"trademark" requirements from "physical" requirements. For Nicaragua, the trademark and the 
physical requirements of t he TPP measures  satisfy the requirements of a "technical regulation" in 
Annex 1.1 of the TBT Agreement , and constitute a single measure covered by the TBT Agreement , 
as confirmed by Australia's notification of the measure under Article  2.9.2 of the 
TBT Agreement .537  
7.67.    Nicaragua disagrees with Australia's reading of the panel findings in US – 1916 Act (Japan)  
and US – Customs Bond Directive as supporting its lex specialis  argument in this case. In those 
cases, the question concerned the relationship of the GAT T 1994 to a specific Agreement found in 
Annex 1A of the WTO Agreement , and the relationship between different provisions of the GATT 
1994, respectively. The situation is entirely different in the current disputes, which concern two 
equally applicable WTO c overed agreements that apply to the same factual situation with different 
obligations. Nicaragua submits that applying both sets of agreements to the same factual situation 
does not raise any systemic concern and the rule of lex specialis  therefore does no t apply.538 
7.68.   Norway  finds that the requirements relating to packaging, marking or labelling must be 
considered as "technical regulations", and does not find it necessary to distinguish between the 
restriction on the use of a trademark and the physical require ments in the assessment of 
Article  2.2 of the TBT Agreement .539  
7.69.   Singapore  is of the view that the Panel should consider both the trademark requirements 
and format requirements together, in assessing the consistency of the TPP measures  with 
Article  2.2 of the TBT Agreement . Both the trademark requirements and format requirements are 
"technical regulations" within the meaning of Annex 1.1 of the TBT Agreement  and thus are 
subject as a whole to the TBT Agreement .540  
7.70.   Singapore submits that a measure may engage one or more of the covered agreements at 
the same time, and agrees with Japan that the Appellate Body's findings in EC – Bananas III  relate 
to the order of analysis , rather than the exclusion of a provision of another agreement which deals 
with the same matter. Singapore asserts that Annex 1.1 of the TBT Agreement , which concerns 
terminology, symbols, packaging, marking or labelling requirements  as they apply to a product, is 
                                                
534 Japan's third -party submission, paras.  43-44. See also Japan's third -party response to Panel 
question No. 1b, pp. 2-3 (suggesting that Australia's reliance on Appellate Body Report, EC – Bananas III and 
Panel Reports, US – 1916 Act (Japan) , and US – Customs Bond Directive  is misplaced).  
535 Japan's third -party submission, paras.  45-46. See also  Japan's third -party response to Panel 
question No. 1b, pp. 2-4. 
536 Japan's third -party submission, para. 38 (referring to  Appellate Body Report,  Argentina  – Footwear 
(EC), para. 81). See also Japan's third -party response to Panel question No. 1b, pp. 2-4. 
537 Nicaragua's third -party response to Panel question No. 1, pp. 1-2. See also third -party response to 
Panel question Nos. 2 and 3, p p. 2-4. 
538 Nicaragua's third -party response to Panel question No. 1, pp. 1-2 (referring to  Panel Report, EC –
 Trademarks and Geographical Indications (Australia) , para. 7.87, for the notion that applying two c overed 
agreements to a single regulatory measure is "quite common in WTO jurisprudence").  
539 Norway's third -party submission, para. 78. 
540 Singapore's third -party response to Panel question No. 1, pp. 1-2 (referring to  Appellate Body 
Reports, EC – Sardines , para. 176; and EC – Asbestos , para. 67). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  as specific and detailed in this context as the TRIPS  Agreement  is with reg ard to trademark 
requirements. Singapore concludes that  there is nothing that prevents the Panel from examining 
the trademark requirements in this case under Article  2.2 of the TBT Agreement .541 
7.71.   South Africa  states that "it would be cogent to argue that the same measure could be 
examined under two different agreements". It submits that Article  20 of the TRIPS  Agreement , 
unlike Article  2.2 of the TBT Agreement , does not incorporate a necessity test and as a result it 
would be unwarranted to read such a test in to the current provisions. "If the use of a trademark as 
a 'symbol or mark ' is nonetheless also considered in context of Annex 1.1 of the TBT Agreement  … 
the Panel should be able to assess whether such a 'technical regulation' (to the extent that a trade 
mark may be said to be a 'technical regulation ') complies with the requirement of Article  2.2 of the 
TBT Agreement ."542  
7.72.   Peru notes Australia's indication that the TPP measures  are in conformity with the Article  11 
FCTC Guidelines, which is a relevant international standard under Article  2.4 of the 
TBT Agreement . Peru recalls, in this respect, th at paragraph  46 of these Guidelines exhorts FCTC 
Parties to consider adopting measures to restrict or prohibit the use o f logos, colours, brand 
images or promotional information on packaging other than brand names and product names 
displayed in a standard colour and font. In this regard, in addition of assessing certain TRIPS 
provisions, resolving this dispute also requires  determining whether the FCTC  COP is a body with 
activities in standardization and, if this is the case, whether their Guidelines constitute a relevant 
international standard. In the present proceedings , Peru considers that the Panel must decide on 
these t wo aspects. The Panel cannot therefore apply the principle of the judicial economy because 
the TPP measures  contain two aspects: one related to IP (trademark use) and another related to 
technical regulations (tobacco product labelling and other related asp ects).543  
7.73.   Uruguay  submits that the TPP measures  may be defined as a set in the shape of a policy 
designed to protect human, animal or plant life and human health. They may also be characterized 
as technical regulations and thus come within the scope of the TBT Agreement  by requiring the 
presence of certain physical features on the packaging.544 
7.74.   Zimbabwe  is of the view that all of the TPP measures ' aspects provide for "mandatory" 
requirements "which lay down product characteristics" with respect to "symbols, pa ckaging, 
marking or labelling requirements" and apply to an identifiable group of products.  Zimbabwe thus 
considers that the attempt to distinguish the form or physical requirements from the trademark 
requirements is not meaningful, as all aspects of the c hallenged measures are covered by the 
disciplines of the TBT Agreement .545 
7.2.3.3   Analysis by the Panel  
7.75.   We now consider whether, as Australia argues, certain aspects of the TPP measures  relating 
to the use of trademarks on tobacco products and their retail packagin g, which it describes as the 
"trademark requirements", should be considered not to be covered by the disciplines of Article  2.2 
of the TBT Agreement , because they would fall within the purview of the TRIPS  Agreement , which 
addresses IP rights. This argument requires us to consider the relationship between these 
agreements, and their relevant provisions, to the extent necessary to determine whether it would 
be inappropriate to consider under Article  2.2 of the TBT Agreement  these aspects  of the 
measures.  
7.76.   As observed by the Appellate Body, it is now well established that the WTO Agreement  is a 
"Single Undertaking", such that WTO obligations are generally cumulative and Members must 
comply with all of them simultaneously.546 This is expressed  in Article  II:2 of the WTO Agreement , 
which provides that:  
                                                
541 Singapore's third -party response to Panel question No. 1, pp. 2-3. 
542 South Africa's third -party response to Panel question No. 1b, p. 2. 
543 Peru's third -party statement, paras. 4 -6. 
544 Uruguay's third -party submission, para. 66. 
545 Zimbabwe's third -party statement, para. 9. 
546 Appellate Body Report, Korea  – Dairy , para. 74. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  The agreements and associated legal instruments included in Annexes 1, 2 and 3 
(hereinafter referred to as "Multilateral Trade Agreements") are integral parts of this 
Agreement, binding on all Mem bers. 
7.77.   In the words of the Appellate Body, Article  II:2 of the WTO Agreement  "expressly manifests 
the intention of the Uruguay  Round negotiators that the provisions of the WTO Agreement  and the 
Multilateral Trade Agreements included in its Annexes  1, 2 and 3 must be read as a whole" .547 
Thus, "an appropriate reading of this 'inseparable  package of rights and disciplines' must, 
accordingly, be one that gives meaning to all the relevant provisions of these two equally binding 
agreements".548 As the Appellate Body pointed  out, "[i]t is important to understand that the 
WTO Agreement  is one treaty " and the different agreements annexed to it "are integral parts of 
that treaty and are equally binding on all Members pursuant to Article  II:2 of the 
WTO Agreement ".549 
7.78.   This c umulative and concurrent application of the WTO covered  agreements was confirmed 
by the Appellate  Body in Canada  – Periodicals  in relation to the GATT  1994 (trade in goods) and 
the GATS (trade in services), which appear under Annexes 1A and 1B of the WTO Agreement , 
respectively. The Appellate  Body stated, in this regard, that "[t]he entry into force of the GATS … 
does not diminish the scope of application of the GATT  1994."550 The Appellate  Body explicitly 
agreed with the Panel's statement that : "The ordinary meaning of the texts of GATT  1994 and 
GATS as well as Article  II:2 of the WTO Agreement , taken together, indicates that obligations 
under GATT  1994 and GATS can co -exist and that one does  not override the other."551 As 
expressed by the Appellate Body, the potential overlap in scope of application between the GATT 
and GATS depends ultimately on the measure at issue:  
Given the respective scope of application of the two agreements, they may or may not 
overlap, depending on the nature of the measures at iss ue. Certain measures could be 
found to fall exclusively within the scope of the GATT 1994, when they affect trade in 
goods as goods. Certain measures could be found to fall exclusively within the scope 
of the GATS, when they affect the supply of services a s services. There is yet a third 
category of measures that could be found to fall within the scope of both the 
GATT  1994 and the GATS. These are measures that involve a service relating to a 
particular good or a service supplied in conjunction with a parti cular good. In all such 
cases in this third category, the measure in question could be scrutinized under both 
the GATT  1994 and the GATS. However, while the same measure could be scrutinized 
under both agreements, the specific aspects of that measure exami ned under each 
agreement could be different.552 
7.79.   These elements make clear, in our view, that the fact that the covered  agreements may 
overlap in scope does not imply that the scope of application of each agreement should be 
diminished or otherwise modified. Rather, the various covered  agreements co -exist and apply 
cumulatively, and it is possible, therefore, for a measure to be simultaneously covered by the 
disciplines of one or more covered  agreements. This is also consistent with the well -established 
tenet of treaty interpretation that, "[i]n  light of the interpretive principle of effectiveness, it is the 
duty of any treaty interpreter to 'read all applicable provisions of a treaty in a way that gives 
meaning to all of them, harmoniously.'"553 Further, as obse rved by the panel in Indonesia  – Autos , 
"in public international law there is a presumption against conflict", and "[t] his presumption is 
                                                
547 Appellate Body Report, Korea  – Dairy , para. 81. 
548 Appellate Body Report,  Argentina  – Footwear (EC) , para. 81 (emphasis original)  (quoting Panel 
Report, Argentina  – Footwear (EC) , para. 8.58).  
549 Appellate Body Report, Korea  – Dairy , para. 75. (emphasis original)  
550 Appellate  Body Report, Canada  – Periodicals , p. 19, DSR 1997:I, 449,  p. 465. 
551 Appellate Body Report, Canada  – Periodica ls, p. 19, DSR 1997:I, 449,  p. 465 (quoting  Panel Report, 
Canada  – Periodicals , para. 5.17). 
552 Appellate Body Report, EC – Bananas III , para. 221. See also Appellate Body Report, Canada  –
 Periodicals , p. 19, DSR 1997:I , 449,  p. 465; and Panel Report, China  – Publications and Audiovisual Products, 
paras.  7.127 -7.128.  
553 Appellate Body Report, Korea  – Dairy , para. 81. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  especially relevant in the WTO  context since all WTO  agreements … were negotiated at the same 
time, by the same Member s and in the same forum."554  
7.80.   We therefore see no basis to assume that, as a matter of principle, measures affecting the 
use of IP, and thus potentially covered by the TRIPS  Agreement , could not also be covered by 
relevant provisions of the TBT Agreement , to the extent that they would also fall within the scope 
of application of these provisions.555  
7.81.   This potential overlap in scope of application has already been noted in respect of the 
relationship between another agreement relating to trade in goods under Ann ex 1A, the 
GATT  1994, and the TRIPS  Agreement , which is contained in Annex 1C of the WTO Agreement . 
In EC – Trademarks and Geographical Indications (Australia), Australia challenged certain 
EC measures both under specific provisions of the TRIPS  Agreement  concerning the protection of 
GIs and trademarks, and under specific provisions of the GATT  1994 concerning non -discrimination 
in relation to imported products. In that case, the panel "d[id] not consider that the conclusion of 
the TRIPS  Agreement  reduced the scope of application of GATT"556: 
[T]here is no hierarchy between the TRIPS  Agreement  and GATT  1994, which appear 
in separate annexes to the WTO Agreement . The ordinary meaning of the texts of the 
TRIPS  Agreement  and GATT  1994, as well as Article  II:2 of  the WTO Agreement , 
taken together, indicates that obligations under the TRIPS  Agreement  and GATT  1994 
can co -exist and that one does not override the other. This is analogous to the finding 
of the Panel in Canada  – Periodicals, with which the Appellate Bo dy agreed, 
concerning the respective scopes of GATS and GATT  1994. Further, a "harmonious 
interpretation" does  not require an interpretation of one that shadows the contours of 
the other. It is well established that the covered agreements apply cumulativel y and 
that consistency with one does  not necessarily imply consistency with them all.557 
7.82.   On the same basis, that panel also reviewed, under both the TBT and TRIPS  Agreement s, 
certain requirements of the measure at issue affecting "geographical  indications", which, like 
"trademarks", constitutes one of the categories of IP right s covered by the TRIPS  Agreement .558 
7.83.   Thus,  we conclude that, where a measure falls within the scope of more than one covered 
agreement, including agreements on trade in goods under Annex 1A (such as the GATT 1994 or 
the TBT Agreement ) and the TRIPS  Agreement , these covered agreements apply concurrently and 
cumulatively, to the extent that the measure at issue, or aspects thereof, fall within the scope of 
each relevant agreement. A priori , this concurrent coverage entails the possibility of reviewing the 
same measure or aspect of a measure under all applicable provisions. Indeed, in the present 
dispute, Australia has  not suggested that the applicability of the provisions of the 
TRIPS  Agree ment invoked by the complainants other than Article  20 would constitute an obstacle 
to the applicability of the TBT Agreement  to the TPP measures .  
                                                
554 Panel Report, Indonesia  – Autos , para.  14.28.  (footnotes omitted)  
555 Indeed, we note that matters relating to the protectio n of intellectual property were not, as such, 
excluded from the scope of the GATT  1947, as illustrated by the terms of Article  XX(d) and the proceedings in 
US – Section 337 . In US – Section 337 , patent -related matters were reviewed  under Articles  III:4 and XX(d) of 
the GATT  1947 to ensure that intellectual property (IP)  rules do  not unnecessarily discriminate against 
imported goods or constitute a disguised restriction on trade. IP matters also appear elsewhere in 
the GATT  1994, e.g. Articles  IX:6, XII:3(c)(iii), and XVIII:10. Additionally, IP  matters are also explicitly 
mentioned in various other WTO Agreement s, including  the Agreement on Subsidies and Countervailing 
Measures ( SCM Agreement ) (Article  8.2(a)(iii)); the Customs Valuation Agreement ( Article 15.2(b) and para. 1 
of Note to Article  8.1(c)); the Preshipment Inspection Agreement  (Articles  2.12(a) , 2.12(b),  and 20(c)); the 
Agreement on Government Procurement (GPA) ( Articles  VI:3, XV:1(b) , and XXIII:2) ; and the  Agreement on 
Government Procure ment, as amended by the 2012 Protocol (Amended  GPA) (Articles.  III:2(c), X:4, 
XIII:1(b)(ii),  XVII:3(b) , and XVII:3(c)). See also Article  7.1(b) of the Agreement on Textile and Clothes, which 
is no longer in force.  
556 Panel Report, EC – Trademarks and Geogra phical Indications  (Australia),  para. 7.267 fn 260. See 
also Panel Report, EC – Trademarks and Geographical Indications  (United  States),  para. 7.227 fn 234. 
557 Panel Report, EC – Trademarks and Geographical Indications  (Australia) , para. 7.244 (footnotes 
omitted). See also ibid. para. 7.87; and Panel Report, EC – Trademarks and Geographical Indications  
(United  States),  paras.  7.36 and 7.208.  
558 Panel  Report , EC – Trademarks and Geographical Indications  (Australia) , paras.  7.443 -7.515.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.84.   Therefore, while not prejudging, at this stage of our analysis, the extent to which 
requirements affecting t he use of trademarks may be considered to constitute "technical 
regulations" within the meaning of the TBT Agreement559, we find that the mere fact that a 
measure, or a certain aspect of a measure, is covered by a specific provision of the 
TRIPS  Agreement  is not, in itself, an obstacle to its potentially also falling within the scope of 
relevant provisions of the TBT Agreement .  
7.85.   We also recall that the fact that one of several covered agreements that apply concurrently 
to the same measure might be considered to be more "specific" to the subject -matter at issue in a 
given dispute has not been understood to imply, as Australia suggests, that the more specific 
agreement should apply to the exclusion  of the more "general" one. Rather, as reflected in the 
rulings o f the Appellate Body in EC – Bananas  III referred to by Australia560: 
Although Article  X:3(a) of the GATT  1994 and Article  1.3 of the Licensing Agreement 
both apply , the Panel, in our view, should have applied the Licensing Agreement  first, 
since this agreem ent deals specifically, and in detail, with the administration of import 
licensing procedures. If the Panel had done so, then there would have been no need 
for it to address the alleged inconsistency with Article  X:3(a) of the GATT  1994.561 
7.86.   While the Appella te Body  refers in this context to the principle of lex specialis , it addresses 
the order of analysis and the subsequent possibility of exercising judicial economy, rather  than 
conflict. Determining the order of analysis is different from the resolution of conflict between 
provisions, as "[t]he latter entails the use of conflict resolution rules or interpretative 
techniques."562 Order of analysis is an analytical tool to determine the sequence in which an 
adjudicator addresses different, possibly related, clai ms, whereas conflict of norms relates to how 
cumulatively applicable provisions should be interpreted relative to each other.563 
7.87.   Other disputes invoked by Australia with reference to the lex specialis principle564 also 
do not support the view that a "more  specific" covered agreement should, as a matter of principle, 
apply to the exclusion of the more general one. As the European  Union observes, US –
 1916 Act (Japan) "was not a case in which [specific  provisions of  covered agreements] were 
                                                
559 See section 7.2.4 below on this question.  
560 Australia's first written submission, para. 511. 
561 Appellate Body Report, EC – Bananas III , para. 204 (emphasis added). See also Appellate Body 
Report, US – Upland Cotton , paras.  549-550:  
 
We recall that the Agreement on Agriculture  and the SCM Agreement  "are both Multilateral 
Agreements on Trade in Goods contained in Annex 1A of the Marrakesh Agreeme nt Establishing 
the World Trade Organization  (the " WTO Agreement "), and, as such, are both 'integral parts' of 
the same treaty, the WTO Agreement , that are 'binding on all Members'". Furthermore, as the 
Appellate Body has explained, "a treaty interpreter m ust read all applicable provisions of a treaty 
in a way that gives meaning to all of them, harmoniously". We agree with the Panel that 
"Article  3.1(b) of the SCM Agreement  can be read together with the Agreement on Agriculture  
provisions relating to domest ic support in a coherent and consistent manner which gives full and 
effective meaning to all of their terms".   
 
In sum, we are not persuaded by the United States' submission that the prohibition in 
Article  3.1(b) of the SCM Agreement  is inapplicable to imp ort substitution subsidies provided in 
connection with products falling under the Agreement on Agriculture. WTO Members may still 
provide domestic support that is consistent with their reduction commitments under the 
Agreement on Agriculture . In providing such domestic support, however, WTO Members must be 
mindful of their other WTO obligations, including the prohibition in Article  3.1(b) of the 
SCM Agreement  on the provision of subsidies that are contingent on the use of domestic over 
imported goods. (emph asis original) (footnotes omitted)   
 
562 Panel Report, India – Autos , para.  7.158 fn  380. 
563 Overlap between two provisions ratione  materiae  is the precondition for the application of the 
principle lex specialis derogat legi generali . As the panel in Thailand  – Cigarettes (Philippines)  noted, " [t]he 
lex specialis  principle has been defined by the International Law Commission ('ILC') as 'a generally accepted 
technique of interpretation and conflict resolution in international law. It suggests that whenever two or more 
norms deal with the same subject matter, priority should be given to the norm that is more specific'". Panel 
Report, Thailand  – Cigarettes  (Philippines) , para. 7.1047. (footnote omitted)  
564 Australia's first written submission, para. 511 fn 695. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  applied to the exclusion of Article  III:4 of the GATT  1994, but merely a case in which judicial 
economy was exercised"565 by the panel. Although the passage566 referenced by Australia567 
addresses the principle of lex specialis , subseque nt paragraphs of the panel's analysis address568 
and explicitly reference judicial  economy.569 Likewise, the  paragraphs of the panel report in US –
 Customs Bond Directive570, also referred to by Australia571, discuss the principle of lex specialis in 
the context o f the question faced by the panel in US – 1916 Act (Japan)  as to "whether it must 
also analyse a claim under [another provision of another covered agreement]".572 The paragraphs 
referenced by Australia constitute the final part of an analysis of reasons supp orting the panel's 
earlier conclusion that "on the basis of judicial economy, [it] refrains from ruling on"573 "a number 
of additional as applied claims under the GATT  1994".574 We consider the notion of judicial 
economy to be distinct from that of order of analysis, even if "[t]he  order selected for examination 
of the claims may also have an impact on the potential to apply judicial economy."575 In our 
understanding, judicial economy576 is also distinct from conflict of norms. Judicial economy entails 
the adjudi cator's choice of not entering into the analysis of a claim, provided this does not 
jeopardize effective resolution of the dispute577, whereas conflict of norms relates to how the rules 
underlying those claims should be interpreted relative to each other.  
7.88.   For the above reasons, we find that, in principle, the TBT and TRIPS  Agreement s may apply 
concurrently and cumulatively to different aspects of the same measures. We approach our further 
analysis under the TBT Agreement  with this understanding, noting that t he TBT and 
TRIPS  Agreement s should be interpreted harmoniously.  
7.89.   Nonetheless, the fact that each of the Multilateral Trade Agreements is an integral part of 
the Marrakesh Agreement does not, in and of itself, make clear how specific rights and obligations 
contained in those Multilateral Trade Agreements relate to each other, "particularly when they are 
contained in different instruments that nevertheless relate to the same subject matter".578 It 
cannot be excluded, therefore, that the concurrent application o f different covered agreements 
may give rise to conflicts, including between specific provisions of these different agreements.  
7.90.   This possibility is expressly recognized, in respect of Agreements within Annex  1A of the 
WTO Agreement  (i.e. the multilateral agreements on trade in goods), through the "General 
interpretative note to Annex  1A", which provides that:  
In the event of conflict between a provision of the General Agreement on Tariffs and 
Trade 1994 and a provision of another agreement in Annex 1A to t he Agreement 
Establishing the World Trade Organization (referred to in the agreements in Annex 1A 
as the " WTO Agreement "), the provision of the other agreement shall prevail to the 
extent of the conflict.  
7.91.   The panel in EC – Bananas  III understood this provi sion as follows:  
In light of the wording, the context, the object and the purpose of th[e  General 
Interpretative] Note,  … it is designed to deal with (i)  clashes between obligations  
                                                
565 European Union's third -party response to Panel question No. 1, para. 8. 
566 Panel Report, US – 1916 Act (Japan), para. 6.269.  
567 Australia's first written submission, para. 511 fn 695. 
568 Panel Report, US – 1916 Act (Japan), paras.  6.270 -6.272.  
569 Panel Report, US – 1916 Act (Japan), para. 6.272.  
570 Panel Report, US – Customs Bond Directive , paras.  7.170 -7.172.  
571 Australia's first written submission, para. 511 fn 695. 
572 Panel Report, US – Customs Bond Directive , para. 7.170.  
573 Panel Report, US – Customs Bond Direc tive, para. 7.165.  
574 Panel Report, US – Customs Bond Directive , para. 7.163 . (emphasis  original)  
575 Panel Report, India – Autos , para.  7.161.  
576 "The practice of judicial economy, which was first employed by a number of GATT panels, allows a 
panel to refrain from making multiple findings that the same measure is inconsistent  with various provisions 
when a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute. Although 
the doctrine of judicial economy allows  a panel to refrain from addressing claims beyond those necessary to 
resolve the dispute, it does not compel  a panel to exercise such restraint." Appellate  Body Report, Canada  –
 Wheat Exports and Grain Imports,  para. 133. (emphasis original)  
577 See Appellate Body Report, Argentina  – Import Measures , paras.  5.185 -5.203.  
578 Appellate Body Reports, China  – Rare Earths , para. 5.53. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  contained in GATT  1994 and obligations contained in agreements listed in A nnex 1A, 
where those obligations are mutually exclusive in the sense that a Member cannot 
comply with both obligations at the same time, and (ii)  the situation where a rule in 
one agreement prohibits what a rule in another agreement explicitly permits.579 
7.92.   No equivalent provision exists, however, in respect of the relationship between covered 
agreements contained in Annex  1A (Multilateral Agreements on Trade in Goods, including the 
TBT Agreement ) and Annex  1B (GATS) or Annex  1C (TRIPS), that would provide spec ific guidance 
on whether a conflict exists between provisions of these different agreements or clarify how such 
conflicts should be addressed. Against this context, recourse to other interpretative elements will 
be necessary to determine the specific relat ionship among individual terms and provisions of the 
Multilateral Trade Agreements, and between such provisions and the Marrakesh Agreement.580 As 
expressed by the Appellate Body:  
[T]he specific relationship among individual terms and provisions of the Multi lateral 
Trade Agreements, and between such provisions and the Marrakesh Agreement, must 
be determined on a case -by-case basis through a proper interpretation of the relevant 
provisions of these agreements. In other words, this specific relationship must be  
ascertained through scrutiny of the provisions concerned, read in the light of their 
context and object and purpose, with due account being taken of the overall 
architecture of the WTO  system as a single package of rights and obligations, and any 
specific  provisions that govern or shed light on the relationship between the provisions 
of different instruments (such as the General Interpretative Note to Annex  1A).581  
7.93.   Further, as observed by the panel in Indonesia  – Autos , "in public international law there is  
a presumption against conflict", and "[t]his presumption is especially relevant in the WTO context 
since all WTO agreements … were negotiated at the same time, by the same Members and in the 
same forum."582 That panel also considered that a conflict between  the Agreement on Subsidies 
and Countervailing Measures ( SCM Agreement ) and Article  III of the GATT 1994 would only arise 
in "the narrow situation of mutually exclusive obligations for provisions that cover the same type 
of subject matter"583: 
In internation al law for a conflict to exist between two treaties, three conditions have 
to be satisfied. First, the treaties concerned must have the same parties. Second, the 
treaties must cover the same substantive subject matter. Were it otherwise, there 
would be no possibility for conflict. Third, the provisions must conflict , in the sense 
that the provisions must impose mutually exclusive obligations. "… [T]echnically 
speaking, there is a conflict when two (or more) treaty instruments contain obligations 
which canno t be complied with simultaneously. … Not every such divergence 
constitute a conflict, however. … Incompatibility of contents is an essential condition 
of conflict".584 
7.94.   In Guatemala  – Cement  I, the Appellate Body, in interpreting the term "difference" in 
Article 1.2 of the DSU in the context of the relationship between the rules and procedures of the 
DSU and Article  17 of the Anti -Dumping Agreement, adopted a similarly restrictive definition of 
"conflict", albeit  not explicitly limited to conflicting "obligati ons": 
[I]t is only where the provisions of the DSU and the special or additional rules and 
procedures of a covered agreement cannot  be read as complementing  each other that 
the special or additional provisions are to prevail . A special or additional provis ion 
should only be found to prevail  over a provision of the DSU in a situation where 
                                                
579 Panel Reports, EC – Bananas  III, para.  7.159.  (footnote omitted)  
580 Appellate Body Reports, China  – Rare Earths , para. 5.56. 
581 Appellate Body Reports, China  – Rare Earths , para. 5.55. See also, in respect of Agreements under 
Annex 1A, Appellate Body Report, Brazil  – Desiccated Coconut , p. 14, DSR 1997:I, 167,  pp. 178-179. 
582 Panel Report, Indonesia  – Autos , para.  14.28. (footnotes omitted)  
583 Panel Report, Indonesia  – Autos , para. 14.49.  
584 Panel Report, Indonesia  – Autos , para. 14.28 fn  649. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  adherence to the one provision will lead to a violation of the other provision, that is, 
in the case of a conflict  between them.585  
7.95.   These  rulings address somewhat different  situations as regards the legal nature of the 
provisions among which a conflict may arise (i.e.  "obligations", explicit rights, "provisions", and 
prohibitions). They also appear to reflect partly different definitions of "conflict". T he panel in 
Indonesia  – Autos  considered that "under public international law a conflict exists in the narrow 
situation of mutually exclusive obligations for provisions that cover the same type of subject 
matter."586 A variant of this narrow concept of conflict involves two posi tive obligations, as under 
the first situation of "conflict" identified by the panel in EC – Bananas  III ("obligations  are mutually 
exclusive in the sense that a Member cannot comply with both obligations at the same time"587). 
Another variant entails the ty pe of logical conflict between two provisions identified by the 
Appellate Body in Guatemala  – Cement  I in the context of Article  1.2 of the DSU between a 
positive and a negative obligation, i.e. between two provisions , one of which prescribes what the 
other forbids.588 Finally, and somewhat differently, the second type of situation identified by the 
panel in EC – Bananas III  ("where a rule in one agreement prohibits what a rule in another 
agreement explicitly permits"589) would not involve two obligations but r ather a prohibition, i.e. a 
negative obligation, and an explicit authorization.  
7.96.   In these proceedings, we must consider the specific relationship between the terms of 
Article  20 of the TRIPS  Agreement  and those of Article  2.2 of the TBT Agreement . At their core, 
both Article  20 of the TRIPS  Agreement  and Article  2.2 of the TBT Agreement  disallow certain 
measures, in that they require Members not to adopt or maintain certain types of measures ("shall 
not"). In essence, Article  20 prohibits the adop tion of "special  requirements" that 
"unjustifiably  encumber" the use of a trademark in the course of trade, whereas Article  2.2 of the 
TBT Agreement  prohibits the preparation, adoption, or application of "technical  regulations" 
(including those dealing wit h "terminology, symbols, packaging, marking or labelling 
requirements") that are more trade -restrictive than necessary to fulfil a legitimate objective, 
taking account of the risks non -fulfilment would create. We consider that these two obligations are 
not in substantive contradiction or "mutually exclusive". Nor do we see any logical conflict between 
them.590 Because  these two provisions contain prohibitions that are neither mutually exclusive nor 
in substantive contradiction, it is possible to comply with b oth of them at the same time: 
"adherence to the one provision will [not] lead to a violation of the other provision ".591 
7.97.   In the present proceedings, Australia has recognized that "it is possible to comply with both 
agreements simultaneously and indeed the [T PP] measure does so".592 As we understand it, 
therefore, Australia is not alleging the existence of a conflict between Article  20 of the 
TRIPS  Agreement  and Article  2.2 of the TBT Agreement  in the narrow sense of mutually exclusive 
obligations, whereby it wo uld be impossible to comply with both provisions at the same time. We 
understand Australia to argue instead that complying with the requirements under Article  2.2 of 
the TBT Agreement , in relation to the trademark requirements of the TPP measures , would 
undermine the flexibility available to it under Article  20 of the TRIPS  Agreement  in respect of such 
requirements. This is closer, though not identical – to the second type of situation identified by the 
panel in EC – Bananas III  as giving rise to a conflict, namely "the situation where a rule in one 
agreement prohibits what a rule in another agreement explicitly permits".593 In fact, whereas the 
panel in EC – Bananas III  referred to an "explicit[] permi[ssion]", Australia invokes a flexibility 
that is indirect and implicit: it emanates from what is not prohibited  by Article  20 of the 
                                                
585 Appellate Body Report, Guatemala  – Cement  I, para. 65 (emphasis original ). See also Appellate Body 
Report, US – FSC, para. 159. 
586 Panel Report, Indonesia  – Autos , para. 14.49.  
587 Panel Report s, EC – Bananas  III, para. 7.159.  
588 Appellate Body Report, Guatemala  – Cement  I, para. 65 (emphasis added). See  also Appellate Body 
Report, US – Carbon  Steel, para. 51. 
589 Panel Reports, EC – Bananas III , para.  7.159. ( footnote omitted ) 
590 Appellate Body Report, Guatemala  – Cement  I, para. 65. See also Appellate Body Report, US –
 Carbon Steel , para. 51. 
591 Appellate Body Report, Guatemala  – Cement  I, para. 65. See also Appellate Body Report, US –
 Carbon Steel , para. 51. 
592 Australia's response to Panel question No. 145. 
593 Panel Reports, EC – Bananas III , para.  7.159.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TRIPS  Agreement , i.e. what, Australia argues, does not amount to an unjustifiable encumbrance 
on the use of trademarks in the sense of that provision.  
7.98.   We note that this und erstanding of conflict is broader in scope than previous descriptions of 
this concept by panels and the Appellate Body, as reflected above. We also recall that in US –
 Upland Cotton  the Appellate Body addressed the relationship of the SCM Agreement and the  
Agreement on Agriculture. Notwithstanding the existence of a specific provision in the Agreement 
on Agriculture giving precedence to the latter594, the Appellate Body concluded that absent an 
explicit carve -out or authorization to depart from the prohibitio n in Article  3.1(b) of the 
SCM Agreement595, this prohibition applies concurrently with relevant provisions of the Agreement 
on Agriculture:  
We recall that the Agreement on Agriculture  and the SCM Agreement  "are both 
Multilateral Agreements on Trade in Goods  contained in Annex 1A of the Marrakesh 
Agreement Establishing the World Trade Organization  (the " WTO Agreement "), and, 
as such, are both 'integral parts' of the same treaty, the WTO Agreement , that are 
'binding on all Members'". Furthermore, as the Appell ate Body has explained, "a treaty 
interpreter must read all applicable provisions of a treaty in a way that gives meaning 
to all of them, harmoniously". We agree with the Panel that " Article  3.1(b) of the SCM 
Agreement can be read together with the Agreeme nt on Agriculture  provisions relating 
to domestic support in a coherent and consistent manner which gives full and effective 
meaning to all of their terms".  
In sum, we are not persuaded by the United States' submission that the prohibition in 
Article  3.1(b ) of the SCM Agreement  is inapplicable to import substitution subsidies 
provided in connection with products falling under the Agreement on Agriculture . WTO 
Members may still provide domestic support that is consistent with their reduction 
commitments under the Agreement on Agriculture . In providing such domestic 
support, however, WTO Members must be mindful of their other WTO obligations, 
including the pr ohibition in Article  3.1(b) of the SCM Agreement  on the provision of 
subsidies that are contingent on the use of domestic over imported goods.596 
7.99.    We note that there is no provision similar to Article  21.1 of the Agreement on Agriculture 
that would give prec edence to the provisions of the TRIPS  Agreement  over the TBT Agreement . 
Nor does the TRIPS  Agreement , and its Article  20 in particular, contain an explicit carve -out or 
authorization to depart from the prohibition contained in Article  2.2 of the TBT Agreem ent.  
7.100.   By its terms, Article  20 of the TRIPS  Agreement  prohibits "special requirements" that 
"unjustifiably encumber" the use of a trademark in the course of trade . While Article  20 does not 
prohibit, and thus, tolerates encumbrances that are not unjustifia ble, it does not explicitly identify, 
authorize or encourage encumbrances that would not be unjustifiable. Likewise, Article  2.2 of the 
TBT Agreement  does not prohibit, and thus, tolerates technical regulations that are not more 
trade -restrictive than nece ssary to fulfil a legitimate objective, taking account of the risks 
non-fulfilment would create; however, Article  2.2 of the TBT Agreement  does not explicitly 
encourage such technical regulations . In short, each provision disallows certain measures and 
                                                
594 According to Article  21.1 of the Agreem ent on Agriculture, "[t]he provisions of GATT 1994 and of 
other Multilateral Trade Agreements in Annex 1A to the WTO Agreement  shall apply subject to the provisions of 
this Agreement." See Appellate Body Report, US – Upland Cotton , para. 531. 
595 According t o the Appellate Body, Article  21.1 of the Agreement on Agriculture "could apply in … three 
situations: where, for example, the domestic support provisions of the Agreement on Agriculture would prevail 
in the event that an explicit carve -out or exemption  from the disciplines in Article  3.1(b) of the SCM Agreement 
existed in the text of the Agreement on Agriculture. Another situation would be where it would be impossible 
for a Member to comply with its domestic support obligations under the Agreement on Agriculture and the 
Article  3.1(b) prohibition simultaneously. Another situation m ight be where there is an explicit authorization  in 
the text of the Agreement on Agriculture that would authorize a measure that, in the absence of such an 
express authorization , would be prohibited by Article  3.1(b) of the SCM Agreement." Appellate Body R eport, 
US – Upland Cotton , para. 532, referring to  Panel Report, US – Upland Cotton , para. 7.1038 ( underlining 
original ; italics  added ). The Appellate Body also recalled its earlier finding that "[i]f the negotiators [of the 
Agreement on Agriculture] had i ntended to permit Members to act inconsistently with Article  XIII of the GATT 
1994, they would have said so explicitly". Appellate Body Report, US – Upland Cotton , para. 548, referring to  
Appellate Body Report, EC – Bananas III , para. 157. 
596 Appellate Body  Report, US – Upland Cotton , paras.  549-550. (emphasis original) (footnotes omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  establishes a balance to assess, on a case -by-case basis, whether specific measures are permitted. 
On their face, the explicit prohibitions contained in Article  20 of the TRIPS  Agreement  and 
Article  2.2 of the TBT Agreement  respectively must be read and, abse nt a conflict, applied 
together. The principle of harmonious reading dictates that the flexibilities implicitly left by those 
prohibitions also need to be viewed together, without a priori giving precedence to one over, and 
to the exclusion of, the other.  
7.101.   We do not exclude that certain aspects of the TPP measures  may fall within the scope of 
application of both the TBT Agreement  and Article  20 of the TRIPS  Agreement , to the extent that 
they would constitute both a "technical regulation" within the meaning o f the TBT Agreement  and 
"special  requirements" falling within the scope of Article  20 of the TRIPS  Agreement . Assuming 
arguendo  that this would be the case, to determine whether one provision prohibits what the other 
permits, we would need to consider whet her their concurrent application to the same measures or 
aspects of these measures would lead to "conflicting" outcomes. Australia argues that they do 
because by applying Article  2.2 of the TBT Agreement  "the standard of 'unjustifiability' under 
[Article  20 of the TRIPS  Agreement ] would be supplanted by the standard of 'necessity' under the 
[Article  2.2 of the TBT Agreement ]".597 In other words, "[a] measure that a Member is allowed to 
maintain under Article  20 of the TRIPS  Agreement  as long as it is not unju stifiable could  be found 
to be inconsistent with the standard of least trade -restrictiveness under Article  2.2 of the 
TBT Agreement ."598 
7.102.   Implicit in Australia's arguments is the assumption that the "necessity  test" under 
Article  2.2 of the TBT Agreement  is more stringent than the "justifiability  test" under Article  20 of 
the TRIPS  Agreement , or at least that their concurrent application "could" lead to outcomes that 
Australia describes as conflicting. Specifically, the situation that Australia envisages is th at 
Article  20 of the TRIPS  Agreement  would allow scope for the maintenance of a measure that would 
be disallowed if considered under Article  2.2 of the TBT Agreement . We consider , however , that 
the relative stringency of these two tests is very difficult to establish in the abstract. As described 
by Australia, the two provisions entail "two very different standards"599, informed by the specific 
context of each Agreement.600 Given  these differen ces, the outcome of the analysis under each 
provision would depend on the circumstances of the case, and it is conceivable that a measure 
would not be found to be "more trade -restrictive than necessary" under Article  2.2 of the 
TBT Agreement , while "unjust ifiably" "encumb ering" the use of trademarks within the meaning of 
Article  20 of the TRIPS  Agreement , or vice -versa.601 We see no basis, therefore, to assume that 
the concurrent application of these two provisions to aspects of the same measures that may fal l 
within the scope of both agreements would necessarily lead to the type of outcomes identified by 
Australia as conflicting.  
7.103.   We further note that, while the TBT and TRIPS  Agreement s are contained in distinct parts 
of Annex  1 of the WTO Agreement , they pur sue complementary objectives. The TBT Agreement  
serves to "further the objectives of GATT 1994"602, while the TRIPS  Agreement  serves to address 
the "applicability of the basic principles of GATT  1994".603 We note in this regard the preambular 
language of the G eneral Agreement on Tariffs and Trade 1947 (G ATT 1947), incorporated into the 
GATT  1994604, setting forth Members' objective of "expanding the… exchange of goods" and 
Members' desire to "contribut[e] to th[is] objective[] by entering into reciprocal and mutually 
advantageous arrangements directed to the substantial reduction of tariffs and other barriers to 
trade and to the elimination of discriminatory treatment in international commerce".605 We also 
note that very similar objectives figure in the preamble  to the WTO Agreement  itself, to which both 
                                                
597 Australia's response to Panel question No. 145, para. 2. 
598 Australia's response to Panel question No. 75, para. 206. (emphasis added)  
599 Australia's response to Panel que stion No. 75, para. 206. See also para. 7.50 above.  
600 Australia's response to Panel question No. 75, para. 206. See also Australia's response to Panel 
question No. 89, para. 20. 
601 We also note in this respect that certain technical regulations may, under the second sentence of 
Article  2.5 of the TBT Agreement , enjoy a rebuttable presumption of consistency with Article  2.2, where they 
are "in accordance with relevant international standards". This legal presumption has no equivalent in 
Article  20 of the TRIPS Agreement. See also para. 7.37 above.  
602 TBT Agreement , preamble, second recital.  
603 TRIPS Agreement, preamble, second recital ( a). 
604 GATT 1994, para. 1(a). 
605 GATT 19 47, preamble, second and third recitals.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the TBT and the TRIPS  Agreement  are annexed.606 The first  recital of the TRIPS  Agreement  
underscores the Agreement's objective of reducing trade barriers and avoiding the creation of 
trade restrictions: " Desiring  to reduce distortions and impediments to international trade, and 
taking into account the need to promote effective and adequate protection of intellectual property 
rights, and to ensure that measures and procedures to enforce intellectual property rights d o not 
themselves become barriers to legitimate trade".607 
7.104.   Further, the TBT Agreement  needs to be interpreted in light of its preambular objective 
that "no  country should be prevented from taking measures necessary … for the protection of 
human … life or heal th". By virtue of the same preambular paragraph, this  prerogative of Members 
is "subject to the requirement that [such measures] are not applied in a manner which would 
constitute a … disguised restriction on international trade, and are otherwise in accor dance with 
the provisions of th[e TBT]  Agreement".608 Likewise, in setting forth that "Members may, 
in formulating or amending their laws and regulations, adopt measures necessary to protect public 
health", Article  8.1 of the TRIPS  Agreement  makes this condi tional on "such measures [being] 
consistent with the provisions of th[e TRIPS]  Agreement" .  
7.105.   Taken in context, therefore, Article  2.2 of the TBT Agreement  and Article  20 of the 
TRIPS  Agreement  may each be assumed to reflect a certain balance between at leas t three 
dimensions: (i)  the objective of reducing and avoiding trade barriers; (ii)  the possibility of adopting 
measures for legitimate public policy purposes, including public health; and (iii)  the imperative of 
complying with applicable requirements unde r the relevant provisions of each agreement. The 
requirements under these two provisions may thus be seen as complementary rather than 
contradictory.609  
7.106.   In light of the above, we see no basis to assume the existence of a conflict between 
Article  20 of the TRIPS Agreement  and Article  2.2 of the TBT Agreement  – either under the various 
definitions of conflict described above, or in the sense suggested by Australia, that would require 
us to abstain from examining aspects of the TPP measures  that may fall within  the scope of 
application of both the TBT and TRIPS  Agreement s. Rather, as elaborated above, we must assume 
that both agreements apply cumulatively and harmoniously.610 
7.107.   Having reached these initial determinations, we now consider whether the TPP measures  
are covered by the TBT Agreement , and more specifically, whether they constitute a technical 
regulation within the meaning of that agreement. We will address in that context whether the 
trademark -related requirements of the TPP measures  constitute a technical  regulation within the 
                                                
606 See WTO Agreement , preamble, first ("expandin g the production of and trade in goods") and third 
recitals ("contribut[e] to these objectives by entering into reciprocal and mutually advantageous arrangements 
directed to the substantial reduction of tariffs and other barriers to trade and to the elimin ation of 
discriminatory treatment in international trade relations"). As the Appellate Body held : 
 
At the end of the Uruguay Round, negotiators fashioned an appropriate preamble for the new 
WTO Agreement , which strengthened the multilateral trading system by establishing an 
international organization, inter alia, to facilitate the implementation, administration and 
operation, and to further the objectives, of that Agreement and the other agreements resultin g 
from that Round. In recognition of the importance of continuity with the previous GATT system, 
negotiators used the preamble of the GATT 1947 as the template for the preamble of the new 
WTO Agreement . 
 
Appellate Body Report, US – Shrimp , para. 152. 
607 TRIPS Agreement, preamble, first recital. The final recital of the TRIPS preamble further refers to the 
desire to establish a "mutually supportive relationship" between, on the one hand, the WTO , and on the other, 
WIPO , as well as "other relevant internat ional organizations".  
608 TBT Agreement , preamble, sixth recital.  
609 The two provisions strike such balance from different perspectives  which, rather than contradictory , 
may be seen instead is complementary . A WTO Member needs to strike the health/trade balan ce when 
regulating labelling and packaging that may also affect the use of trademarks, from both the perspective of 
Article  20 of the TRIPS Agreement and Article  2.2 of the TBT Agreement . 
610 The reference in Article  19 of TRIPS to "other government requirem ents for goods … protected by the 
trademark" may also indicate the negotiators' intention to ensure that requirements under the TRIPS 
Agreement harmoniously co -exist with measures that both fall ( inter alia ) under the TBT Agreement  
("government requirement s for goods ") and the TRIPS  Agreement  ("which constitute an obstacle to the use of 
the trademark " for that " good"). Such "other requirements" are considered as " valid reasons for non -use". WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  meaning of the TBT Agreement . It is only in the event that we would determine that the measures 
are inconsistent with Article  2.2 of the TBT Agreement  while being permitted under Article  20 of 
the TRIPS  Agreeme nt that the situation alleged by Australia to constitute a conflict would arise. 
Should we find that this is the case, we would subsequently need to consider whether this 
situation gives rise to a "conflict", as argued by Australia.  
7.2.4   Whether the TPP measures  constitute a technical  regulation within the meaning of 
Annex  1.1 of the TBT Agreement  
7.108.   The complainants claim that the TPP measures  are covered by the TBT Agreement , as they 
fall within the definition of "technical  regulation" in Annex  1.1 of the Agreement.611 Australia, as 
described above, "accepts that the physical  requirements [under the TPP measures ] are 
technical  regulations within the scope of the TBT Agreement ".612 However, it considers that "[t]he 
TBT Agreement  addresses technical  regulatio ns and does  not, on its face, appear to be concerned 
with the exploitation of intellectual  property".613  
7.109.   Article  2.2 of the TBT Agreement  applies to "technical  regulations" by central government 
bodies. A "technical regulation" is defined in Annex  1.1 to th e TBT Agreement614 as a: 
Document which lays down product characteristics or their related processes and 
production methods, including the applicable administrative provisions, with which 
compliance is mandatory. It may also include or deal exclusively with terminology, 
symbols, packaging, marking or labelling requirements as they apply to a product, 
process or production method.  
7.110.   Whether a measure constitutes a technical  regulation depends on three criteria615: 
a. "[f]irst , the document must apply to an identifiab le product or group of products";  
b. "[s]econd , the document must lay down one or more characteristics of the product"; and  
c. "[t]hird , compliance with the product characteristics must be mandatory".616 
7.111.   The parties do  not contest the relevance of these criteria f or determining whether a 
measure is a technical regulation.617 
7.112.   As the Appellate Body has noted:  
[A] determination of whether a measure constitutes a technical regulation "must be 
made in the light of the characteristics of the measure at issue and the circu mstances 
of the case". … [T]his analysis should give particular weight to the "integral and 
essential" aspects of the measure. In determining whether a measure is a technical 
regulation, a panel must therefore carefully examine the design and operation of the 
measure while seeking to identify its "integral and essential" aspects. It is these 
features of the measure that are to be accorded the most weight for purposes of 
                                                
611 Honduras's first written submission, paras.  829-846; Honduras's s econd written submission, 
paras.  445-460; Dominican  Republic 's first written submission, paras.  936-950; Dominican  Republic 's second 
written submission, paras.  815-841; Cuba's first written submission, paras.  391-397; Cuba's second written 
submission, paras.  192-197; Indonesia's first written submission, paras.  369-384; and Indonesia's second 
written submission, paras.  211-219. 
612 Australia's first written submission, para. 507. 
613 Australia's first written submission, para. 509. 
614 Under Article  1.2 of th e TBT Agreement , "for the purposes of this Agreement the meaning of the 
terms given in Annex  1 applies". See also the second paragraph of the introduction to Annex  1 to the 
TBT Agreement . 
615 Appellate Body Report, EC – Sardines , para. 176. 
616 Appellate Body Report, EC – Sardines , para. 176 (emphasis original) (referring to Appellate Body 
Report, EC – Asbestos , paras.  66-70). 
617 Honduras's first written submission, para. 791; Dominican  Republic 's first written submission, 
para. 937; Cuba's first written submiss ion, para. 392; Indonesia's first written submission, para. 370; and 
Australia's first written submission, paras.  507 and 563.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  characterizing the measure, and, thereby, for determining whether it is subject to the 
disciplines of the TBT Agreement . The ultimate conclusion as to the legal 
characterization of the measure must be made in respect of, and having considered, 
the measure as a whole.618 
7.113.   With these considerations in mind, we address the three  criteria identified  above, that 
must be satisfied in order for the TPP measures  to constitute a technical regulation.  
7.114.   We note at the outset that each of the legal instruments comprising the TPP measures  
satisfies the requirement in Annex  1.1 that technical regulations be co ntained in a "document".619 
We therefore consider further below whether the TPP measures  (i) apply to an identifiable group of 
products, and (ii) lay down one or more characteristics of the products, (iii) with which compliance 
is mandatory.  
7.2.4.1   Whether the TPP measures  apply to an identifiable group of products  
7.2.4.1.1   Main arguments of the parties  
7.115.   The complainants  argue that the TPP measures  (including the TMA Act) apply to an 
identifiable product or group of products in accordance with Annex  1.1 of the TBT Agreement .620 
They note that Section  4(1) of the TPP Act contains a definition of "tobacco products"621 for the 
purposes of the same Act.622 Honduras  adds623 that the Explanatory Memorandum to the TPP Bill 
clarifies the breadth of this definition.624 Cuba references the subtitle of the TPP Act ("An Act to 
discourage the use of tobacco products, and for related purposes")625, and observes that Australia 
indicates that "[t]he  tobacco plain packaging requirements apply to all tobacco products ".626 
                                                
618 Appellate Body Reports, EC – Seal Products , para. 5.19 (referring to Appellate Body Reports, US –
 Tuna II (Mexico) , para. 188 ( in turn referring to Appellate Body Reports, EC – Asbestos , para. 64; and EC –
 Sardines , paras.  192 and 193) ); and EC – Asbestos , para. 72. 
619 In US – Tuna II (Mexico) , the Appellate Body held that:  
 
Annex  1.1 [of the TBT Agreement ] defines the term "techni cal regulation" by reference to a 
"document", which is defined quite broadly as "something written, inscribed, etc., which 
furnishes evidence or information upon any subject".391 The use of the term "document" could 
therefore cover a broad range of instrum ents or apply to a variety of measures.  
_______________  
[*fn original] 391 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford 
University Press, 2007), Vol. 1, p. 731. We note that the ISO/IEC Guide 2: 1991, General Terms 
and Their Definitions Concerning Standardization and Related Activities (the "ISO/IEC Guide 2: 
1991") establishes that "[a] document is to be understood as any medium with information 
recorded on o r in it ." 
 
Appellate Body Report, US – Tuna II (Mexico) , para.  185. See also Appellate  Body Reports, EC – Seal Products , 
paras.  5.9-5.10 (stating that " the scope of Annex 1.1 appears to be limited to those documents that establish 
or prescribe something an d thus have a certain normative content.") . See also para. 7.291  and fns 1153, 1001 
and 1007 below.  
620 Honduras's first written submission, paras.  831-833; Dominican  Republic 's first written submission, 
paras.  939-940; Dominican  Republic 's second written submission, para. 820; Cuba's first written submission, 
para. 394; Cuba's second written submission, para. 194; and Indonesia's first written submission, 
paras.  371-374. 
621 Cuba's first written submission, para. 394; Dominican  Republic 's first written submission, para. 940; 
Honduras's first written submission, para. 831; and Indonesia's first written submission, para. 372. 
622 According to the TPP Act, "tobacco product  mean s processed tobacco, or any product that contains 
tobacco, that: (a) is manufactured to be used for smoking, sucking, chewing or snuffing; and (b) is not 
included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 19 89". 
TPP Act, (Exhibits AUS -1, JE-1), Section 4(1).  
623 Honduras's first written submission, para. 832. 
624 Honduras quotes the following portion of the Explanatory Memorandum: "This definition is based on 
the definition in the WHO FCTC. It is intended to encompass all tobacco products designed for human 
consumption, and will include, for example, cigarettes, c igars, roll -your-own tobacco, bidis, kreteks, little 
cigars, and dissolvable tobacco products such as tablets containing tobacco for sucking". TPP Bill Explanatory 
Memorandum, (Exhibits AUS -2, JE-7), p. 9. 
625 Cuba's second written submission, para. 194 fn 100. 
626 Cuba's second written submission, para. 194 fn 100 (emphasis added by Cuba) (quoting Australia's 
first written submission, para. 125 and referring to  Australia's first written submission, para. 132).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Indonesia invokes the title of Chapter 2 of the TPP Act ("Requirements for plain packaging and 
appearance of tobacco products") and notes that, according to the "Simplified Outline" of its 
Chapter  2627, "Part 2 of this Chapter specifies requirements for the retail pac kaging and 
appearance of tobacco products".628 Thus, Indonesia argues629, the situation under the 
TPP measures  is similar to US – Clove  Cigarettes , where the panel had found that the relevant 
measure "explicitly  identifie[d] the products it cover[ed]"; hence, the products were "not merely 
'identifiable', as was apparently the case in EC – Asbestos " but "[r]ather … 'expressly 
identified'".630 For Indonesia, this is confirmed by the TPP Regulations ' stated "[p]urpose": 
to "prescribe requirements for the retail pack aging and appearance of tobacco products for Part 2 
of Chapter 2 of the [TPP] Act".631 
7.116.   As noted, Australia  accepts that the "physical requirements" of the TPP measures  lay down 
product characteristics632; however, it contests the applicability of the TBT Agree ment to the 
"trademark requirements" of the TPP measures .633 In doing so, Australia does  not explicitly 
address the above arguments of the complainants as regards the applicability of the TPP measures  
to an identifiable product or group of products.  
7.2.4.1.2   Analysis  by the Panel  
7.117.   A "technical regulation" must be applicable to an identifiable  product, or group of 
products", but the term "identifiable" does not require that a technical regulation "expressly 
identify" its product scope, as long as the products to which i t applies are "identifiable".634 In 
assessing whether this criterion is satisfied, we give the most weight to those provisions of the 
TPP measures  that, in our view, represent their integral and essential aspects.635 
7.118.   The terms of the TPP Act reveal that it app lies to an expressly identified group of products. 
The "simplified outline" in Section  12 of the TPP Act provides that "[t]his Act regulates the retail 
packaging and appearance of tobacco products".636 The TPP Act contains the following definition of 
"tobacc o product"637:  
processed tobacco, or any product that contains tobacco, that:  
                                                
627 TPP Act, (Exhibits AUS -1, JE-1), p. 18. 
628 Indon esia's first written submission, para. 372; response to Panel question Nos. 62 and 115; and 
second written submission, para. 215. 
629 Indonesia's first written submission, paras.  371-372. 
630 Panel Report, US – Clove Cigarettes , para. 7.27. 
631 Indonesia's first  written submission, para. 374; and response to Panel question No. 62 (referring to  
TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.4).  
632 Australia's first written submission, para. 507. 
633 Australia's first written submission, paras.  509-512. 
634 According to the Appellate Body:  
  
A "technical regulation" must, of course, be applicable to an identifiable  product, or group of 
products. Otherwise, enforcement of the regulation will, in practical terms, be impossible. This 
consideration also underlies the formal obligation, in Article  2.9.2 of the TBT Agreement , for 
Members to notify other Members, through t he WTO Secretariat, "of the products to be covered " 
by a proposed "technical regulation". (emphasis added) Clearly, compliance with this obligation 
requires identification of the product coverage of a technical regulation. However, in contrast to 
what the Panel suggested, this does not mean that a "technical regulation" must apply to " given " 
products which are actually named , identified  or specified  in the regulation. (emphasis added) 
Although the TBT Agreement  clearly applies to "products" generally, nothi ng in the text of that 
Agreement suggests that those products need be named or otherwise expressly  identified in a 
"technical regulation". Moreover, there may be perfectly sound administrative reasons for 
formulating a "technical regulation" in a way that does not expressly identify products by name, 
but simply makes them identifiable – for instance, through the "characteristic" that is the subject 
of regulation.  
 
Appellate Body Report, EC – Asbestos , para. 70 (emphasis original; footnote  omitted).  
635 Appel late Body Reports, EC – Seal Products , para. 5.19. 
636 TPP Act, (Exhibits AUS -1, JE-1), Section 12.  
637 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1). See Cuba's first written submission, para. 394; 
Dominican  Republic 's first written submission, para. 940 and fns 116 and 805; Honduras's first written 
submission, para. 831; and Indonesia's first written submission, para. 372. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (a) is manufactured to be used for smoking, sucking, chewing or snuffing; and  
(b) is not included in the Australian Register of Therapeutic Goods maintained 
under the Therapeutic Goods Act 1989 . 
Note:  Loose tobacco for roll -your-own cigarettes is  an example of processed tobacco. 
A cigar or cigarette is an example of a product that contains tobacco.638 
7.119.   As Honduras notes639, the Explanatory Memorandum to the TPP Bill relevantly clarifies the 
scope of this definition as follows:  
The definition of "tobacco product" in the [ TPP Act] means that generally any product 
containing tobacco, no matter how small the amount, will be within the scope of the 
[TPP Act] if it was manufactured for smoking, suc king, chewing or snuffing.  
This definition is based on the definition in the WHO FCTC. It is intended to 
encompass all tobacco products designed for human consumption, and will include, for 
example, cigarettes, cigars, roll -your-own tobacco, bidis, kreteks , little cigars, and 
dissolvable tobacco products such as tablets containing tobacco for sucking.  
It is important to note that therapeutic goods, which are aimed at helping people to 
quit their use of tobacco products, will not be regulated by the [ TPP Act] …. Products 
that contain nicotine but do not contain any tobacco will not be regulated by the 
[TPP Act]. 
The broad definition of "tobacco products" may encompass some tobacco products 
which are unlawful, under Commonwealth, State or Territory laws that r egulate the 
use and sale of tobacco, and that are not affected by the operation of this Bill.640  
7.120.   Also, as Indonesia points out641, Section  3 of the TPP Act (entitled "Objects of the Act") 
relates to "tobacco products"642 and, as discussed further below, defines  the objects of the Act with 
reference to the effects of the Act on use of those products.643 
7.121.   Moreover, the TPP Act explicitly defines "tobacco product requirement" as:  
                                                
638 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1).  
639 Honduras's first written submission, para. 832. 
640 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 9. 
641 Indonesia's first written submission, para. 374; and response to Panel question No. 62 (referring to  
TPP Regulations, (Exhibits AUS -3, JE-7), Reg ulation  1.1.4).  
642 Section 3 defines the "Obje cts of this Act" as follows:  
 
(1) The objects of this Act are:  
(a) to improve public health by:  
(i) discouraging people from taking up smoking, or using tobacco products; and  
(ii) encouraging people to give up smoking, and to stop using tobacco products; 
and 
(iii) discouraging people who have given up smoking, or who have stopped using 
tobacco products, from relapsing; and  
(iv) reducing people's exposure to smoke from tobacco products; and  
(b) to give effect to certain obligations that Australia has as a party to the Convention on 
Tobacc o Control.  
(2) It is the intention of the Parliament to contribute to achieving the objects in subsection (1) 
by regulating the retail packaging and appearance of tobacco products in order to:  
(a) reduce the appeal of tobacco products  to consumers; and  
(b) increase the effectiveness of health warnings on the retail packaging of tobacco 
products ; and 
(c) reduce the ability of the retail packaging of tobacco products  to mislead consumers 
about the harmful effects of smoking or using tobacco products . 
TPP Act, (Exh ibits AUS -1, JE-1), Section 3. (emphasis added)  
643 This observation is without prejudice to our assessment, in Section 7.2.5.1  below, of whether t he 
TPP measures  pursue a legitimate objective.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  [T]he following requirements in relation to the retail packaging or appearance of 
tobacco  products:  
(a) a requirement specified in Part 2 of Chapter 2;  
(b) a requirement prescribed by regulations mad e under Part 2 of Chapter 2;  
(c) if subsection 15(2) applies (acquisition of property) —a requirement prescribed 
by regulations made under section  15.644 
7.122.   As Indo nesia notes645, Chapter 2 of the TPP Act is entitled "Requirements for plain 
packaging and appearance of tobacco products" and, according to th e Simplified Outline of 
Chapter  2646, Part  2 of Chapter 2 "specifies  requirements for the retail packaging and appear ance 
of tobacco products".647 Thus, on its express terms, the TPP Act sets out requirements in respect 
of the packaging and appearance of an expressly identified group of products, namely 
"tobacco  products". Part 2 of Chapter  2 contains the substantive requi rements of the TPP Act 
challenged by the complainants under the TBT Agreement . 
7.123.   The TPP Regulations  elaborate on the "tobacco product requirements" in the TPP Act. 
Specifically, Section  27 of the TPP Act provides that regulations "may prescribe additional 
requirements in relation to (a) the retail packaging of tobacco products; and (b) the appearance of 
tobacco products".648 This is reflected in the "Purpose" of the TPP Regulations .649 Significantly, the 
TPP Regulations  specify that a number of words and expressions used therein have the same 
meaning as provided in the TPP Act, including "tobacco product".650 Moreover, the TPP Act defines 
"this Act" as "includ[ing] the regulations".651 Thus, like the TPP Act, the TPP Regulations  apply, on 
the express terms of the instrument, to "tobacco products" in that they are intended to prescribe 
requirements for "tobacco products" as defined in, and in addition to those prescribed in, the 
TPP Act. 
7.124.   The TMA Act  does not express ly identify its product scope. We therefore consider whether 
it nonetheless applies to a group of products that are "identifiable".652 We recall that the TMA  Act 
inserts into the Trade Marks Act 1995  (Cth) (TM Act) a new provision, Section  231A, which 
provid es as follows:  
(1) The regulations [made by Governor -General pursuant to their authority under Section 
231 of the Trade Marks Act 1995  (Cth)] may make provision in relation to the effect of 
the operation of the Tobacco Plain Packaging Act 2011 , and any regulations made  under 
that Act , on: 
 
(a) a provision of this Act; or  
 
(b) a regulation made under this Act, including:  
 
(i) a regulation that applies a provision of this Act; or  
 
                                                
644 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1).  
645 Indonesia's first written submission, para. 372; response to Panel question Nos. 62 and 115; and 
second written submission, para. 215. 
646 According to the Explanatory Memorandum to the Tobacco Plain Packaging Bill 2011, "Part 1 
(clause  17) provides a simplified outline of Chapter 2, to aid in understanding of relevant clauses". TPP Bill 
Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 12. 
647 TPP Act, (Exhibits AUS -1, JE-1), Section 17.  
648 TPP Act, (Exhibits AUS -1, JE-1), Section 27. According to the Explanatory Memorandum to the 
Tobacco Plain Packaging Bill 2011, "Chapter 2 outlines general requirements for plain packaging of tobacco 
product s, and some specific requirements for cigarette packs and cartons. Chapter 2 also provides for the 
Governor -General to make regulations specifying requirements for plain packaging and the appearance of 
tobacco products among other things, to further the ob jects of the Bill". TPP Bill Explanatory Memorandum, 
(Exhibits AUS -2, JE-7), p. 12. 
649 TPP Regulations, (Exhibits AU S-3, JE-2), Reg ulation  1.1.4.  
650 TPP Regulations, (Exhibits AUS -3, JE-2), Reg ulation  1.1.3. The other words and expressions having 
the same me aning as in the TPP Act include "retail packaging", "tobacco advertising and promotion", and 
"variant name".  
651 TPP Act, (Exhibits AUS -1, JE-1), Section 4 (definition of "this Act"). See also ibid. Section 109.  
652 Appellate Body Report, EC – Asbestos , para. 70. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (ii) a regulation that applies a provision of this Act in modified form.  
 
(2) Without limiting subsection (1), regulations made for the purposes of that subsection 
may clarify or state the effect of the operation of the Tobacco Plain Packaging Act 2011 , 
and any regulations made under that Act, on a provision of this Act or a regulat ion made 
under this Act, including by taking or deeming:  
 
(a) something to have (or not to have) happened; or  
 
(b) something to be (or not to be) the case; or  
 
(c) something  to have (or not  to have) a particular effect.  
 
(3) Regulations made for the purposes of subsection  (1): 
 
(a) may be inconsistent with this Act; and  
 
(b) prevail over this Act (including any other regulations or other instruments made 
under this Act), to the extent of any inconsistency.653 
 
7.125.   The TMA Bill Explanatory Memorandum explains that:  
Regulations made under new section 231A are not intended to have any effect on the 
operation of the Trade Marks Act in relation to goods or services not governed by the 
Plain Packaging Act.654 
7.126.   This indicates that regulations made pursuant to the TMA  Act are intended only to address 
the potential impact of the operation of the TPP Act and TPP Regulations in relation to trademarks 
whose use is affected by the TPP Act – i.e. those relating to tobacco products.  
7.127.   A consideration of the terms of Section  231A confirms this view. Spec ifically, the TMA  Act 
grants to the Governor -General the power to make regulations, which is circumscribed only by the 
requirement that such regulations be made "in relation to the effect of the operation" of the 
TPP Act and the TPP Regulations , which them selves apply in relation to tobacco products, on a 
provision of the TM Act or regulations made thereunder.  
7.128.   In light of the above, we find that the TPP Act and the TPP Regulations  apply to an 
expressly identified group of products; namely, "tobacco products" as defined655 by Section 4.1 of 
the TPP Act. While the TMA  Act does  not identify expressly the products to which it applies in the 
same manner, we understand it to apply in relat ion to the same group of products (namely, 
tobacco products).  
7.2.4.2   Whether the TPP measures  lay down one or more product characteristics  
7.2.4.2.1   Main arguments of the parties  
7.129.   The complainants  contend that the TPP measures , in particular the TPP Act and the 
TPP Regulati ons, lay  down product characteristics. According to the complainants, both the 
trademark and form requirements656 under the TPP measures  prescribe packaging, marking and 
labelling requirements.657 The Dominican  Republic also argues that the TPP measures  lay down 
product characteristics for tobacco products, including cigarette packs and cartons, relating to their 
                                                
653 TMA Act, (Exhibits AUS -4, JE-3), Schedule 1(2) . (note omitted)  
654 TMA Bill Explanatory Memorandum, (Exhibits AUS -5, JE-5), p. 1. 
655 See Appellate Body Reports, EC – Seal Products , para. 5.21; and Panel Reports, EC – Seal Products , 
para. 7.114.  
656 Dominican  Republic 's first written submission, para. 945; and Honduras's first written submission, 
paras.  834-840. 
657 Dominican  Republic 's first written submission, para. 947. See also Cuba's first written submission, 
para. 395; and Indonesia's first writte n submission, paras.  379-380. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  composition, size, shape, colour, that are applied through "applicable administrative requirements" 
as prescribed by the TPP measures .658  
7.130.   Australia  accepts that the requirements concerning the physical characteristics of tobacco 
products and packages "'lay[]  down product characteristics' and/or 'deal … with terminology, 
symbols and packaging, marking or labelling requirements as they apply to a product '" within the 
meaning of Annex  1.1 to the TBT Agreement .659 However, Australia has "significant concerns about 
the systemic implications" of the proposition that the trademark requirements can also be 
reviewed under the TBT Agreement .660 According to Australia, the TBT Agreement  "does not, on  its 
face, appear to be concerned with the exploitation of intellectual property"661, and " Article  2.2 … 
does not refer to the use of a trademark at all, but instead encompasses all manner of 
'technical  regulations'".662 Accordin gly, Australia contends, only the "physical requirements" of the 
TPP measures  are properly subject to examination under Article  2.2.663 
7.131.   The complainants  contend that both the physical and trademark requirements of the 
TPP measures  are covered by the definiti on of technical  regulations under the TBT Agreement  and 
should be addressed together664, a view that is shared by a "large number" of third -parties to 
these proceedings, including "several who are otherwise very supportive" of Australia's 
TPP measures .665 Honduras argues that the trademark requirements govern the packaging, 
presentation and appearance of tobacco products666, whereas the format requirements affect 
packaging of tobacco products and products themselves.667 Honduras maintains that nothing in the 
text of Annex  1.1 suggests that trademark requirements would be excluded from the definition of 
technical regulations668, and notes that "[n]owhere in the Appellate Body's criteria is there a 
suggestion that measures affecting intellectual property rights fall  outside the definition provided 
in Annex  1.1".669 In a similar vein, the Dominican Republic argues that Australia advances no 
arguments for its position based on the text of Annex  1.1.670 According to Cuba, Australia does  not 
address the definition of technic al regulations.671 The Dominican Republic notes, in this respect, 
the "absence of express language, such as 'trademarks' or 'geographical indications' in the 
definition of 'technical regulation' does not mean that the [T]PP measures are not qualified as 
'technical  regulations'".672 According to Indonesia, "[t]he terms 'packaging or labelling' in the 
TBT Agreement  are not  qualified" and "[t]he Agreement does not limit itself to the 'non -intellectual 
property' aspects of packaging and labeling".673 In fact, argues Indonesia, "there are a multitude 
of topics that could conceivably be addressed by a technical regulation and the TBT Agreement  
refers specifically to none of them."674 For instance, while "rules of origin" are nowhere mentioned 
in the TBT Agreement , both th e panel and the Appellate  Body in US – COOL  "recognized that origin 
labelling was covered by the TBT Agreement ".675 
7.132.   The complainants  also note that the TBT Agreement  contains provisions expressly 
excluding certain subject -matter from its scope. They point ou t, more specifically, to Articles  1.4 
and 1.5 of the Agreement, according to which only purchasing specifications prepared by 
                                                
658 Dominican  Republic 's first written submission, para. 944.  
659 Australia's first written submission, para. 507. 
660 Australia's first written submission, para. 509. 
661 Australia's first written submission, para. 509. 
662 Australia' s first written submission, para. 510. 
663 Australia's first written submission, para. 512. 
664 Honduras's response to Panel question No. 62; Dominican  Republic 's response to Panel question 
No. 62; Cuba's second written submission, para. 190; Cuba's response t o Panel question Nos. 1 and 62  
(annexed to its response to Panel question No. 138); Indonesia's second written submission, paras.  217, 219 
and 294; and Indonesia's response to Panel question No. 62. 
665 Indonesia's second written submission, paras.  217-219 (referring to, inter alia, Canada, China, the 
European Union, Brazil, Nicaragua, Norway and South Africa).  
666 Honduras's first written submission, para. 837. 
667 Honduras's first written submission, paras.  838-839. 
668 Honduras's second written submission, para. 448. 
669 Honduras's second written submission, para. 452. 
670 Dominican  Republic 's second written submission, para. 833. 
671 Cuba's second written submission, para. 193. 
672 Dominican  Republic 's second written submission, para. 827. 
673 Indonesia's response to  Panel question No. 115, para. 44. 
674 Indonesia's response to Panel question No. 62, para. 61. 
675 Indonesia's response to Panel question No. 115, para. 39. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  governmental bodies for production or consumption requirements of governmental bodies and 
sanitary and phytosanitary measures fall  outside of the scope of the TBT Agreement .676 To the 
complainants, this indicates that "when the drafters wanted to exclude certain subject matter from 
the TBT Agreement , they did so expressly".677  
7.133.   With reference to the second sentence of Annex  1.1, the Domi nican  Republic adds that the 
trademark requirements also amount to "at least"678 "packaging", "marking", and "labelling" 
requirements.679 Indonesia concurs.680 Likewise, Cuba maintains that the terms "[t]erminology, 
symbols, packaging, marking or labelling"681 also cover the trademark requirements of the 
TPP measures . Honduras and Indonesia add that the terms of the second sentence are 
"unqualified", and make no reference to a trademark exception.682 The Dominican Republic points 
out that the second sentence of A nnex 1.1 has been interpreted as a standalone basis for finding 
that a document qualifies as a technical regulation.683 
7.134.   Australia  responds that "terminology, symbols, packaging, marking or labelling 
requirements" under the second sentence of Annex  1.1 of the  TBT Agreement  must convey 
information about an intrinsic characteristic of a product. According to Australia, "[a]  proper 
understanding of the scope of a 'technical  regulation' encompasses measures that regulate 
intrinsic characteristics of a product or t he physical characteristics of its package, as well as 
terminology, symbols, packaging, marks or labels insofar as they convey information about the 
intrinsic characteristics of the product ".684 Whilst  Australia recognizes that "[t]he function of a 
trademark  is to distinguish the products of one enterprise from those of another in the course of 
trade" and that "[s]ome symbols that convey information about a product characteristic may … be 
trademarked", it points out that "[n]othing in the trademark requiremen ts imposed by the 
[TPP]  measure[s] regulates what information a trademark may or may not convey about the 
intrinsic characteristics of tobacco products".685 Australia maintains that "[u]nder a proper 
interpretation of the second sentence of Annex  1.1 … a mea sure constitutes a 'technical regulation' 
only to the extent that it regulates what information a symbol may or may not convey about an 
intrinsic characteristic of a product".686 
7.135.   According to Cuba, the TPP measures  lay down both "intrinsic" and related chara cteristics, 
such as packaging, marking and labelling requirements, for tobacco products.687 Honduras  and 
Indonesia  add that the Appellate Body explained that product characteristics may include not only 
features and qualities intrinsic to the product itself,  but also related characteristics, such as the 
means of identification, the presentation and appearance of a product.688 Honduras, the Dominican 
Republic, and Cuba recall that in EC – Trademarks and Geographical Indications (Australia) , 
Australia itself argu ed that a labelling requirement affecting the use of a GI, which is an IP right  
                                                
676 Honduras's second written submission, para. 449; Dominican  Republic 's second written submission, 
para. 830; Cuba's response to Panel question No.  1 (annexed to its response to Panel question No. 138) and 
No. 115; Indonesia's response to Panel question No. 115. 
677 Indonesia's response to Panel question No. 115, para. 44. See also Honduras's second written 
submission, para. 449; Dominican  Republic 's second written submission, para. 830; Cuba's response to Panel 
question No. 1 (annexed to its response to Panel question No. 138) and No. 115; and Indonesia's second 
written  submission, para. 214. 
678 Dominican  Republic 's second written submission, para. 823. 
679 Dominican  Republic 's response to Panel question No. 115; and Dominican  Republic 's second written 
submission, para. 823. 
680 Indonesia's first written submission, paras.  379-380. 
681 Cuba's second written submission, para. 195. 
682 Honduras's response to Panel question No. 115; Indonesia's response to Panel question No. 115; and 
Indonesia's second written submission, para. 214. 
683 Dominican  Republic 's response to Panel question  No. 115; and Dominican  Republic 's second written 
submission, para. 822. 
684 Australia's response to Panel question No. 72, para. 197. (emphasis added)  
685 Australia's response to Panel question No. 72, para. 198. 
686 Australia's response to Panel question No. 72, para. 198. 
687 Cuba's first written submission, para. 395; and response to Panel question No. 1. 
688 Honduras's first written submission, para. 791; and Indonesia's response to Panel question No. 115. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  covered by the TRIPS  Agreement , is a technical regulation under the TBT Agreement , and that the 
panel agreed with that position.689 
7.2.4.2.2   Analysis by the Panel  
7.136.   Annex  1.1 of the TBT Agreement  defines the term "technical regulation" as follows:  
Document which lays down product characteristics  or their related processes and 
production methods, including the applicable administrative provisions, with which 
compliance is mandatory. It may also include or deal exclusively with terminology, 
symbols, packaging, marking or labelling requirements as they apply to a product, 
process or production method. (emphasis added)  
7.137.   As described by the Appellate Body, "[t]he heart of the definition of  a 'technical regulation' 
is that the 'document' at issue must 'lay down' — that is, set forth, stipulate or provide — 
'product  characteristics '".690 The Appellate Body interpreted "product characteristics" in the 
following manner:  
The word "characteristic" has a number of synonyms that are helpful in understanding 
the ordinary meaning of that word, in this context. Thus, the "characteristics" of a 
product include, in our view, any objectively definable "features", "qualities", 
"attributes", or other "disting uishing mark" of a product. Such "characteristics" might 
relate, inter alia, to a product's composition, size, shape, colour, texture, hardness, 
tensile strength, flammability, conductivity, density, or viscosity. In the definition of a 
"technical regulati on" in Annex 1.1, the TBT Agreement itself gives certain examples 
of "product characteristics" – "terminology, symbols, packaging, marking or labelling 
requirements". These examples indicate that "product characteristics" include, not 
only features and qua lities intrinsic to the product itself, but also related 
"characteristics", such as the means of identification, the presentation and the 
appearance of a product. … Further, we note that the definition of a "technical 
regulation" provides that such a regul ation "may also include or deal exclusively with 
terminology, symbols, packaging, marking or labelling requirements". (emphasis 
added) The use here of the word "exclusively" and the disjunctive word "or" indicates 
that a "technical regulation" may be confi ned to laying down only one or a few 
"product characteristics".691 
7.138.   We note that such "'[p]roduct characteristics' may … be prescribed or imposed with respect 
to products in either a positive or a negative form":  
[T]he document may provide, positively, that products must possess  certain 
"characteristics", or the document may require, negatively, that products  must not 
possess  certain "characteristics".  In both cases, the legal result is the same:  
the document "lays  down" certain binding "characteristics" for products, in one case 
affirmatively, and in the other by negative implication.692 
7.139.   Also, as a general matter, "a determination of whether a measure constitutes a technical 
regulation 'must be made in the light of t he characteristics of the measure at issue and the 
                                                
689 Honduras's response to Panel question No. 115; Honduras's second written submission, para. 450 
(referring to  Panel Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.433 and 7.459); 
Dominican  Republic 's second written submission, para. 834; Cuba's response to Panel question  No. 1 (annexed 
to its response to Panel question No. 138); Cuba's second written submission, para. 192; and Cuba's response 
to Panel question No. 115. See also Indonesia's first written submission, para. 378; and Indonesia's second 
written submission, para. 213. 
690 Appellate Body Report, EC – Asbestos , para. 67. (emphasis original)  
691 Appellate Body Report, EC – Asbestos , para. 67. (emphasis original)   
692 Appellate Body Report, EC – Asbestos , para. 69. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  circumstances of the case'"693, and "this analysis should give particular weight to the 'integral and 
essential' aspects of the measure".694  
7.140.   Turning to the measures at issue, as set out in section 2.1.2, the requirements in the 
TPP Act and the TPP Regulations , operating in conjunction with other legislative requirements that 
are not challenged in these proceedings (such as those relating to GHWs), have the cumulative 
effect of requiring that tobacco products ( including their retail packaging) appear in a standardized 
manner, as depicted in section 2.1.2.3.7. The elements of the TPP measures  that prescribe that 
tobacco products (including their retail packaging) appear in this uniform manner, taken together, 
constitute the integral and essential aspects of the TPP Act and TPP Regulations .695 We thus give 
particular weight to these elements in assessing whether the TPP measures  lay down one or more 
product characteristics.  
7.141.   As we observed in section 2.1.2.4, the TPP Act and the TPP Regulations  regulate various 
elements of the appearance of tobacco  products  themselves. Specifically, Section  26 of the TPP Act 
provides that no trademark or mark may appear anywhere on a tobacco  product, other than as 
permitted by the TPP Regulations696. Moreover, Section  27 of the TPP Act provides that the 
TPP Regulations  may prescribe additional requirements in relation to the appearance of tobacco 
products.697 In so doing, Division  3.1 of the TPP Regulations  specifies requirements with respe ct to 
cigarettes. As discussed698, it regulates the colour of the paper casing699, the marking of a 
cigarette with an alphanumeric code700; and the colour of filter tips.701 Division  3.2 of the 
TPP Regulations  specifies requirements with respect to other tobacco products, including cigars, 
and stipulate that a colour and content (with respect to the brand, business or variant name) of 
the single band which may appear around the circumference of a cigar.702 The re quirements of the 
TPP Act also include a "prohibit[ion of] trade  marks from generally appearing on the tobacco 
products themselves".703 
7.142.   Accordingly, we find that in laying  down the requirements for the appearance of tobacco 
products in this way, the TPP Act and the TPP Regulations , operating together, lay  down product 
characteristics for tobacco products.  
7.143.   As described in section 2.1.2.3, the TPP Act and the TPP Regulations  also set  out detailed 
requirements for the retail packaging  of tobacco products. Specif ically, the "tobacco product 
requirements" set  out in Part  2, Chapter  2 of the TPP Act, and elaborated in the TPP Regulations , 
govern the packaging of tobacco products. According to the Simplified Outline of Chapter  2704, 
Part 2 of Chapter  2 "specifies  requirements for the retail packaging and appearance of tobacco 
products"705, including, in respect of packaging, "the physical features of retail packaging", 
"the colour and finish of retail packaging", "marks on retail packaging (including a prohibition on 
trade marks generally appearing on retail packaging)", "wrappers", "retail packaging after retail 
                                                
693 Appellate Body Reports, EC – Seal Products , para. 5.19 ( referring to  Appellate Body Report, US –
 Tuna II (Mexico) , para. 188 (referring to Appellate Body Reports, EC – Asbestos , para. 64; and EC – Sardines , 
paras.  192 and 193)).  
694 Appellate Body Reports, EC – Seal Products , para. 5.19 ( referring to  Appellate Body Report, EC –
 Asbestos , para. 72). 
695 Appellate Body Reports, EC – Seal Products , para. 5.19. 
696 TPP Act, (Exhibits AUS -1, JE-1), Section 26.  
697 TPP Act, (Exhibits AUS -1, JE-1), Section 27(1)(b).  
698 See Section 2.1.2.4.1 above.  
699 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.1.1.  
700 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  3.1.2(2).  
701 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  3.1.3.  
702 TPP Regulations, (Exhibits AUS -3, JE-2), Regs. 3.2.1(1) -3.2.1(3).  
703 TPP Act, (Exhibits AUS -1, JE-1), Section 17.  
704 According to the Explanatory Memorandum to the Tobacco Plain Packaging Bill 2011, "Part 1 
(clause  17) provides a simplified outline of Chapter 2, to aid in understanding of relevant clauses". TPP Bill 
Explanato ry Memorandum, (Exhibits AUS -2, JE-7), p. 12. 
705 TPP Act, (Exhibits AUS -1, JE-1), Section 17.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  sale".706 Accordingly, we find that the TPP Act and the TPP Regulations , operating together, 
lay down product characteristics by regulating the packaging of tobacco  products.  
7.144.   Moreover, key  requirements under both the TPP Act and the TPP Regulations  deal with the 
terminology  and symbols  that may appear on tobacco products or packaging. For instance, the 
TPP Act707 and the TPP Regulations708 contain detailed "[r]equiremen ts for brand, business, 
company or variant names"709 and appearance of names on the packaging of tobacco products. As 
regards symbols and marking, the TPP Act defines marks as "includ[ing] (without  limitation) any 
line, letters, numbers, symbol, graphic or i mage; but (other than when referring to a trade mark) 
does not include a trade mark".710 The TPP Act and TPP Regulations  contain detailed requirements 
concerning inter alia "trade  marks or marks on retail packaging"711, "origin  marks"712, a 
"calibration mark"713, a "measurement mark"714, the "marking of name and address on 
packaging"715, a "mark on wrapper to conceal bar codes"716, and the "alphanumeric code for 
cigarettes".717 Further, as mentioned, the TPP Act and the TPP Regulations  contain a wide array of 
"[r]equiremen ts for retail packaging of tobacco products"718 ranging from the "[p]hysical 
features"719, "colour and finish of retail packaging"720, "[t]rade marks and marks on retail 
packaging"721, "[b]rand, business, company and variant names" on tobacco packaging722, 
"[w]rappers"723, and "[i]nserts and onserts".724 Finally, in some respects, labelling  is regulated: for 
instance, in the context of "[i]nserts and onserts", the TPP Regulations  contain requirements 
relating to "adhesive label health warnings".725 In respect of e ach of these requirements, the 
TPP Act and/or the TPP Regulations  specify requirements that must be met in order for a tobacco 
product to be legally placed on the market in Australia. These requirements therefore amount to 
"terminology, symbols, packaging,  marking or labelling requirements" within the meaning of the 
second sentence of Annex  1.1. 
7.145.   As described above, among its requirements on the appearance of tobacco packaging, the 
TPP Act contains a "[p]rohibition on trade  marks and marks generally appearin g on retail 
packaging"726 of tobacco products, combined  with rules addressing "permitted trade  marks and 
marks".727 Further, the TPP Act stipulates that "[n]o  mark" and "[n]o trade  mark may appear 
anywhere on a tobacco product, other than as permitted by the r egulations".728 
The TPP Regulations  elaborate on these rules.729 In regulating the appearance and packaging of 
tobacco products, an essential function of the TPP Act and TPP Regulations  is to address 
comprehensively how both word and figurative signs, whether protected as trademarks or not, 
                                                
706 TPP Act, (Exhibits AUS -1, JE-1), Section 17. These terms largely correspond to the headers 
contained in Division 1 of Chapter  2, Part 2, of the TPP Act, entitled  "Requirements for retail packaging of 
tobacco products".  
707 See TPP Act, (Exhibits AUS -1, JE-1), Section 21.  
708 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  2.4.1.  
709 TPP Act, (Exhibits AUS -1, JE-1), Section 21, title.  
710 TPP Act, (Exhibits AUS -1, JE-1), Section 4, definition of a "mark". 
711 TPP Regulations, (Exhibits AUS -3, JE-2), Division 2.3, title. See also TPP Act, (Exhibits AUS -1, JE-1), 
Section 20.  
712 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  2.3.2, title.  
713 TPP Regulations, (Exhibits  AUS-3, JE-2), Regulation  2.3.3, title.  
714 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  2.3.4, title.  
715 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  2.3.8, title.  
716 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation  2.5.1, title.  
717 TPP Regula tions, (Exhibits AUS -3, JE-2), Regulation  3.1.2, title.  
718 TPP Act, (Exhibits AUS -1, JE-1), Chapter 2, Part 2, Division 1, title. See also TPP Regulations, 
(Exhibits AUS -3, JE-2), Part 2, title.  
719 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2. 1, title.  
720 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.2, title.  
721 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.3, title.  
722 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.4, title.  
723 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.5, title.  
724 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.6, title.  
725 TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.6.1, title.  
726 TPP Act, (Exhibits AUS -1, JE-1), Sect ion 20.  
727 See TPP Act, (Exhibits AUS -1, JE-1), Section 20(3).  
728 TPP Act, (Exhibits AUS -1, JE-1), Section 26(1) -(2). 
729 See TPP Regulations, (Exhibits AUS -3, JE-2), Part 2, Division 2.3 (entitled "Trade marks or marks on 
retail packaging"), Division 2.4 (ent itled "Brand, business, company and variant names"), and Part 3 (entitled 
"Requirements for appearance of tobacco products").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  shall or shall not appear, i.e.  what "terminology" and "symbols" may be represented and how, on 
tobacco products and their packaging. The trademark -related requirements of the TPP Act and 
TPP Regulations  fall within the scop e of several examples of product characteristics under the 
second sentence of Annex  1.1: "'terminology, symbols, packaging, marking … requirements'".  
7.146.   Australia contends that "[u]nder a proper interpretation of the second sentence of 
Annex  1.1, a measure co nstitutes a 'technical regulation' only to the extent that it regulates what 
information a symbol may or may not convey about an intrinsic characteristic of the product".730 
For Australia, a "trademark need not relate to any feature or quality intrinsic to t he trademarked 
product, or to a related process or production method, in order to fulfil these functions".731  
7.147.   We recall that the second sentence of the definition of "technical regulation" indicates that 
a technical regulation "may also include or deal exclusively  with terminology, symbols, packaging, 
marking or labelling requirements".732 The use of the words "also include" and "deal exclusively 
with" at the beginning of this sentence indicates that it includes elements that are additional to , 
and may be distinct from , those covered by the first sentence.733 
7.148.   In addition, the Appellate Body has found that "[t]he[] examples [in the second sentence 
of Annex  1.1] indicate that 'product characteristics' include, not only features and qualities intrinsic 
to the produc t itself, but also related 'characteristics', such as the means of identification, the 
presentation and the appearance of a product".734 In EC – Sardines , the Appellate Body confirmed 
this735, adding that "[i]n any event, … a 'means of identification' is a product characteristic"736 in 
itself. Specifically, "product characteristics include not only 'features and qualities intrinsic to the 
product', but also those that are related to it, such as 'means of identification'".737  
7.149.   A "characteristic" within the mea ning of Annex  1.1 of the TBT Agreement  may refer to, 
inter alia, "any objectively definable 'features', 'qualities', 'attributes', or other 'distinguishing 
mark' of a product"; "terminology, symbols, packaging, marking or labelling requirements"; as 
well a s characteristics "related" to the product itself, such as "the means of identification, the 
presentation and the appearance of a product".738 This definition of "characteristics" is sufficiently 
broad to encompass requirements relating to terminology, marki ng or labelling that affect the 
manner in which a sign, including one that is protected as a trademark, may be displayed on the 
relevant product.  
7.150.   Furthermore, as described above, the integral and essential aspects of the TPP measures  
are to ensure that to bacco products (including their packaging) appear in the uniform manner 
depicted above, i.e. in a specific prescribed manner in terms of their shape, fonts and colours, and 
other features. These requirements govern all aspects of "the means of identificati on, the 
presentation and appearance" of tobacco products, as well as all "terminology, symbols, 
packaging, marking or labelling requirements" for tobacco products and their retail packaging, with 
the exception of those governed by measures that are not at issue in these proceedings. That the 
scope of these measures is so broad as to encompass all these elements, including, inter alia, the 
display of signs protected as trademarks on the product, does not change the fact that their 
integral and essential aspe cts relate to "the means of identification, the presentation and 
appearance" of tobacco products, as well as all "terminology, symbols, packaging, marking or 
                                                
730 Australia's response to Panel question No. 72, para. 198. 
731 Australia's response to Panel question No. 72, para. 198. 
732 See Appellate Body Report, EC – Asbestos , para. 67. (emphasis original)  
733 See Appellate Body Reports, EC – Seal Products , para. 5.14, in relation to the same sentence in 
Annex 1.1.  
734 Appellate Body Report, EC – Asbestos , para. 67. In EC – Asbestos , the Ap pellate Body concluded that 
the measure at issue laid  down one or more "product characteristics".  Ibid. para. 74. See also Appellate Body 
Report, EC – Sardines , para. 189 (quoting Appellate Body Report, EC – Asbestos , para. 67). In EC – Sardines , 
the Appel late Body agreed with the panel's conclusion that the measure at issue laid down one or more 
"product characteristics".  Ibid. para. 193. 
735 Appellate Body Report, EC – Sardines , para. 189 (quoting Appellate Body Report, EC – Asbestos , 
para. 67). In EC – Sardines , the Appellate Body agreed with the panel's conclusion that the measure at issue 
laid down one or more "product characteristics".  Ibid. para. 193. 
736 Appellate Body Report, EC – Sardines , para. 191 (emphasis original) (quoting Appellate Body Report, 
EC – Asbestos , para. 67 fn 15). 
737 Appellate Body Report, EC – Sardines , para. 189. (emphasis added)  
738 Appellate Body Report, EC – Asbestos , para. 67. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  labelling requirements"; nor, in our view, does it modify or diminish the scope of the definition 
under Annex  1.1 of the TBT Agreement .  
7.151.   We note in this respect the analysis of the panel in EC – Trademarks and Geographical 
Indications  (Australia) , which considered whether a measure requiring the country of origin to be 
clearly and visibly indicated on the label laid down "product characteristics" within the meaning of 
Annex  1.1 of the TBT Agreement : 
The parties disagree as to whether the second indent of Article  12(2) of the Regulation 
lays down a product characteristic . The Panel notes that it expressl y sets  out a 
requirement that concerns what must be indicated on "the label" of a product. That is 
a labelling  requirement. The second sentence of the definition of "technical regulation" 
in Annex  1.1 of the TBT Agreement  expressly refers to "labelling req uirements" as an 
example of a technical regulation.  
The Panel notes that this example in the definition in Annex  1.1 is qualified by the 
words "as they apply to a product, process or production method". The text does not 
limit the scope of the example by s tating what the labels must indicate in order for 
them to constitute a technical regulation. Rather, they explain to what the labelling 
requirements "apply". This simply means that a requirement concerning a product 
label is a labelling requirement that ap plies to a product. The context shows that the 
subject of the second sentence, "[i]t" refers back to the noun "[d]ocument" as 
qualified by the relative clause beginning "which lays down" and ending with the word 
"mandatory". Were this not so, the element t hat "compliance is mandatory", for 
example, would not apply to the items described in the second sentence, which would 
be contrary to the object and purpose of the obligations concerning 
technical  regulations. As a result, a document that "deal[s] exclusiv ely with … labelling 
requirements as they apply to a product" can be an example of a "[d]ocument that 
lays down product characteristics". The issue is not whether the content of the label 
refers to a product characteristic: the label on a product is a prod uct characteristic. 
Therefore, the second indent of Article  12(2) of the Regulation deals exclusively with a 
labelling requirement "as it applies to a product".739 
7.152.   The panel concluded that "a document that lays down a requirement that a product label 
must co ntain a particular detail, in fact, lays  down a product characteristic".740 The panel found 
support for this interpretation in a Decision of the TBT Committee, in which Members agreed as 
follows:  
In conformity with Article  2.9 of the Agreement, Members are o bliged to notify all 
mandatory labelling requirements that are not based substantially on a relevant 
international standard and that may have a significant effect on the trade of other 
Members. That obligation is not dependent upon the kind of information which is 
provided on the label, whether it is in the nature of a technical specification or not.741 
7.153.   In the present case, the fact that the content of the labelling and marking requirements at 
issue relates in part to the use of signs protected as t rademarks does not imply that they  no longer 
constitute "labelling requirement s", and therefore a "product characteristic", within the meaning of 
Annex  1.1 of the TBT Agreement . 
7.154.   In addition, as observed by some of the complainants742, the TBT Agreement  contains 
certain explicit carve -outs for those measures that do not fall within the definition of "technical 
                                                
739 Panel Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.448 and 7.449.  
(emphasis original)  
740 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.451.  
741 See Committee on Technical Barriers to Trade,  "Decisions and Recommendations adopted by the 
Committee since 1 January 1995", G/TBT/1/Rev.8 (23 May  2003), cited in Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , para. 7.451.  
742 See Honduras's second written submission, para. 457; Dominican  Republic 's second written 
submission, paras.  830-832; and Indonesia's second written submission, para. 214. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  regulation". Such carve -outs relate to sanitary or phytosanitary measures743 and "[p]urchasing 
specifications prepared by governmental bodies for pr oduction or consumption requirements of 
governmental bodies".744 No similar carve -out exists for terminology, symbols, markings and other 
elements protected by  IP right s. Likewise, in defining the scope of TBT disputes subject to the 
DSU, Article  14.1 of the  TBT Agreement  references "disputes with respect to any matter affecting  
the operation of the TBT Agreement " (emphasis added). If anything, this broad definition suggests 
that all requirements falling within the definition of technical regulations should b e subject to 
dispute settlement, rather than implying that specific types of requirements should be carved out 
from the scope of the definition of a technical regulation under Annex  1.1 or from the scope of 
review under the TBT Agreement  in the context of dispute settlement proceedings.  
7.155.   A consideration of the object and purpose of the TBT Agreement  does not lead us to a 
different conclusion. The fifth recital of the preamble745 to the TBT Agreement  references Members' 
"[d]esir[e] … to ensure that technical re gulation s … including packaging, marking and labelling 
requirements  … do not create unnecessary obstacles to international trade". The explicit and 
unqualified reference to technical regulations, further elaborated by the phrase "including 
packaging, marki ng and labelling requirements", in this preambular provision746 also does not 
suggest an intention to carve out requirements relating to signs that are protected as trademarks 
from the coverage of "technical regulations" or of the TBT Agreement  in general. A lthough the 
sixth recital of the TBT Agreement747 "counterbalanc[es] the trade -liberalization objective 
expressed in the fifth recital"748, the "balance set out in the preamble of the TBT Agreement ", in 
particular in its fifth and sixth recitals, is "between …  the desire to avoid creating unnecessary 
obstacles to international trade and … the recognition of Members' right to regulate".749 This does 
not suggest a consideration of whether the requirements at issue relate to signs that may also be 
protected as trade marks or an exclusion of such signs from the coverage of the Agreement. We 
therefore do  not consider that the fact that some of the specific requirements contained in the 
TPP measures  relate to trademarks should per se lead us to conclude that they cannot be covered 
by the disciplines of the TBT Agreement , or specifically of Article  2.2, provided that they otherwise 
meet the relevant criteria in Annex  1.1. 
7.156.   We further note that the above view does not imply that any and all requirements relating 
to the use o f trademarks would be covered by the disciplines of the TBT Agreement  on technical 
regulations. The definition of a "technical regulation" in Annex  1.1 covers terminology, symbols, 
packaging, marking or labelling requirements "as they apply to a product". This limits the scope of 
the definition, to the extent that it excludes instances when terminologies, symbols, packaging, 
marking or labelling requirements do not "apply to a product". For instance, it does not address 
the availability, scope and use of IP rights750 as such, which are addressed separately in the 
TRIPS  Agreement .  
                                                
743 According to Article  1.5 of the TBT Agreement , "[t]he provisions of this Agreement do not apply to 
sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of  Sanitary 
and Phytosanitary Measures."  
744 According to Article  1.4 of the TBT Agreement , "[p]urchasing specifications prepared by 
governmental bodies for production or consumption requirements of governmental bodies are not subject to 
the provisions of this  Agreement but are addressed in the Agreement on Government Procurement".  
745 According to the Appellate Body, "[t]he preamble of the TBT Agreement  … sheds light on the object 
and purpose of the Agreement". Appellate Body Report, US – Clove Cigarettes , para. 89. 
746 Appellate Body Report, US – Clove Cigarettes , para. 92. 
747 The sixth recital of the preamble to the TBT Agreement  states:  
 
Recognizing that no country should be prevented from taking measures necessary to ensure the 
quality of its exports, or for the  protection of human, animal or plant life or health, of the 
environment, or for the prevention of deceptive practices, at the levels it considers appropriate, 
subject to the requirement that they are not applied in a manner which would constitute a means 
of arbitrary or unjustifiable discrimination between countries where the same conditions prevail 
or a disguised restriction on international trade, and are otherwise in accordance with the 
provisions of this Agreement.  
 
748 Appellate Body Report, US – Clove Cigarettes , para. 95. 
749 Appellate Body Report, US – Clove Cigarettes , para. 96. 
750 See paragraph (b) of the second recital of the preamble and footnote 3 of the TRIPS Agreement.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.157.   Overall, taking into account the characteristics of the measures at issue and the 
circumstances of this case, the requirements of the TPP Act and the TPP Regulations  relating to the 
use of trademarks of tobacco products and packaging are one component of a broader set of 
requirements, the essence of which is to regulate in a comprehensive manner the appearance of 
tobacco products and tobacco packaging, with a view to making them uniformly "plain". Thus, the 
"integral and essential aspects" of the TPP measures  are to regulate comprehensively the 
appearance of tobacco products and their retail packaging. As described above, this involves a 
regulation generally of the use  of colours, shapes and other signs and features on such tobacco 
packaging and tobacco products. It is in this broader context that specific requirements are 
imposed, that affect the display on these products and their packaging, of signs that may also be 
protected as trademarks. Taking the TPP measures  as a whole, therefore, these requirements are 
only one aspect of the regulation, through the TPP measures , of the appearance, labelling and 
packaging of tobacco products, all of which fall within the scope o f what constitutes a "technical 
regulation" within the meaning of Annex  1.1 the TBT Agreement .  
7.158.   On the basis of the foregoing, we find that the TPP Act and the TPP Regulations , in setting 
forth requirements relating to the appearance and packaging of tobac co products, including 
requirements relating to the manner in which trademarks may be displayed on tobacco products 
and packaging, lay down product characteristics within the meaning of Annex  1.1.  
7.159.   With respect to the TMA Act, we note that its text does not lay down any product 
characteristics. Indeed, it appears to us that it is not the purpose of the TMA  Act to lay  down such 
requirements. As the Explanatory Memorandum for the TMA Bill explains, "[n]ew 
subsection  231A(1) of the Trade Marks Act will provide  for the making of regulations under the 
Trade  Marks  Act, to govern the effect of the operation of the [ TPP Act] and [the TPP Regulations ] 
made under that Act, on the Trade  Marks  Act, and the Trade Mark Regulations".751  
7.2.4.3   Whether compliance with the TPP measu res is mandatory  
7.2.4.3.1   Main arguments of the parties  
7.160.   The complainants  argue that the TPP measures  are "mandatory" within the meaning of 
Annex  1.1 of the TBT Agreement . According to Honduras, this applies to both "the trademark and 
format requirements" of the TPP measures  as these regulate product characteristics "in  a binding 
and compulsory fashion".752 The Dominican  Republic753 and Indonesia754 both reference the 
interpretation of the term "mandatory"755, and Indonesia refers also to the interpretation of 
"compliance " by the Appellate  Body.756 All complainants mention the enforcement mechanisms and 
penalties under the TPP measures , in particular Chapter  3 of the TPP Act, and how such 
mechanisms and sanctions were taken into account in previous disputes.757 Cuba adds that 
Section  18(1) of the TPP Act758 demonstrates that the TPP measures  are mandatory "under [their] 
own wording".759 Likewise, Indonesia760 refers to the Simplified Outline of the TPP Act, which 
                                                
751 TMA Bill Explanatory Memorandum, (Exhibits AUS -5, JE-5), Note on Schedule  1, Item 2, p. 3. 
752 Honduras's first written submission, para. 841. See also ibid. para. 791 ( referring to  Appellate Body 
Report, EC – Asbestos , para. 68). 
753 Dominican  Republic 's first written submission, para. 948. 
754 Indonesia's first written submission, para. 381. 
755 Appellate Body Report, US – Tuna II (Mexico) , para. 185 (definition of "mandatory").  
756 Indonesia's first written submission, para. 381. 
757 Honduras's first written submission, para. 791 (referring to enforcement mechanisms and Panel 
Reports, US – COOL , paras.  7.157 -159); Honduras's first written submission, paras.  843-844 (discussing 
enforcement mechanisms); Honduras's first written submission, para. 845 (referring to case law on 
enforcement mechanisms); Dominican  Republic 's first written submis sion, para. 948 ( referring to  Appellate 
Body Report, EC – Asbestos , para. 72 and noting mandatory and enforceable through criminal sanctions with 
reference to Panel Report, EC – Sardines , para. 7.30); Dominican  Republic 's first written submission, para. 949 
(noting offences and civil penalties for tobacco products or retail packaging that do not comply, with reference 
to Chapter  3 of the TPP Act and ibid. Annex  I); Cuba's first written submission, para. 396 and Section  II.B.4 
(noting "mandatory" complianc e as non -compliance with TPP measures  can attract civil and criminal penalties); 
and Indonesia's first written submission, para. 383 (referring to Chapter  3 of the TPP Act). 
758 Section  18(1) of the TPP Act states: "[t]he retail packaging of tobacco products  must comply with the 
following requirements". TPP Act, (Exhibits AUS -1, JE-1), Section 18(1).  
759 Cuba's second written submission, para. 194. 
760 Indonesia's first written submission, para. 382. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  states that "[t]he retail packaging and appearance of tobacco products must comply with the 
requirements of th[e TPP]  Act".761 Indonesia also refers to the use of "must" and "must  not" 
"throughout" the TPP Regulations762, whereas Honduras references the same terms in both the 
TPP Act and the TPP Regulations763 as well as previous disputes relying on the modal verbs used in 
the challenged measure to find that the latter was mandatory.764 
7.161.   Australia  accepts that the "physical requirements" of the TPP measures  are 
technical  regulations "within the scope of the TBT Agreement " as "[c]ompliance with these 
requirements is mandatory".765 In advancing systemic arguments concerning the trademark 
requirements of the TPP measures , Australia is silent on whether it also considers these 
requirements to be mandatory.  
7.2.4.3.2   Analysis by th e Panel  
7.162.   As the Dominican Republic766 and Indonesia767 point out, in US – Tuna II (Mexico) the 
Appellate Body defined the terms "mandatory" and "compliance" as follows:  
The noun "compliance" is defined as "[t]he action of complying".768 The verb "comply" 
refers t o an "[a]ct in accordance with or with a request, command, etc."769 The word 
"mandatory" means "obligatory in consequence of a command, compulsory"770, or 
"being obligatory".771 
7.163.   As noted, "a  panel's determination of whether a measure constitutes a technical regu lation 
must be made in the light of the characteristics of the measure at issue and the circumstances of 
the case"772, and "this  analysis should give particular weight to the 'integral and essential' aspects 
of the measure".773 We have found that the integral and essential aspects of the TPP Act and the 
TPP Regulations  are to regulate the packaging and appearance of tobacco products by laying  down 
product characteristics. "Tobacco  products", as defined for the purposes of the TPP Act and the 
TPP Regulations , may be legally marketed in Australia only in accordance with the appearance and 
packaging requirements, including the trademark requirements, set  out in these instruments. 
The Simplified  Outline of the TPP Act is explicit: "[t]he retail packaging and appeara nce of tobacco 
                                                
761 TPP Act, (Exhibits AUS -1, JE-1), p. 14. 
762 Indonesia's first w ritten submission, para. 383. 
763 Honduras's first written submission, para. 842. 
764 Honduras's first written submission, para. 791 (referring to Panel Report, US – Clove  Cigarettes , 
para. 7.39); and Honduras's first written submission, para. 842 (referring to Panel Reports, US –
 Clove  Cigarettes , para. 7.39; and US – COOL , paras.  7.157 -159).  
765 Australia's first written submission, para. 507. 
766 Dominican  Republic 's first written submission, para. 948. 
767 Indonesia's first written submission, para. 381. 
768 (footnote original) Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University 
Press, 2007), Vol. 1, p. 472.  
769 (footnote original) Shorter Oxford  English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University 
Press, 20 07), Vol. 1, p. 473.  
770 (footnote original) Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University 
Press, 2007), Vol. 1, p. 1694.  
771 Appellate Body Report, US – Tuna II (Mexico) , para.  185 (footnote omitted). Likewise, the panel in 
the same dispute held that:  
  
[D]ictionary definitions of the term "mandatory" include "binding" as well as "obligatory, compulsory, 
not discretionary", or "required by law or mandate; compulsory". This suggests that the notion of 
"mandatory" may encomp ass the legally binding and enforceable character of the instrument, and may 
also relate to its contents, prescribing/imposing a certain behaviour. We also note that the 
ISO/IEC  Guide  2 establishes that the expression "mandatory requirement", should be use d to mean only 
"a requirement made compulsory by law or regulation".  
 
Panel Report, US – Tuna II (Mexico) , para. 7.103 (footnote s omitted). See also Panel Report, EC - Trademarks 
and Geographical Indications (Australia) , para. 7.453.  
772 Appellate Body Report, US – Tuna II (Mexico) , para. 188 (referring to Appellate Body Report s, EC –
 Asbestos , para. 64; and EC – Sardines , paras.  192 and 193).  
773 Appellate Body Reports, EC – Seal Products , para. 5.19 (quoting Appellate Body Report, EC –
 Asbestos , para. 72). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  products must comply with the requirements of this Act".774 Also, as Indonesia notes775, 
the TPP Regulations ' declared "[p]urpose" is to "prescribe requirements for the retail packaging 
and appearance of tobacco products for Part  2 of Chapter  2 of the [TPP]  Act".776 
7.164.   Accordingly, the language of the TPP Act and the TPP Regulations  is prescriptive in relation 
to the requirements at issue. The tobacco product requirements use terms such  as "must"777, 
"must not"778, and the word "may" combined with terms i n the negative779, and they do so 
pervasively and in regard to all aspects of the appearance and packaging of tobacco products. In 
this context, we note that the panel in EC – Trademarks and Geographical Indications  (Australia)  
considered that the terms of the measure at issue, such as the use of the word "shall", may be 
indicative of mandatory compliance.780 
7.165.   Further, several of the provisions of the TPP Act and the TPP Regulations  in question 
appear under titles that contain the term "requirements"781, underscore the universal nature of 
such requirements ("Retail  packaging of all tobacco products"782), or are termed as categorical 
prohibitions ("Prohibition on…"783, "Retail packaging not to…"784, "Retail packaging must not…"785, 
"No marks"786, and "No trade  marks"787). The  less numerous permissive provisions of the TPP Act 
and TPP Regulations  that relate to product characteristics and use "may" appear either in a 
restrictive context ("may  … only"788 or "may appear once on no more than 2 of …"789), or as 
limited, precisely circumscribed, often conditional exceptions to obligations using the above 
terms790, or as provisions not contradicting the limits of the above obligations.791  
                                                
774 TPP Act, (Exhibits AUS -1, JE-1), Section 12.  
775 Indonesia's response to Panel question No. 62, para. 63. 
776 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.4.  
777 TPP Act, (Exhibits AUS -1, JE-1), Sections 18.1 ( chapeau ), 18.1(b), 18.2 ( chapeau ), 18.2(a), 
18.2(b)(i), 18.2(b)(ii), 18.2(c), 18.3  (chapeau ), 18.3,  18.3(a), 18.3(b), 18.3(c), 18.3(d), 19.2(a), 
19.2(b)(i) -19.2(b)(ii), 21.1, 21.2(d) -21.2(e), 21.3 table, 21.4, 22.1, 22.2, 22.2(a), and 25 (title); and 
TPP Regulations, (Exhibi ts AUS -3, JE-2), Regs. 2.1.1(1) ( chapeau ), 2.1.1(1)(a), 2.1.1(2),  2.1.3(2), 
2.1.4(1)(a), 2.1.4(2), 2.1.5 ( chapeau ), 2.1.5(a) -2.1.5(b), 2.2.1(1) -2.2.1(4), 2.3.2(1) -2.3.2(2), 
2.3.3(a) -2.3.3(b), 2.3.4(1) -2.3.4(4), 2.3.5(1), 2.3.6(1)(a) -2.3.6(1)(c), 2.3.6(2), 2.3.6(4), 2.3.7(2), 
2.3.8(2) -2.3.8(3),  2.3.9(1)(a) -2.3.9(1)(b), 2.4.1, 2.4.2(2), 2.4.2(3)(a) -2.4.2(3)(d), 2.4.3(1)(b) -2.4.3(1)(c), 
2.4.3(2)(a) -2.4.3(2)(c), 2.4.4(2)(b), 2.4.4(2)(e) -2.4.4(2)(f), 2.5.2(2), 2.5.2(4) -2.5.2(5), 2.6.2(2), 2.6.3(2), 
3.1.1(1), 3.1 .2(2), 3.1.3, and 3.2.1(5) -3.2.1(6).  
778 TPP Act, (Exhibits AUS -1, JE-1), Sections 18.1(a), 21.2(a) -21.2(b), 23, 25 (title), and 25; and 
TPP Regulations, (Exhibits AUS -3, JE-2), Regs. 2.1.3(3), 2.1.6, 2.3.1(5), 2.3.5(2), 2.3.7(1), 2.3.9(1)(c), 
2.4.3(1)(a), 2.4.4(2)(a) -2.4.4(2)(c), 2.6.3(3), 3.1.2(3), and 3.2.1(7).  
779 For example, Section  18.3(b) of the TPP Act provides that, with respect to the opening of a cigarette 
pack, "neither the lid, nor the edges of the lid, may be rounded, bevelled or otherwise shape d or embellished in 
any way" (emphasis added). See also ibid. Sections  18.3(c), 20.1, 20.2, 22.2(b) -22.2(c), 24, 26.1, and 26.2.  
780 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.453. See also 
Appellate  Body Report, EC – Sardines , para. 194 fn 111; and Panel Reports, US – COOL , para. 7.160.  
781 TPP Act, (Exhibits AUS -1, JE-1), Chapter  2 (title, Part 2 title, Part 2 Div. 1 title, and Part 2, Div. 2 
title), and Sections 18.1 -18.3, 21 (title), 21.1 (title), 21.2 (title), 21.3 (tab le), 21.4 (title), 22 (title), 22.1, 
22.2, 26 (title), and 27A; and TPP Regulations, (Exhibits AUS -3, JE-2), Part 2 (title), and Regulation  2.3.6(1) 
(chapeau ). 
782 TPP Act, (Exhibits AUS -1, JE-1), Section 18.1 (title).  
783 TPP Act, (Exhibits AUS -1, JE-1), Sect ion 20 (title).  
784 TPP Act, (Exhibits AUS -1, JE-1), Sections 23 (title), and 24 (title).  
785 TPP Act, (Exhibits AUS -1, JE-1), Section 25 (title).  
786 TPP Act, (Exhibits AUS -1, JE-1), Section 20.2 (title).  
787 TPP Act, (Exhibits AUS -1, JE-1), Section 20.1 (title).  
788 TPP Act, (Exhibits AUS -1, JE-1), Section 21.2(c); and TPP Regulations, (Exhibits AUS -3, JE-2), 
Regulation  2.4.4(2)(d).  
789 TPP Regulations, (Exhibits, AUS -3, JE-2), Sections 2.3.4(3)(b) and 2.3.4(4)(b). See also ibid. Section 
2.5.2(3).  
790 TPP Act, (Exhibit s AUS -1, JE-1), Section 20.3; and TPP Regulations, (Exhibits, AUS -3, JE-2), Regs. 
2.3.1(1) -2.3.1(4), 2.3.7(1), 2.3.8(1), 2.5.1 -2.5.2, 2.6.1, 2.6.2(1), 2.6.3(1), 3.1.2(1), 3.2.1(1) -3.2.1(4), and 
3.2.2.  
791 See, e.g. Section 2.1.2 of the TPP Regulations (Exhib its, AUS -3, JE-2) on the "[p]hysicial features of 
cigarette cartons" relative to Sections 18 -25 of the TPP Act, (Exhibits AUS -1, JE-1), in particular Sections 18(2) 
and 19. See also Regulation 2.1.3(1) of the TPP Regulations, on the "[p]hysical features of  lining of primary 
packaging of tobacco products" relative to Sections 18.3(d) and 19 of the TPP Act. See also Regulation 
2.1.4(1)(b) of the TPP Regulations, relative to Regulation 2.1.4(1)(a). See also Regulation 2.3.2(3) of the TPP 
Regulations, relative to TPP Regulations 2.3.2(1) -2.3.2(2).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.166.   As the complainants note, the TPP Act is supported by an elaborate enforcem ent 
mechanism.792 The Simplified Outline of the Act indicates that "[o]ffences and civil penalties apply 
if tobacco products are supplied, purchased or manufactured and either the retail packaging, or 
the products themselves, do not comply with the requireme nts".793 Accordingly, Chapter 3 of the 
TPP Act addresses "[o]ffences and civil penalty provisions"794, in particular "[g]eneral offences and 
civil penalty provisions for non -compliant retail packaging and tobacco products"795 and "[o]ffences 
and civil penalty pr ovisions relating to constitutional corporations".796 Chapter  4 establishes 
"[p]owers to investigate contraventions of th[e TPP]  Act".797 In turn, Chapter  5 contains provisions 
addressed at "[e]nforcing compliance with th[e TPP]  Act"798, such as "[o]btaining a c ivil penalty 
order"799, "[c]ivil proceedings and criminal proceedings"800, and "[i]nfringement notices".801  
7.167.   The enforcement mechanism of the TPP Act applies also in the context of the 
TPP Regulations . As the Notes to Sections  27(1) and 27A of the TPP Act indica te, Chapters  3 and 5 
apply for failure to comply with a tobacco product requirement, which includes "a requirement in 
relation to the retail packaging or appearance of tobacco products … specified in Part 2 of 
Chapter  2 [of the TPP Act or] … prescribed by regulations made under Part  2 of Chapter 2", i.e. the 
TPP Regulations .  
7.168.   We note that the enforceability of a measure through sanctions, in particular criminal 
sanctions, has been found to be indicative of mandatory compliance802, and that the fact that 
certain measures are "legally enforceable and binding under [a Member's] law (they are issued by 
the government and include legal sanctions)" is "an important component of the 'mandatory' 
character of the measures".803  
7.169.   For the foregoing reasons, we find that the  TPP Act and the TPP Regulations  are 
"mandatory" within the meaning of the definition of a technical regulation under Annex  1.1 of the 
TBT Agreement . 
7.170.   The TMA Act makes no mention of compliance or requiring compliance. We also note that, 
since the TMA  Act does  not lay  down any product characteristics, there is no prescribed product 
characteristic in that instrument "with which compliance [could be] mandatory" for t he purpose of 
Annex  1.1 of the TBT Agreement . However, this is a law enacted by Australia and a provision to be 
applied by virtue of a governmental mandate.  
7.2.4.4   Overall conclusion  
7.171.   We have determined above that the TPP Act and the TPP Regulations  each satisfy  the three 
criteria of technical regulations within the meaning of Article  1.1 of the TBT Agreement , in that 
they apply to an identifiable product or group of products (tobacco); lay  down one or more 
characteristics of those products (including with respec t to their marking, packaging or labelling); 
and mandate compliance with those characteristics.  
7.172.   With respect to the third legal instrument that forms part of the TPP measures , the 
TMA Act, we have determined above that, taken in isolation, it applies to a n identifiable group of 
products (tobacco). We have also concluded that it does  not lay  down product characteristics for 
                                                
792 Article  27A of the TPP Act, (Exhibits AUS -1, JE-1), addresses the "[l]egal effect of sections 18 to 27" 
as follows: "Sections 18 to 27 have no legal effect other than to specify requirements, and provide for 
regulati ons specifying requirements, for the purposes of the definition of tobacco product requirement  in 
subsection 4(1)." (emphasis original)   
793 TPP Act, (Exhibits AUS -1, JE-1), Section 12.  
794 TPP Act, (Exhibits AUS -1, JE-1), Chapter 3 (title).  
795 TPP Act, (Exhibits AUS -1, JE-1), Chapter 3, Part 2 (title).  
796 TPP Act, (Exhibits AUS -1, JE-1), Chapter 3, Part 3 (title).  
797 TPP Act, (Exhibits AUS -1, JE-1), Chapter 4, Part 2 (title). This includes reference to "[s]earch 
warrants" and the "[p]owers to require perso ns to give information, produce documents or answer questions".  
798 TPP Act, (Exhibits AUS -1, JE-1), Chapter 5 (title).  
799 TPP Act, (Exhibits AUS -1, JE-1), Chapter 5, Part 2, Division 1 (title).  
800 TPP Act, (Exhibits AUS -1, JE-1), Chapter 5, Part 2, Division 2  (title).  
801 TPP Act, (Exhibits AUS -1, JE-1), Chapter 5, Part 3 (title).  
802 Appellate  Body Report, EC – Asbestos , para. 72. See also Panel Reports, US – COOL , para. 7.160.  
803 Panel Report, US – Tuna II (Mexico) , para. 7.142.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  tobacco products (including with respect to their marking, packaging or labelling), with which 
compliance is mandatory and therefore wo uld not, taken in isolation, constitute a technical 
regulation.  
7.173.   We recall, however, that the definition of "technical regulation" in Annex  1.1 of the 
TBT Agreement  includes "applicable administrative provisions":  
Document which lays down product characteri stics or their related processes and 
production methods, including the applicable administrative provisions , with which 
compliance is mandatory.  (emphasis added)  
7.174.   We therefore consider whether the TMA  Act constitutes an "applicable  administrative 
provision"  in relation to the TPP Act and TPP Regulation, within the meaning of Annex 1.1.  
7.175.   The appositive  clause "including the applicable administrative provisions" has been 
interpreted to mean that:  
[W]here a mandatory document laying  down product characteristics or their related 
processes and production methods also contains "administrative provisions" that refer 
to those "product characteristics" or "related processes and production methods", 
those administrative provisions are to be considered as an integral par t of the 
technical regulation and are thus subject to the substantive provisions of the 
TBT Agreement .804  
7.176.   Whether a measure constitutes an "applicable administrative provision" depends on 
whether there exist "provisions to be applied by virtue of a governme ntal mandate in relation to 
either product characteristics or their related processes and production methods".805 A key 
consideration for determining whether the TMA Act is an "applicable administrative provision" in 
the matter before us is therefore whether  it is to be applied "in relation to either product 
characteristics or their related processes and production methods".806 
7.177.   As discussed in paragraph  7.127  above, the TMA  Act grants to the Governor -General the 
power to make regulations "in relation to the effect of the operation" of the TPP Act and the 
TPP Regulations  on a provision of the TM Act or regulations made thereunder. The TMA  Act 
therefore prov ides a legal basis to address certain potential consequences of the marking, labelling 
and packaging requirements contained in the TPP Act and TPP Regulations  in respect of the 
application of trademark  law. Specifically, it creates a power to make regulati ons that will limit the 
effect of the requirements in the TPP Act and the TPP Regulations  that set  out product 
characteristics, insofar as that effect might disadvantage applicants for trademark registration and 
registered owners of trademarks.807  
7.178.   The power to make regulations established by the TMA  Act is "in relation to … product 
characteristics"808, insofar as such regulations would ensure that the effect of the requirements 
mandated by the TPP Act and TPP Regulations  does not extend beyond that wh ich is intended by 
the drafters of those two instruments. On this basis, insofar as its provisions relate to aspects of 
the TPP Act and Regulations related to the product characteristics that these instruments lay down, 
we conclude that the TMA  Act is an " applicable administrative provision" within the meaning of 
Annex  1.1 of the TBT Agreement .809 
7.179.   Overall, therefore, we find that the TPP measures  (i.e. the TPP Act, the TPP Regulations  
and the TMA  Act, taken together),  prescribe a number of detailed characteristics for tobacco 
products (including in terms of marking, labelling and packaging requirements) falling within the 
scope of the definition of "technical regulation" under Annex 1.1 of the TBT Agreement . 
                                                
804 Appellate Body Reports, EC – Seal Products , para. 5.13. 
805 Appellate Body Reports, EC – Seal Products , para. 5.13. 
806 We consider it clear that the TMA  Act, as an act of the Australian Parliament, is "applied by virtue of 
a governmental mandate". See Section 2.1.1 above and para. 7.177  below.  
807 TMA Bill Explanatory Memorandum, (Exhibits AUS -5, JE-5), p. 1. 
808 Appellate Body Reports, EC – Seal Products , para. 5.13. 
809 Appellate Body Reports, EC – Seal Products , para. 5.13. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.180.   We note the  following observation of the Appellate Body in relation to measures comprised 
of several legal instruments:  
[T]he issue of how best to characterize a measure at issue which comprises several 
different elements is one that arises in many disputes. …  A pane l may, in some cases, 
find it appropriate to treat several domestic legal instruments together as a single 
measure in order to facilitate its analysis of that measure in the light of the claims 
raised or defences invoked. Conversely, there may be instances  where a panel may 
choose to consider different elements set out in a single legal instrument as different 
"measures", for purposes of its analysis.810  
7.181.   As we have already concluded, the "integral and essential aspects"811 of the TPP Act and 
the TPP Regulation s have the effect of ensuring that tobacco products and their retail packaging 
comply with the requirements set  out in those provisions. This appearance is the combined  effect  
of the TPP Act and the TPP Regulations , through the mandatory requirements set  out in both 
instruments.812 
7.182.   For these reasons, we consider that the TPP measures813 constitute a technical regulation, 
laying  down characteristics for the appearance and packaging of tobacco products (including 
requirements relating to the manner in which trade marks may be displayed on tobacco products 
and packaging)814, and mandating compliance with those characteristics.815 To the extent that the 
TMA Act is an "applicable administrative provision" in respect of the requirements contained in the 
TPP Act and the TPP Regulations , it is an "integral part"816 of that technical regulation.  
7.183.   Having established that the TPP measures  constitute a technical regulation within the 
meaning of Annex 1.1 of the TBT Agreement , we now consider the claim that they are inconsistent 
with Article  2.2 of the TBT Agreement .  
7.2.5   Whether the TPP measures  are "more trade -restrictive than necessary to fulfil a 
legitimate objective" within the meaning of Article  2.2 
7.184.   As described above, an assessment of the consistency of a technical regulation under  
Article  2.2 involves in the first instance a "relational analysis"817 of three factors:  
i. the degree of contribution made by the measure to the legitimate objective at issue;  
ii. the trade -restrictiveness of the measure; and  
iii. the nature of the risks at issue and the gravity of consequences that would arise 
from non -fulfilment of the objective(s) pursued by the Member through the measure.  
7.185.   These factors will inform the "comparative analysis" that is, in most cases818, required in 
order to determine whether the challe nged measure is more trade -restrictive than necessary.819 
                                                
810 Appellate Body Reports, EC – Seal Products , para. 5.20. (footnotes omitted)  
811 Appellate Body Reports, EC – Seal Products , para. 5.19. 
812 We recall, for example, that Section  27 of the TPP Act provid es that regulations "may prescribe 
additional requirements in relation to (a)  the retail packaging of tobacco products; and (b)  the appearance of 
tobacco products", and that these requirements are so prescribed in the TPP  Regulations. We also recall that 
the Notes to Sections  27(1) and 27A of the TPP Act indicate that Chapters  3 and 5 apply for failure to comply 
with a tobacco product requirement, which includes "a requirement in relation to the retail packaging or 
appearance of tobacco products … specified  in Part  2 of Chapter  2 [of the TPP Act or] … prescribed by 
regulations made under Part  2 of Chapter  2", i.e. the TPP  Regulations.  
813 While the TPP Act, the TPP  Regulations and the TMA  Act, taken together, have been identified 
throughout th ese Report s as "the TPP measures ", in the plural, this usage is not intended to signal that the 
Panel considers these three legal instruments to constitute distinct measures that would need to be considered 
separately for the purposes of its analysis of the claims before i t.  
814 See para. 7.158  above.  
815 See para. 7.169  above.  
816 Appellate Body Reports, EC – Seal Products , para. 5.13. 
817 See Appellate Body Report, US – COOL , para. 374 ( referring to  Appellate Body Report, US – Tuna II, 
para. 318).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.186.   As described earlier, the complainants argue that the TPP measures  are trade -restrictive, 
and that they are more trade -restrictive than necessary to fulfil the legitimate objective they 
pursue, taking  into account the risks that non -fulfilment of this objective would create. The 
complainants address all elements of the above test, including the three factors identified above as 
forming part of the "relational analysis" and alternative measures that are , in their view, 
reasonably available to Australia, would make an equivalent contribution to its objective, and 
would be less trade -restrictive than the TPP measures .  
7.187.   Australia considers, however, that the complainants have not established that the 
measur es are trade -restrictive.820 Australia also argues that the TPP measures  were adopted in 
accordance with the Article  11 FCTC Guidelines and Article  13 FCTC Guidelines, and thus these 
measures are "in accordance with relevant international standards" within t he meaning of the 
second sentence of Article  2.5 of the TBT Agreement .821 Consequently, it claims that, to the extent 
that the definition of a "technical regulation" also encompasses measures affecting the use of a 
trademark, the TPP measures  are "rebuttably presumed" not to create an unnecessary obstacle to 
international trade under the second sentence of Article  2.5 and that the complainants have not 
rebutted this presumption.822 It is undisputed that the burden rests on Australia, as the part y 
invoking the second sentence of Article  2.5, to demonstrate that these conditions are met.823 
Should Australia do so, the burden would shift to the complainants to rebut the presumption that 
the TPP measures  "[do] not create an unnecessary obstacle to inte rnational trade".824  
7.188.   Australia concludes that, given the complainants' failure to establish that the measures are 
trade -restrictive, the Panel is not required to engage in any further "relational" analysis under 
Article  2.2.825 Australia submits in the altern ative, i.e. only in the event that the Panel would 
determine that the complainants have made a prima facie  case that the TPP measures  are 
trade -restrictive, that the complainants have failed to establish a violation of Article 2.2, with 
reference to the ad ditional factors of the "relational analysis" described above.826 Australia further 
considers that the complainants have not established that alternative measures would be 
                                                                                                                                                  
818 We note in this regard that it is "not mandatory in respect of Article  2.2 of the TBT Agreement  for a 
panel to draw a preliminary  conclusion on 'necessity' based on the factors with respect to the technical 
regulation itself before engaging further in a comparison with proposed alternative measures". Appellate Body 
Reports, US – COOL ( Article  21.5  – Canada and Mexico ), para. 5.235 . See also ibid. paras.  5.227 -5.229. In 
respect of Article  XX of the GATT 1994, see Appellate Body Reports , EC – Seal Products , para. 5.215 fn 1299.  
819 Appellate Body Report, US – Tuna II (Mexico) , para. 320. See also ibid. para. 318. 
820 Australia's first written submission, para. 583. 
821 Australia's first written submission, paras.  567 and 584.  
822 Australia's first written submission, paras.  519, 567 -568 and 584. See also Australia's response to 
Panel question No. 73, para. 200 (stating th at "[t]he FCTC  Guidelines address both the trademark elements  of 
tobacco plain packaging (such as the use of logos, colours, or brand images) and the physical elements  of 
tobacco plain packaging (such as the shape, size, and materials of tobacco packaging) . The FCTC is therefore a 
relevant international standard whether the Panel considers the term 'technical regulation' to encompass only 
the physical requirements of the tobacco plain  packaging measure, or whether it considers that term to 
encompass both th e trademark and physical requirements." (footnote omitted) (emphasis added)).  
823 See Honduras's response to Panel  question  No. 66, p. 27; Honduras's second written submission, 
para. 852; Dominican  Republic 's response to Panel  question  No. 66, paras.  293 and  323; Cuba's response to 
Panel  question  No. 66, p. 16 (annexed to its response to Panel question No. 138) (endorsing Honduras's 
response to this question); Indonesia's response to Panel  question  No. 66, para. 85; Indonesia's second 
written submission, para. 220; and Australia's response to Panel  question  No. 66, para. 160. 
824 We note, in this respect, that in Russia  – Pigs (EU), the panel, addressing a similar situation (i.e. the 
sequential assessment of various elements before concluding whether the measure could enjoy the 
presumption of consistency established under Article  3.2 of the SPS  Agreement), reserved its consideration  of 
how to assess "rebuttability" to a later stage of its analysis:  
 
Pursuant to the terms of Article  3.2, a finding that Russia's measures "conform to" relevant 
international standards would establish a presumption of consistency of Russia's measures with  
its relevant SPS  obligations, and thus would have implications for this Panel's disposition of other 
claims in this dispute. Should we find "conformity to", as we understand that this presumption is 
"rebuttable", we would further need to consider how to a ssess whether or not this presumption 
has been rebutted in respect of each of the relevant provisions.  
 
Panel Report, Russia  – Pigs (EU), para. 7.888. (footnote  omitted)  
825 Australia's first written submission, para. 585. 
826 Australia's first written submis sion, paras.  586-590. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  reasonably available to it, achieve an equivalent contribution to its objective , and b e less  
trade -restrictive than the TPP measures .827 
7.189.   For the reasons described earlier828, we consider that the possibility that the challenged 
measures may benefit from the rebuttable presumption conferred by the second  sentence of 
Article  2.5, as invoked by Au stralia, may have significant implications on the manner in which we 
must conduct the remainder of our analysis under Article  2.2 in these proceedings.  
7.190.   The presumption established under the second sentence of Article  2.5 only applies with 
respect to techni cal regulations that are adopted "for one of the legitimate objectives explicitly 
mentioned" in Article  2.2. An early consideration of this factor will therefore allow us to determine 
whether the TPP measures  fall within the scope of measures to which the presumption of the 
second  sentence of Article  2.5 applies. As described above, the "legitimate objective" at issue is 
also one of the aspects to be considered in an assessment of whether a technical regulation is 
"more trade -restrictive than necessary" wit hin the meaning of the second sentence of Article  2.2, 
independently of the applicability of the rebuttable presumption embodied in the second  sentence 
of Article  2.5.  
7.191.   In light of these elements, we deem it appropriate, in the circumstances of this case, to 
continue our analysis829 with a consideration of the objective of the TPP measures  and whether 
such objective is "legitimate" within the meaning of Article  2.2. Should we determine that the 
TPP measures  have been prepared, adopted or applied "for one of t he legitimate objectives 
explicitly mentioned" in Article  2.2830, we will need to consider further whether, as invoked by 
Australia, the other conditions under the second sentence of Article  2.5 are met, such that the 
rebuttable presumption under Article  2.5 is applicable and, if so, what this implies for the 
remainder of our analysis of the claims before us under Article  2.2.831  
7.2.5.1   Whether the TPP measures  pursue a "legitimate objective"  
7.192.    In adjudicating a claim under Article  2.2 of the TBT Agreement , a panel mu st first assess 
what a Member seeks to achieve by means of a technical regulation. Subsequently, the analysis 
must turn to the question of whether a particular objective is legitimate.832 This analysis therefore 
involves both an identification of the objecti ve being pursued by the Member through the measure 
and an assessment of its "legitimate" character, within the meaning of Article  2.2.  
7.193.   In addition, as observed above, an identification of the objective of the TPP measures  is 
also necessary, in the circums tances of this case, to determine whether they pursue "one of the 
                                                
827 Australia's first written submission, paras.  21, 595, and 700 -742. 
828 See para. 7.36 above.  
829 We understand this general app roach to be conistent with the manner in which the parties have 
articulated their understanding of Article  2.5. See, e.g. Honduras's response to Panel question No. 66, p. 26; 
Dominican  Republic 's response to Panel question No. 66, paras.  288-289 and 292; Cuba's response to Panel 
question  No. 66, p. 216 (annexed to its response to Panel question No. 138) (endorsing Honduras's response 
to question No. 66); Indonesia's response to Panel question No. 66, para. 73; Australia's response to Panel 
question No. 66, para. 156; and Australia's second written submission, para. 313. With the exception of 
Indonesia (which considers that we should first make all our determinations under the second sentence of 
Article  2.5 before even "commencing" assessing Article  2.2), we  do not consider that the parties' views on this 
matter are in contradiction with the approach we take here, that is: first, considering the elements that belong 
to both Articles  2.2 and 2.5 (whether the measures constitute a "technical regulation" and the  identification of 
their "objectives"); and then proceeding, as relevant, to the remaining elements that determine the 
applicability of the rebuttable presumption under the second  sentence of Article  2.5 (whether the measures are 
"in accordance with releva nt international standards" and if they are, what the consequences of the 
presumption conferred are and how it can be rebutted). Finally, having considered the applicability of the 
presumption under the second sentence of Article  2.5, we would then return to the completion of our analysis 
under Article  2.2 in light of our earlier determinations in relation to the second  sentence of Article  2.5. 
830 The other element of the first set of conditions under the second sentence of Article  2.5 is that the 
measure se eking the rebuttable presumption must be a "technical regulation". We consider that this element 
has been met when we found, at para. 7.182  above, that the TPP measures  are a "technical  regulation" for the 
purposes of Article  2.2. 
831 See also paras.  7.36, 7.41, 7.187 , 7.189  and fns 824 and 829 above.  
832 Appellate Body Report, US – Tuna II (Mexico) , para.  314. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  legitimate objectives explicitly  mentioned in paragraph 2" (emphasis added) within the meaning of 
the second sentence of Article  2.5, invoked by Australia.  
7.194.   We therefore first consider what the objective of the TPP measures  is, or, as the Appellate 
Body expressed it, what Australia "seeks to achieve" through these measures, before considering 
whether this objective is "legitimate" within the meaning of Article  2.2 of the TBT Agreement , and 
to what extent it falls within the scope of the specific objectives listed in the second  sentence of 
Article  2.5.  
7.2.5.1.1   The objective of the TPP measures  
7.195.   As described by the Appellate Body:  
[T]he proper approach to be followed by a panel in determining the object ive a 
Member seeks to achieve by means of a technical regulation … calls for an 
independent and objective assessment, based on an examination of the text of the 
measure, its design, architecture, structure, legislative history, as well as its 
operation. Wh ile a panel may take as a starting point the responding Member's 
characterization of the objective it pursues through the measure, a panel is not bound 
by such characterization. This is so especially where the objective of a measure is 
contested between th e parties, and competing arguments have been raised on the 
basis of the text of the measure, its design, architecture, structure, legislative history, 
and evidence relating to its operation.833 
7.196.   We are mindful, in approaching this question, of the important distinction to be made, for 
the purposes of Article  2.2, between the identification of the objective  that is pursued through the 
measure, which we now seek to ascertain, and the level at which the Member aims to achieve this 
objective, which we need not establish in the abstract at this stage of our analysis. As the 
Appellate Body observed:  
Neither Article  2.2 in particular, nor the TBT Agreement  in general, requires that, in its 
examination of the objective pursued, a panel must discern or identify, in the 
abstract, the level at which a responding Member wishes or aims to achieve that 
objective.834 
7.197.   Similarly, we are mindful of the fact that the ide ntification of the objective pursued by a 
technical regulation is distinct also from the question of how or through what means, that 
objective is to be pursued. This distinction may have an impact on later parts of our analysis, to 
the extent that a compar ison would be required between the degree to which the objective at 
issue is achieved by means of the challenged measures and the degree to which an equivalent 
contribution could be achieved through other less trade -restrictive measures attaining the same 
objective through different means.835  
7.198.   As we understand it, the identification of the "objective" pursued by a measure is designed 
to identify the underlying purpose of the challenged measure. The specific list of "legitimate 
objectives" identified in Article 2.2 provides an indication that this determination in essence relates 
to an identification of the underlying policy concern that the Member seeks to address through the 
measures (and, subsequently, whether this is "legitimate" within the meaning of Article 2.2). How 
                                                
833 Appellate Body Reports, US – COOL , para. 395. 
834 Appellate Body Reports, US – COOL , para. 390 ( referring to  Appellate Body Report, US – Tuna II 
(Mexico) , para. 316: "a WTO Member, by preparing, adopting, and applying a measure in order to pursue a 
legitimate objective, articulates either implicitly or explicitly the level at which it seeks to pursue that partic ular 
legitimate objective"). See also para. 7.231  below. The cited passage includes the following original footnote: 
"We have noted above that the sixth recital of the preamble of the TBT Agreement  provides that a Member 
shall not be prevented from taking measures necessary to achieve a legitimate objective 'at the levels it 
considers appropriate'. … This does not, however, require a separate assessm ent of a desired  level of 
fulfilment."  Appellate Body Reports, US – COOL , para. 390 fn 779. (emphasis original)  
Appellate Body Reports, US – COOL , para. 390 ( referring to  Appellate Body Report, US – Tuna II 
(Mexico) , para. 316).  
835 See Appellate Body Report s, US – COOL , para. 387. See also Panel Reports, US – COOL 
(Article  21.5 – Canada and Mexico ), paras.  7.320 and 7.326.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the specific challenged measure seeks to address the concern at issue, and the degree to which it 
actually contributes to achieving its objective, are distinct questions that we will consider, as 
relevant, in later parts of our analysis.  
7.199.   With this general guidance in mind, we outline the main arguments of the parties in 
respect of the objective of the TPP measures , before turning to our own assessment of this 
objective.  
7.2.5.1.1.1   Main arguments of the parties  
7.200.   Honduras  describes the objective pursued by  Australia through the TPP measures  as "the 
improvement of public health by reducing smoking prevalence".836 Honduras considers that this 
position is supported by the TPP Act itself and the legislative history of the TPP Act.837 It explains 
that the relevant objective  that must be identified is the government's policy objective, which must 
be distinguished from the mechanism  chosen by the government to achieve that objective, and 
that in the present case, Australia's policy objective is the reduction of smoking  prevalence among 
its population , which is reflected in Section 3.1 of the TPP Act and related evidence.838  
7.201.   The Dominican Republic  also considers that the explicit objective of the TPP measures , as 
stated in the TPP Act, is the improvement of public health by reducing smoking prevalence.839  
7.202.   Cuba explains that the text of the TPP Act establishes that its objective is to "improve 
public health" through a reduction in smoking prevalence as a result of reducing initiation, 
increasing cessation and reducing relaps e. It considers that the legislative history of the measure, 
as reflected in the Explanatory Memorandum accompanying the TPP Bill when it was first 
proposed, confirms this objective, as it explains that "the objects of this bill are to improve public 
health by reducing people's use of and exposure to tobacco products; and to give effect to certain 
of Australia's obligations under the WHO FCTC". Thus, in Cuba's view, the objective of Australia's 
plain packaging measure is "the protection of human health thro ugh the reduction of smoking 
prevalence (i.e. reducing initiation, increasing cessation, and reducing relapse) that will result, in 
combination with other measures, in reducing the national smoking rate to 10% by 2018 and 
halving the smoking rate of Aborig inal and Torres Strait Islander people".840 
7.203.   Indonesia  explains that the Government of Australia stated early in the development of its 
proposal that the TPP measures ' overall objective is to contribute to "reducing the smoking rate 
{prevalence} among the Aus tralian population to 10 per cent by 2018, and halving the smoking 
rate among Aboriginal and Torres Strait Islander people" and that "[t]hus, the objective of PP is to 
protect health by reducing smoking prevalence".841 
7.204.   Australia  explains that "the objectives  of Australia's tobacco plain packaging measure are 
set out in section 3 of the TPP Act".842 It explains that Subsection 3(1) of the TPP Act sets out the 
general objects of the Act concerning smoking behaviour, which are shared by all comprehensive 
tobacco c ontrol strategies and are the means by which to improve public health overall: 
discouraging uptake, encouraging quitting, and discouraging relapse will necessarily result in a 
reduction of exposure to smoke, furthering public health by benefitting even non -smokers.843  
7.205.   Australia further explains that the implementing legislation and regulations, the 
Explanatory Memorandum and legislative history of the measure as well as its overall design, 
structure and operation, and the measure's objectives – which include  giving effect to Australia's 
obligations under the FCTC – each clearly describes how the measure is intended to contribute, as 
part of Australia's comprehensive strategy of tobacco control measures, to achieving Australia's 
                                                
836 Honduras's first written submission, para. 847. 
837 Honduras's second written submission, para. 519.  
838 Honduras's first written submission, paras.  122-123. 
839 Dominican  Republic 's first written submission, para. 972. 
840 Cuba's second written submission, para. 205. 
841 Indonesia's first written submission, para. 89. 
842 Australia's first written submission, para. 135. 
843 Australia's first written submission, para. 136. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  overall objective of protecting  human health.844 Australia explains that Subsection 3(1) of the 
TPP Act sets out the "general objectives" of the TPP Act, which are "to improve public health by 
discouraging uptake, encouraging quitting, discouraging relapse, and reducing exposure to smoke"  
and are shared by all comprehensive tobacco control strategies, which operate to improve public 
health by reducing smoking prevalence and tobacco -related disease and mortality.845 It further 
explains that the operation of subsection 3(2) of the TPP Act is designed to contribute to improving 
public health through three specific mechanisms, or "specific objectives": reducing the appeal of 
tobacco products; increasing the effectiveness of health warnings; and reducing the ability of retail 
packaging of tobacco products to mislead consumers about the harmful effects of smoking and use 
of tobacco products.846 
7.206.   Australia considers that focusing exclusively on "smoking prevalence" in formulating the 
measure's objective, as proposed by the complainants, would have an im pact on how the Panel 
will assess the degree of contribution of the measure:  
[T]he complainants in effect [would be asking] the Panel to ignore the causal pathway 
through which the tobacco plain packaging measure will ultimately contribute to the 
achieveme nt of its broader objectives of improving public health by discouraging 
uptake, encouraging quitting, discouraging relapse and reduci ng exposure to smoke. 
This is an attempt by the complainants to artificially sever the causal link between the 
behavioural effects of the tobacco plain packaging measure, and their long -term 
effects on smoking prevalence.847  
7.207.   Australia thus describes the TPP measures ' objective, "properly defined", as "reducing 
smoking rates in Australia by reducing the appeal of tobacco products, increasing the effectiveness 
of graphic health warnings, and reducing the ability of packages to mislead consumers about the 
harms of smoking".848 
7.208.   Honduras  considers that Australia tries to conflate its policy objective with the mechanisms 
it chose  to achieve that objective and that, contrary to Australia's suggestions, the mechanisms 
contained in the TPP Act are not themselves Australia's objective, they are merely means to an 
end – the end or "objective" being the reduction of smoking prevalence.849 
7.209.   The Dominican Republic  also observes that Australia seeks to characterize the three 
mechanisms as "specific objectives" that are ends in themselves, and that "[u]nsurprisingly, 
Australia was unable to maintain a consistent argument that the mechanisms are  both the means 
to achieve the ends and the ends themselves".850  
7.210.   Cuba considers Australia's reference to reduction in smoking as the "general objective" to 
be achieved through three "specific objectives" or "mechanisms" to be confusing.851 It argues that, 
taking as reference the text of the TPP Act, its legislative history, and the structure and design of 
the measure, there can be no doubt that the goal or "objective" of plain packaging is the 
improvement of public health through a change in smoking behaviour and not simply the reduction 
of the aesthetic appeal of tobacco products or their packaging.852 
7.211.   Indonesia  also cautions the Panel against allowing Australia to "move the goal posts" by 
using terminology related to the "general objectives" and "specific measu res" set out in the 
TPP measures . It argues that Australia tries to "have it both ways" by attempting to 
re-characterize the "specific mechanisms" as "objectives" themselves and that this is misleading, 
                                                
844 Australia's first written submission, para. 141. 
845 Australia's first written submission, para. 598. 
846 Australia's first written submission, para. 599. 
847 Australia's first written submission, para. 602. 
848 Australia's first written submission, para. 604. See also Australia's second written submission, 
paras.  210 and 535.  
849 See Honduras's second written submission, paras.  523 and 524.  
850 Dominican  Republic 's second written submission, para. 280. 
851 Cuba's second written submission, para. 207. 
852 Cuba's second written submission, para. 213. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  as the specific mechanisms are the "levers" that Aust ralia hopes will drive down prevalence, but 
the objective of Australia's plain packaging regime is to reduce prevalence.853 
7.212.   In addition, the Dominican Republic  comments on Australia's stated objective of giving 
effect to certain obligations as a party to the  FCTC. In the Dominican Republic's view, the FCTC 
does not oblige Australia to adopt plain packaging, and a WTO Member may  not invoke,  in any 
event , an obligation under a separate international agreement to justify imposing restrictions that 
would otherwis e be contrary to WTO law. It argues that if they were so entitled, Members could 
reach agreements outside of the WTO as a means of evading their WTO obligations.854  
7.2.5.1.1.2   Analysis by the Panel  
7.213.   In these proceedings, it is undisputed that the objective of the TPP measures  relates to 
public health protection and more specifically to the protection of public health in relation to the 
use of  tobacco products in Australia.  
7.214.   However, the parties articulate the particular objective  pursued by Australia through the 
TPP measures  somewhat differently. As described above, the complainants define the objective 
pursued by Australia with specific reference to the improvement of public health "by reducing 
smoking prevalence". Australia considers that a focus exclusively on smoking  prevalence would 
"ignore the causal pathway th rough which the measures will contribute to their objective". As 
described above, Australia considers that the objective of the measures, properly defined, is to 
"reduc [e] smoking rates in Australia by reducin g the appeal of tobacco products, increasing the 
effectiveness of graphic health warnings, and reducing the ability of packages to mislead 
consumers about the harms of smoking".855 In the complainants' view, these three aspects 
constitute "mechanisms" in the  operation of the measures, i.e. the means through which the 
general objectives identified in the TPP Act are intended to be carried out, and cannot properly be 
characterized as "objectives" of the TPP measures  within the meaning of article 2.2 of the 
TBT Agreement .  
7.215.   In light of the diverging descriptions by the parties of the objective of the TPP measures , 
we next consider further how exactly it should be characterized. In doing so, we should take into 
account Australia's own articulation of what objective it pursues through its measures.  However, 
as noted above, we are not bound by this characterization. In order to make an objective and 
indepen dent assessment of the objective that a Member seeks to achieve, we must take account 
of all the evidence put before us in this regard, including "the texts of statutes, legislative history, 
and other evidence regarding the structure and operation" of the technical regulation at issue.856  
7.216.   We therefore consider the relevant evidence before us, including the text of the measures, 
their legislative history and other evidence on the operation of the TPP measures , to identify their 
objective.  
7.217.   The text of the TPP Act is the principal legal instrument embodying the plain packaging 
requirements under the TPP measures  and defines its object. It is subtitled "An Act to discourage 
the use of tobacco products, and for related purposes".857 Section 3 defines the "Object s of this 
Act" as follows:  
(1) The objects of this Act are:  
(a) to improve public health by:  
(i) discouraging people from taking up smoking, or using tobacco 
products; and  
 
                                                
853 Indonesia's second written submission, para. 166. 
854 Dominican  Republic 's second written submission, para. 287. 
855 Australia's first written submission, para. 604. See also Australia's second written submission, 
paras.  210 and 535.  
856 Appellate Body Reports, US – COOL , para. 371. 
857 TPP Act, (Exhibits AUS -1, JE-1), cover page.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (ii) encouraging people to give up smoking, and to stop using tobacco 
products; and  
 
(iii) discouraging pe ople who have given up smoking, or who have 
stopped using tobacco products, from relapsing; and  
 
(iv) reducing people's exposure to smoke from tobacco products; and  
 
(b) to give effect to certain obligations that Australia has as a party to the 
Convention on Tobacc o Control.858 
7.218.   On its face, therefore, the TPP Act identifies two main "objects". The first, under 
subparagraph (a), is "to improve public health" through certain actions listed in 
subparagraphs  (i)-(iv). The second specific object is identified in subparagraph (b), namely "to 
give effect to certain obligations that Australia has as a party to the [FCTC]". These "objects" are 
summarized as follows in the Simplified Outline of the Act contained in the TPP Act itself:  
This Act regulates the retail packaging and appearance of tobacco products in order 
to: 
(a) improve public health; and  
(b) give effect to certain obligations in the Convention on Tobacco Control.859 
7.219.   We consider these two "objects" in turn.  
Improvement of public health  
7.220.   With respect to the first "object" identified in the TPP Act, we note that Section 3(1)(a) 
refers to improving public health by discouraging smoking uptake, use of tobacco products or 
relapse into smoking, encouraging  cessation  and reducing exposure  to smoke.  As the title of the 
Act itself suggests, this formulation turns around " discourag(ing)  the use of tobacco products" 
(emphasis added).  
7.221.   According to the TPP Bill Explanatory Memorandum860, "[t]his clause provides that the 
objec ts of this Bill are to improve public health  by reducing people's use of and exposure to 
tobacco products "861 (emphasis added). The Explanatory Memorandum also describes the broader 
context against which the TPP Act is adopted:  
The Australian Government is i mplementing a comprehensive suite of reforms to 
reduce smoking and its harmful effects . As part of these reforms the Government 
committed to introduce legislation requiring plain packaging of tobacco products, to 
remove one of the last frontiers for tobacc o advertising.862 
7.222.   Throughout these proceedings, Australia has used various formulations to describe the 
general objective of the TPP measures . It has described it both in terms of "improvi []ng public 
health by discouraging  uptake, encouraging  quitting, disco uraging relapse and reducing exposure 
to smoke"863 and in terms of " reducing smoking rates in Australia … ".864 These two formulations 
differ, to the extent the first focuses on encouraging or discouraging certain specific behaviours 
relating to the use of tob acco products, while the other refers more directly to a reduction of 
smoking and smoking rates. Australia has also described its objective, "properly defined" for the 
                                                
858 TPP Act, (Exhibits AUS -1, JE-1), Section 3.  
859 TPP Act, (Exhibits AUS -1, JE-1), Section 12.  
860 See para . 2.13 above, and related footnotes, for an explanation of the legal value of Explanatory 
Memoranda under Australian domestic law.  
861 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 6. 
862 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 1. (emphas is added)  
863 Australia's first written submission, para. 602. (emphasis added)  
864 Australia's first written submission, para. 604. (emphasis added)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  purposes of the analysis under Article  2.2, with reference to the improvement of public health by 
"reducing smoking rates".   
7.223.   The overall operation of the measures is described as follows by Australia:  
Figure 11: Australia's depiction of the operation of the TPP measures  
 
Source:  Figure 9 of Australia's first written submission, at para. 144. 
 
7.224.   The complainants describe the objective of the TPP measures  as the improvement of public 
health by "reducing smoking prevalence " (emphasis added), prevalence being defined as the 
number of sm okers as a percentage of the total population.865  
7.225.   As we understand it, the underlying objective pursued by Australia through the 
TPP measures , as reflected in the text of the TPP Act and in its Explanatory Memorandum, is the 
improvement of public health, sp ecifically through an effort to "reduce smoking" and "reduce 
smoking rates".866 The TPP Act does not expressly refer to the reduction of smoking or smoking 
rates as one of its objects.  It is clear however from the Explanatory Memorandum that these 
measures a re one element of what Australia describes as "a comprehensive suite of reforms to 
reduce smoking  and its harmful effects".867 As expressed in the Explanatory Memorandum, the 
                                                
865 See Honduras's first written submission, para. 351; Dominican  Republic 's first written submission, 
para. 50 fn 7; Cuba's first written submission, para. 86; and Indonesia's first written submission, para. 6, fn 3. 
866 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 1. See also TPP A Regulation 
Explanatory Statement,  (Exhibit JE -22), p p. 11-15; and Consultation Paper Non -Cigarette Tobacco Products, 
(Exhbit JE -11), p p. 3 and 16.  
867 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 1. The Explanatory Memorandum 
further identifies the "rationale for plain packa ging" as follows:  
 
This Bill will prevent tobacco advertising and promotion on tobacco products and tobacco product 
packaging in order to:  
 reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;  
 increase the notice ability and effectiveness of mandated health warnings;  
 reduce the ability of the tobacco product and its packaging to mislead consumers about the harms 
of smoking; and  
 through the achievement of these aims in the long terms, as part of a comprehensive suit e of 
tobacco control measures, contribute to efforts to reduce smoking rates.  
 
Ibid. See also TMA Bill Explanatory Memorandum (Exhibits AUS -5, JE-5), p. 1, outline; Australian Department 
of Health and Ageing, "Consultation Paper: Tobacco Plain Packaging Bi ll 2011 Exposure Draft", 7 April 2011, 
(Consultation Paper TPP Bill Exposure Draft), (Exhibits AUS -120, JE -10), p p. 1-2;1-2; Australian Department of 
Health and Ageing, "Consultation Paper: Tobacco Plain Packaging: Proposed Approach to Non -Cigarette 
Tobacco Products", 30 September 2011, (Consultation Paper Non -Cigarette Tobacco Products), (Exhibit JE -11), 
pp. 3 and 13 -14. 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TPP Act is intended "to improve public health by reducing people's use of and expos ure to tobacco 
products".868 
7.226.   We agree with Australia that a characterization of the objective of the TPP measures  based 
exclusively on the reduction of smoking prevalence, as proposed by the complainants, would not 
fully reflect the objective that it pursues  through the TPP measures , to the extent that this would 
reflect only one dimension of the reduction of smoking that Australia seeks to achieve through the 
measures. While the objects of the TPP Act make reference to encouraging quitting and 
discouraging u ptake, which may be seen to relate in particular to reducing smoking prevalence as 
defined above, the TPP Act is also intended, by its own terms, to discourage people more generally 
"from using tobacco products" and reducing "exposure to smoke from tobacco  products". The 
objective of the TPP measures  therefore cannot, in our view, be reduced exclusively to the 
reduction of smoking prevalence, i.e. a reduction in the proportion of the population that smokes. 
As we understand it, the objective of the measures  encompasses more broadly an intention to 
reduce "use" of, and exposure to , tobacco products.  
7.227.   We do not consider , however, that the objective of the TPP measures , for the purposes of 
our analysis under Article  2.2, should be understood as encompassing the additional aspects 
identified by Australia as the "specific objectives" or "mechanisms" under the TPP Act, i.e. 
"reducing the appeal of tobacco products, increasing the effectiveness of graphic health warnings, 
and reducing the ability of packages to mislead consumers about the harms of smoking". In our 
view, these "specific objectives" are more properly desc ribed as the means, or "mechanisms", as 
Australia itself describes them, by which the measures are intended  to achieve Australia's  
objective of improving public health. We agree with  the view expressed by  the complainants, and 
some of the third parties, th at the means should not be confused with the ends in this context.869 
7.228.   As Australia itself explains, the TPP Act and its Explanatory Memorandum describe " how 
the measure is intended to contribute , as part of Australia's comprehensive strategy of tobacco 
control measures to achieving Australia's overall objective of protecting human health" (emphasis 
added). Specifically, Section 3.2 of the TPP Act introduces the three "mechanisms" that Australia 
describes as "specific objectives" in the following manner:  
(2) It is the intention of the Parliament to contribute to achieving the objects in 
subsection (1) by regulating the retail packaging and appearance of tobacco 
products in order to:  
(a) reduce the appeal of tobacco products to consumers; and  
                                                
868 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 6. See also  TMA Bill Explanatory 
Memorandum (Exhibits AUS -5, JE-5), p. 1, outline; Consultation Paper TPP Bill Exposure Draft, (Exhibits 
AUS-120, JE -10), p p. 1-2;1-2; Consultation Paper Non -Cigarette Tobacco Products, (Exhibit JE -11), p p. 3 and 
16; and TPPA Regulation Explanatory Statement, (Exhibit JE -22), p p. 11, 12, 14 , and 15.  
869 See, e.g. European Union's third -party submission, para. 68: 
 
The overarching legitimate objective and the subsidiary aims should not be conflated. If the 
"objective" is cast in an artificial way to include matters that are not per se  legitimate,  but that 
merely draw their legitimacy from the overarching objective and the context, then the analysis 
becomes circular and the measure self -justifying. That is because even if, hypothetically, an 
alternative measure would exist that would in fact elimin ate or almost eliminate smoking, and 
thus make a greater contribution to the objective of protecting public health, but do nothing to 
reduce the appeal of the packaging, in purely legal terms it would fail as an alternative measure 
under Article  2.2 simply  because it would not address the issue of the appeal of the packaging 
(leaving aside the question of whether or not it would be more trade -restrictive).  
 
In this respect, we also note the observation by the panel in US – COOL ( Article  21.5 – Canada and 
Mexico) that:  
 
[T]he assessment of the degree of contribution would be confounded and would become virtually 
meaningless if the objective pursued by the amended COOL measure were to be equated with 
the way in which the same measure pursues that objective. A  meaningful review of a Member's 
challenged measure entails a review against objective standards, not those of the challenged 
measure itself.  
 
Panel Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 7.326.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (b) increase the effectiveness  of health warnings on the retail packaging of 
tobacco products; and  
(c) reduce the ability of the retail packaging of tobacco products to mislead 
consumers about the harmful effects of smoking or using tobacco 
products.870 
7.229.   As described above, what we are seekin g to establish, at this stage of our analysis, is what 
Australia seeks to achieve through the TPP measures , or, in other words, what policy concern it 
seeks to address. This question is distinct, in our view, from the question of how the specific 
measures at issue are intended to achieve this objective. What we are concerned with here is the 
identification of the underlying purpose  of the measures, rather than the specific operational 
mechanisms through which they are intended to achieve that purpose.  
7.230.   This determination does  not imply that the specific mechanisms through which the 
measures are intended to operate will  not be relevant to our overall analysis of the measures' 
consistency with Article  2.2 of the TBT Agreement . On the contrary, these may form t he basis of 
further aspects of our analysis, should we determine in the first instance that the "objective" of the 
measures is legitimate. They may become highly relevant, inter alia, to our analysis of the 
measures' contribution to its objective. At this stage of our analysis however, the focus of our 
enquiry is on the general policy goal that the measures seek to address or, as the Appellate Body 
expressed it, what Australia "seeks to achieve" through the TPP measures .  
7.231.    In describing Australia's objectiv e under the TPP measures , Cuba and Indonesia have also 
referred to the "performance benchmarks set under the COAG [Council of Australian Governments] 
National Healthcare Agreement" of "reducing the national smoking rates to 10 per cent of the 
population by  2018 and halving the Aboriginal and Torres Strait Islander smoking rate". These 
"performance benchmarks" are referred to in the TPP Bill Explanatory Memorandum.871 They 
constitute general targets set in relation to the reduction of smoking rates in Australi a, through the 
TPP measures  and other tobacco control measures.872 These "benchmarks" thus identify a certain 
targeted level of achievement of the objective. As described above however, Article  2.2 does not 
require that we discern or identify in abstracto  the level at which Australia wishes or aims to 
achieve its objective.873 We thus need  not consider, as such, the existence of a specific target or 
benchmark in the achievement of the objective for which Australia may aim as a component of 
that objective itself .874 Rather, as described above875, the focus of our enquiry is the underlying 
purpose or rationale of the measures. We are not persuaded, therefore, that the objective of the 
TPP measures  needs to be characterized, at this stage of our analysis, with reference to the above 
performance benchmarks.  
7.232.   In light of the above, we understand the objective pursued by Australia by means of the 
TPP measures  to be to improve public health by reducing the use of, and exposure to, tobacco 
products.   
Giving effect to the Framework Convention on Tobacco Control (FCTC)  
7.233.   The TPP Act identifies, in Section  3(1)(b), a second "Object", namely "to give effect to 
certain  obligations that Australia has as a party to the Convention on Tobacco Control".  
                                                
870 TPP Act, (Exhibits AUS -1, JE-1), Section 3. (emphasis added)  
871 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 1. See also Consultation Paper TPP Bill 
Exposure Draft, (Exhibits AUS -120, JE -10), p p. 1 and 3-5; and Consultation Paper Non -Cigarette Products, 
(Exhibit JE -11), pp. 13-14. 
872 See, e.g. Consultation Paper TPP Bill Exposure Draft, (Exhibits AUS -120, JE -10), p p. 1 and 3-5; and 
Consultation Paper Non -Cigarette Products, (Exhibit JE -11), p p. 13-14 (listing "the introduction of plain 
packaging for tobacco products" among  ten "reforms initiated … to meet [the Council of Australian 
Governments'] target").  
873 See para. 7.196  above.  
874 See paras.  7.197 -7.198  above.  
875 See para. 7.229  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.234.   As described above, the term "Convention on Tobacco Control" is defined in the TPP Act as 
meaning the FCTC.876 Further, the TPP  Bill Explanatory Memorandum states that the "in troduction 
of plain  packaging for tobacco  products is one of the means by which the Australian Government 
will give effect to Australia's obligations under the  [FCTC]" and, in this context, refers to Articles  5, 
11 and 13 of the  FCTC.877 The TPP  Bill Explana tory Memorandum adds that Section  3(2) "is  not 
intended to be an exhaustive list of ways in which … Australia's obligations under the WHO  FCTC 
may be met".878 
7.235.   As discussed above, Australia has described its "legitimate objectives", "properly defined", 
for th e purposes of Article  2.2 of the TBT Agreement  as "reducing smoking rates in Australia by 
reducing the appeal of tobacco products, increasing the effectiveness of graphic health warnings, 
and reducing the ability of packages to mislead consumers about the harms of smoking".879 In 
describing its objectives, however, Australia also makes reference to its intention of giving effect to 
the FCTC, as referred to in Subsection 3(2) of the TPP Act:  
The structure and operation of subsections 3(1) and 3(2), operating together, make 
clear that the TPP Act specifies a causal pathway by which Australia's objectives of 
improving public health and giving effect to the FCTC may be achieved. That is, the 
achievement of the specific objectives under subsection 3(2) is a direct  means  by 
which the objective of improving public health under subsection 3(1) of the TPP Act is 
achieved.880 
7.236.   In response to a question from the Panel, Australia clarified that it considers the 
implementation of its obligations under the FCTC to be one of it s "objectives" for the purposes of 
Article  2.2:  
Tobacco plain packaging is recommended as a means by which parties to the FCTC 
may implement their obligations under Articles  11 and 13 of the FCTC. Australia 
therefore considers the introduction of tobacco plain packaging to give effect to 
Australia's "General Obligation" to implement and update comprehensive 
multi-sectoral strategies under Article  5.1 of the FCTC, as well as its specific 
obligations under Articles  11 and 13. As such, giving effect to certai n obligations that 
Australia has as a party to the FCTC is one of the measure's legitimate objectives for 
the purposes of Article  2.2 of the TBT Agreement .881 
7.237.   Honduras, the Dominican Republic and Cuba argue that the implementation of the FCTC 
does not oblige  Australia to adopt plain packaging, and that a WTO Member may , in any event , not 
invoke an obligation under a separate international agreement to justify imposing restrictions that 
would otherwise be contrary to WTO law.882 For these reasons, they consider that the consistency 
of the TPP measures  with Article  2.2 of the TBT Agreement  must only be assessed against the 
stated objective of reducing smoking behaviour883, improving "public health by reducing smoking 
prevalence"884 and "reducing tobacco prevalence".885  
                                                
876 TPP Act, (Exhibits AUS -1, JE-1), Section  4(1). See also para. 2.16 above.  
877 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 2. 
878 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 7. 
879 Australia's first written submission, para. 604. 
880 Australia's first written submission, para. 600. (emphasis original; footnote omitted)  
881 Australia's response to Panel question No. 78, para. 220. 
882 See Honduras's first written submission, paras.  11, 121 and 138 -140; Honduras's second written 
submission, para. 465; Dominican  Republic 's first written submission, paras.  187 and 422 -423; 
Dominican  Republic 's second written submission, paras.  286-288 and 962; Cuba's first written submission, 
paras.  289-291, 320 fn 406, and 406; Cuba's response to Panel question No. 130, p. 17; Indonesia's first 
written submission, paras.  92-98; Indonesia's comments on Australia's Post -Implementation Report, 
paras. 12-13. Honduras also argues  that, even if the FCTC required its parties to implement plain packaging, 
this Panel, by virtue of Article  3.2 of the DSU, would not have the mandate to interpret such obligation from a 
non-WTO treaty. Honduras's first writt en submission, paras.  138-139. See also Dominican  Republic 's first 
written submission, para . 423; Dominican  Republic 's second written submission, para. 287; and Cuba's first 
written submission, paras.  290 and 292.  
883 Dominican  Republic 's second written subm ission, paras.  288 and 962.  
884 Honduras's first written submission, para. 140. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.238.   We do not understand Australia to be suggesting that its objective of "giving effect to 
certain obligations" it has under the FCTC should be considered, for the purposes of determining 
the "legitimate objective" of the TPP measures  under Article  2.2, in a bstraction of, and 
independently from, its objective in relation to the improvement of public health. Rather, we 
understand Australia's intention of giving effect to certain of its obligations under the FCTC through 
the TPP measures , including the TPP Act, to be directly related to, and in pursuance of, its 
objective of improving public health by reducing the use of , and exposure to , tobacco products.  
7.239.   As expressed by Australia, "[t]he public health rationale underlying the TPP Act, and the 
means by which t o achieve this objective, is supported by  both the Explanatory Memorandum to 
the TPP Act and the FCTC Guidelines ".886 Australia further explains that "there is no dispute that 
measures recommended by the FCTC are 'legitimate' public health  measures".887 As Aus tralia 
further expressed it:  
Subsection 3(1)(b) of the TPP Act expressly provides that the tobacco plain packaging 
measure will improve public health by giving effect to certain obligations that Australia 
has as a party to the FCTC. As outlined in paragra ph 140 of Australia's first written 
submission, the Explanatory Memorandum to the TPP Bill refers explicitly to the FCTC 
Guidelines, which recommend that Parties consider introducing tobacco plain 
packaging (emphasis added).888 
7.240.   The objective of the FCTC is s et out in Article  3 as follows:  
[T]o protect present and future generations from the devastating health , social, 
environmental and economic consequences of tobacco consumption and exposure to 
tobacco smoke by providing a framework for tobacco control measu res to be 
implemented by the Parties at the national, regional and international levels in order 
to reduce continually and substantially the prevalence of tobacco use and exposure to 
tobacco smoke.889 (emphasis added)  
7.241.   We note the recognition, in the FCTC, of  the major public health concerns raised by 
tobacco consumption and exposure , and its express objective of addressing the "devastating … 
consequences for tobacco consumption and exposure to tobacco smoke", including on health.  
7.242.   As indicated by Australia890 and as reflected in the measures' legislative history891, the 
TPP measures  intend, more specifically, to reflect certain recommendations in the 
Article  11 FCTC Guidelines and Article  13 FCTC Guidelines to "consider adopting" tobacco 
                                                                                                                                                  
885 Cuba's first written submission, para. 320 fn 406 (stating that "the further objective of giving effect 
to the FCTC cannot be treated as one which is capable of separately just ifying the [T]PP Measures if the [T]PP 
Measures fail to reduce tobacco use"). But see Cuba's second written submission, paras.  203, 214, and 224.  
886 Australia's first written submission, para. 601. (emphasis added; footnotes omitted)  
887 Australia's response to Panel question No. 78, para. 219. (emphasis added)  
888 Australia's response to Panel question No. 78, para. 217. (emphasis added)  
889 FCTC (Exhibits AUS -44, JE -19), Article  3 (emphasis added). See also para. 2.100 above, and 
Australia' s response to Panel question No. 78, para. 218. 
890 See, e.g. Australia's first written submission, paras.  2, 4, 9, and 108. Australia links the 
TPP measures ' "three mechanisms" with the "likely benefits of tobacco plain packaging … identified in the 
[FCTC]  Guidelines":  
 
This may increase the noticeability and effectiveness of health warnings and messages, prevent 
the package from detracting attention from them, and address industry package design 
techniques that may suggest that some products are less harmfu l than others.  
 
Ibid. para. 108 (quoting part of paragraph 46 of the Article  11 FCTC Guidelines) . 
891 See, e.g. TPP  Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), pp. 2-3, 6-9, 11, 14; 
Consultation Paper TPP  Bill Exposure Draft, (Exhibit s AUS-120, JE-10), pp. 6-7, 11, and 13-14; 
TPPA Regulation Explanatory Statement, (Exhibit  JE-22), p. 14 of Attachment  B. See also Australia's first 
written submission, para. 140. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  plain packaging as one of the ways to implement those obligations in Articles  11 and  13 of the 
FCTC.892  
7.243.   In light of these elements, we consider that the reference made, in the TPP Act and its 
Explanatory Memorandum and related documents, to Australia's intention to give effect to ce rtain 
obligations under the FCTC through the adoption of the TPP  measures further supports and 
confirms  that the objective of these measures, for the purposes of our determination under 
Article  2.2 (i.e. identifying the underlying policy concern being addr essed through the challenged 
measures) is to improve public health by reducing the use of, and exposure to, tobacco 
products.893  
7.244.   We therefore need  not consider further whether the implementation of certain obligations 
under the FCTC might be considered to c onstitute a separate "legitimate objective" independently  
of Australia's public health objective described above.894 
7.2.5.1.2   Whether the objective pursued by Australia through the TPP measures  is a 
"legitimate objective" within the meaning of Article  2.2  
7.245.    The Appellate Body has observed that a "legitimate objective" refers to an "aim or target 
that is lawful, justifiable, or proper".895 While Article  2.2 does not provide an exhaustive list of such 
objectives, it expressly identifies a number of objectives as  "legitimate objectives". As noted by 
the Appellate Body, a finding that the objective of a measure is among those listed in Article  2.2 
will end the inquiry into its legitimacy.896 
7.246.   We have determined above897 that the objective pursued by Australia through th e 
TPP measures  is the protection of human health, and more precisely the improvement of public 
health by reducing the use of, and exposure to, tobacco products.  
7.247.   The "protection of human health or safety" is one of the "legitimate objectives" explicitly 
identified in Article  2.2.898 We note in this respect that, in the context of Article  XX(b) of the GATT 
1994, the preservation of human life and health through the elimination or reduction of 
well-known and life -threatening health risks (in that instance, as ca used by asbestos fibers) was 
considered to be a value "both vital and important in the highest degree".899  
                                                
892 FCTC parties have undertaken in Article  11 of the Convention to implement "effective mea sures" with 
respect to the use of health warnings and other appropriate messages in tobacco pr oduct packaging and 
labelling, as well as to ensure tobacco product packaging and labelling "do not promote" these products by any 
means that are misleading or de ceptive. FCTC, (Exhibits AUS -44, JE -19), Articles  11.1(a) and 11.1(b). Under 
Article  13 of the Convention, FCTC parties have undertaken to apply a "comprehensive ban on all tobacco 
advertisement, promotion and sponsorship" which, " [a]s a minimum" shall pro vide, inter alia, for a prohibition 
of "all forms of tobacco advertisement … that promote a tobacco product by any means that are false, 
misleading or deceptive". Ibid. Articles  13.1, 13.2, and 13.4(a). "Tobacco advertisement and promotion" is, in 
turn, defined by the Convention as "any form of commercial communication, recommendation or action with 
the aim, effect or likely effect of promoting a tobacco product or tobacco use eit her directly or indirectly". Ibid. 
Article  1(c). We also note that the TPP Act expressly adopts this FCTC definition . TPP Act, (Exhibits AUS -1, 
JE-1), Section 4(1) . See also paras.  2.100 -2.109 above.  
893 We note in this respect the acknowledgement by the Dominican  Republic  that the FCTC Guidelines 
could "at most … confirm the legitimacy of the plain packaging as a measure with the objective  of promoting 
public health". Dominican  Republic 's response to panel question No. 130, para. 315. (emphasis original)  
894 This determination that, for the purposes of identifying the "objective" of the measures under 
Article  2.2 of the TBT Agreement , the implementation of the FCTC need not be considered to constitute an 
independent  objective separate from Australia's public he alth objective, in no way implies that the FCTC and its 
related instruments will be of no relevance, or of lesser relevance, for the remainder of our assessment under 
Article  2.2 of the TBT Agreement  or in relation to other claims before us.   
895 Appellate B ody Reports, US – Tuna II (Mexico) , para. 313; and US – COOL , para. 370. (footnote 
omitted)  
896 Appellate Body Reports, US – COOL , para. 372. 
897 See para. 7.232  above.  
898 The other legitimate objectives explicitly listed in Article  2.2 are: "national security requirements"; 
"the prevention of deceptive practices"; "protection of … animal or plant life  or health"; and "protection of … 
the environment".  
899 See Appellate Body Report, EC – Asbestos , para. 172. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.248.   It is undisputed, in these proceedings, that tobacco use and exposure to tobacco smoke 
cause death and disease900, and that the protection of human heal th from such risks is thus a 
legitimate public health objective within the meaning of Article  2.2 of the TBT Agreement .  
7.249.   We also note Honduras's observation that it has itself implemented comprehensive tobacco 
regulation measures and shares Australia's goa l of "reducing smoking prevalence and tobacco 
consumption".901 The Dominican  Republic considers "the improvement of public health by reducing 
smoking prevalence" to be a legitimate objective within the meaning of Article  2.2.902 Cuba also 
accepts that the obje ctive of reducing smoking prevalence is an entirely legitimate objective and 
that tobacco consumption and exposure to tobacco smoke cause death and disability.903 Indonesia 
also does not dispute that measures to reduce smoking prevalence protect public healt h and does 
not challenge the legitimacy of the objective pursued by Australia's TPP measures .904 
7.250.   We further note that "curbing and preventing youth smoking" has already been recognized 
as a "legitimate health objective" in the context of the TBT Agreement905 and that the Appellate 
Body has also, in the context  of applying the TBT Agreement , already recognized "the importance 
of Members' efforts in the World Health Organization on tobacco control".906 As described above, 
the "spread of the tobacco epidemic" as "a global problem with serious consequences for public 
health", and "the devastating worldwide health … consequences of tobacco consumption and 
exposure to tobacco smoke"907 have been expressly recognized by the FCTC. As also described 
above, the very objective  of the FCTC, an international convention with 180 parties (the vast 
majority of which are also WTO Members)908, is to provide "a framework for tobacco control 
measures to be implemented by the Parties at the national, regional and international levels in 
order to reduce continually and substantially the prevalence of tobacco use and exposure to 
tobacco smoke".909 
7.251.   It is clear, in light of the above910, that the improvement of public health by reducing the 
use of, and exposure to, tobacco products is a "legitimate  objective" within the meaning of 
Article  2.2 of the TBT Agreement .  
                                                
900 See section 7.2.5.5  below, on the natur e of the risks and gravity of the consequences of 
non-fulfilment of the objective. See also FCTC, (Exhibits AUS -44, JE -19), preamble, second and third recitals, 
and Article  3; and WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para . 13. See furth er 
paras.  7.240 -7.241  above.  
901 See Honduras's first written submission, paras.  2 and 850.  
902 See Dominican  Republic 's first written submission, para. 972. 
903 See Cuba's first written submission, paras.  3 and 406.  
904 See Indonesia's first written submission, para. 389. 
905 Appellate Body Report, US – Clove  Cigarettes , para. 236. 
906 Appellate Body Report, US – Clove  Cigarettes , para. 235. 
907 FCTC, (Exhibits AUS -44, JE -19), preamble, second and third recitals, and Article  3; and WHO/FCTC 
amici curiae  brief, (Exhibit AUS -42 (revised)), para . 13. See al so paras.  7.240 -7.241  above.  
908 We note that most FCTC Parties are also WTO Members (149 out of 180, or around 83%). See 
Australia's response to Panel question No. 128, paras . 188-189; Australia's first written submission, para. 578; 
and Australia's second written submission, para. 336 (ref erring however to 148 WTO Members, as these 
submissions were made before Kazakhstan, also a FCTC Party, became a WTO Member in November 2015).  
Similarly, the vast majority of WTO Members are also FCTC Parties (149 out of 160, or around 93%).  
Two of the p arties of these proceedings are FCTC Parties: Australia and Honduras. Cuba signed the FCTC in 
June 2004, but has never become a FCTC Party via ratification, acceptance or accession. The 
Dominican  Republic  and Indonesia are neither FCTC Parties nor Signator ies. WHO/FCTC Request for P ermission 
to Submit Information , (Exhibit AUS -42, revised), para. 12; and WHO/FCTC amici curiae  brief, (Exhibit AUS -42 
(revised)), para. 12 and fn 18. See also Honduras' s first written submission, para. 124; Dominican  Republic 's 
first written submission, para. 178; Cuba's second written submission, para. 383; Indonesia's first written 
submission, para. 93; and Australia's first written submission, para. 103. Additionally, "[a] ll parties to [these 
disputes] are WHO  Member States ." WHO/FCTC Request for P ermission to Submit Information, 
(Exhibit  AUS-42 (revised) ), para. 12. 
 Most third parties to these proceedings are also FCTC Parties. The only third parties to these 
proceedings that are not FCTC Parties are: Argentina, Malawi, an d the United States (although both Argentina 
and the United States are FCTC Signatory states, having signed it in 2003 and 2004, respectively). A list of all 
FCTC Parties and signatories is contained in Exhibit IND -29 (indicating 179 Parties given that it was submitted 
before Zimbabwe became a Party in March 2015).  See also para.  2.97 above.  
909 FCTC, (Exhibits AUS -44, JE -10), Article  3. See also Australia's response t o Panel question No. 78, 
para. 218.  
910 See, e.g. paras.  7.232 , 7.246 , and 7.247  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.252.   We understand the reference in the second  sentence of Article  2.5 to the "objectives 
explicitly  mentioned in Article  2.2" (emphasis added) to relate to those objectives listed in 
Article  2.2 and identified in paragraph  7.247  above, which includes "the protection of human 
health". We therefore also find, and the parties do not dispute911, that the TPP measures  are 
"prepared, adopted or applied for one of the objecti ves explicitly mentioned in paragraph 2", within 
the meaning of the second  sentence of Article  2.5 of the TBT Agreement .  
7.253.   Accordingly, we now consider whether the TPP measures  are, as Australia argues, "in 
accordance with relevant international standards".  
7.2.5.2   Whether the TPP measures  are "in accordance with relevant international 
standards" under Article  2.5 (second sentence)  
7.2.5.2.1   Overview of the arguments of the parties  
7.254.   Australia  argues that the FCTC  Guidelines for Implementation of Article  11 of the FCTC and 
the FCTC Guidelines for Implementation of Article  13 of the FCTC ( Article  11 and Article  13 
FCTC Guidelines)912, constitute a "relevant  international standard" for tobacco plain  packaging, and 
the TPP measures  have been prepared, adopted or applied "in  accordanc e with" these Guidelines.  
7.255.   With respect to the first element ("relevant  international standards"), Australia contends 
that the Article  11 and  Article  13 FCTC Guidelines  are "standards" within the meaning of the 
TBT Agreement  because they are "documents" tha t, through "conditional" as opposed to 
"obligatory" language, provide "guidelines" for "common and repeated use" by the FCTC  Parties to 
"meet their obligations under the respective provisions of the convention" as they relate to a 
"product"  (tobacco), incl uding with respect to their packaging, as well as "related processes and 
production methods" (manufacture and sale of tobacco products).913 It further considers that the 
Article  11 and  Article  13 FCTC Guidelines  are, in addition, "international" in character  because they 
were adopted by an "international standardizing body": the FCTC COP. Australia argues  that the 
FCTC COP is an "international standardizing body" because it is a body with "recognized activities 
in standardization", whose membership is open to  the relevant bodies of at least all  Members. 
Australia also contends that the complainants do  not dispute that these two  FCTC Guidelines  are 
"relevant" to the TPP measures .  
7.256.   With respect to the second element, Australia contends that the TPP measures  have been 
adopted "in  accordance  with" the Article  11 and  Article  13 FCTC Guidelines  because, as the 
measures themselves state, they have been adopted to "give  effect" to "certain obligations" that 
Australia has under the  FCTC.914 Australia recalls, in this  respect, that the Article  11 and Article  13 
FCTC Guidelines  specifically recommend tobacco plain  packaging measures as a means to 
implement the obligations in Articles  11 and 13 of the FCTC regarding packaging and labelling of 
tobacco products and tobacco  advertising, promotion and sponsorship, respectively . Australia 
argues that when the scope of these plain  packaging recommendations in these FCTC Guidelines is 
"properly identified", it is clear that the TPP measures  are "in  accordance  with" them, includi ng 
insofar as the TPP measures  "extend[] to: regulation of the use of manufacturer or brand names 
                                                
911 See, e.g. Dominican  Republic 's response to Panel question No. 66, para. 290; Dominican  Republic 's 
second written submission, paras.  850-851; Australia's first written submission, para. 269; and Australi a's 
second written submission, para. 314. 
912 For simplicity and convenience, when mentioned individually , we will refer to the FCTC  Guidelines for 
Implementation of Article  11 of the FCTC and  the FCTC  Guidelines for Implementation of Article  13 of the 
FCTC,  as, respectively, the Article  11 FCTC Guidelines and Article  13 FCTC Guidelines. See also 
paras.  2.107 -2.109 above.  
913 See also Australia's response to Panel question No. 73, para. 200 (stating that "[t]he 
FCTC Guidelines address both the trademark elements  of tobacco plain packaging (such as the use of logos, 
colours, or brand images) and the physical elements  of tobacco plain packaging (such as the shape, size, and 
materials of tobacco packaging). The FCTC is therefore a relevant international stan dard whether the Panel 
considers the term 'technical regulation' to encompass only the physical requirements of the tobacco 
plain packaging measure, or whether it considers that term to encompass both the trademark and physical 
requirements." (footnote omi tted) (emphasis added)).  
914 Although the TPP Act itself does not specify what these "certain obligations" in the FCTC are, 
Australia indicates that the TPP Bill Explanatory Memorandum refers specifically to the Article  11 and Article  13 
FCTC Guidelines (see , e.g. Australia's first written submission, para. 140). See also paras.  7.233 -7.234  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  on individual cigarettes and other tobacco products such as cigars; restrictions on wrappers inside 
tobacco packs; specification of location and orientation o f information permitted to appear on 
tobacco packaging; and the number of times certain information may appear on the pack."915  
7.257.   Based on the foregoing, Australia requests the Panel to find that the TPP measures  meet 
the conditions under the second  sentence of Article  2.5, and should therefore be "rebuttably 
presumed not to create an unnecessary obstacle to international trade" under Article  2.2 of the 
TBT Agreement .916 Australia argues, in addition, that the complainants have "failed to adduce any 
evidence of the type that would be required to rebut" this presumption.917 As a consequence, 
Australia requests the Panel "to reject all of the complainants' claims under Article  2.2 on the 
grounds that they had not rebutted the presumption established under Article  2.5".918  
7.258.   The complainants  consider that Australia has  not demonstrated that the conditions of the 
second sentence of Article  2.5 are met. They argue that the Article  11 and  Article  13 FCTC 
Guidelines do not constitute a "relevant  international standard" for to bacco plain  packaging, first, 
because they do not meet the definition of "standard" under Annex  1.2 of the TBT Agreement . 
Second, even if they could, the complainants argue that these two FCTC  Guidelines could not be 
considered an "international" standard because they were not adopted by an "international 
standardizing body".919 The complainants further contend that, even assuming that the Article  11 
and Article  13 FCTC Guidelines were "relevant international standards", the TPP measures  could 
not be considered as being "in  accordance with" this international standard, given the insufficient 
degree of correspondence between them and the FCTC Guidelines. The complainants submit, in 
this respect, that the TPP measures  implement "plain packa ging" by regulating certain tobacco 
product or packaging features that are not even set  forth in the Article  11 and  Article  13 FCTC 
Guidelines (thus going "beyond" these instruments)920 and regulate certain other "plain  packaging" 
features in a manner that i s different from the way they are addressed under these Guidelines.921 
7.259.   The complainants therefore ask the Panel to find that the conditions under the 
second  sentence of Article  2.5 have not been satisfied and that, as a consequence, the 
                                                
915 See, e.g. Australia's first written submission, paras.  519 and 584; Australia's second written 
submission, paras.  316, 318 and 321 -345; Australia's opening statement at the first meeting of the Panel, 
para. 83; Austral ia's response to Panel question No. 135, paras.  21-32; and Australia's response to Panel 
question No. 150, paras.  35-36.  
916 See, e.g. Australia's first written submission, paras.  519, 567 -582 and 584; and Australia's second 
written submission, para. 345. Australia also claims that the complainants "have failed to adduce any evidence 
of the type that would be required to rebut" this presumption under the second sentence of Article  2.5. 
Australia's second written submission, paras.  347-353. 
917 Australia' s second written submission, paras.  308 and 347 -355. 
918 Australia's second written submission, para. 356. 
919 The Dominican  Republic  also makes the point that, even assuming that the WHO or the FCTC  COP 
engage in recognized standard -setting activities in some  specific areas, such activities do  not include those that 
are "relevant" to the technical  regulation at issue in these proceedings. Consequently, it says, the Article  11 
and Article  13 FCTC Guidelines cannot be considered as "relevant" international stand ards. See, e.g. 
Dominican  Republic 's opening statement at the second meeting of the Panel, para. 28 and fn  37; and 
Dominican  Republic 's comments on Australia's response to Panel question No. 147, paras.  9, 11 and 24.  
920 See, e.g. Indonesia's response to Pan el question  No. 136, para. 6 (claiming that, "[by] regulating 
every imaginable feature of tobacco products and their packaging, well beyond anything that was suggested in 
the FCTC Guidelines, Australia has forfeited any presumption that its measures are 'i n accordance' with the 
FCTC Guidelines").  
921 See, e.g. Honduras's second written submission, paras.  7, 462 and 476 -517 (including, its arguendo  
arguments, as  per paras.  507-508 and 515); Honduras's response to Panel question No. 66, pp. 26 and 34;  
Honduras's response to Panel question No. 129, p p. 41-42; Honduras's opening statement at the second 
meeting of the Panel, para. 22; Dominican  Republic 's second written submission, paras.  842-911 (including, its 
arguendo  argument, as  per para. 908); Domini can Republic 's response to Panel question No. 66, paras.  283 
and 294; Dominican  Republic 's opening statement at the second meeting of the Panel, para. 28; Cuba's second 
written submission, paras.  165-188; Cuba's opening statement at the second meeting of t he Panel, para. 43; 
Indonesia's second written submission, paras.  220-253 and  254-258; and Indonesia's response to Panel 
question No. 150, para. 13. See also the parties' respective responses to Panel  question  No. 150 as well 
Australia's and the complainan ts' comments on each other's responses to that question.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TPP measures  cannot b e rebuttably presumed not to create an unnecessary obstacle to 
international trade.922 
7.2.5.2.2   Approach of the Panel  
7.260.   As described above923, the second sentence of Article  2.5 of the TBT Agreement  provides 
that a technical regulation "shall be rebuttably presumed not to create an unnecessary obstacle to 
international trade" when it meets the following two  sets of cumulative conditions:  
a. it is a "technical regulation"924 prepared, adopted or applied "for one of the legitimate 
objectives explicitly mentioned" in Article  2.2; and  
b. it is "in accordance with relevant international standards".  
7.261.   Having determined above that the TPP measures  constitute a technical  regulation925 
prepared for a legitimate objective expressly mentioned in Article  2.2926, and therefore meet the 
first of th ese conditions, we now consider whether these measures are "in  accordance with 
relevant international standards", as argued by Australia.927  
7.262.   On its face, a technical  regulation is "in  accordance with relevant international standards", 
if two cumulative elem ents are met: first, "relevant  international standards" exist, and, second, 
the measure(s) at issue is "in  accordance with" these international standards.  
7.263.   We therefore first need to consider whether the Article  11 and  Article  13 FCTC Guidelines, 
or elemen ts thereof, as  identified by Australia, constitute a "relevant international standard" for 
tobacco plain  packaging. Should we find that this is the case, we will proceed to assess whether 
the TPP measures  are "in  accordance with" those Guidelines. Should w e, however, find otherwise, 
we will not need to proceed any further.928 
                                                
922 See, e.g. Honduras's second written submission, para. 462. Additionally, assuming arguendo  that the 
TPP measures  are rebuttably presumed not to create an unnecessary obstacle to international trade , the 
complainants consider that they have rebutted such presumption. See, e.g. Dominican  Republic 's second 
written submission, para. 912 (stating that because the "strength" of the presumption under the second 
sentence of Article  2.5 "must be calibrated t o the level of specificity of the international standard", this means 
that "there could be no, or at most a very weak, presumption created by the FCTC  Guidelines, given the loose 
manner in which they are formulated", and then arguing that the "evidence and  arguments in support of its 
prima facie  case under Article  2.2 are sufficient to overcome any such presumption").  
923 See paras.  7.37 and 7.38 above.  
924 We note that, as part of one of the twelve paragraphs of Article  2 of the TBT Agreement , the 
second  sentence of Article  2.5, on its fa ce, only concerns technical regulations that, like the TPP measures  at 
issue here, have been prepared, adopted or applied by central government bodies . Technical regulations from 
local or non-governmental  bodies (as defined in Annexes  1.7 and  1.8 of the  TBT Agreement , respectively), are 
addressed in a separate provision of the Agreement: Article  3. The present dispute, we note, does  not involve 
such types of measures.  
925 See para. 7.182  above, where we conclude that the TPP measures  constitute a technical regulation, 
laying  down characteristics for the appearance and packaging of tobacco products (including requirements 
relating to the manner in which trademarks may be displayed on tobacco products and packaging), and 
mandating compliance with those characteristics.  
926 See para. 7.252  above. See also para. 7.246  above, where we recall our conclusion in para. 7.232  
that the objective pursued by Australia through the TPP measures  is the protection of human health, and more 
precisely the improvement of public heal th by reducing the use of, and exposure to, tobacco products.  
927 See, e.g. Honduras's second written submission, para. 477; and Australia's second written 
submission, para. 314 (stating that "the only point of contention between the parties refers to the s econd 
requirement in Article  2.5, namely, whether the [ TPP measures  are] 'in accordance with relevant international 
standards'").  
928 As we have stated in para. 7.187  above, it is undisputed that, in these proceedings, the burden of 
demonstrating that all the conditions under the second  sentence of Article  2.5 are met rests on Australia, as 
the party invoking this provision.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.2.3   Whether the Article  11 and  Article  13 FCTC Guidelines constitute "relevant 
international standards"  
7.264.   These are the first panel proceedings in which a party invokes the existence of 
"relev ant international  standards" within the meaning of the second  sentence of Article  2.5 of the 
TBT Agreement .929 We will therefore first determine what elements must be present for a "relevant 
international standard" to exist within the meaning of this provisi on. We will then examine, in light 
of these determinations, whether the Article  11 and  Article  13 FCTC Guidelines, or relevant 
elements thereof, as identified by Australia, constitute a "relevant international standard" for 
tobacco plain  packaging for the purposes of that provision.  
7.2.5.2.3.1   The notion of "relevant international standards" in Article  2.5 (second 
sentence)  
Main arguments of the parties  
7.265.   Honduras  consider s that "an instrument constitutes a relevant international standard if it 
meets the requirements outlined"930 as follows: (i)  "[t]he instrument is a 'standard' according to 
the definition established in Annex  1.2 of the TBT Agreement "931; (ii) "[t]he standard m ust be 
'international'"932; and (iii)  "[t]he  standard must be 'relevant'".933 
7.266.   The Dominican Republic  takes the view that assessing whether a document is a "relevant 
international standard" requires the following "cumulative" and "sequential steps" be addressed : 
(i) whether "the document was prepared by an 'international standardizing body'; (ii)  whether "the 
document constitutes an 'international standard'; and (iii)  whether "the document is 'relevant' to 
the measure at issue".934 The Dominican  Republic considers  that Australia "does  not dispute" that 
this assessment consists of these "sequential steps".935 
7.267.   Cuba initially endorsed Honduras's view that the two questions to be assessed are: 
(i) whether the body that adopted the "document" is an "international standard izing body"; and 
(ii) whether the "document" at issue sets  forth an "international standard".936 It later expressed 
the second question in terms of whether the "document" is a "standard" as defined in Annex  1.2 to 
the TBT Agreement .937 Specifically, it argued that the Article  11 and  Article  13 FCTC Guidelines 
are not relevant international standards, "first", because they do  not meet the definition of 
"standard", and "second", because the FCTC  COP "is not a recognized international standardization 
body".938 
7.268.   Indon esia considers that the first question to be answered under "relevant international 
standards" is whether "an 'international standard' exists".939 It argues that responding to this 
                                                
929 In US – Clove  Cigarettes , noting the parties' agreement that no "relevant international standard" 
within the meaning of the second  sentence of Article  2.5 existed, the panel remarked that it would not 
therefore begin assessing the claim under Article  2.2 "from any rebuttable presum ption that the ban on 
clove cigarettes is not an unnecessary obstacle to trade." Panel Report, US – Clove  Cigarettes , para. 7.331 
(also cited in Honduras's comments on Australia's response to Panel question No. 147, para. 40; and in Cuba's 
second written submission, paras.  179-180 and 188).  
930 Honduras's second written submission, para. 478. Honduras considered that these three elements 
constituted the "legal standard" for this particular assessment. Ibid. para. 492. 
931 Hondu ras's second written submission, paras.  479-485 (in particular, the heading for subsection 
VI.B.2(a) of this submission).  
932 Honduras's second written submission, paras.  486-489 (in particular, the heading for subsection 
VI.B.2(b) of this submission).  
933 Honduras's second written submission, paras.  490-492 (in particular, the heading for subsection 
VI.B.2(c) of this submission).  
934 Dominican  Republic 's response to Panel question No. 66, para. 291 (emphasis omitted ). See also 
Dominican  Republic 's second written  submission, para. 851. 
935 Dominican  Republic 's second written submission, para. 852. 
936 Cuba's response to Panel question No. 66, pp. 15-16 (annexed to its response to Panel question 
No. 138). 
937 Cuba's second written submission, paras.  168-181 and 182 -188. 
938 Cuba's second written submission, para. 47. 
939 Indonesia's response to Panel question No. 66, para. 74. See also Indonesia's second written 
submission, para. 222. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  question requires, first, assessing whether a "standard" exists in the sense of the definition in 
Annex  1.2 to the TBT Agreement940, and second, if so, whether such "standard" is more precisely 
an "international standard". Whether an "international standard" exists, Indonesia claims, depends 
therefore on the presence of three element s: "(i)  standard; (ii)  adopted by an international 
standardizing/standards organization; and (iii)  made available to the public".941 
7.269.   Australia  initially considered that, in order to show a "relevant international standard" 
exists under the second  sentence of  Article  2.5, "a  party must demonstrate that there is:  (i) a 
'standard'; (ii)  adopted by an international standardizing/standards body or organization; and 
(iii) 'made available to the public'".942 This party should, in addition, demonstrate that the 
interna tional standard is (iv)  "relevant".943 Later in the proceedings, Australia expressed 
element  (iii) differently, describing it as whether the standardizing  body or organization was one 
"whose Membership is open to the relevant bodies of at least all Members".944 Subsequently, 
Australia stated that "the parties are largely in agreement that" demonstrating "relevant 
international standards" depends on three "cumulative conditions", namely: "(i)  the document 
must meet the definition of 'standard'; (ii)  it must be ' international' in character, in that it has 
been approved by an 'international standardizing body'; (iii)  the international standard must be 
'relevant' to the technical regulation at issue".945 
Analysis by the Panel  
7.270.   The term "relevant international standards" is common to Articles  2.4 and 2.5 of the 
TBT Agreement . The meaning of this term, as used in Article  2.4, has been addressed in prior 
rulings. All parties to these proceedings rely on the interpretations develope d in that context, to 
inform their understanding of the meaning of "relevant  international  standards" under the 
second  sentence of Article  2.5.946 We agree that the use of the same terms in consecutive 
paragraphs of the same Article  of the TBT Agreement  suggests that they are intended to have the 
same meaning in both paragraphs. Nonetheless, i n considering this  term as used in Article  2.4 as 
context for interpreting the same  term in the second  sentence of Article  2.5, we should also be 
guided more generally by the similarities and differences between these provisions.947 
                                                
940 Indonesia's response to Panel question No. 66, para. 74.  
941 Indonesia's response to Panel question No. 66, para. 75 (footnote omitted) ( referring to  Panel 
Report, US – Tuna II (Mexico) , para. 7.663).  
942 Australia's first written submission, para. 570 (including fn 750, omitted, referring to  Panel Report, 
US – Tuna II (Mexico) , para. 7.664).  
943 Australia's first written submission, para. 581. 
944 Australia's response to Panel question No. 66, para. 157 (recalling, in fn 179, omitted, that in US –
 Tuna II (Mexico) , the Appellate Body refrained from addressing whether this consideration should necessar ily 
also include demonstrating that the international standard was "based on consensus" and "made available to 
the public"). See also Australia's second written submission, para. 315. 
945 Australia's second written submission, para. 315 (footnote omitted). W e note that Australia and the 
complainants  always (correctly, in our view) include in their lists of elements for the second set of conditions 
under the second sentence of Article  2.5, a final "cumulative condition": that the technical regulation is 
"in accordance with" the relevant international standard. This condition is, however, a separate one that, as 
explained further below, a panel only reaches if it concludes that the "document" at issue is a "relevant 
international standard". The parties' referenc es to this final condition have been omitted from our summary of 
the arguments here in order to facilitate assessing "relevant international standard" separately from "relevant".  
946 See, e.g. Honduras's second written submission, paras.  476-490 (see, in particular, ibid. para. 477); 
Honduras's response to Panel  question  No. 70, pp. 32-33; Dominican  Republic 's response to 
Panel  question  No. 66, paras.  291-308; Dominican  Republic 's second written submission, paras.  851-901; 
Cuba's response to P anel question  No. 66, p. 16 (annexed to its response to Panel question No. 138) 
(endorsing Honduras's response to this question); Cuba's second written submission, paras.  168-170; 
Indonesia's response to Panel  question  No. 66, paras.  74-76; Indonesia's sec ond written submission, 
paras.  222-224; Australia's first written submission, paras.  567-581; Australia's response to 
Panel  question  No. 66, para. 157 (first  indent); and Australia's second written submission, paras.  315-341. 
See, however, Honduras's respo nse to Panel  question  No. 66, p. 27 (stating that it "does not see any 
interaction between [ Articles  2.4 and 2.5, second sentence] for the purposes of this dispute").  
947 See, e.g. Appellate Body Report,  US – Tuna II (Mexico)  (Article  21.5 – Mexico) , para. 7.347 (stating 
that, "so long as the similarities and differences  between Article  2.1 of the TBT Agreement  and Article  XX of the 
GATT  1994 are taken into account, it may be permissible to rely on reasoning developed in the context of one 
agreement for purp oses of conducting an analysis under the other" (emphasis added)). See ibid. 
paras.  7.89-7.90 and 7.345. See also Appellate Body Report, US – Carbon  Steel (India) , para. 4.423 
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  7.271.   In this respect, we note that Article  2.4 and the second sentence of Article  2.5 both serve, 
together with other provisions of the TBT Agreement , the purpose of "harmonizing technical 
regulatio ns on as wide a basis as possible".948 This is a key purpose of the TBT Agreement .949 As 
the Appellate  Body observed:  
In several of its provisions, the  TBT Agreement  recognizes the important role that 
international standards play in promoting harmonization and  facilitating trade. For 
example, Article  2.5 of the TBT Agreement  establishes a rebuttable presumption that 
technical regulations that are in accordance with relevant international standards 
do not create unnecessary obstacles to trade. Article  2.6, for i ts part, encourages 
Members to participate in international standardizing bodies with a view to 
harmonizing technical regulations on as wide a basis as possible.  
The significant role of international standards is also underscored in the Preamble to 
the TBT Agreement . The third recital of the Preamble recognizes the important 
contribution that international standards can make by improving the efficiency of 
production and facilitating the conduct of international trade. The eighth recital 
recognizes the role that international standardization can have in the transfer of 
technology to developing countries. In our view, excluding existing technical 
regulations from the obligations set  out in Article  2.4 would undermine the important 
role of international standar ds in furthering these objectives of the  TBT Agreement . 
Indeed, it would go precisely in the opposite direction.950  
7.272.   Article  2.4 and the second sentence of Article  2.5 aim to promote harmonization in distinct 
but complementary ways: the former by creating an  "obligation" and the latter by conferring, in 
the words of the Appellate Body, a "privilege".951 In this respect, we note that Article  2.4 consists 
of an obligation952 that is applicable to all technical regulations, irrespective of the specific 
legitimate ob jective they pursue. This obligation is triggered when a Member decides to adopt a 
technical  regulation to fulfil a legitimate  objective, and where either "relevant international 
standards" already "exist" or, if they do  not yet exist, "their completion is  imminent". In such a 
situation, that Member "shall use them" (or their "relevant  parts") "as  a basis for" its technical 
                                                                                                                                                  
(identifying various "textual similarities and differences" between Article  12.7 of the SCM  Agreement and 
Article  6.8 of the Anti -Dumping Agreement, and its associated Annex  II, to conclude that the latter provides 
"[a]dditional context for the interpretation of" the former). But see Appellate Body Report, Japan  –
 DRAMs  (Korea) , para. 272 (stating that "[a]lthough both Articles  6.3 and 15.5 [of the SCM  Agreement] refer 
to effects of the subsidies, the meaning of this phrase must be interpreted in the light of the substantive 
obligations within which the phrase is located. Articles  6.3 and 15.5 deal with different subject  matters and 
therefore it is not appropriate to accord an identical meaning  to the common phrase  in these Articles"  
(emphasis added)).  
948 Article  2.6 of the TBT Agreement . See also Japan's third -party submission, para. 66; and Uruguay's 
third -party submission, para. 72. The TBT Agreement  also articulates this "harmonization" purpose with 
respect to "conformity assessment procedures" and national "standards" (see Articles  5.5 and Annex  3.G, 
respectively). We also note tha t in EC – Sardines  the Appellate Body agreed with the Panel's reliance on 
Articles  2.5 (including its second sentence) and 2.6 as providing useful context to the interpretation that 
Article  2.4 "applies" to measures adopted before the entry into force of t he TBT Agreement  on 1 January 1995, 
but which have not ceased to exist. Appellate Body Report, EC – Sardines , paras.  210-216. 
949 The relevance of "harmonization" is also reflected in other covered agreements, in particular, the 
SPS Agreement (see, e.g. prea mble (sixth  recital), Articles  3.1 and  3.2). Harmonization, as a driver for 
economic development, is also recognized in  Article  XXXVIII:2(e) of the GATT  1994 (GATT being an agreement 
the "objectives" of which the TBT Agreement  is intended to "further", as stated in the second recital of the 
preamble to the TBT Agreement ). See also WTO Staff Paper, International Standards and TBT Agreement , 
(Exhibit  AUS-530), para. 2.1, p. 3 (stating that "[i]nternational standards are used by the Agreement as a 
means of pro moting international harmonization of technical regulations, conformity assessment procedures, 
and national standards; in other words international standards can help promote greater regulatory alignment 
on a global scale.").  
950 Appellate Body Report, EC – Sardines , paras.  214-215. 
951 Appellate Body Report, US – Tuna II (Mexico) , paras.  379 and 390. We note, however, that the 
first sentence of Article  2.5, not at issue in the present disputes, does provide for an obligation : the obligation 
for a Member, when so requested, to "explain the justification" for its technical  regulation. See, in this respect, 
Appellate Body Report, EC – Sardines , para. 277; and Panel Report, US – Clove  Cigarettes , 
paras.  7.447 -7.448.  
952 Appellate Body Report, EC – Sardines , para. 275. See also Appellate Body Report, US –
 Tuna II (Mexico) , paras.  379 and 390.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  regulation.953 The second  sentence of Article  2.5, for its part, provides for a 
"rebuttable  presumption" – or, a "privilege"  – of conform ity with a particular obligation (i.e. that 
under Article  2.2). That is, technical regulations that are "in  accordance  with" relevant 
international standards are "rebuttably  presumed" not to create an unnecessary obstacle to 
international trade within the meaning of Article  2.2. However, unlike Article  2.4, this privilege is 
available only in respect of a subset of technical  regulations: those pursuing one of the legitimate 
objectives "explicitly mentioned" in Article  2.2.954 A determination that "relevant in ternational 
standards" exist, under either of these provisions, therefore has important implications for all WTO 
Members:  "the obligations and privileges associated with international standards pursuant to the 
TBT Agreement  apply with respect to all WTO Members, not merely those who participated in the 
development of the respective standard ".955  
7.273.   We further note that Article  2.4 covers not  only "relevant international standards" that 
already "exist" but also those  the completion  of which  is "imminent".  The second  sentence of 
Article  2.5, by contrast, only refers to "relevant international standards". This difference suggests 
that the scope of the second  sentence of Article  2.5 is narrower in the sense that it only covers a 
subset of the "relevant intern ational standards" that may be covered by Article  2.4, i.e. only those 
that already "exist".956 Additionally, the second  sentence of Article  2.5 requires a 
technical  regulation to be "in  accordance  with" the "relevant international standard" without also 
permitting, as it is the case in Article  2.4, that the measure simply rely, alternatively, on 
"the relevant parts" of those international standards.957  
7.274.   Finally, we note that Article  2.4 and the second  sentence of Article  2.5 establish distinct 
criteria in term s of the degree of correspondence required between the relevant international 
standard and the technical regulation at issue, as reflected by the terms "use  … as a basis  for", in 
the former, and "in accordance with", in the latter. The parties discussed in  detail the extent to  
which  the meaning of the  terms  "in accordance with" in the second sentence of Article 2.5 of the 
TBT Agreement, seen in light of the terms  "as a basis for" in Article  2.4 of the same Agreement, 
should  be informed by the relationship b etween the terms  "conform  to" in Article 3.2 of the 
SPS Agreement  and "based  on" in Articles  3.1 and 3.3 of the same Agreement, as clarified by the 
Appellate Body in EC – Hormones .958 We note in this respect the conceptual similarities between 
                                                
953 This obligation is not, however, absolute: a Member is  not required to use relevant international 
standards "as  a basis for" its technical regulation when such standards (or "r elevant parts" thereof) would be 
an "ineffective" or "inappropriate" means for the fulfilment of the legitimate objectives pursued. See Appellate 
Body Report, EC – Sardines , para. 274 (comparing the requirements under Article  3.1 of the SPS  Agreement 
with those under Article  2.4 of the TBT Agreement  with respect to "relevant international standards", and 
stating that "[n]either of these requirements in these two agreements is absolute " (emphasis added)).   
954 These are: " national security requirements"; the "prevention of deceptive practices"; the "protection 
of human health or safety, animal or plant life or health, or the environment". See also para. 7.252  above.  
955 Appellate Body Report, US – Tuna II (Mexico) , para.  390. (emphasis original)  
956 The context provided by other provisions of the TBT Agreement  supports this understanding. Had the 
drafters of the Agreement intended the second  sentence of Article  2.5 to include not only already adopted 
international standards but also those not  yet adopted, but the adoption of which is imminent, they could have 
used terms such as those used in Article  2.4: i.e. the phrase "ex ist or their completion is imminent". Rather, 
when TBT  drafters intend a given obligation to cover already adopted  international standards, they either used 
the term "exist" (see, e.g. Articles  2.9, 5.6, and 12.4) or, as in the second  sentence of Article  2.5, refer to 
"international standards", without qualification (see, e.g. Article  6.1.1 and Annex  3.J (second paragraph), 
Article  5.4 and Annex  3.F). 
957 See also, in the same vein, Indonesia's response to Panel question No. 150, para. 11; and 
Indonesia's comments on Australia's response to Panel question No. 150, para. 22. 
958 The complainants  consider the term "in accordance with" to require  a high degree of correspondence 
between the measure and the international standard. In explaining  the basis for such interpretation they first 
note that Article 2.4 of the TBT Agreement and the second sentence of Article  2.5 of the TBT Agreement use 
different terms - "as a basis for" and "in accordance with", respectively - when referr ing to internati onal 
standards and that this difference should be given meaning. They also note that a similar situation occurs 
under the SPS  Agreement, whereby Article 3.1, the SPS parallel of Article 2.4 of the TBT Agreement, uses the 
term "base … on", while Article  3.2, the SPS parallel of the second sentence of  Article  2.5 of the 
TBT Agreement, uses the term "conform to". The complainants then argue that the interpretation of "in 
accordance with" in the second sentence of Article  2.5 has to be based on the  ordinary mea ning of the se 
terms, seen in light of the object and purpose of the TBT  Agreement as well as under their  proper context , 
which include, in particular, the term "conform to" in Article  3.2 of the SPS  Agreement , as clarified by the 
Appellate Body  in EC – Hormones . Based on these considerations the complainants argue that for a technical 
regulation to be "in  accordance with"  an international standard for the purpose of the second sentence 
of Article  2.5 of the TBT  Agreement, there should be a "sufficient degre e of correspondence" between that 
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  these TBT prov isions and the corresponding provisions in the SPS  Agreement.959 The different 
wording reflected in Articles 2.4 and 2.5 of the TBT Agreement suggest s that, similarly  to the 
comparable provisions in the SPS provisions,  the second  sentence of Article  2.5 may require a 
closer or higher degree of correspondence between the measure at issue and the relevant 
international standard than that required under Article  2.4. As indicated above960, we will consider 
this aspect further if we first find that the Article  11 and Article  13 FCTC Guidelines are 
"relevant  international standards".  
7.275.   Taken together, these differences suggest to us that the more limited scope of application 
and the higher  degree of correspondence required under t he second  sentence of Article  2.5 
between a technical regulation adopted by a Member and the relevant i nternational standard 
                                                                                                                                                  
measure and that  international standard, such that , as in the case of Article  3.2 of the SPS  Agreement , the 
measure "embodies" the standard "c ompletely". This means, they continue , that the measure would be,  as in 
the case  of Article  3.2 of the SPS  Agreement , "for practical purposes", basically "converting" the international 
standard "into a municipal standard". The complainants also consider that this interpretation also indicates that 
the level of specificity of a n intern ational  standard is an element for assessing "in  accordance with". For them, 
this means that in assessing the degree of correspondence required between the technical regulation and the 
internati onal standard, a panel must consider whether such a standard " is sufficiently precise" so as to be able 
to be "converted into a municipal standard". Finally, the complainants also consider that the above 
interpretation means that a measure that fully incorporated the elements of an international standard, but that 
also goes beyond  the standard, cannot be considered as being "in accordance with" that standard. Australia  
considers that the complainants' analogy with Article  3.1 of the SPS Agreement, and the corresponding 
jurisprudence on the meaning  of its terms , "is inapposite" for the interpretation of the term "in accordance 
with" in the second sentence of Article  2.5 of the TBT Agreement . While acknowledging that one of the ordinary 
meanings of "accordance" is "conform ity", Australia argues  that a panel should inst ead be guided by the other 
relevant ordinary meanings for "accordance", namely: "agreement", "harmony". For Australia, these meanings 
of the term "in accordance with", as used in the second sentence of Article  2.5, indicate not a "high" but, 
instead, a "lo wer degree of correspondence between the technical regulation and the international standard." 
Finally, Australia considers that whether a measure is "in accordance with" a relevant international standard 
should depend on an "objective assessment of the fa cts" in accordance with Article  11 of the DSU.  See, e.g. 
Parties' respective responses to Panel  question  No. 150 as well Australia's and the complainants' comments on 
each other's responses to that question. See also Honduras's response to Panel  question  No. 66, p.  27; 
Dominican  Republic 's second written submission, paras.  903-907; Indonesia's second written submission, 
para. 255; and Australia's second written submission, paras. 342 -343. On the similarities between the second 
sentence of Article 2.5 of the  TBT Agreement and Article  3.2 of the SPS  Agreement, see fn  961 below.  
959 In EC – Sardines , the Appellate  Body observed the existence of "strong con ceptual similarities" 
between, on the one hand, Article  2.4 of the TBT  Agreement  and, on the other hand, Articles  3.1 and  3.3 of the 
SPS Agreement. The Appellate Body explained that such "strong conceptual similarities" stemmed from the fact 
that "the  heart" of Article  3.1 of the SPS  Agreement  consisted of a requirement that Members base their 
SPS measures on international standards, guidelines, or recommendations, much like "the heart" of Article  2.4 
of the TBT  Agreement consisted of  a requirement that Mem bers use international standards as a basis for their 
technical regulations. The Appellate Body thus concluded that its previous reasoning in  EC – Hormones  on the 
meaning of Articles  3.1 and  3.3 of the SPS  Agreement to be  "equally apposite" for their task in EC – Sardines  
to clarify the meaning of Article  2.4 of the TBT  Agreement . Appellate Body Report, EC – Sardines , 
paras.  274-275. See also  Appellate  Body Report,  India – Agricultural Products , para.  5.77. Similarly, we note 
the conceptual similarities bet ween the second  sentence of Article  2.5 of the TBT  Agreement and Article  3.2 of 
the SPS  Agreement, and the conceptual parallelism in the relationships between Articles  3.2 and 3.3 of the 
SPS Agreement and Articles  2.4 and 2.5 of the TBT Agreement, respecti vely. See also fn  961 below.  
It appears to us that indeed Article  3.2 of the SPS  Agreement in general, and the term "conform  to", in 
particular, may constitute  useful context for understanding the meaning of the term "in  accordance with" in the 
second sentence of Article  2.5, which is the  counterpart of that SPS provision in the TBT  Agreement. This is 
particularly so given that , as the parties agree, "conformity " is one  (even if it is not, as Australia notes, the 
only one)  of the ordinary meanings  of the term "in  accordance with" . We note, in this respect, that in EC –
 Hormones , the Appellate  Body, after considering that the ter m "base  … on" in Article  3.1 of the 
SPS Agreement connotes a different and less stringent meaning than "conform to"  in Article 3.2 of that same 
Agreement , concluded that:  
 
Under Article 3.2 of the SPS Agreement , a Member may decide to promulgate an SPS  measure 
that conforms  to an international standard. Such a measure would embody the international 
standard completely and, for practical purposes, converts it into a municipal standard . Such a 
measure enjoys the benefit of a presumption (albeit a rebuttable one) that it is consistent with 
the relevant provisions of the SPS Agreement  and of the GATT 1994.  
 
Appellate  Body Report, EC – Hormones , para.  170 (underlining added). See, more generally, ibid. 
paras.  160-172. See also, more recently, Panel Report, US – Animals , para s. 7.218 -7.220 . 
960 See paras.  7.44 and 7.263  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  reflect  the fact that, through this provision, Members confer the "privilege" of a rebuttable 
presumption of conformity with a key obligation under the TBT Agreement , which is uncommon 
in the covered agreements.961 We take due account of this overall context in considering how the 
existence of "relevant international standards" within the meaning of the second sentence of 
Article  2.5 ma y be established.  
7.276.   The core component of "relevant international standards" is the existence of "international 
standards".962 The parties have identified the elements that, in their view, must be considered in 
assessing whether "international  standards" exist  for the purposes of the second  sentence of 
Article  2.5 of the TBT Agreement .  
7.277.   Honduras  considers that the existence of "international standards" requires demonstrating 
two elements: that the document  is a "standard" according to the definition established  in Annex 
1.2 of the TBT Agreement963, which is, in addition, "international"  in character .964 The Dominican 
Republic  understands the notion of "international  standard" as included in the first two of the "four 
cumulative, sequential steps" that it considers "must be established" in order to show that a 
technical regulation is "in accordance with relevant international s tandards" for the purposes of the 
second sentence of Article  2.5, namely: "1.  the document was prepared by an 'international 
standardizing body'; 2.  the document constitutes an 'international standard' …".965 The Dominican 
Republic further states that whethe r "international standards" exist includes assessing conformity 
with the definition of "standard" in Annex  1.2.966 Cuba considers the "international  standard" 
assessment as requiring a demonstration that the "measure" must be adopted by an "international 
standardizing body".967 Indonesia  considers that an "international standard" exists "where there is: 
(i) a standard; (ii)  adopted by an international standardizing/standards organization; and (iii)  that 
is made available to the public".968 Australia , like Indones ia, considers that such assessment 
                                                
961 The only other covered  agreement that confers a similar presumption of conformity with treaty 
obligations is the SPS  Agreement (in Articles  2.4 and 3.2). We note, in particular, that under Article  3.2 of the 
SPS Agreement, m easures "which conform to international standards, guidelines or recommendations shall be 
deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with 
the relevant provisions of this Agreement and of GATT  1994". Although the latter SPS provision  does not 
expressly state it, the Appellate Body has clarified that such presumption is not absolute, but instead a 
"rebuttable" one.  Appellate Body Report, EC – Hormones , para. 170. Article  3.2 of the SPS  Agreement is, in 
this sense, similar to the second  sentence of Article  2.5 of the TBT Agreement . These provisions are, however, 
only similar , not identical, because the resulting rebuttable presumption of consistency conferred by Article  3.2 
is with respect to "relevant  provisions" of not only the SPS  Agreement, but also of the GATT  1994, whereas 
Article  2.5 of the TBT Agreement  provides a presumption only with respect to Article  2.2 of the TBT Agreement . 
We further note that the covered agreements may also occasionally confer types of presumptions other than 
those in the form of consistency  with an obligation. But even those are uncommon. For instance, recently, in 
India – Agricultural Products , the Appe llate Body clarified that a finding of a violation of Articles  5.1 and 5.2 of 
the SPS  Agreement "may give rise" to a rebuttable presumption of inconsistency with Article  2.2 of that 
Agreement. Appellate  Body Report,  India – Agricultural Products , paras.  5.24 and 5.29. Another example is 
Article  3.8 of the DSU, which provides that where there is an infringement of an obligation under a 
WTO agreement, such action is rebuttably presumed to have nullified and impaired benefits accrued unde r that 
agreement.  
962 As to the term "relevant", we note that the Appellate Body in EC – Sardines  agreed with the panel's 
interpretation of the ordinary meaning of this term as "bearing upon or relating to the matter at hand; 
pertinent". Appellate Body Report, EC – Sardines , paras. 229-230. Thus, to be "relevant", an international 
standard must "bear upon, relate to, or be pertinent to" the technical regulation under analysis.  
963 Honduras's secon d written submission, paras.  479-485 (stating inter alia  that this requires, in 
particu lar, assessing whether the "document" at issue is suitable for "common and repeated use" i.e. that " the 
product specifications must be stipulated with sufficient precision and detail so as to permit a uniform adoption 
across different jurisdictions") . 
964 Honduras's response to Panel question No. 66, pp. 25-26; and second written submission, 
paras.  478-489. 
965 Dominican  Republic 's second written submission, paras.  850-851 (emphasis original). See also 
Dominican  Republic 's response to Panel question No. 66, para. 291. 
966 Dominican  Republic 's second written submission, para. 894. See also Dominican  Republic 's response 
to Panel question No. 66, para. 305. 
967 Cuba's second written submission, para. 168. 
968 Indonesia's second written submission, para. 222; and Indon esia's response to Panel question 
No. 66, para. 75 (relying on the Panel Report, US – Tuna II (Mexico) , para. 7.663).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  entails "demonstr[ating] that there is: (i)  a 'standard'; (ii)  adopted by an international 
standardizing/standards body or organization; and (iii)  'made available' to the public".969 
7.278.   The Panel notes that, while the composit e term "international  standards" is not defined in 
the TBT Agreement970, Annex  1 to the Agreement contains definitions of relevant related terms, 
including definitions of the terms "standard"  (Annex  1.2)971 and "international body or 
system"  (Annex  1.4). In in terpreting the term "international standards" as used in Article  2.4 of 
the TBT Agreement , the Appellate Body relied on these two definitions, concluding that the 
Agreement "establishes the characteristics of a standard  and of an international  body".972  
7.279.   A "standard" is thus defined in Annex  1.2 to the TBT Agreement973 as a: 
Document approved by a recognized body, that provides, for common and repeated 
use, rules, guidelines or characteristics for products or related processes and 
production methods, with which  compliance is not mandatory. It may also include or 
deal exclusively with terminology, symbols, packaging, marking or labelling 
requirements as they apply to a product, process or production method.  
7.280.   This definition is accompanied by the following Explanat ory note : 
The terms as defined in ISO/IEC Guide 2 cover products, processes and services. This 
Agreement deals only with technical regulations, standards and conformity 
assessment procedures related to products or processes and production methods. 
Standard s as defined by ISO/IEC Guide  2 may be mandatory or voluntary. For the 
purpose of this Agreement standards are defined as voluntary and technical 
regulations as mandatory documents. Standards prepared by the international 
standardization community are base d on consensus. This Agreement covers also 
documents that are not based on consensus.  
                                                
969 Australia's first written submission, para. 570 (relying on the Panel Report, US – Tuna II (Mexico) , 
para. 7.664). Australia, however, seems to indicate the elements for "international  standards" somewhat 
differently when listing them as part of the broader term "relevant international standards". Australia considers 
that proving that the Article  11 and Article  13 FCTC Guidelines are  "relevant  international  standards" requires 
demonstrating that they constitute: "(i)  a 'standard'; (ii)  adopted by an international standardizing/standards 
body or organization; (iii)  whose membership is open to the relevant bodies of at least all Members; and that it 
is (iv)  'relevant'". Australia's response to Panel question No. 66, para. 157. (footnote omitted)  
970 See Appellate Body Report, US – Tuna II (Mexico) , para. 350. We observe, however, that the 
1979 Tokyo Round Agreement on Technical Barriers to Trade (Tokyo Round Standards Code), which preceded 
the WTO's TBT Agreement , contained a definition for "international  standard" in its Annex  1.10 ("[a] standard 
adopted by an international standardizing body"). The provisions of the Tokyo Round Standards Code, were, 
however, "never the subject of even a single ruling by a panel".  Appellate Body Report, EC – Asbestos , 
para. 81. This GATT  plurilateral agreement was terminat ed with the entry into force of the WTO. Panel  Report, 
EC – Sardines , para. 7.86 fn 85. We also note that footnote  2 to Article  2.4 of the Agreement on Preshipment 
Inspection (on the application of international standards with respect to quantity and quali ty inspections) 
defines "international standard" as being "a standard adopted by a governmental or non -governmental body 
whose membership is open to all  Members, one of whose recognized activities is in the field of 
standardization". This definition appear s not to  be in contradiction with the meaning of this term for the 
purposes of the TBT Agreement , as understood by the Appellate Body in US – Tuna II (Mexico).  Appellate Body 
Report, US – Tuna II (Mexico) , para. 359. See also, in the same vein, the parties ' respective responses to 
Panel  question  No. 131. 
971 In other contexts in the TBT Agreement , this definition is relevant for instances when "standard" 
appears as a stand -alone term, rather than as one forming the composite term "international  standards". Fo r 
instance, in US – Tuna II (Mexico) , a threshold question before the Panel and the Appellate  Body was whether 
the measure at issue was a "technical  regulation" or a "standard"; which, in turn, depended on whether the 
measure fell within the definitions fo r these terms in Annexes  1.1 and 1.2 to the TBT Agreement , respectively. 
See, e.g. Panel  Report, US – Tuna II (Mexico) , paras.  7.48-7.49; and Appellate  Body Report, US –
Tuna II (Mexico) , paras.  171 and 178 .  
972 Appellate Body Report, US – Tuna II (Mexico) , paras.  350-352. (emphasis original)  
973 All three Annexes to the TBT Agreement , including Annex  1, "constitute an integral part" of the 
Agreement.  Article  15.5 of the TBT Agreement . For the purpose of the Agreement, the meaning of the terms 
given in Annex  1 apply ( Article  1.2 and introductory clause of Annex  1), including with respect to any term 
used in the other two Annexes. See, e.g. Annex 3.A of the TBT Agreement . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.281.   Overall, this definition suggests that a "standard" exists for the purpose of the 
TBT Agreement974, including the second  sentence of Article  2.5, when a given instrument:  
 is a "document"975…; 
 … "approved by a recognized body"976 …; 
 … that provides "rules", "guidelines" or "characteristics"977 …; 
 … "for products" or "related processes and production methods"978…; 
 …"for common and repeated use"979; and  
 "compliance" with these rules, guidelines or characteristics is "not mandatory".980 
7.282.   Each of these elements describes a specific  aspect of the conditions that, taken together, 
would allow an instrument be defined as a "standard" under Annex  1.2 of the TBT Agreement . A 
"document" will there fore constitute a "standard" when all of these elements are met 
cumulatively.981 We note that this understanding is consistent with the manner in which the parties 
have presented their arguments in these proceedings.982  
                                                
974 See Honduras's second  written submission, para. 479; Dominican  Republic 's second written 
submission, para. 894; Cuba's second written submission, para. 182; Indonesia's second written submission, 
paras.  222-223; and Australia's first written submission, paras.  571-572. 
975 This element also applies to "terminology, symbols, packaging, marking or labelling requirements", 
as described in the second sentence of the definition. See fn 979 below.  
976 This element also applies to "terminology, symbols, packaging, marking or labelling requirements", 
as described in the second sentence of the definition. See fn 979 below.  
977 In addition, it "may also include or deal exclusively with terminology, symbols, packaging, marking 
or labelling requirements".  
978 When the "document" includes or deals exclusively with terminology, symbols, packaging, marking 
or labelling requirements, the d efinition refers to such requirements "as they apply to a product, processes or 
production method". See also fn 979 below.  
979 The composite term "fo r common and repeated use" only appears in the first sentence of the 
definition of "standard" in Annex  1.2, but not in the second, which refers to a "document" that includes or deals 
exclusively with "terminology, symbols, packaging, marking or labelling r equirements". We consider that when 
the whole text of this definition is seen in the context of those from the other definitions in Annex  1, and in 
light of the object and purpose of the TBT Agreement , it becomes clear that, to be a "standard", instrument( s) 
dealing, exclusively or not, with terminology, symbols, packaging, marking or labelling requirements must 
equally comply with certain key elements that are expressly mentioned in the first sentence of that definition, 
but which are not repeated in the s econd. These elements are: that these requirements should be contained in 
a "document" that was "approved by a recognized body" ; that these requirements are "for common and 
repeated use"; and that they are requirements "with which compliance is not  mandato ry". A different 
interpretation would, in our view, render any  meaningful application of the definition of "standard" in Annex  1.2 
unworkable in certain situations, including for situations when taking into consideration the definition of 
"technical regula tion" is also necessary. For instance, because neither of these two definitions in Annexes 1.1 
and 1.2 expressly refers to the "mandatory/not mandatory" nature of the "document" in their respective 
second sentences (which are identically worded), it would be impossible to use these elements to assess 
whether a "document" that "deal[s] exclusively with" product "packaging requirements" is a "technical 
regulation" or a (national)  "standard". In any event, no party or third -party of these proceedings, implicit ly or 
explicitly, expressed a view that any of these key elements from the first sentence of the Annex  1.2 definition 
(in particular "for common and repeated use") should not equally apply to instruments providing for the 
"requirements" described in the se cond sentence of that definition.  
980 This element also applies to "terminology, symbols, packaging, marking or labelling requirements", 
as described in the second sentence of the definition. See fn 979 above. The Explanatory  Note to Annex  1.2, 
which is set out in full at para. 7.280  above, referring to the mandatory nature of technical regulations, further 
clarifies that for the purpose of TBT Agreement  "standards are defined as voluntary … documents" . 
981 This understanding is consistent with prior interpretations and application of the  definitions in 
Annexes  1.1 ("technical regulation") and 1.2 ("standard") to the TBT Agreement , which are similarly drafted. 
See, e.g. Appellate Body Report, EC – Asbestos , paras.  66-75 (assessing, sequentially and cumulatively, the 
measure at issue agains t the elements forming the definition of "technical  regulation" in Annex  1.1 to the 
TBT Agreement ); Appellate Body Report, EC – Sardines , para. 176 (recalling its previous report in EC –
 Asbestos  and disaggregating the text of Annex  1.1 into "three  criteria" a document "must meet" in order to 
fall within that definition of "technical  regulation"); Appellate Body Report, US – Tuna II (Mexico) , 
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  7.283.   The Appellate Body also considered cert ain definitions in the ISO/IEC  Guide  2: 1991983 as 
applicable and relevant984, to the extent that Annex  1 definitions do not depart from them.985 The 
Appellate  Body noted, in particular, that the ISO/IEC  Guide  2: 1991 defines the term 
"international  standard" as  a "standard that is adopted by an international standardizing/standards 
organization and made available to the public".986  
7.284.   The Appellate Body further found that this definition suggests that "it  is primarily the 
characteristics of the entity approving a standard that lends the standard its 'international' 
character". By contrast, it added, "the subject  matter" of a standard would  not appear to be 
"material" for determining whether the standard is "international".987 The Appellate Body 
concluded that  "in ord er to constitute an 'international standard ', a standard has to be adopted by 
an 'international standardizing body' for the purposes of the TBT Agreement ".988 
7.285.   Whether an  "international standardizing body" exists requires, in turn, assessing whether 
this body  is one that has recognized activities  in standardization and whose membership is open to 
the relevant bodies of at least all Members.989 
7.286.   Overall, the foregoing suggests that, for an instrument to be considered an 
"international  standard" under the second  sentence of Article  2.5, it must:  
a. constitute a "standard" under Annex 1.2; and  
b. be also "international", a condition primarily990 predicated upon whether it was adopted 
by an "international standardizing body".991 
                                                                                                                                                  
paras.  183-189 (also with respect to elements in the An nex 1.1 definition of "technical regulation"); and Panel 
Report, EC – Sardines , paras.  7.63-7.65 (with respect to the individual elements in the Annex  1.2 definition of 
"standard").  
982 See, in particular, Indonesia's response to Panel question  No. 66, para. 74. See also Honduras's 
second written submission, paras.  493-507; Honduras's response to Panel question  No. 129, p p. 41-42; 
Dominican  Republic 's second written submission, para. 894; Dominican  Republic 's response to Panel 
question  No. 66, para. 305; Cuba 's second written submission, para. 182; and Australia's first written 
submission, paras.  571-574. See also, e.g. Canada's third -party response to Panel question No. 1 
(disaggregating the definition of "technical regulation" in Annex  1.1 into "three, cumul ative, criteria" that a 
measure must meet).  
983 International Organization for Standardization (ISO) / International Electrotechnical Commission 
(IEC) Guide 2, General Terms and Their Definitions Concerning Standardization and Related Activities , 6th edn 
(1991) (ISO/IEC  Guide  2:1991). See also Appellate Body Report, US – Tuna II  (Mexico) , para. 353 fn 702. 
984 The introductory clause of Annex  1 to the TBT Agreement  states that the "terms presented in the 
[ISO/IEC  Guide  2:1991], shall, when used in this Agreemen t, have the same meaning as given in the 
definitions in the said Guide … For the purpose of this Agreement, however, the following definitions shall 
apply: …".  
985 The Appellate  Body cautioned therefore that panels must "carefully scrutinize" the extent of s uch 
departure. Appellate Body Report, US – Tuna II (Mexico) , para. 354 (referring to Appellate  Body Report, EC –
 Sardines , paras.  224-225). See the introductory  clause of Annex  1 to the TBT Agreement . See also Article  1.2 
of the TBT Agreement . 
986 ISO/IEC Guide 2:1991, sub -clause  3.2.1 (as quoted in Appellate Body Report, US – Tuna II (Mexico) , 
para. 353).  
987 Appellate Body Report, US – Tuna II (Mexico) , para. 353. 
988 Appellate Body Report, US – Tuna II (Mexico) , para. 356 (emphasis  original). The A ppellate Body 
also explained that:  
 
Annex  1.2 to the TBT Agreement  refers to a "body", not to an "organization", and Annex  1.4 
defines an "international body or system", but not an "international organization". This suggests 
that, for the purposes of the TBT Agreement , "international" standards are adopted by "bodies", 
which may, but need not necessarily, be "organizations".  
 
Ibid. para. 356. 
989 Appellate Body Report,  US – Tuna II (Mexico) , para. 359. 
990 As noted in para. 7.284  above, " it is primarily  the characteristics of the entity approving a standard 
that lends the standard its 'international' character." Appell ate Body Report, US – Tuna II (Mexico) , para. 353 
(emphasis added). However, as observed by the Appellate Body, the texts of the definition of "international 
standard" in the ISO/IEC  Guide  2: 1991 and the " Explanatory  note" to the definition of "standard" in Annex  1.2 
to the TBT Agreement  both suggest that, besides the adoption by an "international standardizing body", there 
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  7.287.   Taking into account the broader context described above, including the complementary 
role of Articles  2.4 and 2.5 in promoting harmonization through the use of relevant international 
standards992, we see no basis to assume that the above guidance, given in r espect of the term 
"international standards" as contained in Article  2.4, would not be equally relevant to the 
determination of the meaning of the same term in the second  sentence of Article  2.5.993  
7.288.   It is undisputed that the burden rests on Australia, as th e party invoking the presumption 
under Article  2.5, to demonstrate that all of the conditions under this provision are met.994 
7.289.   We therefore consider first whether the instruments identified by Australia as constituting 
a "relevant international standard" for  tobacco plain packaging constitute a "standard" for 
tobacco  plain packaging. If we find that this is the case, we would then proceed to consider 
whether such standard is also "international" in character. However, should we not find that the 
instruments i dentified by Australia constitute such a "standard" , we would not need to proceed any 
further.995  
                                                                                                                                                  
may be "additional procedural conditions" to be met for a standard to be considered "international" for the 
purposes of the Agreement, i.e. whether, in addition, the standard was "based on consensus" and "made 
available to the public". Appellate Body Report, US – Tuna II (Mexico) , para. 353. In that dispute, however, the 
question before the Appellate Bod y was limited to the characteristics of the entity  approving an "international" 
standard. The Appellate  Body therefore considered it unnecessary, in that case, to address further whether the 
document at issue complied with those two "additional procedural conditions". In these proceedings, as 
described at paras.  7.268 , 7.269  and 7.277  above, some parties have, for instance, identified demonstrating 
that the document was "made available to  the public" as elements forming the "international standards" 
assessment under the second sentence of Article  2.5. This element, together with other "additional procedural 
conditions",  however, belongs  to the second ("international") and not the first ("s tandard") prong of the 
assessment of whether a document is an "international standard ". See, e.g. Appellate Body Report, US –
 Tuna II (Mexico) , paras.  353 and 359  fn 709. 
991 Appellate Body Report, US – Tuna II (Mexico) , paras.  353 and 356. See also paras.  7.284  and 7.285  
above.  
992 See para. 7.271  above.  
993 Additionally, as we stated in para. 7.270  above, the use of the same terms in consecutive 
paragraphs of the same Article  of the TBT Agreement  suggests that they are intended to have the same 
meaning in both paragraphs. Nonetheless, i n considering this  term as used in Article  2.4 as context for 
interpreting the same  term in the second  sentence of Article  2.5, we should also be guided more generally by 
the similarities and differences between these provisions. We considered such sim ilarities and differences in 
paras.  7.271  to 7.275  above . 
994 See para. 7.187  above. In considering whether the above guidance of the Appellate Body for the 
"comparative assessment" under Article  3 of the SPS Agreement can be of use for the equivalent provisions in 
the TBT Agreement , we also note that an important difference between these two Agreements is that, unlike 
the TBT Agreement , the SPS  Agreement lists (see, e.g. Annex  A(3)) the three  bodies that adopt international  
standards for its purpose. This difference, in turn, may impact the burden of proof for the party invoking the 
second sentence of Article  2.5 of the TBT Agreement  (as well as the role of the Panel examining that 
provision), in terms of identifying and dis cerning the meaning of the instrument claimed to be an "international 
standard". Under the second sentence of Article  2.5 it is incumbent on the party invoking that provision to 
properly identify the contents and scope of the instrument(s) it claims is a r elevant international standard, 
starting with the need to clearly identify all the relevant elements or components of said instrument(s) that, 
together, are alleged to form a "document" in the sense of the definition of "standard" in Annex 1.2 of the 
TBT Agreement . 
995 And, for the same reason, we would need not assess whether these instruments are "relevant" nor 
whether the measures are "in accordance with" them. See para. 7.263  above. See, also, in the same vein,  
Honduras's second written submission, para. 507. We note that the Appellate Body has clarified that the 
interpretation of the term "international standardizing body", for the purpose of asses sing the "international" 
character of a standard under Article  2.4, is a "holistic exercise in which the components of the definition are to 
be considered together" . Appellate Body Report,  US – Tuna II (Mexico) , para. 359. We further note that in that 
dispute, the Appellate Body based its decision  that the AIDPC was not an "international standardizing body" 
solely on one of the components of that definition (as opposed to its various components, "considered 
together"), namely  that the AIDPC was "not ope ned to the relevant bodies of at least all Members". As a 
consequence, the Appellate Body considered it unnecessary to address the other "components" of that 
assessment, namely, whether the AIDPC was a "body and has 'recognized activities in standardizatio n'". 
Appellate Body Report,  US – Tuna II (Mexico) , para. 399 and fn  763. We understand, however, the 
Appellate  Body's reference to a "holistic  exercise" to concern the cumulative nature of the various 
"components" for assessing the "international" characte r of the "document" at issue. The Appellate  Body did 
not suggest that such an approach is required in all cases , or that all of the three relevant components of 
"relevant international standards" (i.e. "standard", "international" and "relevant") should  be individually and 
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  7.2.5.2.3.2   Whether the Article  11 and  Article  13 FCTC Guidelines constitute a 
"standard" for tobacco plain packaging within the meaning of Annex 1.2 of the 
TBT Agreement  
7.290.   As indicated above996, the first element of a "standard" is that it is a "document". We 
therefore first consider the identification, by Australia, of certain FCTC  instruments as being the 
"document" that it argues constitutes a standard with respect to tobac co plain packaging.  
Identification of the relevant "document"  
The notion of "document" in Annex 1.2  
7.291.   The term "document" is used in the definitions for both "technical regulation" and 
"standard" in Annexes  1.1 and 1.2 to the TBT Agreement , respectively. As the Appellate  Body 
observed, this term, as used in Annex  1.1: 
[I]s defined quite broadly as "something written, inscribed, etc., which furnishes 
evidence or information upon any subject". The use of the term "document" could 
therefore cover a broad range of instruments or apply to a variety of measures. 
Annex  1.1 to the TBT Agreement , however, narrows the scope of measures that can 
be characterized as a "technical regulation" by referring to a document that 
"lays down product characteristics or their relat ed processes and production methods, 
including the applicable administrative provisions".997 
7.292.   Similarly, the surrounding terms in Annex  1.2 to the TBT Agreement  "narrow[] the scope" 
of the measures that can be characterized as a "standard"998 under that definit ion. For instance, it 
only defines as a standard those "documents" that provide "rules, guidelines or characteristics" for 
products, or related processes and production methods, (including those that "include or deal 
exclusively with terminology, symbols, packaging, marking or labelling requirements").999 
Additionally, as discussed below, the scope of the term "document" under this definition is further 
narrowed by the fact that it only concerns those that "provide" product characteristics (or deal  
with or include packaging or other requirements)1000 with a specific purpose, i.e. "for common and 
repeated use".1001 The Appellate  Body has also clarified that the term "documents", as used in that 
"Explanatory  note", "must refer to standards in general , and not on ly to those adopted by entities 
other than  international bodies".1002 
7.293.   We also consider the Appellate  Body's observation that under Annex  1.1, "a 'document' 
may comprise multiple legal instruments in a given circumstance" to be equally relevant in the 
context of Annex 1. 2.1003 Depending on the circumstances, the "document" that constitutes a 
standard may take a variety of forms. It could thus be contained within an instrument that 
simultaneously addresses other issues, and one which, together with various other in struments, 
                                                                                                                                                  
cumulatively (or "holistically") considered, where this is not necessary to the determination in light of the 
circumstances.  
996 See para. 7.281 . 
997 Appellate Body Report, US – Tuna II (Mexico) , para. 185 (footnote  omitted). See also Appellate  Body 
Reports, EC – Seal Products , paras.  5.9-5.10. 
998 We also note, as the Appellate Body did in US – Tuna II (Mexico) , that the ISO/IEC  Guide  2: 1991 
establishes, broadly, that "[a] document is to be understood as any medium with information recorded on or in 
it". Appellate Body Report, US – Tuna II (Mexico) , para. 185 fn 391. However, as we have explained at 
para. 7.283  and fns 985-986 above, the applicability and relevance of any ISO/IEC  Guide definition, if any, is 
subject to the qualifications under the introductory clause of Annex  1 to the TBT Agreement . 
999 We further discuss the meaning of these terms at paras.  7.335 -7.340  below.  
1000 See para. 7.337  and fn 1085 below.  
1001 We further discuss the meaning of the phrase "common and repeated use" later in these findings, in 
particular at paras.  7.361 -7.370  below. We also note that, while the text of the definition of "standard" in 
Annex  1.2 refers to " document ", the text of its " Explanatory  note" refers to " document s". Nonetheless, as 
clarified  by the Appellate  Body, these two terms "must be interpreted as having the same meaning" for the 
purposes of this provision. Appellate Body Report, EC – Sardines , para. 222. 
1002 Appellate Body Report, EC – Sardines , para. 222 (emphasis original). See also Eu ropean Union's 
third -party submission, para. 45 and fn  44 (also referring to Appellate Body Report, EC – Sardines ). 
1003 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , fn 708. See also fn 1007 
below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  forms part of a broader context or framework. These situations, in  themselves, would not be an 
obstacle to demonstrating the existence of a "document" that can be characterized as a 
"standard", or as a "relevant international standard" within th e meaning of Article  2.5. 
7.294.   We consider that, properly understood in the above context, the term "document" 
indicates that an assessment of whether a "standard" exists under Annex  1.2 requires, as a 
first step, a sufficiently clear and distinctive identifica tion of the components or elements of the 
instrument(s) claimed by a party to constitute that "standard". This is particularly important where 
the "document" argued to be a "relevant international standard" is contained in "multiple legal 
instruments", eac h one addressing a range of matters, including some that are distinct from, even 
if related to, the specific matter at issue in the challenged technical regulation.1004  
7.295.   We note that this initial task of precisely identifying the components of the instrument( s) 
at issue forming the "document" is a necessary first step for both the second  sentence of 
Article  2.5, and Article  2.4. Under both provisions, such identification is necessary for the 
subsequent "comparative assessment" needed to assess the degree of co rrespondence between 
the international  standard and the technical  regulation, as specified under each provision.1005 In 
the context of Article  2.4 of the TBT Agreement , an examination of whether a relevant 
international standard was "use[d]  … as a basis for" a technical regulation "must be limited to 
those parts of the relevant international standards that relate to the subject -matter of the 
challenged prescriptions or requirements" and such examination "must be broad enough to 
address all of those relevant pa rts [of the international standard]".1006 Similarly, under the second 
sentence of Article  2.5, a clear and distinctive identification of all components of the instrument 
that form the "document" at issue is necessary to allow an assessment of whether a "stand ard" 
exists and also to allow, subsequently (if the standard is also "international" and "relevant"), an 
                                                
1004 See also fn 1007 below.  
1005 That is: "in accordance with", under the sec ond sentence of Article  2.5, or "use  … as a basis for", 
under Article  2.4. We also note that, under those provisions of the SPS  Agreement which are equivalent to 
these two TBT  provisions (those under Article  3 of the SPS Agreement, for instance), there is a similar need to 
first properly identify the components of the instrument allegedly containing the SPS  standard in order to, 
then, undertake a "comparative assessment" of the degree of correspondence between the measure and the 
international  standard, as specified under each SPS provision (that is: "based  on", "conforms  to", or "results  in 
a higher level of protection than", as per Articles  3.1, 3.2 or 3.3 of the SPS  Agreement, respectively). See also 
para. 7.274  and fn 961 above, where we also discuss these TBT and SPS terms.  
1006 Appellate  Body Report, EC – Sardines , para. 250 (emphasis original). The Appellate Body based this 
understanding on the composite  term "or  relevant  parts of  them", used in Article  2.4. As we noted at 
para. 7.273  and fn 956 above, the second  sentence of Article  2.5, however, does  not contain th is 
composite  term. This, in turn, appears to indicate that, under the second  sentence of Article  2.5, it may  not be 
possible for technical  regulations to be "in  accordance  with" international  standards by only assessing these 
measures against the "relevant  parts", rather than the entirety, of these standards. We also note the following 
observations by the Appellate  Body in EC – Sardines  when applying this understanding to the facts of that 
case:  
 
This dispute concerns the WTO -consistency of the requirement set out in Article  2 of the 
EC Regulation that only products prepared exclusively from the species Sardina  pilchardus  may 
be marketed in the European  Communities as preserved sardines. Consequently, the "relevant 
parts" of Codex  Stan 94 are those elements of Codex  Stan 94 that bear  upon or relate  to the 
marketing of preserved fish products under the name "sardines". The term "relevant parts of 
them", as used in Article  2.4, implies two  things for the case before us. First, the determination 
whether Codex  Stan 94 has been used "as  a basis for" the EC  Regulation must stem from an 
analysis that is limited to those "parts" of Codex  Stan 94 relating to the use of the term 
"sardines" for the identification and marketing of preserved fish products. Those parts incl ude not 
only sections  6.1.1(i) and 6.1.1(ii), but also section  2.1.1 of Codex  Stan 94, which sets  out the 
various species that may be given the names contemplated in sections  6.1.1(i) and  6.1.1(ii). 
Second, this analysis must address all of those relevant provisions of Codex  Stan 94, and must 
not ignore any one of them.  
 
Appellate  Body Report, EC – Sardines , para. 251. (emphasis original)  
In that dispute, the Appellate Body also rejected the respondent's argument that Article  2.4 required 
that "the whole o f the standard and the whole of the EC  Regulation should be compared". The Appellate  Body 
said such a holistic comparative  assessment was not possible because "several parts of Codex  Stan 94 [were] 
not relevant to the use of the term 'sardines' for the ide ntification and marketing of preserved fish products" 
and, therefore, "[t]here [was] simply no purpose served in examining other provisions of the EC  Regulation 
that [were] irrelevant to [that] dispute." Ibid. para. 252. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  assessment of whether the challenged technical regulation is "in accordance with" such 
standard.1007 
7.296.   We note that the Appellate  Body has provided similar guidance, in the context of Article  3 
of the SPS  Agreement, on the manner in which a panel should conduct the 
"comparative  assessment" between an SPS  measure and the relevant  international  standard, for 
the purpose of determining whether that measure is "b ased on", "conforms  to", or "results  in a 
higher level of protection than", that international  standard . Articles  3.1, 3.2 and  3.3 of the 
SPS Agreement, respectively , as observed above1008, have a comparable structure and function to 
Articles  2.4 and 2.5 in t he TBT Agreement : 
[A] panel must engage in a comparative  assessment between the challenged measure 
and that international  standard. In this respect, because the international standard 
serves as the benchmark against which a Member's compliance under Article  3 is to be 
assessed, it is incumbent on a panel to discern the meaning of that standard. In 
conducting such an assessment, panels have various means available to them. A 
panel may be guided by any relevant interpretative principles, including relev ant 
customary rules of interpretation of public international law . In addition, a panel may 
find additional sources to be useful in discerning the meaning of the international 
standard. For example, panels may wish to  have recourse to the views of the rele vant 
standard -setting body, as referred to in Annex  A(3) to the SPS  Agreement, through 
evidence on the panel record or through direct consultation with that body, or with 
other experts  in the relevant fields , pursuant to Article  11.2 of the SPS  Agreement a nd 
Article  13 of the DSU.1009 
                                                
1007 We note, in this respect, the det ermination of the Appellate Body in US – COOL ( Article  21.5 –
 Canada and Mexico) , para. 5.239 and fn  708, similarly stressing the need for a precise identification of the 
"document" that constitutes a technical regulation under Annex 1.1 (even when it "may comprise multiple legal 
instruments"), as an essential requirement for a proper assessment of the m easure's consistency with the 
obligation in Article  2.2, and in particular for an analysis of the "contribution" of the challenged technical 
regulations under the relational analysis:  
 
In our view, a technical regulation should, in principle, be reviewed i n its entirety in order to 
assess its degree of contribution to its objective. We note that paragraph 1 of Annex 1 to the 
TBT Agreement  defines a "technical regulation", in relevant part, as a " [d]ocument which lays 
down product characteristics or their re lated processes and production methods". It is, thus, the 
"document" constituting the technical regulation that should be assessed under Article  2.2, 
rather than isolated or disconnected portions of that document. … In assessing the relevant 
document const ituting the technical regulation at issue under Article  2.2, the elements contained 
within it that contribute to the objective of the technical regulation should first be identified, with 
all of those elements then being taken into account when assessing t he degree of contribution of 
the technical regulation to its objective. Otherwise, to exclude certain elements from that 
assessment could yield an incorrect finding as to the technical regulation's degree of contribution 
to its objective, and could lead to  an imbalance or asymmetry in a comparison with proposed 
alternatives.  
 
Ibid. (emphasis original; footnotes omitted). See also Dominican  Republic 's response to Panel question 
No. 150, para. 21; Dominican  Republic 's comments on Australia's' response to Pane l question No. 147, 
para. 49 fn 74 (also referring, in addition to the above passage of the Appellate Body Report in  US – COOL 
(Article  21.5 – Canada and Mexico) , to Appellate Body Report,  US – Tuna II (Mexico)  (Article  21.5 – Mexico) , 
para. 7.15); Indones ia's response to Panel question No. 150, para. 11; and Indonesia's comments on 
Australia's' response to Panel question No. 140, paras.  21-23. 
1008 See fn 1005 above. See also para. 7.274  and fn 961 above.  
1009 Appellate  Body Report,  India – Agricultural Products , para. 5.79. Applying the above understanding 
to the "circumstances of that dispute", the Appellate Body then said:  
 
Annex  A(3)(b) [of the SPS  Agreement] provides that the relevant international standards … are those 
set out in the [World Organization for Animal Health ( OIE)] Code, in particular, Chapter  10.4. 
Chapter  10.4 of the OIE  Code therefore serves as the benchmar k against which India's AI  measures 
must be compared in order to determine whether they are "based  on", or "conform  to", that standard. 
Accordingly, in keeping with the guidance outlined above, it was incumbent on the Panel  in this dispute 
to discern the m eaning of relevant  portions of the OIE  Code in order to determine whether India's 
AI measures satisfy  the elements under  Articles  3.1 and 3.2 of the SPS  Agreement.  
 
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  7.297.   The above statements provide, mutatis  mutandis , relevant guidance for properly 
identifying the document identified by Australia as "relevant international standards" in relation to 
tobacco plain packaging. Once the relevant instr uments have been identified, their meaning will 
also need to be discerned and understood.1010 
7.298.   With the foregoing in mind, we now examine the instruments that Australia identifies as 
forming the "document" that, within the meaning of the definition of "standar d" in Annex  1.2, 
constitutes a "relevant international standard" for tobacco plain packaging for the purposes of the 
second sentence of Article  2.5.  
Main arguments of the parties  
7.299.   Australia  considers that the FCTC  Guidelines, "as  a whole", could be conside red "relevant 
international standards" for the purposes of the second sentence of Article  2.5 of the 
TBT Agreement .1011  
7.300.   Australia further explains that, for the purpose of determining whether "relevant 
international standards" exist for tobacco plain  packagi ng, the "document(s)" to be assessed are, 
more specifically, the Article  11 and  Article  13 FCTC Guidelines.1012 Australia further clarifies that it 
makes this assertion "rel[ying] primarily" on the following paragraphs of these two 
FCTC Guidelines:  
a. paragraph  46 of the Article  11 FCTC Guidelines; and  
b. paragraphs  16 and 17 of the Article  13 FCTC  Guidelines.1013  
7.301.   Australia also notes that, besides these three  specific paragraphs, the Article  11 and  
Article  13 FCTC Guidelines also contain "other  elements" th at "do  not specify 'plain  packaging'" but 
are nonetheless "relevant" for characterizing these FCTC  instruments as an international  standard 
for tobacco plain packaging. Australia considers the following paragraphs  of the Article  11 and  
                                                                                                                                                  
Ibid. para. 5.80 (footnotes omitted) . This approach was applied by the panel in Russia  – Pigs (EU), which 
considered that its task of assessing whether the challenged measure conformed with Article  3 of the 
SPS Agreement consisted of: (i)  identifying the relevant international standards; (ii)  discerning the meaning of 
such international standa rds; and (iii)  assessing the measures at issue in light of these international standards 
in order to determine whether the measures are "based  on" the standards. Panel Report, Russia  – Pigs (EU), 
paras.  7.262 and 7.274. See also ibid. paras.  7.263 -7.272 (o n the legal test for "identifying") and 7.273 -7.283  
(on the legal test for "discerning meaning").  
1010 We note in this respect the observations of the panel in Russia  – Pigs (EU) , referring to the 
Appellate Body's determinations in India – Quantitative Restri ctions :  
 
In essence, in connection with our own assessment of the meaning of the Terrestrial Code, this 
Panel has remained vigilant in terms of how it has treated the responses received from the OIE 
and how it has undertaken its assessment of the meaning of the Terrestrial Code. In this respect, 
the Panel has remained mindful of the reasoning of the Appellate Body in India – Quantitative 
Restrictions  that a panel may not delegate its judicial function to an international organization 
that it consults, but must instead critically assess the views of that international organization. 
The Appellate Body's findings in India – Agricultural Products  reaffirm that the Panel must make 
its own assessment of the meaning of the Terrestrial Code and not simply rely on t he views of 
the OIE regarding the meaning of the Terrestrial Code. A Panel may, in respect of each of the 
interpretative issues it addresses, refer to and accord weight to the OIE's responses to its 
questions; however, a Panel must indicate, in each instan ce, that its conclusions are also based 
on its own examination of the wording or text of the relevant recommendations of the Terrestrial 
Code.  
 
Panel Report, Russia  – Pigs (EU), para. 7.282 (footnotes omitted). See also Appellate Body Report  
India – Agricultural Products , paras.  5.93-5.94. 
1011 Australia's response to Panel question No. 129, para. 201. 
1012 Australia's first written submission, para. 567.  
1013 Australia's response to Panel question No. 129, para. 202. See also, e.g. Australia's opening 
statement at the first meeting of the Panel, para. 83. We assume Australia's reference to "paragraph 17" of the 
Article  13 FCTC Guidelines is intended to refer to the " Recommendation " following paragraph 17, as 
parag raph 17 itself does not concern "plain packaging" per se . See also para. 7.311  and fn 1031 below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Article  13 FCTC Guid elines to be "examples" of these "other  elements", in particular given that 
they "set  out" requirements that the TPP measures  "incorporate[]"1014: 
a. paragraphs  10 and 54 of the Article  11 FCTC Guidelines  (dealing, respectively, with 
"inserts and onserts" and "adhesive labels"); and  
b. paragraph  15 of the Article  13 FCTC Guidelines  (dealing with "packaging and product 
features").  
7.302.   Australia further submits that "other  aspects" of the Article  11 and  Article  13 
FCTC Guidelines  that are "relevant", include those addre ssing "misleading or deceptive packaging 
and labelling" and "misleading or deceptive advertisement and promotion".1015 
7.303.   The c omplainants  do not contest Australia's identification of paragraph  46 of the Article  11 
FCTC Guidelines and paragraphs 16 -17 of the Article 13 FCTC Guidelines as being the parts of 
these instruments expressly addressing "plain  packaging".1016 Honduras  questions, however, 
Australia's broad claim that all the currently adopted FCTC  Guidelines, "as a whole", qualify as an 
international  standard  for the purpose of these proceedings. Honduras recalls that the FCTC  COP 
has adopted FCTC  Guidelines for the implementation of other provisions of that Convention, such 
as those for Articles  8, 9, 10 and 14. Honduras considers that, "absent further clarif ication by 
Australia, [such] general assertions are insufficient to discharge Australia's burden under [the 
second sentence of] Article  2.5 of the TBT Agreement ".1017 
Analysis by the Panel  
7.304.   As described above, Australia identifies specific paragraphs of two G uidelines adopted by 
the FCTC COP (the Article  11 FCTC Guidelines  and the  Article  13 FCTC Guidelines) as constituting a 
relevant (international) "standard" in respect of tobacco plain packaging.  
7.305.   We first note that various  Guidelines adopted by the FCTC  COP to date contain extensive 
text dealing with a broad range of regulatory aspects of various types of tobacco -control measures 
addressed in the specific FCTC  provisions that these Guidelines relate to.1018 Like other 
FCTC Guidelines, the Article  11 FCTC Guide lines and the Article  13 FCTC Guidelines are 
non-binding instruments "intended to assist the Parties in meeting their obligations and in 
increasing the effectiveness of measures adopted".1019 Both set of guidelines contain extensive 
text addressing a variety of regulatory measures concerning the packaging, labelling or marketing 
of tobacco products, to assist FCTC Parties in meeting their obligations and increasing the 
effectiveness of measures ado pted pursuant to Articles  11 and 13 of the Convention 
respectively .1020 It is notable in this respect that, as indicated by the complainants, 
                                                
1014 Australia's response to Panel question No. 129, para. 202. 
1015 Australia's response to Panel question No. 129, para. 203.  
1016 See, e.g. Honduras's second written submission, para. 495; and Indonesi a's second written 
submission, paras.  183 and 186.  
1017 Honduras's second written submission, para. 504.  
1018 See FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS -109, DOM -44), containing a 
compilation of all adopted Guidelines, except the Article  6 FCTC Guidelines (Exhibit AUS -111), adopted in 2014.  
1019 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), paras.  20-22 (referring to the texts of the 
respective opening paragraphs of these two FCTC Guidelines). We further discuss the non -binding nature of 
these FCTC Guidelines when discussing this element of the definition of "standard" in Annex 1.2, at 
paras . 7.390 -7.394  below.  
1020 For instance, the Article 11 FCTC Guidelines contain various recommendations on the development 
and use of health  warnings, including with respect to th eir "rotation" (paras.  19-22) and their "content" 
(paras.  23-27), and the Article  13 FCTC Guidelines contain recommendations on various components of a 
comprehensive  ban of tobacco advertising, promotion and sponsorship, including with respect to: "retail sale 
and display" of tobacco products (paras.  12-14, recommending banning them); "internet sales" (paras. 18 -21, 
recommending banning them); "brand stretching and brand sharing", i.e. the use of tobacco brands in 
non-tobacco products (paras.  22-23, recomme nding banning them); "depiction of tobacco in entertainment 
media"  (para.  31, inter alia recommending "prohibiting the use of identifiable tobacco brands or imagery" in 
entertainment media products); and "domestic enforcement of laws on tobacco advertising , promotion and 
sponsorship" (paras.  60-68, inter alia recommending to "introduce and apply effective, proportionate and 
dissuasive penalties"). Further, with further respect to  paragraphs  22-24 the Article  13 FCTC Guidelines, which 
define and recommend ba nning "brand  stretching" and "brand  sharing", they state that these types of branding 
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  "plain  packaging" is not, as such, a specific type of tobacco control  measure expressly identified in 
either Article  11 or Article  13 of the FCTC themselves (or in any other provision of the 
Convention).1021  
7.306.   In light of this and our observations above on the importance of a precise identification of 
the "document" at issue for the remainder of our analysis1022, we agree with Honduras that, as an 
initial step in our assessment, "it is necessary to identify which parts  of the FCTC  Guidelines have 
been invoked by Australia as the alleged relevant international standards".1023 
7.307.   As described above, Australia states that the FCTC  Guidel ines "as a whole" could be 
considered "relevant international standards" for the purposes of the second  sentence of 
Article  2.5. Nonetheless, Australia also identifies the relevant instruments in respect of tobacco 
plain packaging as being, more specifical ly, the Article  11 FCTC Guidelines and the Article  13 FCTC 
Guidelines. It then further identifies three specific paragraphs of these two Guidelines upon which 
it "relies  primarily" for the purposes of determining the existence of a "relevant international 
standard" in respect of tobacco plain packaging: paragraph  46 of the Article  11 FCTC Guidelines, 
and paragraphs  16 and 17 of the Article  13 FCTC Guidelines (in fact, the " recommendation " text 
following paragraph 17).1024 These are the specific texts, within t hese two sets of Guidelines, in 
which tobacco  "plain  packaging" is expressly mentioned and described.  
7.308.   Paragraph  46 of the Article  11 FCTC Guidelines (entitled " Packaging and labelling of 
tobacco products ") is the sole provision under a heading entitled "P lain packaging", which states:  
Parties should consider adopting measures to restrict or prohibit the use of logos, 
colours, brand images or promotional information on packaging other than brand 
names and product names displayed in a standard colour and fon t style 
(plain  packaging). This may increase the noticeability and effectiveness of health 
warnings and messages, prevent the package from detracting attention from them, 
and address industry package design techniques that may suggest that some products 
are less harmful than others.1025 
7.309.   Paragraph  16 of the Article  13 FCTC Guidelines  (entitled " Tobacco advertising, promotion 
and sponsorship "), provide that:  
The effect of advertising or promotion on packaging can be eliminated by requiring 
plain packaging: black  and white or two other contrasting colours, as prescribed by 
national authorities; nothing other than a brand name, a product name and/or 
manufacturer's name, contact details and the quantity of product in the packaging, 
without any logos or other feature s apart from health warnings, tax stamps and other 
government -mandated information or markings; prescribed font style and size; and 
standardized shape, size and materials. There should be no advertising or promotion 
                                                                                                                                                  
"should be also regarded as forms of tobacco advertisement and promotion". See also Canada's third party 
submission, para.  41 and fn s. 20-21 (referring to this recommenda tion and informing that "many WTO 
Members", including Ukraine and Indonesia", have implemented measures regulating "brand  stretching").  
1021 See, e.g. Honduras's first written submission, paras.  125-127; Honduras's second written 
submission, para. 468; Dominican  Republic 's first written submission, paras.  183 and 194; Cuba's first written 
submission, paras.  291-294; and Indonesia's first written submission, para. 94. We note, however, that certain 
other specific types of tobacco -control measures are expr essly addressed in both the FCTC  itself and in the 
corresponding FCTC Guidelines. For instance, regulations on the use/design/size/rotation of health warnings or 
GHWs  in tobacco packaging are measures that are expressly addressed both in Article  11 of the FCTC as well 
as in various parts of the Article  11 FCTC Guidelines. See FCTC, (Exhibits AUS -44, JE -19), Article  11; and 
Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, paras.  12-22. 
1022 See paras.  7.291 -7.297  above.  
1023 Honduras's second written submission, para. 495. (emphasis  added)  
1024 We assume Australia's reference to "paragraph 17" of the Article  13 FCTC Guidelines is intended to 
refer to the recommendation following paragraph 17, as paragraph 17 itself does not concern "plain packaging" 
per se . 
1025 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  inside or attached to the package or on individual cigarettes or other tobacco 
products.1026 
7.310.   Paragraph 16 of the Article  13 FCTC Guidelines  is contained (together with paragraphs  15 
and 17, both quoted below) under a heading entitled "Packaging and product features". This 
heading contains the follo wing footnote:  
See also the guidelines for implementation of Article  11 of the Convention, which 
address plain packaging with regard to health warnings and misleading 
information.1027 
7.311.   Paragraph  17 of the Article  13 FCTC Guidelines, which refers to, but does n ot 
per se prescribe "plain packaging", states:  
If plain packaging is not yet mandated, the restriction should cover as many as 
possible of the design features that make tobacco products more attractive to 
consumers such as animal or other figures, "fun" ph rases, coloured cigarette papers, 
attractive smells, novelty or seasonal packs.1028 
7.312.   Paragraph  17 of the Article  13 FCTC Guidelines is immediately followed by this 
Recommendation:  
Packaging and product design are important elements of advertising and promotion. 
Parties should consider adopting plain packaging requirements to eliminate the effects 
of advertising or promotion on packaging. Packaging, individual cigarettes or other 
tobacco products should carry no advertising or promotion, including desig n features 
that make products attractive.1029 
7.313.   We observe that there seems to be no disagreement, among the parties, on the 
identification of these three paragraphs of the Guidelines as relating to plain packaging of tobacco 
products.1030 The WHO and FCTC  Secreta riat similarly identify these three provisions of the FCTC 
Guidelines, as specifically addressing "plain  packaging".1031  
7.314.   The WHO and FCTC Secretariat identify, in addition, paragraph 15 of the Article  13 FCTC 
Guidelines as addressing "plain  packaging". Austr alia instead argues that paragraph 15 is one of 
the "other  elements" in these Guidelines that "do  not specify 'plain  packaging'" but are nonetheless 
"relevant" for characterizing these FCTC  instruments as an international  standard for tobacco plain 
packagi ng. Paragraph  15 of the Article  13 FCTC Guidelines, like paragraphs  16 and 17, is 
contained under the heading "Packaging and product features". It states:  
                                                
1026 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 16. 
1027 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, fn 2 accompanying " Packaging 
and product features " headi ng above para. 15; and FCTC Guidelines for Implementation (2013 edition), 
(Exhibits AUS -109, DOM -44), Article  13, fn 4. For simplicity, we will henceforth refer to this footnote as 
footnote 4 to the Article  13 FCTC Guidelines.  
1028 Article  13 FCTC Guidelines,  FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 17. 
1029 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, " Recommendation " following 
para. 17. 
1030 As we observe  at para. 7.315  below , unlike Australia, the WHO and FCTC  Secretariat  also identify  
paragraph 15 of the Article  13 FCTC Guidelines as specifically addressing "plain  packaging".  
1031 See WHO/FCTC  Additional Information to Panel, paras.  60 and 62 -63, at fn 63 above. See also 
WHO/FCTC  amici curiae brief, (Exhibit AUS -42 (revised)), paras.  59-71. We note that, like Australia, the WHO 
and FCTC  Secretariat refer to the text of the " Recommendation " for plain  packaging in the Article  13 
FCTC Guidelines as being the one contained in "paragraph  17" of these Guidelines. The evidence presented to 
us suggests, however, that paragraph  17 contains anothe r text. Instead, as we see it, the text of this 
"Recommendation ", which is unnumbered, follows, rather than is contained within, paragraph  17 of the 
Article  13 FCTC Guidelines. This is different from the way "plain  packaging" is addressed in the Article  11 FCTC 
Guidelines. There, "plain  packaging" is expressly addressed in a single paragraph, the sole one under a heading 
called "plain packaging", and nowhere  else in the Article  11 FCTC Guidelines is "plain  packaging" also 
presented as a " Recommendation ", as in the Article  13 FCTC Guidelines . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Packaging is an important element of advertising and promotion. Tobacco pack or 
product features are  used in various ways to attract consumers, to promote products 
and to cultivate and promote brand identity, for example by using logos, colours, 
fonts, pictures, shapes and materials on or in packs or on individual cigarettes or 
other tobacco products.1032 
7.315.   Australia also considers "other  aspects" of the Article  11 and Article 13 FCTC Guidelines to 
be "relevant" for plain packaging, citing, as "examples", certain specific provisions from these 
instruments. Specifically, it identifies as "relevant" paragraphs  101033 and 541034 of the 
Article  11 FCTC Guidelines and, as we already noted above, paragraph  15 of the Article  13 
FCTC Guidelines. Australia further submits that "other  aspects" of the Article  11 and  Article  13 
FCTC Guidelines  that are "relevant" include those a ddressing  "misleading or deceptive packaging 
and labelling" and "misleading or deceptive advertisement and promotion".1035 The WHO and FCTC 
Secretariat, but not Australia, also refer to paragraph  43 of the Article  11 FCTC Guidelines as 
forming part of the "br oader  context" for plain  packaging as expressly addressed in paragraph  46 
of these same Guidelines. They explain that paragraph  43 is relevant because it "stress[es] that 
the terms included in Article  11.1(a) [of the FCTC] are indicative of misleading term s, but that the 
list is not exhaustive".1036 Similarly as context, the WHO and FCTC Secretariat, but not Australia, 
refer to paragraph  3 of the Article  11 FCTC Guidelines, which, in its relevant part, states that 
"[e]ffective health warnings and messages and other tobacco product packaging and labelling 
measures are key components of a comprehensive, integrated approach to tobacco control".1037 
7.316.   Finally, Australia and the WHO and FCTC  Secretariat agree that both the FCTC  itself and its 
Guidelines contain "a number  of provisions relevant to plain  packaging"1038 and that, consequently, 
the parts of the Article  11 and  Article  13 FCTC Guidelines  expressly addressing plain  packaging 
"must be read in light" of the context provided by these provisions.1039 
7.317.   Having identified the parts of the Article  11 and  Article  13 FCTC Guidelines on which 
Australia "relies primarily … as international standards for the TPP measures "1040, as well as the 
                                                
1032 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 15. 
1033 Paragraph  10 of the Article  11 FCTC Guidelines states, under a heading entitled "Design elements":  
 
Parties should ensure that health warnings and messages are not obstructed by other required 
packaging and labelling markings or by commercial inserts and onserts. Parties should also ensure, 
when establishing the size and position of other markings, such as tax stamps and markings as per the 
requirements of Article  15 of the Convention, that such markings do not obstruct any part of the health 
warnings and messages.  
 
Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 10. 
1034 Paragraph  54 of the Article  11 FCTC Guidelines, the sole provision under a heading entitled 
"Adhesive labels and covers", states:  
 
Parties should ensure that adhesive labels, stickers, cases, covers, sleeves, wrapping and tobacco 
manufacturers' promotional inserts a nd onserts do not obscure, obliterate or undermine health warnings 
and messages. For example, adhesive labels might be allowed only if they cannot be removed and are 
used only on metal or wood containers that hold products other than cigarettes.  
 
Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 54. 
1035 See paras.  7.299 -7.302  above.  
1036 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 62. The WHO and FCTC  Secretariat 
also refer, as context to the plain packaging recommendation in paragraph  46 of the Article  11 FCTC 
Guidelines, to paragraph  12 of these same Guidelines, which "provides specific guidance with respect to the 
size of health  warnings", recognizing that "the effectiveness of health  warnings increases with their size" (Ibid. 
para. 64). They also poin t out to paragraph  60 of the Article  11 FCTC Guidelines (which recommends health 
warnings be reviewed and updated periodically), to, more broadly, "impl[y] [that] the effectiveness of 
packaging and labelling measures is greatest when they are updated perio dically […]". (Ibid. para. 65). 
1037 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para.  3, as quoted in 
WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 63. 
1038 WHO/FCTC  amici curiae brief, (Exhibit AUS -42 (revised)), para. 59. 
1039 WHO/FCTC  Additional Information to Panel, paras.  61 and 64 , at fn 63 above.  
1040 Australia's response to Panel question No. 129, para. 202. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "other  elements" or "aspects" (at least those that it lists expressly)1041 that Australia  identifies as 
"relevant" in this context, we need to consider whether, taken together, th ose parts of these 
instruments constitute a "document" that could be considered to contain a "standard" for tobacco 
plain packaging, within the meaning  of Annex 1.2 of the TBT Agreement .  
7.318.   We first recall that the Article  11 and Article  13 FCTC Guidelines referred to above, 
adopted by the FCTC COP are, as stated in their respective opening paragraphs, "intended to 
assist the Parties in meeting their oblig ations and in increasing the effectiveness of measures 
adopted".1042 The WHO and FCTC Secretariat further explain that "the status of each  set of 
Guidelines is governed by its own wording".1043 
7.319.   Specific FCTC provisions can thus be, and most are, supplemented by certain instruments 
aimed at furthering them and their implementation, chief among them being Protocols and 
Guidelines.1044 Article  7 of the FCTC thus provides that the FCTC  COP shall propose Guidelines for 
the implementation of the provisions of Articles  8 to 13 of the FCTC.1045 Towards this end, the 
FCTC COP adopted in November  2008, by consensus,1046 two separate Guidelines: one for the 
implementation of Article  11 and another for the implementation of Article  13, i.e. the Article  11 
and Article  13 FCTC Guideline s at issue in these proceedings.1047  
7.320.   The WHO and FCTC Secretariat also note that the "overarching obligation to implement 
effective measures" is reflected not only in Article  7 of the FCTC, but also, importantly, in the 
wording of Articles  11 and 13 of the F CTC.1048 The WHO and FCTC  Secretariat thus explain that:  
Article  11 obliges Parties to implement effective measures  to ensure that tobacco 
packaging and labelling does  not promote tobacco products by means that are false, 
misleading or deceptive ( Article  11.1(a)) and to ensure that tobacco packaging carries 
health warnings describing the harmful effects of tobacco use ( Article  11.1(b)). 
Similarly, Article  13 obliges Parties to undertake a comprehensive  ban on tobacco 
advertising, promotion and sponsorship.1049 
                                                
1041 That is: paragrap hs 10 and 54 of the Article  11 FCTC Guidelines and paragraph  15 of the Article  13 
FCTC Guidelines, set out, respectively, in fns 1033 and 1034, and para. 7.314  above. See also paras.  7.301  
and 7.307  above.  
1042 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), paras.  20-22 (referring to the texts of the 
respective opening paragraphs of these two guidelines).  
1043 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), paras.  20-22 (referring to the texts of the 
respective opening paragraphs of these two guidelines).  
1044 See section 2.4 above, in particular para. 2.99. 
1045 WHO/FCTC  Additional Information to Panel, para. 50, at fn 63 above.  
1046 On the adoption of the Article  11 and Article  13 FCTC Guidelines by consensus, see WHO/FCTC 
amici curiae  brief, (Exhibit AUS -42 (revised)), para. 19; and WHO/FC TC Additional Information to Panel, 
para. 19, at fn 63 above. (containing "timetable 2" and "timetable 3", more specifically the seventh bullet in 
p. 7 and sevent h bullet in p. 8). See also ibid,  para. 46. See also Australia's first written submission, para. 106 
and fn  166; and UICC and CCA  amici curiae  brief, (Exhibit  AUS-38), para. 7.2. Indones ia, but not the other 
complainants, argues that "consensus"  in the Guidelines with respect to tobacco plain packaging only means 
consensus on recommendations for FCTC Parties to "consider adopting" tobacco plain packaging, rather than 
recommendations to "ado pt" plain packaging. Indonesia considers that this means that the Article  11 and 
Article  13 FCTC Guidelines were not in fact "adopted by consensus" and for this reason cannot be "international 
standards" under Article  2.5 of the TBT Agreement . Indonesia's second written submission, para. 225. We 
disagree. We consider that the particular way the final texts of these Guidelines were drafted to be, on their 
face, immaterial for asserting that these instruments were not adopted by consensus; nor have we been 
presented with any other evidence demonstrating otherwise.  
1047 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 19; and WHO/FCTC  Additional 
Information to Panel, p p. 7-8 and Annexes 6 and 9, at fn 63 above. See also section 2.4.4 above. Honduras 
was one of the FCTC Parties involved in the intercessional Working Group established to develop the Article  11 
FCTC Guidelines, which was "primarily devoted to t he development of health warning and messages." 
Honduras's first written submission, para. 130. See also Honduras's response to Panel question No. 164, 
pp. 18-20; and Australia's comments on Honduras's response to Panel question Nos. 164, paras.  121-124. 
See, e.g. WHO/FCTC  Additional Information to Panel, para. 19 (first bullet under "timetable 2", p. 6) and 
Annex  3, p. 33, at fn 63 above.  
1048 WHO/FCTC  Additional Information to Panel, paras.  50-51, at fn 63 above.  
1049 WHO/FCTC  Additional Information to Panel, paras.  51 and 54 , at fn 63 above  (emphasis original) . 
See WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), paras.  60 and 67 -68. We note here that  with 
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  7.321.   The WHO and FCTC  Secretariat note that the "overarching obligation to implement 
effective measures" is further articulated in the opening paragraphs of the Article  11 and  Article  13 
FCTC Guidelines1050, which enunciate the "purpose" of each set of Guidelines. T hese state, 
respectively:  
[Article  11 FCTC Guidelines]:  
Consistent with other provisions of the [FCTC] and the intentions of the  [FCTC  COP], 
these guidelines are intended to assist Parties in meeting their obligations under 
Article  11 of the Convention, an d to propose measures that Parties can use to increase 
the effectiveness of their packaging and labelling measures. Article  11 stipulates that 
each Party shall adopt and implement effective packaging and labelling measures 
within a period of three years after entry into force of the Convention for that 
Party.1051 
[Article  13 FCTC Guidelines]:  
The purpose of these guidelines is to assist Parties in meeting their obligations under 
Article  13 of the [FCTC]. They draw on the best available evidence and the exper ience 
of Parties that have successfully implemented effective measures against tobacco 
advertising, promotion and sponsorship. They give Parties guidance for introducing 
and enforcing a comprehensive ban on tobacco advertising, promotion and 
sponsorship or , for those Parties that are not in a position to undertake a 
comprehensive ban owing to their constitutions or constitutional principles, for 
applying restrictions on tobacco advertising, promotion and sponsorship that are as 
comprehensive as possible.1052  
7.322.   To us, the above descriptions of the context in which the Article  11 and Article  13 FCTC 
Guidelines were adopted make clear that the relevant prescriptions relating to tobacco 
plain packaging in these Guidelines must be understood and implemented as part o f "the broader 
tobacco control context"1053 established by the FCTC, and also in light of the immediate context 
provided by, and together with, certain other specific provisions of the FCTC Guidelines as well as 
the provisions of the FCTC itself.1054  
7.323.   Thus, as e xplained by the WHO and FCTC Secretariat, paragraph  46 of the Article  11 FCTC 
Guidelines must be "read in light" of the obligations in Article  11 of the FCTC itself, as well as 
                                                                                                                                                  
respect to certain terms used in FCTC Art icle 11(1), caput , and Art icle 11(1)(b), respectively, Indonesia 
observes that the Convention "does  not define or further explain what constitutes 'effective measures' or 
means of promotion that are 'false, misleading, deceptive' or 'likely to create an erroneous impression'". 
Indonesia's first written submission, para. 95. Indonesia also cites a legal article in which, we note, the author 
argues that because those and other terms in Article  11 are not defined, FCTC  Parties "have broad discretion in 
interpreting these terms". D.  Layton and J. Lowe, "The Framework Convention on Tobacco Control and the 
World Trade Organization: A Conflict Analysis under International Law", Global Trade and Custo ms Journal, Vol. 
9, Issue 6 (2014), (Layton and Lowe, The FCTC and the WTO), (Exhibit IDN -30), p. 248) (cited at Indonesia's 
first written submission, para. 95 fn 119).  
1050 WHO/FCTC  Additional Information to Panel, paras.  52-53, at fn 63 above. See also WHO/FCTC amici 
curiae brief, (Exhibit AUS -42 (revised)), para. 61. 
1051 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 1. 
1052 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 1. See also ibid. 
para. 2 (stating that these guidelines "provide guidance on the best ways to implement Article  13 of the 
Convention in order to eliminate tobacco advertising, promotion and sponsorship effectively at both domestic 
and international levels"). We note, however, that unlike Article  11, Article  13 does  not expressly refer to 
"packaging" or "labelling" measures. We note, on the other hand, that "tobacco advertising, promotion and 
sponsorship" is broadly defined in Article  1(c) of the FCTC, as including " any form  of commercial 
communication" and Article  13 itself, in its paragraph  (4)(a) includes a "minimum" obligation that each 
FCTC Party shall "prohibit all forms  of tobacco advertising, promotion and sponsorship that promote a tobacco 
by any means  that are false, misleading". FCTC, (Exhibits AUS -44, JE -19), Articles  1 and 13 (emphasis added). 
Finally, in paragraph  15 of the Article  13 FCTC Guidelines, set out at para. 7.314  above , it is stated that 
"[p]ackaging is an important element of advertising and promotion". Article  13 FCTC Guidelines, 
FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 15. 
1053 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 73. 
1054 See, e.g. para. 7.315  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "other  provisions" of that Convention that are "also relevant to implementation  of 
plain packaging".1055 They explain that plain  packaging, as addressed in paragraph  46 "is  set out in 
a broader context of other packaging and labelling measures", including those with respect to the 
size of health  warnings, which are also the object of "s pecific guidance" in these same 
Guidelines.1056 This "broader context", they explain, means that the Article  11 FCTC Guidelines:  
[R]ecommend adoption of plain packaging in addition  to a number of other packaging 
and labelling measures, including health warnin gs that cover as much of the principal 
display areas as possible and other measures prohibiting misleading packaging.1057 
7.324.   With respect to the three paragraphs of the Article  13 FCTC Guidelines that they describe 
as specifically addressing tobacco  plain packag ing (paragraphs  15, 16 and 17), the WHO and FCTC 
Secretariat similarly explain that "these paragraphs need to be read in their context". For the WHO 
and FCTC Secretariat, such context includes "other  passages" in the Article  13 FCTC Guidelines; 
the text of  Article  13 of the FCTC itself, and "other obligations set  out in the Convention".1058 
7.325.   We note, in this respect, that the FCTC defines "tobacco  control" as "a range of supply, 
demand and harm reduction strategies that aim to improve the health of a population  by 
eliminating or reducing their consumption of tobacco products and exposure to tobacco 
smoke".1059 Article  11 of the FCTC (entitled "Packaging and labelling of tobacco products") and 
Article  13 (entitled, "Tobacco advertising, promotion and sponsorship") a re part of a wide family of 
measures covered by the Convention addressing the "demand -side" of tobacco products.1060  
7.326.   Overall, we consider that the above elements, taken together, includin g the text of the 
FCTC and its  Guidelines as well as  the relevant infor mation provided by the WHO and FCTC 
Secretariat, suggest that, while certain specific paragraphs and texts of the Article  11 and  
Article  13 FCTC Guidelines expressly refer or relate to tobacco plain packaging, and invite 
FCTC parties to "consider  adopting"  such measures, these recommendations can only be fully 
understood as part of a broader set of inter -related tobacco control measures and policies. This, in 
our view, includes not only those measures and policies recommended under the Article  11 and 
Article 13 FCTC Guidelines and other Guidelines (among which is "plain packaging"), but also those 
mandated under the FCTC itself. From the texts of the FCTC and its Guidelines, and consistent with 
the FCTC's legal nature as a "framework convention"1061, it is clea r that FCTC  Parties adopt 
                                                
1055 WHO/FCTC  Additional Information to Panel, para. 61, at fn 63 above.  
1056 WHO/FCTC  amici curiae brief, (Exhibit AUS -42 (revised)), paras.  62-65.  
1057 WHO/FCTC  amici curiae brief, (Exhibit AUS -42 (revised)), para. 66 (emphasis added). See also ibid. 
paras.  72-73 (first, explaining that the "approach set out in the [FCTC]" is that "tobacco control relies upon 
implementation of comprehensive multi -sectoral measures that work together as cumulative interventions in a 
complementary regulatory scheme"; and then, as a corollary of this affirmation, stating that the 
"plain  packaging should be viewed in this broader tobacco control context", in particular given its effect of 
"augment[ing] pa ckaging and labelling measures and measures prohibiting tobacco promotion and 
advertising").  
1058 WHO/FCTC  Additional Information to Panel, para. 64, at fn 63 above.  
1059 FCTC (Exhibits  AUS-44, JE -19), Article  1(d). See also para. 2.102  above , and more broadly, 
paras.  7.233 -7.244  below .  
1060 These measures are addressed in Part  III of the Convention, entitled "Measures relating to the 
reduction of demand for tobacco". In contrast with Part IV of the FCTC (which only covers three "supply -side" 
measures), Part III of the Convention covers a variety (9) of demand -side tobacco -control measures. These 
are: " price and  tax" measures ( Article  6); "non-price" measures ( Article  7); measures for " protection from 
exposure to  tobacco smoke " (Article  8); regulations of " content of tobacco products " (Article  9); regulations of 
"tobacco product disclosures " (Article  10); measures on " packaging and labelling of tobacco 
products " (Article  11); measures on " education, communication,  training and public awareness " (Article  12); 
measures on " tobacco advertising, promotion and sponsorship " (Article  13); and " demand reduction measures 
concerning tobacco dependence and cessation " (Article  14). FCTC, (Exhibits AUS -44, JE -19). See also 
paras. 2.102 -2.105 above and paras.  7.233 -7.244  below . 
1061 See, e.g. Framework Convention/Protocol Approach, FCTC Paper 1, (Exh ibits HND -141, IDN -31); 
and Vadi  2012, (Exhibit IDN -32), p p. 100-104. We do not consider, however, that, just because an instrument 
is in the form of a "framework convention", or was adopted in the context of such type of convention , this, in 
and of itself , ipso facto  render s such instrument incapable of constituting a "standard" under Annex  1.2 of the 
TBT Agreement , or more broadly, a "relevant international standard" under the second sentence of Article  2.5 
of the Agreement.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Guidelines with the specific  purpose of assisting them to meet their obligations  under certain 
provisions of that convention.1062 As described by Australia:  
[T]he Guidelines are intended to help Parties to the FCTC to meet their obligations 
under the respective provisions of the Convention to which the Guidelines are 
directed, and "aim to reflect and promote best practices and standards that 
governments would benefit from in the treaty -implementation process".1063 
7.327.   Based on all the ev idence and information before us in these proceedings, therefore, it 
appears to us that, under the legal regime established by the FCTC, parties commit to 
implement ing various supply -side and demand -side tobacco control measures in a comprehensive 
and mult i-sectoral manner.1064 By their own terms, when the  Article  11 and  Article  13 FCTC 
Guidelines  propose certain measures or otherwise make certain policy recommendations to 
FCTC Parties, they do  so within the particular context of being part of a comprehensive 
international instrument conferring certain rights and obligations towards the attainment of the 
objectives that those parties jointly agree that instrument should pursue.1065 In other words, the  
Article  11 and Article  13 FCTC Guidelines, like all other FCTC  Guidelines1066, have been drafted 
with the sole aim of helping  FCTC Parties meet certain specific Convention obligations to adopt a 
particular type of tobacco control measure, and are part of, and interlinked with, the 
implementation of a constellation of oth er tobacco control measures under Convention 
obligations.1067 
7.328.   The interrelated nature of the relevant FCTC obligations and their respective Guidelines 
makes it difficult to isolate the specific elements of the Guidelines that are argued by Australia to 
form a  "document" under Annex 1.2 from the broader context under which these instruments were 
adopted, which informs their specific purpose, namely to assist Parties in the implementation of 
                                                
1062 As explained by Dr H. Nikogo sian, former Head of the FCTC  Secretariat, in the foreword to the 2013 
edition of the official publication compiling all FCTC Guidelines adopted until that year:  
 
The guidelines are intended  to help Parties to meet their obligations  under the respective 
provisions of the Convention.  They reflect the consolidated views of Parties on different aspects 
of implementation , their experiences and achievements, and the challenges faced. The guidelines 
also aim to reflect and promote best practices and standards tha t governments would benefit 
from in the treaty -implementation process . The guidelines were prepared through the work of 
representatives of the Parties in the intergovernmental working groups established by the 
Conference of the Parties, intergovernmental and nongovernmental organizations accredited as 
observers to the COP a nd invited experts, with further input from Parties during the commentary 
process and the discussions during sessions of the COP. As a result of this wide consultative 
process and the consensus reached by the Parties, the guidelines have become widely 
acknowledged as a valuable tool in the implementation of the Convention .  
 
FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS -109, DOM -44). (emphasis added)  
1063 Australia's first written submission, para. 573 (footnote omitted) (quoting part of th is statement by 
Dr H. Nikogosian, quoted in full at fn 1062 above).  
1064 See FCTC, (Exhibits AUS -44, JE -10), Article  5.1, set out at para. 2.101 above . See also para. 7.236  
and fn 1057 above. See also, e.g. WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), paras.  66 
and 72-73; and Australia's first written submission, paras.  38, 46 -50. 
1065 Article  3 of the FCTC states that:  
 
The objective of this Convention and its protocols is to protect present and future generations from the 
devastating health, social, environmental and economic consequences of tobacco consumption and 
exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented 
by the Parties at the national, regional and international levels in order to reduce continually and 
substantially the prevalence of tobacco use and exposure to tobacco smoke.  
 
FCTC, (Exhibits AUS -44, JE -10), Article  3. See also para. 2.100 above.  
1066 See the respective pa ragraph(s) of the Articles  5.3, 8, 9 -10, 12, and 14 FCTC Guidelines, where, 
under the heading "Purpose", this same aim is stated, although sometimes in slightly different ways. 
FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS -109, DOM -44), pp. 4, 19, 33, 73 and 117, 
respectively. For the Article  6 FCTC Guidelines, see Exhibit AUS -111, p. 1. 
1067 See also, e.g. Australia's opening statement at the second meeting of the Panel, para. 8 (stating 
that, "[i]n order to combat the global epidemic of to bacco use, the [FCTC] recommends that parties adopt 
comprehensive tobacco control strategies that optimize synergies from a mix of policies."); and Australia's 
response to Panel question No. 158, para. 74 fn 101. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the broad range of treaty obligations (FCTC) undertaken by FCTC Parties  in relation to tobacco 
control.1068 In this respect, we note the existence of certain differences in the manner in which 
Australia and the WHO and FCTC  Secretariat identify the "core" plain packaging elements of the 
Article  11 and Article  13 FCTC Guidelines.1069 Australia and the WHO and FCTC  Secretariat also 
appear to identify differently the other parts of these two FCTC  Guidelines, which do not expressly 
refer to or describe "plain  packaging", that are to be considered "relevant" and what implications 
these h ave on the scope of the "document" claimed to constitute the "relevant international 
standard" and its contents. For instance, while Australia considers paragraphs  10 and 54 of the 
Article  11 FCTC Guidelines as "other provisions" that are "relevant" for pl ain packaging, the WHO 
and FCTC  Secretariat do not expressly identify these when describing the context provided by 
other provisions of these Guidelines.1070 Conversely, none of the paragraphs in the Article  11 FCTC 
Guidelines that the WHO and FCTC  Secretaria t identify as forming part of the "broader  context" for 
plain packaging as addressed in paragraph  46 of those Guidelines1071 has been, at least expressly, 
identified by Australia among the examples of "other elements" that it considers to be "also 
relevant".1072  
7.329.   We also note that some of the references made by Australia and the WHO and FCTC 
Secretariat to related or relevant provisions of the Article  11 and Article  13 FCTC Guidelines,  or 
more generally to certain obligations in the FCTC itself, are presented in a non -exhaustive and/or 
generic manner. For instance, the WHO and FCTC Secretariat refer generically to those paragraphs 
of the Article  11 FCTC Guidelines "addressing industry design techniques that may suggest some 
products are less harmful than others an d paragraphs addressing the size of health warnings".1073 
They also state that paragraph  46 of the Article  11 FCTC Guidelines "is set  out in a broader context 
of other packaging and labelling measures", including those with respect to the size of 
health  warnings, which are also object of "specific guidance" in these same Article  11 FCTC 
Guidelines. The WHO and FCTC Secretariat also refer, this time more specifically, to a number of 
paragraphs  of the Article  11 FCTC Guidelines as forming part of the "broader  context" of the 
plain packaging recommendation of paragraph  46: paragraphs  3, 12, 43, and 60.1074 Finally, th e 
WHO and FCTC Secretariat state that Articles  11 and 13 of the FCTC itself, along with "other 
provisions" of the Convention, are also important context for implementing tobacco 
plain packaging, as addressed in each set of Guidelines.1075 The fact that these FCTC elements 
have been referred to in a non -exhaustive, or generic, manner further confirms that the three (or 
four, in the description of the WHO and FCTC Secretariat) paragraphs of the Article  11 and 
Article  13 FCTC Guidelines  relating specifically to p lain packaging are intended to be read as an 
integral part of a comprehensive set of Guidelines supporting the implementation of a broad range 
of effective tobacco control measures.  
7.330.   Overall, therefore, it is not clear to us which elements or components wit hin the Article  11 
and Article  13 FCTC Guidelines  would form a "document" encapsulating the totality of the "rules, 
guidelines or characteristics",  that a WTO Member would be required to follow if it decides to adopt 
a measure providing for tobacco plain p ackaging "in accordance with" an international standard. It 
follows that we are not persuaded that the elements of these two FCTC  Guidelines that have been 
identified by Australia can be read independently of, or separately from, their broader context as 
part of the FCTC, for the purpose of establishing the existence of a "relevant international 
standard" on tobacco plain packaging, within the meaning of the second sentence of Article  2.5. As 
                                                
1068 In this respect, we consider it telling the fact that, as noted above, Australia itself has submitted 
that the FCTC  Guidelines, "as  a whole", could be considered "relevant international standards" for the purposes 
of the second sentence of Article  2.5 of t he TBT Agreement . Australia's response to Panel question No. 129, 
para. 201. See also paras.  7.299 , 7.303  and 7.307  above.  
1069 See paras.  7.307  and 7.315  above. Specifically, the WHO and FCTC Secretariat identify paragraph 
15 of the Article  13 FCTC Guidelines among the "plain packaging" requirements, while Australia does not.  
1070 See, e.g. paras . 7.301 , 7.307 , and 7.314 -7.316  above. See also fn 1183 below.  
1071 That is, Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, paragraphs  3, 12, 43 
and 60 . See also para. 7.315  (where, inter alia, paragraph 3 is partially quoted) and fn 1036 above. See also 
para. 7.323  above.  
1072 See paras.  7.301 , 7.302  and 7.307  above.  
1073 WHO/FCTC  Additional Information to Panel, para. 61, at fn 63 above. They also included, in this 
respect, the Article  13 FCTC  Guidelines.  
1074 See, inter alia, fn 1071 above.  
1075 WHO/FCTC  Additional Information to Panel, para. 61, at fn 63 above. See also ibid. para. 64 
(specifically referring to the text of Article  13 of the FCTC, and then, generically, to "other obligations set  out in 
the Convention") See also paras.  7.314 -7.316  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  we observed above, the Appellate  Body, addressing a comparable si tuation under Article  2.4 of the 
TBT Agreement , determined that "this analysis must address all of those relevant provisions of 
[the document], and must not ignore any one of them".1076 Similarly here, we must be able to 
ascertain what parts of the relevant i nstruments at issue (the Article  11 and  Article  13 FCTC 
Guidelines) constitute the "document" at issue. In the absence of clarity in this respect, we will not 
be able to properly assess the content of the relevant "document" against the other elements of 
the definition of "standard" in Annex 1.2 or, more broadly, the existence of a "relevant 
international standard" and whether, for the purpose the second sentence of Article  2.5, the 
TPP measures  are "in accordance with" such standard.  
7.331.   In making this determ ination, as described above, we are not suggesting that a 
"document", for the purposes of meeting the definition of "standard" in Annex  1.2 (and, 
specifically, constituting a "relevant international standard" under the second  sentence of 
Article  2.5), coul d not be contained within an instrument that simultaneously addresses other 
issues or, together with various other instruments, form part of a broader context or 
framework.1077 Rather, what is relevant is that all relevant product  requirements, or other 
specifications related to the specific subject matter that is claimed to be the object of the "relevant 
international standard"  (in the present case, "tobacco  plain packaging")  be identifiable with 
sufficient clarity to allow a "comparative  assessment" to be pr operly conducted, to determine 
whether the challenged measure is "in accordance with" with that international standard.1078 
7.332.   The next element of the definition of "standard" under Annex  1.2 of the TBT Agreement , as 
outlined above1079, is whether the "document" at  issue has been "approved by a recognized body". 
As described above1080, in respect of an " international standard" under the second sentence of 
Article  2.5, this requirement is informed by the definition of "standardizing body" in the 
ISO/IEC  Guide  2: 19911081, "[w]ith respect to other necessary features of a body that can approve 
an 'international' standard".1082  
7.333.   The "international" character of a standard is thus primarily predicated upon whether the 
instrument was adopted by an "international standardizing body" . Whether an  "international 
standardizing body" exists requires, in turn, assessing, inter alia, whether this body is one that has 
recognized activities  in standardization. A discussion of the characteristics of the body having 
adopted the document at issue may therefore be considered in the context of determining whether 
                                                
1076 Appellate  Body Report, EC – Sardines , para. 251 (emphasis original). See also fn 1006 above.  
1077 See, e.g. para.  7.293  and fn  1061 above.  
1078 The identification of the parts of the instrument claimed to be an "(international)  standard" 
containing all "relevant" requirements to a given subject -matter is also important because, without it, an 
"assessment of conformity" with such requirements cannot be properly performed. We note, in this respect, 
that "conformity assessment procedures", which are also covered by the TBT Agreement , are defined in 
Annex  1.3 of the Agreement as " [a]ny procedure used, directly or indirectly, to determine that 
relevant  requirements  in technical  regulations or standards  are fulfilled".  (emphasis added)  
1079 See para. 7.281  above.  
1080 See para. 7.278  above.  
1081 The ISO/IEC  Guide  2: 1991, 4.3 defines "standardizing body" as a "body that has recognized 
activities in standardization". See Appellate Body Report,  US – Tuna II (Mexico) , para. 357. 
1082 Appellate Body Report,  US – Tuna II (Mexico) , para.  357. The Appellate  Body found, in particular, 
that:  
 
Annex  1.2 to the TBT Agreement  provides that a "standard" must be approved by a "recognized body". 
As we see it, the definition of "standardizing body" in the ISO/IEC  Guide  2: 1991 does not conflict with 
the definition in the TBT Agreement . Instead, the definition in the I SO/IEC  Guide  2: 1991 adds to and 
complements the definition in the TBT Agreement , specifying that a body must be "recognized" with 
respect to its "activities in standardization".  
 
Ibid. The Appellate  Body, based in particular on the text of the last two sentences of the Explanatory note  to 
that Annex, has also clarified that "the definition of a 'standard' …  does not require approval by consensus for 
standards adopted by a 'recognized body' o f the international standardization community." Appellate Body 
Report, EC – Sardines , para. 227. See also Panel Report, US – Animals , para. 7.224 fn 679 (stating that, in 
that panel's view, what the Appellate  Body concluded in EC – Sardines when it interpr eted the term "approved 
by a recognized body" in Annex  1.2, was "that the relevant issue [with respect to that term] is whether the 
document is approved  by the recognized body and not how that approval comes about (i.e. consensus, voting, 
etc.)" (emphasis original)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the alleged standard is "international" in character. At this stage of our analysis,  we focus primarily 
on the nature and contents of the "document" alleged to be an international standard.  
7.334.   We therefore consider, next, following the order of elements of the Annex 1.2 
definition1083, whether the "document" alleged to constitute a "standard" provides "rules", 
"guidelines" or "characteristics" for produ cts (or their related processes and production  methods) . 
Specifically, we consider whether the aspects of the Article  11 and Article  13 FCTC Guidelines 
argued by Australia to constitute a standar d in respect of tobacco plain packaging provide "rules", 
"guidelines" or "characteristics" (including with respect to terminology, symbols, packaging, 
marking or labelling requirements for products or their related PPMs ) and whether, in addition, 
they are "for common and repeated  use". Finally, we consider whether compliance with such 
requirements is "not mandatory".  
Whether the Article  11 and Article  13 FCTC Guidelines provide " rules, guidelines or 
characteristics for products " 
The notion of "rules, guidel ines or characteristics for products" in Annex 1.2  
7.335.   The definition of "standard" in Annex  1.2 refers to a document "that provides rules, 
guidelines or characteristics for products or related processes and production methods". 
Additionally, the second  sentence of Annex  1.2 provides that it may also include o r deal exclusively 
with terminology, symbols, packaging, marking or labelling "requirements".  
7.336.   Australia claims that the Article  11 and  Article  13 FCTC Guidelines  comply with these 
conditions because they constitute a document in the form of "guidelines" wh ich provide for the 
"characteristics" of a "product" (tobacco) as well as its "related processes and production 
methods", i.e. manufacture and sale of tobacco products.1084 
7.337.   As the use of the disjunctive "or" in the phrase "rules, guidelines or characteristics " 
indicates, a document can satisfy this component of the definition of a "standard" if it 
"provides"1085 either one of these three elements. Dictionary definitions of the noun "rule" suggest 
that it may  be defined,  when used in relation to "regulations or pr inciples", as "[a]  principle, 
regulation, or maxim governing individual conduct"1086, while the term "guidelines" can be defined 
as "a directing or standardizing principle laid  down as a guide to procedure, policy, etc.".1087 These 
two terms, or variations there of, are found in other provisions of the TBT Agreement1088 as well as 
                                                
1083 See para. 7.281  above.  
1084 Australia's first written submission, para. 573; and second written submission, para. 316. 
1085 The verb "provide" can be defined as "to  lay down  as a provision or arrangement". Oxford English 
Dictionary Online, definition of "provide, v.", available at: 
<http:// www.oed.com/view/Entry/153448?rskey=1jZVfC&result=2&isAdvanced=false#eid >, accessed 2  May 
2017 (emphasis added). The definition of "technical  regulation" in Annex  1.1 similarly refers to a document 
"which lays down " product characteristics (emphasis added) . As noted by the Appellate  Body, the verb 
"lay down", is defined as to "establish, formulate definitely (a principle, a rule); prescribe (a course of action, 
limits, etc.)".  Appellate Body Reports, US – Tuna II (Mexico) , para. 185; and EC – Seal Products , para. 5.10 
(both referring to  the Shorter Oxford English Dictionary , 6th edn, A. Stevenson  (ed.) (Oxford University Press, 
2007), Vol. 1, p. 1562). Merriam -Webster defines the transitive verb "provide" as "to have as a condition: 
stipulate <the contract provides  that certain deadlines will be met>". Merriam -Webster Dictionary online, 
definition of "provide", < https://www.merriam -webster.com/dictionary/provide >, accessed  2 May 2017. 
(emphasis added)  
1086 Oxford English Dictionary online, definition of "rule", available at: 
<http://www.oed.com/view/Entry/168717?rskey=0cxA2d&result=1#eid >, accessed 2 May 2017.  
1087 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 
1, pp. 15, 16, 488, 719, 1174, (Shorter Oxford English Dictionary, Vol. 1 AUS Excerpts, Part 2), (Exhibit 
AUS-539), p. 1174. See also A ustralia's second written submission, para. 232 (arguing that, "[i]nherent in the 
ordinary meaning of the term 'guideline' (a 'standardizing  principle') is the notion that a standard may allow for 
a certain degree of flexibility in the relevant product cha racteristic or related processes and production 
methods." (footnote omitted)). See also Australia's comments on complainants' responses to Panel question 
No. 150, para. 32; and No. 163, para. 119. 
1088 In the TBT Agreement , the term "guidelines" is only found  in the definition of "standard" in 
Annex  1.2, while the term "rules" can be found in other provisions of the Agreement (e.g. Articles  1.6 and 
5.1.1). The TBT Agreement , however, also refers to "guides", as in " relevant guides  or recommendations 
issued by international standardizing bodies", mostly in the context of its disciplines on conformity assessment 
procedures. See, e.g. Articles  5.4 to 5.6. See also Article  12.4.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  in other covered  agreements1089, including the SPS  Agreement1090, GATT  19941091, the 
SCM Agreement1092, GATS1093, and the Customs Valuation Agreement.1094 We note that the term 
"rules" has also been discussed in the context of the application of the Antidumping  Agreement 
(but not, per se, as a term of that Agreement). In that context, the Appellate  Body considered that 
it was irrelevant whether a given prescription was binding or not in order to deter mine the 
existence of a "rule or norm". The question, concluded the Appellate  Body, is rather whether it was 
an "act [] … setting forth rules or norms that are intended to have general and prospective 
application".1095 The term "guidelines", as used in Article  14 of the SCM  Agreement, has been 
found to refer to a "framework" or "parameters" for calculation of "benefit", rather than a "detailed 
method of calculation", such that paragraphs  (a) through  (d) of that provision should not be 
interpreted as "rigid rule s that purport to contemplate every conceivable factual circumstance".1096 
Rather, the term "guidelines" was understood as conveying "a certain degree of flexibility" in the 
analysis under Article  14(d).1097 
7.338.   The above suggests, in our view, the need for the docu ment at issue to have a certain 
degree of normative content. It also suggests that, in terms of the required degree of normative 
content, a distinction may be drawn between "guidelines" – which would establish broad 
frameworks or parameters for the adoptio n of a given measure with a degree of flexibility  – and 
"rules" – which would define more clearly a norm or measure to be followed. The inclusion of both 
terms in the definition of a "standard" in Annex  1.2 indicates that either type of prescription may 
form the basis of a "standard" within the meaning of the TBT Agreement . The fact that the FCTC 
Guidelines, or relevant parts thereof, would constitute "guidelines", rather than strict "rules", and 
would thereby entail a certain degree of flexibility, would t herefore not, in itself, be an obstacle to 
their being considered to fall within the scope of this definition, at least with respect of this 
particular element of the Annex  1.2 definition. The fact that the instrument at issue meets this 
                                                
1089 These terms are also found in the GPA, a WTO plurilateral agreement, which contains a definition of 
"standard" almost identical to that in Annex  1.2 to the TBT Agreement . Both the GPA (in fn 4 to 
Article  VI:2(b)), and the Amended  GPA (in Article  I(s)), con tain definitions of "standard" that, with the 
exception of the additional references to "service(s)", are virtually identical to that in Annex  1.2 to the 
TBT Agreement . However, to date, these definitions have not been discussed in any dispute involving ei ther 
the GPA or the Amended GPA. With respect to the relationship between the TBT Agreement  and the GPA, see 
Article  1.4 of the TBT Agreement  (stating that, while "[p]urchasing specifications prepared by governmental 
bodies for production or consumption re quirements of governmental bodies" are not subject to the provisions 
of the TBT Agreement , they are, on the other hand, "addressed in the Agreement on Government 
Procurement, according to its coverage").  
1090 The SPS  Agreement contains various references to " international standards, guidelines  and 
recommendations" (emphasis added). This composite term is defined in Annex  A(3) to the SPS  Agreement, but 
only with express reference to the types of SPS risks these documents address and the specific international 
bodies that "establish", "develop" or "promulgate" them. As recently noted by the panel in Russia  – Pigs (EU), 
however, individually, none of these three terms, including "guidelines", have been interpreted and, in any 
event, the SPS  Agreement "does not req uire a fine distinction between [them] for its proper application." See 
Panel Report,  Russia  – Pigs (EU), para. 7.274 fn 413. 
1091 See, e.g. the reference to "rules" in Article  I:1 of GATT 1994 (as used in the phrase: "all rules and 
formalities in connection with importation and exportation"). (emphasis added)  
1092 See, e.g. the reference to "guidelines" in the chapeau  of Article  14 of the SCM Agreement, requiring 
that "any method" for calculating the amount of a subsidy in terms of the benefit to the recipient, shall, 
inter alia, "be consistent with the following guidelines : …". (emphasis added)  
1093 See, e.g. the reference to "guidelines" in Article  III:3 of the GATS (as used in the phrase: "new, or 
any changes to existing, laws, regulations or administrative guide lines which significantly affect trade in 
services covered by its specific commitments"). (emphasis added)  
1094 See, e.g. the reference to "guidelines" in the Customs Valuation Agreement, under Annex  I 
(Interpretative Notes , General Note , Use of Generally Accepted Accounting Principles ), which defines what 
"generally accepted accounting principles" means, adding that "[t]hese standards may be broad guidelines of 
general application  as well as detailed practices and procedures." (emphasis added)  
1095 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 187 (emphasis 
added).  In that case, the Appellate Body answered this question in the affirmative on the basis that the 
measure at issue had "normative value", as it provided administrative g uidance and created expectations 
among the public and among private actors. Ibid. According to the Appellate  Body, a measure will be 
considered "as  such" when it may be seen as a "rule or norm of general and prospective application" as 
opposed to "as  applied", in which case it will be considered "as an individual instance of the application of a 
rule or norm". Appellate Body Report,  US – Continued  Zeroing , para. 179. (emphasis added)  
1096 Appellate Body Report,  US – Softwood Lumber  IV, para. 92. (footnotes omi tted) 
1097 Appellate Body Report,  US – Carbon Steel  (India) , para. 4.332. The same interpretation was 
recalled in Appellate  Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 483. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  element of the def inition is not, however, dispositive for it does not suffice that the "document" be 
simply one providing "guidelines". As we shall see later, it also must be one that provides 
guidelines with a certain purpose, i.e. "for common and repeated use". Whatever degree of 
flexibility the meaning of the term "guidelines" may entail in isolation, it is qualified when seen in 
the context of the other terms of the Annex 1.2 definition, in particular the phrase "for common 
and repeated use".  
7.339.   As described above, the Ann ex 1.2 definition also identifies the type of subject -matter that 
needs to be addressed for a document to constitute a "standard".1098 The definition thus 
encompasses documents that provide "characteristics for products or related processes and 
production met hods". This part of the definition is almost1099 identical to the relevant aspects of 
the definition of a "technical regulation" in Annex  1.1 to the TBT Agreement .1100 In the context of 
Annex  1.1, the "characteristics" of a product have been understood to includ e "… any objectively 
definable 'features', 'qualities', 'attributes', or other 'distinguishing mark' of a product"1101, 
including, for instance, a product's "composition, size, shape, colour, texture, hardness, tensile 
strength, flammability, conductivity, de nsity, or viscosity".1102 As discussed earlier, "product 
characteristics" may "be prescribed or imposed with respect to products in either a positive or a 
negative form".1103 We see no reason not to understand the term "characteristics for products [or 
related p rocesses and production methods]" to have the same meaning in the definition of a 
"standard" in Annex  1.2. 
7.340.   The second sentence of the definition in Annex  1.2 further clarifies that a standard "may 
also include or deal exclusively with terminology, symbols,  packaging, marking or labelling 
requirements as they apply to a product, process or production method". This part of the definition 
is identical to the second sentence of the definition of "technical regulation" in Annex  1.1.1104 In 
that context, as discusse d earlier, these terms have been interpreted with reference to the term 
"characteristic", as used in the first sentence of the definition.1105 As above with respect to the 
term "characteristics", we see no reason not to apply the same understanding regarding these 
terms, as used in the definition of "standard" in Annex  1.2.1106 As is the case in Annex 1.1, the use 
of the words "also include" and "deal exclusively with" at the beginning of this sentence further 
indicates that it includes elements that are addition al to, and may be distinct from, those covered 
by the first sentence.1107 
                                                
1098 As we said above in para. 7.337  above, the disjunctive "or" in the first sentence of Annex  1.2 
appears to indicate that a document containing any of these four elements ("ru les", "guidelines", 
"characteristics" or related "PPMs") may be a "standard", provided it also meets the other separate elements of 
that definition (being "for common and repeated use", "not mandatory" , etc.). This means that a document 
that "provides guid elines" but does not, for instance, do so "for common and repeated use", cannot be a 
standard.  
1099 It is almost identical because, while the Annex  1.1 definition refers to "product characteristics or 
their related processes and production methods", the Annex  1.2 definition refers to "characteristics for 
products or related processes and production methods".  
1100 Annex  1.1 to the TBT Agreement  defines "technical  regulation" as a "[d] ocument which lays down 
product characteristics or their related processes and pr oduction methods, including the applicable 
administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with 
terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or  
production method."   
1101 Appellate  Body Report, EC – Asbestos , para. 67. 
1102 Appellate  Body Report, EC – Asbestos , para. 67. 
1103 Appellate  Body Report, EC – Asbestos , para. 69. See also Appellate  Body Reports, EC –
 Seal Products , para. 5.11. 
1104 Appellate Body Report, US – Tuna II (Mexico) , para. 187. 
1105 Appellate  Body Report, EC – Asbestos , para.  67 ("In the definition of a 'technical regulation' in 
Annex  1.1, the TBT Agreement  itself gives certain examples of 'product characteristics' – 'termino logy, 
symbols, packaging, marking or labelling requirements'. These examples indicate that 'product characteristics' 
include, not only features and qualities intrinsic to the product itself, but also related 'characteristics', such as 
the means of identifi cation, the presentation and the appearance of a product.").  
1106 We also recall our observations, at paras.  7.136 -7.159  above, with respect to the meaning of this 
composite term when we assessed whether the TPP measures  are technical regulations under the defin ition in 
Annex  1.1.  
1107 See Appellate Body Reports, EC – Seal Products, para. 5.14, in relation to the same sentence in 
Annex  1.1. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Whether the Article  11 and Article  13 FCTC Guidelines contain "rules, 
guidelines or characteristics" for products  
7.341.   As we have determined above in relation to the TPP measures , we conside r that 
prescriptions relating to tobacco  packaging and labelling requirements relate to 
product  characteristics within the meaning of Annex 1.1 and may also constitute packaging, 
marking or labelling requirements. Accordingly, to the extent that relevant a spects of the 
Article  11 and Article  13 FCTC Guidelines would prescribe requirements in relation to tobacco 
packaging and labelling, they could be considered to similarly prescribe "characteristics for 
products" within the meaning of the first sentence of the Annex 1.2 definition and relate to 
"terminology, packaging, marking or labelling requirements" as they apply to such products, within 
the meaning of the second sentence of the definition in Annex 1.2.  
7.342.   We also note, however, that different parts of the Article  11 and  Article  13 FCTC Guidelines 
identified by Australia as containing the "rel evant international standard" for  tobacco plain 
packaging describe somewhat differently the relevant product characteristics or marking, 
packaging or labelling requirem ents that are "recommended" under each set of Guidelines.  
7.343.   We first note that the scope of "tobacco plain  packaging" measures seems narrower, as 
described in paragraph  46 of the  Article  11 FCTC Guidelines, relative to the descriptions in the  
Article  13 FCT C Guidelines: paragraph  46 of the  Article  11 FCTC Guidelines  only concerns elements 
for regulating tobacco "packaging", with no  express indication as to whether it also covers features 
concerning the labelling or appearance of individual tobacco products, such as cigarettes or 
cigars1108, while the Article  13 FCTC Guidelines do contain such references.1109  
7.344.   Secondly, the prohibitive elements relating to "plain  packaging" in paragraph  46 of the 
Article  11 FCTC Guidelines seem to allow a certain degree of flexibili ty: under this part of the 
Guidelines, FCTC  parties can implement "plain  packaging" requirements that either "prohibit" the 
use of "logos", "colours", "brand  images" or "other promotional information" in packaging or, 
instead, implement packaging requireme nts that only "restrict" these elements. Additionally, it 
seems that the permissive  plain packaging elements addressed in paragraph  46 of the Article  11 
FCTC Guidelines only cover two features: "brand  names" and "product  names" (these two 
elements are perm itted when "displayed in a standard colour and font  style"). No reference is 
made to other features, such as, for instance, government -mandated information (e.g. 
health  warnings, tax  stamps), variant names, package  design or package  materials. As observed 
by the complainants, no further guidance is given, for instance, on the choice of colour, font  size 
or font  type that should be used, nor on aspects such  as the number of times, and where, 
"brand  names" and "product  names" may appear in packaging.1110  
7.345.   The Article 13 FCTC Guidelines address tobacco "plain  packaging" in more detail relative to 
paragraph  46 of the Article  11 FCTC Guidelines. Tobacco plain packaging measures are expressly 
addressed and described in two parts of Article  13 FCTC Guidelines: in para graph  16 and in the 
"Recommendation" text that follows paragraph  17.1111 When read together, and in light of the 
information presented to us, including from the WHO and FCTC Secretariat, these texts seem to 
indicate that "plain  packaging" adopted for the purp ose of implementing Article  13 of the FCTC 
                                                
1108 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para.  46, set out at 
para. 7.308  above . We recall that the Article  11 FCTC Guidelines aim to assist FCTC  parties with implementing 
Article  11 of the Convention, which addresses misleading information in t obacco packaging and labelling, and 
also includes certain requirements for the use of health warnings in these products. See also footnote  4 to the 
Article  13 FCTC Guidelines, set out at para. 7.310  above, which refer to the Article  11 FCTC Guidelines as being 
those "which address plain packaging with regard to health warnings and misleading information".  
1109 See, e.g. Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para.  16 ("There 
should be no advertising or promotion … on individual cigarettes or other tobacco products").  
1110 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46. Set out at 
para. 7.308  above.  
1111 Set out, respectively, at paras.  7.309  and 7.312  above. As we indicated at fn 1031 above, the text 
of the " Recommendation " follows, rather than is contained within, the text of paragraph  17 of the 
Article  13 FCTC Guidelines. We also noted that although the text of paragraph  17 (set out at para. 7.311  
above) refers to "plain packaging", it does not per se  concern plain  packaging measures. "Plain packaging" is 
also refe rred in footnote 4 to the Article  13 FCTC Guidelines, set out at para. 7.310  above, but only to direct to 
the Article  11 FCTC Guidelines, " which add ress plain packaging with regard to health warnings and misleading 
information".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  covers both tobacco  "packaging" as well as the appearance of tobacco "products" themselves.1112 
This contrasts with the scope of paragraph  46 of the Article  11 FCTC Guidelines, which, as noted 
above, seems to only ad dress "packaging" requirements. We note, however, that even here these 
relatively more detailed plain packaging requirements under  the Article  13 FCTC Guidelines mostly 
concern tobacco "packaging", while relatively fewer specific guidance is given with res pect to 
"featu res" related to the appearance (or labelling)  of tobacco "products" themselves.1113 Tobacco 
plain packaging requirements, as addressed and recommended in the Article  13 FCTC Guidelines, 
also seem to cover measures providing for certain prohibiti ve elements that, as compared to those 
under paragraph  46 of the Article  11 FCTC Guidelines, appear more stringent in that they allow for 
a lesser degree of flexibility in respect of their implementation. For instance, under the provisions 
in the Article  13 FCTC Guidelines expressly addressing plain  packaging, the use of "logos" must be 
prohibited ("… without any logos  …"). This suggests that "logos" cannot be simply "restricted", as 
appears to be possible under paragraph  46 of the Article  11 FCTC Guidelines.1114  
7.346.   The Article  13 FCTC Guidelines also appear to include and describe various other features 
in addition to, and sometimes differently from, those under the Article  11 FCTC Guidelines. 
For instance, under the Article  13 FCTC Guidelines , plain packaging measures should  prohibit1115 
"advertisement and promotion" that appear either "inside or attached" to the tobacco package or 
"on" individual cigarettes or other tobacco products. The Article  11 FCTC Guidelines, in contrast, 
refer, more generically, to  prohibiting or restricting the "use of … promotional  information on 
packaging".1116 Under the Article  13 FCTC Guidelines, plain  packaging measures are expressly 
permitted to, besides "brand and product names", allow certain other information to appear in 
packaging, such as the "manufacturer's name", "contac t details", and "quantity of  product". These 
Guidelines also expressly allow the inclusion of "government -mandated information or markings", 
such as "health  warnings" and "tax  stamps". Paragraph  46 of the Article 11 FCTC Guidelines, in 
contrast, only refers to "brand and product names" as those features expressly permitted in 
packaging.1117 Further, the Article  13 FCTC Guidelines give some specific guidance on how 
packaging appearance should be standardized. Fo r instance, as described in these Guidelines, 
tobacco packaging should be required to be in " black and white or two other contrasting colours, 
as prescribed by national authorities" and also in "standardized shape, size and materials". Under 
paragraph  46 of the Article  11 FCTC Guidelines, in contrast, no guidance is given with respect to 
the appearance of the packages themselves in terms, for instance, of their size, shape or 
materials; instead, the Article  11 FCTC Guidelines  give general guidance with resp ect to the 
                                                
1112 As indicated at para. 7.310  above , these key "plain  packaging" te xts of the 
Article  13 FCTC Guidelines are contained under a heading entitled " Packaging and product features ". 
1113 As set out at para. 7.309  above, the text of paragraph  16 of the Article  13 FCTC Guidelines starts 
with the phrase "[t]he effect of advertising or promotion on packaging  can be eliminated by requiring 
plain packaging"  (emphasis added). This is then followed by a description of certain packaging requirements 
(e.g. "black and white or two other contrasting colours, as prescribed by national authorities", "standardized 
shape, size and materials", etc.). This contrasts wit h the way requirements for "product features" are 
addressed in the last sentence of paragraph  16, which simply say, in relevant parts, that "[t]here should be no 
advertising or promotion … on individual cigarettes or other tobacco products." The text of th e 
"Recommendation " following paragraph  17 carries similar guidance that tobacco products "should carry no 
advertisement of promotion", although it further explains that these prohibited aspects "include[e]  design 
features that make products attractive". We  note that paragraphs  15 and 17 of the Article  13 FCTC Guidelines, 
set out, respectively, at paras.  7.314  and 7.311  above, do contain relatively more detailed references to 
restrictions to tobacco product features for the purpose of regulating tobacco advertisement and promotion. 
However, as we  observed above, these paragraphs, although related, do not prescribe plain  packaging 
requirements per se . 
1114 Compare Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46 with 
Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 16 and " Recommendation " 
following para. 17. Paragraph  46 of the Article  11 FCTC Guidelines also refers to the restriction or prohibition of 
the use of, inter alia , "brand  images" on packaging, a term not used in the parts of Article  13 FCTC Guidelines 
expressly addressing plain  packaging (although in paragraph  31 and the " Recommendation " text that follows it, 
which address "depictions of tobacco in entertainment media", FCTC Parties are recommended to, inter alia , 
"prohibit[] the use of id entifiable tobacco brands or imagery ").(emphasis added)  
1115 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 16, last sentence (" … 
there should be no …").  
1116 Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46. 
1117 We note however that the second sentence of paragraph  46 of the Article  11 FCTC Guidelines 
explain that regulating the use of logos, colours, brand images and promotional information on tobacco 
packaging "may", inter alia, "increase the noticeability and effectiveness of health warnings and messages".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  appearance of "brand names" and "product names" as they appear in packaging, stating that they 
should be only "displayed in a standard colour and front style".1118  
7.347.   Overall, therefore, the specific parts of the Article  11 FCTC Guidelines and of the  Article  13 
FCTC Guidelines each describe certain recommended features of "plain packaging" for tobacco 
products, but do so in different terms and in different levels of detail.  
Whether the Article  11 and Article  13 FC TC Guidelines provide rules , guidelin es or 
characteristics "for common and repeated use"  
7.348.   We now consider, based on the sequence of elements of the definition of "standard" under 
Annex  1.2 of the TBT Agreement  outlined above1119, whether the relevant "rules, guideli nes or 
characteristics" provid ing for the plain packaging of tobacco products under the Article  11 and  
Article  13 FCTC Guidelines  are "for common and repeated use" within the meaning of Annex 1.2.  
The notion of "common and repeated use" in Annex 1.2  
7.349.   The parties disagree on the meaning of the phrase "for  common and repeated  use" in the 
definition of "standard" in Annex  1.2 and for the purpose of applying the second  sentence of 
Article  2.5 of the TBT Agreement .  
7.350.   The complainants  argue that a "document" w ould be suitable "for  common and repeated 
use" only when the product requirements it provides for "are sufficiently  precise  to achieve 
harmonization by permitting different countries to implement them uniformly".1120 If "documents" 
were not required to contai n such "sufficient degree of precision", this would result in "each 
Member [being able] to adopt very different technical regulations"1121, rendering such documents 
ill-suited to perform the functions of all standards  – in particular international standards, i.e. 
promoting harmonization, improving efficiency, creating predictability and facilitating trade.1122 For 
the complainants, such functions are, inter alia, reflected in the third, fourth and eighth recitals of 
the preamble of the TBT Agreement1123 as well as i n certain TBT  Committee instruments1124, 
                                                
1118 Compare Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46 with 
Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 16. The two sets of Guidelines 
seem to  differ slightly in this regard: paragraph  46 of the Article  11 FCTC Guidelines refers to brand names and 
product names displayed in a "standard colour  and font  style", while paragraph  16 of the Article  13 FCTC 
Guidelines refers to the standardization of these elements (along with others, like government -mandated 
information) in terms of "prescribed font style and size". Ibid. (emphasis added).  
1119 See para. 7.281  above.  
1120 Honduras's second written submission, paras.  480-481. (emphasis added)  
1121 Dominican  Republic 's response to Panel question No. 66, para. 306. See also, e.g. Indonesia's 
response to Panel question No. 163, para. 21. 
1122 Honduras's second w ritten submission, paras.  480-481; Honduras's response to Panel question 
No. 129, p. 42, and No. 163, p p. 16 and 18; Dominican  Republic 's second written submission, para. 896; 
Dominican  Republic 's response to Panel question No. 66, para. 306; Dominican  Republic's second written 
submission, para. 868; Dominican  Republic 's response to Panel question No. 150, para. 150; 
Dominican  Republic 's comments on Australia's response to Panel question No. 163, para. 34; Cuba's second 
written submission, para. 182; Cuba's response to Panel question No. 163, p. 9; Indonesia's second written 
submission, paras.  227-228; Indonesia's response to Panel question No. 163, paras.  18-20; and Indonesia's 
comments on Australia's response to Panel question No. 163, paras.  37-38. 
1123 Honduras's response to Panel question No. 70, p. 33 fn 145 (also referring to  the Appellate  Body's 
statement in EC – Sardines , para. 214, that "the TBT Agreement  recognizes the important role that 
international standards play in promoting harmonizat ion and facilitating trade"); Honduras's response to Panel 
question No. 163, p. 18 fn 97; Dominican  Republic 's second written submission, para. 895 fn 912; 
Dominican  Republic 's response to Panel question No. 66, paras.  297 and 305, and No. 163, para. 149; Cuba's 
response to Panel question No. 70, p. 16 (annexed to its response to Panel question No. 138) (agreeing with 
Honduras's response to this question), and No. 163, p. 9 fn 34; and Indonesia's response to Panel question 
No. 150, para. 10 (quoting the texts of the third and fourth recitals of the preamble of the TBT Agreement ). 
1124 More specifically, the statement in principle  4 ("Effectiveness and Relevance") of the "Decision of the 
Committee on Principles for the Development of Internati onal Standards, Guides and Recommendations with 
Relation to Articles  2, 5, and Annex  3 to the TBT Agreement ", G/TBT/9, 13  November  2000, para. 20 and  
Annex  4, (TBT  Committee Six  Principles Decision), Annex 4, para. 10, that "[i]n order to serve the interes ts of 
the WTO membership in facilitating international trade and preventing unnecessary trade barriers , international 
standards need to be relevant and to effectively respond to regulatory and market needs, as well as scientific 
and technological developme nts in various countries. They should not distort the global market , have adverse 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Members' statements before that body1125, and "certain [r]ecognized international standardizing 
bodies under the WTO Agreement  [that] expressly mention trade facilitation in their mandate".1126 
7.351.   The complainants also consider  that requiring standards to be "precise" is important for 
assessing whether a document is an international  standard under the second  sentence of 
Article  2.5, so as to avoid conferring a rebuttable presumption of consistency with Article  2.2 to 
technical  regulations internalizing "documents" that could be implemented in different ways, 
including some that may constitute an unnecessary obstacle to trade.1127 
7.352.   Honduras  and Cuba argue that standards must also be prescriptive .1128 In Honduras's 
view, this means that s tandards must also be documents the product specifications of which 
Members are "require[d]", as opposed to simply  "suggest[ed]", to include in their measures.1129 
Honduras says that there are "important systemic reasons" why "relevant international standards ", 
in particular, must be prescriptive. For instance, according to Honduras, a "finding by a WTO panel 
that a hortatory instrument constitutes a relevant international standard under Article  2.5 would 
                                                                                                                                                  
effects on fair competition , or stifle innovation and technological development". Dominican  Republic 's second 
written submission, para. 858 (emphasis added by the Dominican  Republic ). Reference was also made to a 
statement the Committee made in paragraph 20 of the aforementioned document, when it adopted the 
Decision, that, " in order for international standards to make  a maximum contribution to the achievement of the 
trade fac ilitating objectives  of the [TBT Agreement ], it was important that all Members had the opportunity to 
participate in the elaboration and adoption of international standards ". Dominican  Republic 's second written 
submission, para. 857. (emphasis added  by the  Dominican  Republic ). 
1125 Honduras refers to Australia's statement that "[i]t  is important for the TBT  Committee and 
international standardizing bodies to cooperate as far as possible in ensuring that international standards 
contribute to improving the effic iency of production and facilitate the conduct of international trade ". 
Honduras's response to Panel question No. 70, p. 33 (emphasis added  by Honduras) (quoting Australia's 
communication to the Committee on Technical Barriers to Trade, G/TBT/W/139, 28 July 2000, para. 8). 
Honduras further states that "this position [by Australia] was also supported by other WTO  Members such as 
the United Sta tes and reflects the common understanding among WTO  Members that international standards 
should be aimed at facilitating trade". Honduras's response to Panel question No. 70, p. 33 (referring to United 
States' communication to the Committee on Technical Ba rriers to Trade, G/TBT/W/305, 12 March 2009). See 
also Dominican  Republic 's second written submission, para. 859; and Dominican  Republic 's response to Panel 
question No. 66, para. 297. 
1126 Honduras's response to Panel question  No. 70, p. 33 fn 142 (referring  to World Organization for 
Animal Health, "Procedures Used by the OIE to Set Standards and Recommendations for International Trade, 
with a Focus on the Terrestrial  and Aquatic Animal Health Codes ", (Exhibit HND -161), Introduction). See also 
Dominican  Repub lic's second written submission, para. 874 fn 885 (observing that the OIE Terrestrial Code  
aims to allow " trade in animals and animal products to take place  with an optimal level of sanitary safety while 
avoiding unjustified restrictions  on trade", and referring to OIE , How to Use the Terrestrial Code to Set Health 
Measures for Trade in Terrestrial Animals and Products,  (Exhibit DOM -339) (emphasis original) ). The 
Dominican  Republic  notes, more broadly, that the ISO, C odex, OIE, and International Plant Prote ction 
Convention Commission (IPPCC) all have "an express mandate  to develop international standards, with [] the 
purpose  of promoting international trade through harmonization". Dominican  Republic 's second written 
submission, para. 871 (emphasis original). The Dominican  Republic  provides the passages of the statu tes and 
other similar documents of these bodies where this, or other related purposes, are, in its view, expressly 
indicated. See Dominican  Republic 's second written submissi on, para. 872 (stating the ISO's mandate includes 
"promot[ing] the development of standardization  … in the world … with a view to facilitating international 
exchange of goods and services " (emphasis original)), para. 873 (noting that Codex  is mandated to p repare "a 
collection of internationally adopted food standards presented in a uniform form ", the purpose of which is "to 
promote the standardization of foodstuffs in the various parts of the world, to facilitate harmonization  of 
standards, and in so doing to further the development of the international food trade " (emphasis original)), 
para. 874 (noting that the OIE is required to develop standards "to facilitate safe international trade  in animals 
and their products" (emphasis original)), and para. 875 (no ting the  stated objectives of the I nternational Plant 
Protection  Convention ( IPPC) include "provid[ing] a framework for the development and application of 
harmonized  phytosanitary measures  and the elaboration of international standards to that effect ", whi le 
seeking to " minimize interference with international trade " (emphasis original)).  
1127 Honduras's response to Panel question No. 163, p. 18 (arguing that, "[a]bsent detailed and specific 
content for the standard, the alleged standard would not be amenable  to 'common and repeated' use and could 
in fact be implemented in ways that would still constitute an unnecessary obstacle to trade. The presumption 
established by Article  2.5 thus requires a sufficiently detailed standard"). See also Dominican  Republic 's 
response to Panel question No. 66, paras.  316-318; and Indonesia's response to Panel question No. 163, 
para. 20.  
1128 Honduras's second written submission, paras.  482-485 and 493. See also Cuba's opening statement 
at the second meeting of the Panel, para. 49. 
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  effectively impose a WTO  obligation to implement that i nstrument even  though countries approved 
such instrument on their understanding that no legal obligations were being created."1130 This, 
adds Honduras, would be the "combined result" of, on the one hand, finding that an instrument is 
a relevant international standard under the second sentence of Article  2.5, with, on the other 
hand, the existing obligation Members also have under Article  2.4 of the TBT Agreement  to use 
such instrument as a basis for their technical regulations.1131 
7.353.   The Dominican Republic  adds tha t the phrase "for common and repeated use" derives from 
the definition of "standardization", which, in turn, is defined in the ISO/IEC  Guide  2: 1991 as the 
"[a]ctivity of establishing, with regard to actual or potential problems, provisions for common and 
repeated use , aimed at achievement of the optimum degree of order in a given context ."1132 For 
the Dominican  Republic, this means that a standard must set  forth "standardized terms of 
international trade" that are capable of achieving "the optimum degree of o rder" through 
harmonization.1133 It concludes that, accordingly, to allow for "common and repeated use", an 
instrument must meet a minimum threshold of precision regarding the standardized terms of the 
national regulation. Loosely defined guidelines or genera l policy statements that allow for 
considerable variation in the content of national implementing measures do  not meet this 
requirement.1134 
7.354.   Australia  considers that, properly interpreted, the phrase "for  common and repeated  use" 
"does  not set  forth any minimum threshold of specificity or prescriptiveness"1135 and that the 
complainants' interpretation has no basis in the texts of either Annex  1.2 or the se cond sentence 
of Article  2.5.1136 
7.355.   With respect to specificity , Australia argues that, while the definition of "standard" in 
Annex  1.2 requires that the "document" provide requirements for "common and repeated use", it 
also establishes that such "document" can  be one "that provide mere 'guidelines' for products and 
related process and production methods".1137 According to Australia, inherent in the ordinary 
meaning of the term "guidelines", as used in that definition, is the notion that a standard may 
allow for a "certain degree of flexibility" in terms of how relevant product characteristic, or related 
processes and production methods, are prescribed.1138 For Australia, the fact that "precise details 
                                                
1130 Honduras's second written submission, para. 483. 
1131 Honduras further explains the implications of this "combined result" as follows:  
 
Countries that participated in the elaboration of any instrument laying  down product requirements may 
have expressed their approval precisely because of the use of hortatory language, which in their view 
signified that no legal obligations were created con cerning the adoption of those product requirements 
in their national legislation. However, if a WTO panel subsequently finds that this hortatory instrument 
actually constitutes a "relevant international standard" in terms of Article  2.5, countries that app roved 
that standard would now have a WTO  obligation to base their national legislation on that hortatory 
international instrument. This is because Article  2.4 of the TBT Agreement  requires that WTO  Members 
base their technical regulations on international standards whenever they exist. While such countries 
may have originally understood the hortatory language to mean that no obligations were created, the 
panel's consideration of this instrument as a "relevant international standard" would, in effect, create  a 
WTO obligation for those countries to adopt those international guidelines.  
Honduras's second written  submission, para. 484. (footnote omitted)  
1132 Dominican  Republic 's response to Panel question No. 163, para. 148 (referring, in turn, to 
Australia's reference to this definition in its response to Panel question  No. 128, para. 183) (emphasis added  
by the Dominican  Republic ). 
1133 Dominican  Republic 's response to Panel question No. 163, para. 149. See also Dominican  Republic 's 
second written submission, paras. 894-895. 
1134 Dominican  Republic 's response to Panel question No. 163, para. 151 (footnote omitted). See also 
Dominican  Republic 's second written submission, para. 897 (adding that this means that in "setting a standard, 
an international standardizing bo dy must, therefore, specify the salient  features  of an appropriate regulation to 
render the standard suitable for 'for common and repeated use' as a model for countries to adopt on a 
harmonized basis" (emphasis original)).  
1135 Australia's second written subm ission, para. 323; and Australia's response to Panel question No. 67, 
para. 165. 
1136 Australia's second written submission, paras.  322-323; and Australia's response to Panel question 
No. 67, para. 165. 
1137 Australia's second written submission, para. 323. 
1138 Australia's second written submission, para. 323 (referring to the definition of "guideline" as 
"a standardizing principle" a nd referencing Shorter Oxford English Dictionary, Vol. 1 AUS Excerpts, Part 2, 
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  of a standard may be prescribed by sovereign states does not mean t hat guidelines are in any way 
ill-suited for 'common and repeated use'".1139  
7.356.   Australia also rejects the view that, in order to be suitable for "common and repeated use", 
a standard must be also prescriptive . For Australia, such a view is "directly contradict ed" by 
another key element in the definition of a "standard": that it should be a document that provides 
for requirements with which compliance is "not  mandatory". Therefore, and consistent with the 
non-mandatory nature of standards, Australia considers th at the existence of "variations in how 
standards are implemented by States" is something "unremarkable", and, in fact, 
international  standards "routinely allow" for such domestic implementation differences.1140  
7.357.   Australia also does not agree that the definiti on of "standard" in Annex  1.2 to the 
TBT Agreement  contains a requirement that a "document" be trade -facilitating  rather than 
trade -restrictive .1141 Australia explains that international standards under Article  2.5 may pursue 
the legitimate objectives specifi ed in Article  2.2, and nothing in Article  2.2 suggests that these 
objectives may only be pursued in a manner that facilitates trade. To the contrary, the 
Appellate  Body expressly recognised, on the basis of the fifth and sixth recitals to the 
TBT Agreement , that its disciplines do not prevent a WTO  Member from pursuing legitimate 
objectives in a manner that restricts trade.1142  
7.358.   Australia concludes that, overall, the text of the Annex  1.2 definition indicates that it is 
only by being flexible, and not strict o r prescriptive, that standards can ensure that measures 
using them are effective and, ultimately, able to attain the objectives enshrined in Article  2.2 of 
the TBT Agreement .1143  
7.359.   In support of their respective views, and in response to a question by the Pane l, the 
parties also refer to certain "international standards" adopted by certain international bodies, 
mostly from the International Organization for Standardization  (ISO).1144 
                                                                                                                                                  
(Exhibit AUS -539), p. 1174). See also Australia's re sponse to Panel question No. 163, para. 101; and 
Australia's comments on complainants' responses to Panel question No. 150, para. 32, and No. 163, para. 119. 
1139 Australia's response to Panel question No. 163, para. 101. See also Australia's comments on 
comp lainants' responses to Panel question No. 163, para. 119. 
1140 Australia's response to Panel question No. 163, para. 103 (listing as examples certain 
ISO standards).  
1141 Australia's second written submission, para. 328. 
1142 Australia's second written submission, para. 329 (referring to the Appellate  Body Report, US –
 Clove  Cigarettes , para. 95) (emphasis original; footnote omitted). See also Australia' opening statement at the 
second meeting of the Panel, para. 142 (agreeing that international standards "fulfil an important 
harmonization function", while also rejecting Dominican  Republic 's assertion that "international standards that 
protect human health are 'antithetical' to the objectives of the TBT Agreement ") (footnote omitted). See, 
further, Australia's opening statement at the first meeting of the Panel, para. 97; Australia's response to Panel 
question No. 128, paras.  192-194; and Australia's comments on complainants' responses to Panel question 
No. 150, para. 35. 
1143 Australia suggests that the fact that standards provide flexibility is not surprising and is indeed 
desirable if they are to be effective. For example, different cultures may react differently to particular colour 
combinations of packaging in the same way different cultures may react differently to particular GHWs. Hence 
prescribing the appearance of either element could in fact decrease, rather than enhance, their effectiveness. 
Australia's comments on complainants' responses to Panel question No. 163, para. 120. 
1144 The Dominican  Republic  considers, in addition, that a "similar level of precision is manifest in the 
standards emerging from the [Codex Alimentarius Commission]". Dominican  Republic 's second written 
submission, para. 896 (referring to Co dex List of Standards, (Exhibit DOM -345)).   
Honduras refers to  ISO International Standard 3394, "Packaging  - Complete, Filled Transport Packages 
and Unit Loads  - Dimensions of Rigid Rectangular Packages", ISO 3394:2012(E),  (ISO 3394), (Exhibit 
HND-121). Ho nduras's response to Panel question No. 129, p p. 43-44 (noting that, as seen in the reproduction 
of the illustration and table of dimensions that form its content, this standard "sets forth precise dimensions for 
rigid rectangular transport packages"; and then concluding that this ISO  standard is thus one that is "suitable 
for common and repeated  use given the level of precision of its requirements"). See also Honduras's second 
written submission, para. 503; Honduras's response to Panel question No. 163, p. 17; Dominican  Republic 's 
second written submission, para. 896; Dominican  Republic 's response to Panel question No. 163, para. 151 
fn 96; and Cuba's opening statement at the second meeting of the Panel, para. 48. 
Australia claims that this ISO  standard doe s not support the complainants' interpretation. Australia 
argues that ISO  standard  3394 is, in fact, an example of a standard that allows for flexibility for its 
implementation given that it "provides choices as to which of the various packaging sizes to a dopt, and 
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  7.360.   The Panel  observes that the phrase "for  common and repeated  use" in Annex  1.2 of the 
TBT Agreement  has never been interpreted by the Appellate  Body. We therefore begin by 
discerning the meaning of this composite  term with reference to the definitions of its 
key terms.1145  
7.361.   We first note that the adjectives "common" and "repeated", together ("common and 
repeated"), qualify the noun "use". The adjective "common" may be defined, inter alia, as: 
"[b]elonging equally to more than one" ; "possessed or shared alike by both or all (the persons or 
things in question) "; "of  general application, general".1146 The adjective "repeated" may be 
defined, inter alia, as "[d]one  again or many times; renewed; frequent".1147  
7.362.   While the separate meanings of the words "for" and "use"1148 are relevant,  we consider 
that the meaning most relevant to an interpretation of these terms in the phrase "for common and 
repeated use" is that of the composite  term "for  … use", employed with a "modifying  word". In this 
sense, "for  … use" is defined as something "[i] ntended or designed for a specific  purpose". 
Examples of "for  … use", when employed with a "modifying word" (indicated in italics), include: 
"for winter  use"; "for  needful  use"; and "for  recreational  use".1149 In the phrase "for  common and 
repeated  use", "com mon and repeated" are the "modifying  words" preceding "use" and following 
"for", denoting the fact that something (in the context of Article  2.5, a document and its content) 
is intended or designed "for" a specific  purpose, that is, "common  and repeated  use".  
7.363.   Taken together, these definitions therefore indicate that something can be said to be 
"for common and repeated  use" when it is intended  or designed for the specific purpose of being 
frequently  shared alike by all persons or things in question. This pr ovides us with a "useful starting 
                                                                                                                                                  
does not specify every possible variable that one could think of with regard to packaging". Australia's 
comments on complainants' responses to Panel question No. 163, para. 119. Australia also refers to certain 
other ISO  standards as confirming the opposite view: that the TBT  definition, overall, and the term "for 
common and repeated use", specifically, do  not require that documents be precise and prescriptive. Australia 
refers, in this respect, to the following three standards adopted by the ISO:  (1) ISO 6385, (Exhibit AUS -596); 
(2) ISO 26000, (Exhibit AUS -597); and (3) ISO 14001, (Exhibit AUS -598). See Australia's response to Panel 
question No. 163, para. 103. These and other IS O standards, according to Australia, confirm that, consistent 
with their non -mandatory nature, international  standards "routinely allow for differences when implemented at 
the domestic level".  Australia's response to Panel question No. 163, para. 103; and comments on 
complainants' responses to Panel question No. 163, para. 119. 
1145 We observe that, among the WTO's Multilateral Trade Agreements, this composite  term is unique to 
the TBT Agreement . There is no equivalent term(s) in the SPS  Agreement, in particul ar, from which we could 
draw any useful contextual interpretative guidance. See, in this respect, Panel Report, Russia  – Pigs (EU), 
para. 7.274 fn 413; and Panel Report, US – Animals , para. 7.231 (both observing that Annex  A to the SPS 
Agreement "does  not set forth a specific definition of … 'standards' " … and that "[n]o panel has yet been faced 
with determining the meaning of [this] term[] in the context of the SPS  Agreement"). We note, on the other 
hand, that the composite  term "for  common and repeated  use" is present in one of the WTO's Plurilateral  Trade 
Agreements: both the GPA ( Article  VI:2(b), fn 4), and the Amended GPA ( Article  I(s)), contain definitions for 
"standard" that, with the exception of the additional references to "service(s)", are virtual ly identical to that in 
Annex  1.2 to the TBT Agreement . However, to date, these definitions have not yet been discussed in any 
dispute involving the GPA.  
1146 Oxford English Dictionary online, definition of " common, adj.", available at: 
<http://www.oed.com/view/Entry/37216?rskey=Us5wII&result=3&isAdvanced=false#eid >, accessed 2 
May 2017. The Dominican  Republic  also partially quotes this definition  to support the view that the word 
"common" suggests "that a standard must be capable of ensuring that domestic implementing measures have 
the same or shared characteristics: that is, through their 'sameness', standards must be capable of facilitating 
comm on terms of trade". Dominican  Republic 's comments on Australia's response to Panel question No. 147, 
para. 34 and fn  54. (footnote omitted)  
1147 Oxford English Dictionary online, definition of " repeated ", available at: 
<http://www.oed.com/view/Entry/162715?redirectedFrom=repeated#eid >, accessed  2 May 2017.  
1148 See Oxford English Dictionary online, definition of "for, prep. and conj.", available at:  
<http://www.oed.com/view/Entry/72761?rskey=Jj0ehq&result=2&isAdvanced=false#eid >, definition of "use, 
n.", <http://www.oed.com/view/Entry/220635?rskey=AX59R2&result=1&isAdvanced=false#eid >, both 
accessed  2 May 2017.  
1149 Oxford English Dictionary online, definition of " use, n.", "P11. for use ", 
<http://www.oed.com/view/Entry/220635?redirectedFrom=for+use#eid129699296 >, accessed 2  May 2017. 
(emphasis added)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  point"1150 for discerning the meaning of the term "for  common and repeated use" as used in 
Annex  1.2 and in light of other relevant context.1151  
7.364.   As used in the definition of a "standard" in Annex 1.2, it is the "rules, guidelin es or 
characteristics" or packaging, marking or labelling requirements contained in the "document" at 
issue that must be intended or designed for "common and repeated use".  
7.365.   The phrase "for  common and repeated  use" is consistent with the normative dimensio n 
implied by the terms "rules, guidelines or characteristics" discussed in the previous section.1152 It 
suggests that the content of the document at issue must be expressed in such a way as to provide 
"rules" or "guidelines" or "characteristics" – including l abelling or packaging "requirements"  – that 
are intended or designed for the specific purpose of being frequently  shared alike by all persons or 
things in question , i.e. that are "for  common and repeated  use". At the same time, the fact that 
compliance mus t not be mandatory makes it clear that the condition that rules, guidelines or 
characteristics must be "for  common and repeated  use" does  not relate to their legally binding 
status. Rather, this element of the definition addresses, in our view, the manner in which the these 
rules, guidelines or characteristics (including labelling or packaging requirements) are formulated 
and the purpose for which they are intended.1153  
7.366.   In this respect, we agree with the complainants that a degree of precision and 
"prescripti veness" may be expected, for the document to be considered to be for "common and 
repeated use". This understanding is also consistent with the object and purpose of the 
TBT Agreement  in terms of promoting the harmonization of technical  regulations, as desc ribed 
above1154, which assumes the intention of following certain commonly shared norms or practices. 
We consider, however, that for the purpose of applying this element of the definition under 
Annex  1.2, the precise  degree of specificity of such requirements  is a matter to be assessed on a 
case-by-case basis, depending on the particular context and the nature of the issue being 
addressed.  
7.367.   We note in this respect that paragraph  "I" of Annex  3 of the TBT Agreement  (containing 
the "Code of Good Practice for the  Preparation, Adoption and Application of Standards") states that 
"[w]herever appropriate , the standardizing body shall specify standards based on product 
requirements in terms of performance rather than design or descriptive characteristics".1155 This 
                                                
1150 As explained by the Appellate  Body, while "dictionar y definitions are a useful starting point for 
discerning the ordinary meaning of a treaty term , … they are not necessarily dispositive", for a "term cannot be 
interpreted in isolation from the context in which it appears and in the light of the treaty's ob ject and purpose ". 
Appellate Body Report, India – Additional Import Duties , para. 167 fn 324 (also referring to  Appellate Body 
Reports, EC – Chicken  Cuts, para. 175; and US – Softwood  Lumber  IV, para. 59). 
1151 Article  3.2 of the DSU. 
1152 See para. 7.338  above.  
1153 In this regard, we note that the Appellate Body considered that the terms "document" and 
"lays down product characteristics" and the term "with which compliance is mandatory" (only used for 
"technical regulation"), taken together, mean that "the scope of [the definition for technical regulation in] 
Annex  1.1 appears to be limited to those documents that establish or prescribe something and thus have a 
certain normative content ." Appellate  Body Reports, EC – Seal Products , para. 5.10 (emphasis added). We 
do not believe, however, that this statement contradicts our understanding, at para. 7.338  above,  on the 
normative content as part of the definition o f a standard. In this respect, we note again here that the texts of 
the second  sentences of the definitions for "technical  regulation" and "standard" in Annexes  1.1 and 1.2, 
respectively, are identical. This, according to the Appellate  Body, inter alia means that "[c]ertain features 
exhibited by a measure may be common to both technical regulations … and … standards", including, for 
instance, that they could both "contain conditions that must be met in order to use a label"; conditions which, 
in both cases,  "could be 'compulsory' or 'binding' and 'enforceable'". Appellate Body Report, US –
 Tuna II (Mexico) , para. 188. We also note, in this respect, that the ISO/IEC  Guide 2:  1991, sub -clause  3.1, 
defines "normative  document" as a "[d]ocument] that provides ru les, guidelines or characteristics for activities 
or their results". Note  1 to this definition states that "normative  document" "is a generic term that covers such 
documents as standards , technical specifications , codes of practice  and regulations ". (empha sis original)  
1154 See, e.g. para. 7.271  above.  
1155 Emphasis added. See also, with respect to technical  regulations, Article  2.8 of the TBT Agreement . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  sugges ts that the level of specificity of requirements in standards, and the manner in which the 
relevant requirements are defined may vary, depending on the circumstances.1156 
7.368.   We also observe that the Explanatory  note to Annex  1.2 to the TBT Agreement  refers to 
"[s]tandards prepared by the international standardization  community". The term 
"standardization" is present in various provisions of the TBT Agreement , but is  not defined in the 
Agreement.1157 The reference to "standardization" in this Explanatory  note indicates that the 
meaning of this term may provide additional useful context to the understanding of the term 
"for common and repeated  use". The term  "standardization" is defined in the 
ISO/IEC  Guide  2:1991. In accordance with Article  1.2 of the Agr eement and the introductory 
paragraph of Annex  1, the terms presented in the ISO/IEC  Guide  2:1991, when used in the 
TBT Agreement , have the same meaning as given in the said Guide.1158 The term "standardization" 
is defined in this ISO/IEC  Guide as:  
[T]he "[a] ctivity of establishing, with regard to actual or potential problems, 
provisions for common and repeated use, aimed at the achievement of the optimum 
degree of order in a given context ".1159  
7.369.   The definition of "standard" in Annex 1.2 to the TBT Agreement , read together with the 
above definition of "standardization" in the ISO/IEC  Guide  2:1991, thus suggests that 
standardization is the activity that leads to the "establish[ment] … [of] provisions for common and 
repeated use", as referred to in Annex  1.2. Releva nt "provisions", in this context, should be 
understood to refer to those concerning, for example, product characteristics or packaging 
requirements. We note, in this respect, that t he Appellate Body has related the term "provisions", 
as used in this ISO/IE C Guide definition, with elements of the definition of "standard" in 
Annex  1.2.1160 The definition of "standardization" suggests therefore that documents that 
constitute standards under Annex  1.2 are those providing such product characteristics (or other 
relevant features) "for  common and repeated use" with a particular aim in mind, i.e. "the 
achievement of the optimum degree of order in a given context".1161 This definition informs the 
definition of "standard" by suggesting that the objective of "standardization ", and thus of the 
"provisions for common and repeated use" contained in a "standard", is to "achieve the optimum 
degree of order in a given context".  
                                                
1156 We also note in this respect the findings of the panel in US – Clove  Cigarettes  concerning the level 
of "specificity" required of technical regulations for the purposes of applying Article  2.8. See Panel Report, US –
 Clove Cigarettes , paras.  7.468 -7.497. See, in particular, paras.  7.473 -7.484.  
1157 The term "standardization" appears alone only once in the Agreement (in Article  1.1); it otherwise 
appears as part of the following composite  terms: "international  standardization"; "international 
standardization a ctivity"; and "standardization  activities". See, e.g. preamble, eighth recital; Annex  1.2, 
"Explanatory note "; and Annexes  3.C, 3.G and 3.J. These terms also appear in other WTO Agreement s, e.g. 
the Agreement on Preshipment Inspection,  footnote  2 to Article 2.4, as part of the definition of "international 
standard", quoted at fn 970 above, and the Agreement on Agriculture, Annex  2.2(e), referring to 
"standardization  purposes".  
1158 See also Appellate Body Reports, EC – Asbestos , para. 66; and US – Tuna II (Mexico) , para.  184. 
1159 See s ub-clause  1.1 of the ISO/IEC  Guide  2: 1991 (emphasis added). See also Appellate Body 
Report, US – Tuna II (Mexico) , para. 360; Australia's response to Panel question No. 128, para. 183; 
and Dominican  Republic 's response to Panel question No. 163, para. 148. This definition for "standardization" 
has been kept unchanged in subsequent versions of this Guide. See, e.g. ISO/IEC Guide  2: 2004 (8th  edn), 
sub-clause  1.1. 
1160 Appellate Body Report, US – Tuna II (Mexico) , para. 360 (" With respect to the 'provisions' that are 
established through standardization, we recall that the definition of a standard in the TBT Agreement  refers to 
a 'document … that provides … rules, guidelines or characteristics for products or related processes a nd 
production methods' and 'may also include or deal exclusively with terminology, symbols, packaging, marking 
or labelling requirements as they apply to a product, process or production method'.").  
1161 Australia observes, in this respect, that the phrase "p rovisions for common and repeated use", also 
used in the definition of "standardization" in the ISO/IEC  Guide  2: 1991, sub -clause  1.1, "is mirrored in the 
TBT Agreement  as a 'document … that provides … rules, guidelines or characteristics for products or r elated 
processes and production methods'". Australia's response to Panel question No. 128, para. 184. Australia then, 
relying on the elements of the definition for "standard" in the ISO/IEC  Guide  2: 1991, sub -clause  3.2, claims 
that the Article  11 and Article 13 FCTC Guidelines "are intended for common and repeated use by Parties to the 
FCTC, so that an optimum degree of order may be achieved in the implementation of the FCTC across all 
Parties". Ibid. para. 185. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.370.   Based on the above, we conclude  that, for the purposes of the definition of "standard" in 
Annex  1.2 of th e TBT Agreement , a document provides product characteristics (or other relevant 
features, such as packaging requirements) "for common and repeated use" when these are  
designed for the specific purpose of being frequently  shared alike by all persons or things in 
question, with the aim of achieving the optimum degree of order in a given context.  The need for 
the characteristics at issue to be amenable "for common and repeated use" further suggests that 
they need to possess a degree of clarity and precision sufficient to allow them to be implemented 
in a consistent and predictable manner, as documents lacking these attributes are unlikely to 
achieve the optimum degree of order required to address the "actual or potential prob lem" giving 
rise to them. At the same time, as clarified above1162, the exact degree of specificity needed for 
such requirements to be "for common and repea ted use" can only be assessed on  a case -by-case 
basis, depending on the type of "problem" addressed by the document claimed to be a standard, 
and the "context" under which this problem arises.  
7.371.   With these clarifications in mind, we now examine whether, as claimed by Australia, any 
product characteristics or labelling, marking and packaging requirements prov ided by the 
Article  11 and  Article  13 FCTC Guidelines in respect of tobacco plain packaging are "for common 
and repeated use" within the meaning of the definition in Annex 1.2 of the TBT Agreement . 
Whether the product characteristics provided in the Articl e 11 and Article  13 
FCTC Guidelines in respect of tobacco plain packaging are "for common and 
repeated use"  
Main arguments of the parties  
7.372.   The complainants  argue that the Article  11 and  Article  13 FCTC Guidelines  are not suitable 
"for common and repeated us e" because, as mere hortatory general policy statements1163 
developed as guidance on the implementation of a treaty (the FCTC)1164, they do  not provide for 
tobacco plain  packaging requirements that are sufficiently specific  and prescriptive  as required by 
the TBT Agreement1165 and cannot be uniformly transposed by Members into their technical 
regulations addressing tobacco  products and their packaging.1166 The complainants consider that 
the Article  11 and  Article  13 FCTC Guidelines may result in countries implementing plain packaging 
                                                
1162 See para. 7.366  above.  
1163 See, e.g. Honduras's response to Panel  question  No. 66, p. 29 (stating that these instruments are 
not "sufficiently prescriptive" as they "incorporate[] non -binding  guidelines that contain only hortatory 
references to plain  packaging"). See also Indonesia's response to Panel  question  No. 67, para. 92 (submitting 
that these two FCTC  Guidelines only possess "vague references to a general regulatory approach") . They point 
out, in particular, that such hortatory nature stems from the Guidelines' own terms, given that in both texts 
tobacco plain  packaging is simply described as a measure that FCTC  Parties "should consider adopting".  See, 
e.g. Honduras's second writ ten submission, paras.  22 and 499; Cuba's opening statement at the second 
meeting of the Panel, para. 49; and Indonesia's second written submission, para. 226. 
1164 See, e.g. Dominican  Republic 's comments on Australia's response to Panel question No. 163, 
para. 43 (arguing that the Article  11 and Article  13 FCTC Guidelines were "designed as a 
policy  recommendation for implementing a particular ob ligation under the FCTC" and were not therefore 
"intended to lay  down specific guidance for  common and repeated  use by legislators on how to standardize the 
features of tobacco products, once design features were removed"; and then concluding that, while the 
flexibility these instruments conferred to each FCTC  Party to implement plain packaging differently "is in 
keepin g with the raison  d'être of guidance on the implementation of a treaty, it is not in keeping with the 
raison  d'être of an international  standard  to promote harmonization and facilitate common terms of trade." 
(emphasis original)). See also Dominican  Republ ic's second written submission, paras.  901-902. 
1165 See, e.g. Honduras's second written submission, para. 498 (accepting that these Guidelines "provide 
certain general parameters" for tobacco plain packaging, but nonetheless also arguing "they do not achieve  the 
level of precision necessary for parties to implement them in a uniform fashion"); and Dominican  Republic 's 
response to Panel question No. 66, para. 319 (stating that, while these Guidelines suggest that countries "use 
two contrasting colours on packa ging", "prescribe font size and style of the brand name" and "standardize the 
shape, size and materials", the "detailed choices for the content of plain packaging measures is not specified" 
as those choices are left to "national authorities", which, theref ore, means that these instruments "lack the 
necessary precision to create the presumption under Article  2.5").  
1166 See, e.g. Honduras's response to Panel question No. 70, p. 33 (submitting that these 
FCTC instruments lack the necessary "technical  content") . See also Dominican  Republic 's response to Panel 
question No. 150, fn 44 (considering that Article  2.9 of the TBT Agreement  confirms the view that "a  measure 
that lacks any 'technical content' – like the generally worded recommendation to consider 'plain pa ckaging' in 
the Guidelines – cannot be an 'international standard'").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  specifications in different ways1167, so that they cannot perform the core functions of standards, 
namely1168 promoting harmonization, improving efficiency of production, and facilitating 
international trade.1169 
7.373.   The complainants identify certain el ements in the texts of the Article  11 FCTC Guidelines  
and Article  13 FCTC Guidelines  illustrating a lack of precision making them unsuitable "for common 
and repeated use".1170 They also point out that nowhere in the Article  11 and  Article  13 FCTC 
Guidelines is it recommended that plain packaging measures should fully prohibit the display of 
brand  names or variant names in tobacco products themselves, including in individual  cigarettes  or 
cigar sticks.1171  
7.374.   The complainants also consider that other provisions ide ntified as relevant by Australia, 
addressing "inserts and onserts", "adhesive labels" and the "importance of packaging"  – are "even 
less detailed" than the provisions of the Guidelines expressly addressing "plain  packaging". While 
acknowledging that the te xts of these other paragraphs of the Article  11 and  Article  13 FCTC 
Guidelines provide "general useful suggestions", the complainants describe them as only being 
"broad recommendations on ways to improve the visibility of health warnings". Consequently, as  
                                                
1167 See, e.g. Dominican  Republic 's response to Panel question No. 66, para. 308 (arguing that the fact 
that the Article  11 and Article  13 FCTC Guidelines are just policy statements rather than standards, "is 
borne  out by the fact that 100  Members could follow the policy statements by adopting 100  very different 
packaging requirements, which would not enhance efficiency or facilitate trade") (emphasis original). See also, 
e.g. Dominican  Republic's response to Panel question No. 163, para. 154; Honduras's response to 
Panel  question  No. 129, p. 42; Cuba's response to Panel question No. 163, p. 9; Indonesia's second written 
submission, paras.  227-228 (referring to Nicaragua's third -party submiss ion); Indonesia's response to 
Panel  question  No. 163, para. 21; and Indonesia's comments on Australia's response to Panel question 
No. 163, para. 39. 
1168 See, e.g. Honduras's second written submission, paras.  493-507; Honduras's  response to Panel 
question No. 70, p. 33; Dominican  Republic 's second written submission, paras.  894-902; Dominican  Republic 's 
response to Panel question No. 163, para. 154; Cuba's second written submission, paras.  182-188; Cuba's  
response to Panel question No. 70, p. 33 (agreeing wit h Honduras's response to the same question); 
Indonesia's second written submission, paras.  226-228; and Indonesia's response to Panel question No. 136, 
para. 10.  
1169 The complainants observe, in particular, that the ultimate purpose of the Article  11 and Article  13 
FCTC Guidelines is to eliminate the tobacco trade. This, they claim, provides further confirmation that these 
instruments are not intended, as documents "for common and repeated use" should, to facilitate international 
trade, but rather to restr ict it. S ee, e.g. Honduras's response to Panel question No. 70, p. 33; 
Dominican  Republic 's response to Panel question No. 66, para. 307; and Cuba's response to Panel question 
No. 70, p. 33 (annexed to its response to Panel question No. 138) (agreeing with  Honduras's response to the 
same question).  
1170 Regarding the plain  packaging elements in paragraph  46 of the Article  11 FCTC Guidelines , the 
complainants claim that the Guidelines give  "no details on how Parties should implement plain packaging": 
Should reg ulators "restrict" the use of logos, colours, brand images or promotional information, or "prohibit" 
their use? Should regulators restrict or prohibit the use of logos, colours, brand images and promotional 
information, or only one of the four categories o f brand identifiers? Should regulators actually "restrict or 
prohibit" the use of these logos, colours, brand images or promotional information, or only "consider" doing so? 
See Honduras's second written submission, para. 498. See also, e.g. Cuba's second written submission, 
paras.  183-185; and Indonesia's second written submission, para. 258. The complainants consider that the 
tobacco plain  packaging elements in the text of paragraph  16 of the Article  13 FCTC Guidelines also "lack the 
necessary level of pr ecision to allow parties to use them commonly and repeatedly". This is so, they argue, 
because countries wishing to internalize them must first decide details such  as: (i)  what colours to adopt; 
(ii) what font and size to require, and (iii)  in what shape, size and materials must packs be manufactured.  
Honduras's second written submission, paras.  500-501 (also arguing that it was Australia's "own 
interpretation" of what "plain  packaging" means, when it "chose to require that packs must have a background 
in drab dark brown (colour Pantone  448C), that the brand  name must be displayed in Lucida  Sans no larger 
than 14  points in size, and that packs may only be made of cardboard"). See also, e.g. Honduras's response to 
Panel question No. 129, p p. 42-44; and Cuba's  second written submission, paras.  182-186. 
1171 Dominican  Republic 's second written submission, para. 910; Dominican  Republic 's response to Panel 
question No. 136, paras.  39-43; Indonesia's second written submission, paras.  257-258; and Indonesia's 
response to Panel question No. 136, para. 4 (noting that, while paragraph  16 and the " Recommendation " 
following paragraph 17 state that there should be no advertising or promotion on individual cigarettes or other 
tobacco products (inc luding cigar sticks) , they do  not recommend prohibiting the appearance of any mark at 
all, such as the brand name, on individual cigarettes sticks).  See also Indonesia's response to 
Panel  question  No. 136, para. 4 (noting that the TPP measures , while "perm it[ing] the brand, company or 
business name and variant name to appear on a cigar, they do not allow for any marks, other than an 
alphanumeric code, to appear on individual cigarette sticks").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  these paragraphs "do  not stipulate precise product characteristics that are capable of being 
implemented in a common and repeated manner by authorities of different countries", they do  not 
qualify as "standards" for purposes of the TBT Agreement .1172  
7.375.   The co mplainants further argue that, even seen in combination, the plain packaging 
elements contained in the Article  11 and  Article  13 FCTC Guidelines still lack precision. In this 
respect, the Dominican Republic argues that for packaging requirements, the Guide lines do not 
specify standardized terms in respect of the type face, font colour, and font size for the brand and 
variant name; the background colour of the packaging; 
the location of the brand and variant name 
on the packaging; the size or shape of the pa ckaging; the type of opening mechanism; and, the 
materials to be used ( e.g. hard or soft pack). For individual cigars, the Guidelines lack specificity in 
terms of the type face, font colour and font size for the brand, variant and country name; and the 
background colour of the cigar band. National regulators are consequently left with considerable 
discretion to decide on these key features of a plain packaging measure.1173  
7.376.   Finally, the complainants compare the "general  terms" of the Article  11 and  Article  13 
FCTC Guidelines' texts identified by Australia as addressing "plain  packaging", against the 
"detailed" terms of two standards they consider as "documents" containing product requirements 
"for common and repeated  use"1174: an ISO  standard, setting  forth precis e dimensions for rigid 
rectangular transport packages1175, and a Codex Alimentarius Commission (Codex) standard on 
the description of sardines and sardine -type products.1176  
7.377.   Australia  argues that  the Article  11 and  Article  13 FCTC Guidelines'  tobacco 
plain packaging requirements are provided "for  common and repeated  use". Even assuming that 
minimum thresholds of specificity or prescriptiveness1177 would be relevant for that definition, 
Australia considers that the Article  11 and  Article  13 FCTC Gu idelines are, in any event, 
"sufficiently precise" and, consequently, suitable "for common and repeated  use". This, in 
Australia's view, is attested by the fact that these Guidelines are already being used as such by 
other Members as  a basis for their own tobacco plain  packaging measures.1178 In this respect, 
Australia contends that, "consistent with the aims of enhancing the effectiveness of 
graphic  health  warnings and eliminating the effects of advertising and promotion on packaging", 
the key paragraphs of t he Article  11 and  Article  13 FCTC Guidelines "explicitly", "clearly" and 
"unequivocally" provide direction on the key permissive and prohibitive tobacco  packaging and 
product requirements that any plain  packaging measure should contain, including with resp ect to 
                                                
1172 Honduras's second written submission, para. 502 (also finding  support to this view in the text of 
paragraph  15 of the Article  13 FCTC Guidelines, where it says that "[p]ackaging is an important element of 
advertising and promotion" and that "[t]obacco pack or product features are used in various ways to attract 
consumers […]", and then stating that "[i]t is hard to see how this type of policy statement can be regarded as 
a 'standard' for purposes of the TBT Agreement ."). See also Cuba's second written submission, paras.  186-187. 
1173 Dominican  Republic 's response to Pan el question No. 163, para. 153 (noting, in fn 97, with respect 
to the "background colour of the packaging", that the Article  13 FCTC Guidelines refer to "black and white or 
two other contrasting colours, as prescribed by national authorities"). See also Dominican  Republic 's second 
written submission, para. 899. 
1174 See, e.g. Honduras's second written submission, para. 503; Honduras's response to Panel question 
No. 70, p. 33; Hondur as's response to Panel question No. 129, p. 42; Dominican  Republic 's second wri tten 
submission, para. 896; and Cuba's opening statement at the second meeting of the Panel, paras.  48-49. 
1175 ISO 3394, (Exhibit HND -121), referenced at fn 1144 above . Honduras also refers to the three other 
ISO standards Australia submitted as evidence that standards need not be specific. Honduras notes that each 
of these documents cover "from 20 to  more than a 100  pages", and then claims that this stands in "sharp[] 
contrast with the one paragraph hidden in the FCTC  Guidelines to Articles  11 and  13 that generally refers to 
'plain  packaging' without providing any further guidance or definitions to de termine the parameters of this 
non-standard that does not allow for  'common' and repeated  use". Honduras's comments on Australia's 
response to Panel question No. 163, para. 51. See also ibid. paras.  48-50. 
1176 Codex Stan  94, referenced at fn 1006 above.  See Honduras's response to Panel question No. 70, 
p. 33 (recalling that in EC – Sardines, the Appellate Body and the panel held that Codex  Stan 94 constituted a 
"relevant international standard" for the purposes of Article  2.4 of the TBT Agreement ; and also noting that 
this Codex  standard "is  six pages long [and] contains, inter alia , a detaile d description of the product to which 
it applies, including its essential composition, quality factors and permissible food additives, and concrete 
specifications for labelling").  
1177 Australia's second written submission, para. 323. See also Australia's res ponse to Panel question 
No. 163, para. 102. 
1178 Australia's response to Panel question No. 163, paras.  101-104. See also, e.g. Australia's first 
written submission, para. 573; and Australia's second written submission, para. 324.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the restriction or prohibition of the use of logos, colours, brand  images or promotional information 
on packaging or on individual tobacco products, and with respect to permitting, inter alia, the use 
of brand names, product and/or manufacturer name s, and certain government -mandated 
information. Australia also notes, in this regard, that these key provisions of the Article  11 and  
Article  13 FCTC Guidelines "specify in detail", inter alia, the following elements: (i)  the colours  
("black and white or t wo other contrasting colours"1179); (ii)  the content of a pack  ("nothing other 
than a brand name, a product name and/or manufacturer's name, contact details and the quantity 
of product in the packaging, without any logos other features apart from health warni ngs, tax 
stamps and other government -mandated information or markings"1180); (iii)  the font 
(a "prescribed font style and size"1181); and (iv)  the format  ("standardized shape, size and 
materials"1182).1183 
7.378.   Australia also rejects the argument that the Article  11 and Article 13 FCTC Guidelines  
do not include requirements prohibiting the display of brand  names on individual  cigarettes or 
cigars. Australia first notes that the  Article  13 FCTC Guidelines recognise that "[p]romotional 
effects, both direct and indirect, may b e brought about by the use of words, designs, images, 
sounds and colours, including brand names, trademarks, logos, names of tobacco manufacturers 
or importers, and colours or schemes of colours associated with tobacco products, manufacturers 
or importers,  or by the use of a part or parts of words, designs, images and colours."1184 Australia 
also claims that, contrary to the complainants' assertions, the Article  13 FCTC Guidelines 
"specifically refer to packaging and product features, including individual ciga rettes and other 
tobacco products".1185 
7.379.   Australia does not agree that the Article  11 and  Article  13 FCTC Guidelines cannot be 
considered as being intended "for  common and repeated  use" because they are designed to limit, 
rather than facilitate, international trade. Australia argues that "there is no conflict between the 
trade liberalization goals of the WTO Agreement s and the public health objectives of the [FCTC]. 
Trade and public health can and should be mutually supportive."1186  
                                                
1179 Paragraph  16 of the Article 13 FCTC Guidelines.  
1180 Paragraph  16 of the Article  13 FCTC Guidelines. Australia also refers to paragraph  46 of the 
Article  11 FCTC Guidelines.  Australia's response to Panel question No. 135, para. 26. 
1181 Paragraph  16 of the Article  13 FCTC Guidelines.  
1182 Paragraph  16 of the Article  13 FCTC Guidelines. Australia notes that paragraphs  15 and  16 of the 
Article  13 FCTC Guidelines specifically refer to "materials on  or in packs" as well as "advertising or promotion 
inside or attached to the package", and inclu de within their scope "promotional packaging and product design 
features". Australia's response to Panel question No. 135, para. 29. 
1183 Australia's second written submission, paras.  324-325; Australia's response to Panel question 
No. 135, paras.  21-32; Aust ralia's response to Panel question No. 163, para. 102; and Australia's comments on 
complainants' responses to Panel question No. 163, paras.  114-116. Australia also makes references to the 
parallel plain packaging elements  in paragraph  46 of the Article  11 FCTC Guidelines,  "… measures to restrict or 
prohibit the use of logos, colours, brand images or promotional information on packaging other than brand 
names and product names displayed in a standard colour and font style (plain packaging)  …". Australia's 
response to Panel question No. 135, para. 26 (emphasis original). Australia also notes, referring to  the text of 
its paragraph  10, that the Article  11 FCTC Guidelines "specifically require [FCTC]  Parties to ensure that health 
warnings and messages are not o bstructed by other required packaging and labelling markings or by 
commercial inserts and onserts". Australia also recalls that paragraph  46 of the Article  11 FCTC Guidelines 
recommends FCTC  Parties to "consider adopting" plain  packaging because it is a me asure that "may increase 
the noticeability and effectiveness of health warnings and messages, prevent the package from detracting 
attention from them, and address industry package design techniques that may suggest that some products 
are less harmful than others." Australia's response to Panel question No. 135, para. 29. 
1184 Australia's response to Panel question No. 135, para. 23 (quoting part of the text of paragraph  9 of 
the Article  13 FCTC Guidelines).  
1185 Australia's response to Panel question No. 135, para. 24 (quoting, in particular, certain parts of 
paragraph  15, and the " Recommendation " following paragraph  17, of the Article  13 FCTC Guidelines, in which 
references are made to tobacco products, including "individual cigarettes"). Australia says that this  therefore 
also means that the TPP measures ' respective regulations on the use and appearance of brand  names on 
individual cigarettes (prohibited) and on cigar sticks (restricted) are "in accordance with" the relevant parts of 
the Article  13 FCTC Guideline s addressing plain packaging measures with respect to the appearance of tobacco 
products. Australia's response to Panel question No. 135, paras.  27-28 (quoting the " Recommendation " 
following paragraph  17 and paragraph  15 of the Article  13 FCTC Guidelines, in which references are made to 
tobacco products, including "individual cigarettes").  
1186 Australia's opening statement at the first meeting of the Panel, para. 97. See also Australia's second 
written submission, paras.  328-329 (arguing that the definition of "standard" in Annex  1.2 does not contain 
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  7.380.   The parties also refer in this context, to certain similarities or differences in the manner in 
which tobacco plain  packaging requirements have been implemented in the TPP measures  and in 
adopted or draft tobacco control legislation from other Members.1187 The parties submitted and 
discuss evidence relating to measures adopted or drafted by Ireland1188, the United  Kingdom1189, 
France1190, Hungary1191, New  Zealand1192 and Norway.1193  
7.381.   The complainants  argue that the different  ways in which the TPP measures  and measures 
from othe r Members implemented tobacco plain  packaging  requirements domestically are evidence 
that the Article  11 and  Article  13 FCTC Guidelines  are not amenable "for  common and 
repeated  use".1194  
7.382.   Australia  contends that significant similarities exist between the pla in packaging 
requirements in the TPP measures  and those in measures from other Members1195 and that these 
                                                                                                                                                  
any reference to such attributes); opening statement at the second meeting of the Panel, para. 142; response 
to Panel question No. 128, paras.  192-194; and comments on complainant s' responses to Panel question 
No. 150, para. 35.  
1187 Although in another context in these proceedings, Australia also made reference to a 2015 
news report informing that Chile's Senate had approved a Bill introducing tobacco plain packaging, and that the 
Bill was awaiting "clearance in the lower house". Aust ralia's second written submission, para. 245 fn 256 
(referring to Packaging Business Review, Chile Proposes Plain Packaging for Cigarettes , (Exhibit AUS -554)).  
1188 Ireland, Public Health (Standardized Packaging of Tobacco) Act 2015 , (Exhibits AUS -612, CUB -94). 
See also the following evidence related to the legislative history of the 2015  Act: Ireland, Public Health 
(Standardized Packaging of Tobacco) Bill 2014  (Exhibit HND -167);  Ireland House of the Oireachtas, Report , 
(Exhibit AUS -550); and D. Hammond, "Stan dardized Packaging of Tobacco Products: Evidence Review, 
Prepared on Behalf of the Irish Department of Health", March 2014, ( Hammond Review ), (Exhibit AUS -555). 
Ireland's Public Health (Standardized Packaging of Tobacco) Bill 2014  was notified to the TBT  Committee 
in June 2014 in document G/TBT/N/IRL/1. See, e.g. Honduras's comments on Australia's response to Panel 
questions, Introduction, para. 17 fn 1. 
1189 United Kingdom, The Standardised Packaging of Tobacco Products Regulations 2015, (Exhibit 
AUS-613). The text of this measure is also indicated by the Dominican  Republic. Dominican  Republic's 
comments on Australia's response to Panel question No.  147, para.  42 fn 63. See also the following evidence 
related to the legislative history of this measure: "Stan dardised Packaging of Tobacco: Report of the 
Independent Review Undertaken by Sir Cyril Chantler", April 2014, (Chantler Report), (Exhibits AUS -81, 
CUB-61); and Statement of J. Ellison, UK Under -Secretary of State for Public Health, on publication of Chant ler 
Report , (Exhibit AUS -551). The UK's draft "Standardised Packaging of Tobacco Products Regulations" was 
notified to the TBT  Committee in  September  2014 in document G/TBT/N/GBR/24. See, e.g. Honduras's 
comments on Australia's response to Panel questions,  Introduction, para.  17 fn 1.  
1190 See France, LOI n° 2016 -41 du 26 janvier 2016 de Modernisation de Not re Système de Santé, 
Article  27, (Exhibit AUS -614); and Draft Decree , Neutrality and Standardisation for the Packaging of Cigarettes 
and Rolling Tobacco , (Exhibit AUS -615). This Draft Decree was notified to the TBT  Committee on June  2015 in 
document G/TBT/N/FRA/163, submitted by Australia as Exhibit AUS -552. See also Honduras's comments on 
Australia's response to Panel questions, Introduction, para.  17 fn 1; and Dominican  Republic's comments on 
Australia's response to Panel question No.  147, para.  42 fn 63. 
1191 Hungary, Draft Amendment to G overnment Decree 39/2013 , (Exhibit AUS -616). This Draft 
Amendment was notified to the TBT  Committee on December  2015 in do cument G/TBT/N/HUN/31. See, e.g. 
Honduras's comments on Australia's response to Panel questions, Introduction, para. 17 fn 1; and 
Dominican  Republic 's comments on Australia's response to Panel question No. 147, para. 42 fn 63. 
1192 New Zealand, Smoke -free Environments (Tobacco Plain Packaging) Amendment Bill  (2014), (Exhibit 
AUS-617). See also  Consultation Paper, New Zealand Ministry of Health, (Exhibit AUS -549). This Bill was 
notified to the TBT  Committee on February  2014 in document G/TBT/N/NZL/62/Add.1. See, e.g. Indonesia's 
second written submission, para. 226 fn 338. The consultation document preceding the introduction of this Bill 
was notified to the TBT  Committee in  July 2012 in document G/TBT/N/NZL/62. See, e.g. Honduras's comments 
on Australia's res ponse to Panel questions, Introduction, para. 17 fn 1. 
1193 Norway, Draft Amendments , (Exhibit AUS -618). See also Norway Standardised Tobacco Packaging 
Consultation Paper,  (Exhibit AUS -553). The draft amendments were notified to the TBT  Committee 
in May 2015 in document G/TBT/N/NOR/23. See, e.g. Honduras's comments on Australia's response to Panel 
questions, Introduction, para. 17 fn 1; and Dominican  Republic 's comments on Australia's response to Panel 
question No. 147, para. 42 fn 63. 
1194 See, e.g. Honduras's r esponse to Panel question No. 163, p p. 17-18; Dominican  Republic 's 
comments on Australia's response to Panel question No. 163, paras.  41-43 and fn  63; Cuba's response to Panel 
question No. 163, p. 9; and Indonesia's second written submission, paras.  226-227 and fn  338. 
1195 Australia's comments on complainants' responses to Panel question No. 163, para. 118 and 
fns 208-212 (describing in detail the specific provisions of these other tobacco plain packaging measures where 
such equivalent requirements are cont ained). With respect, in particular, to the Irish plain  packaging 
legislation, Australia lists the following additional requirements as similar to those under the TPP measures : 
(i) prohibition to use in packaging of mark or trademark other than brand  name or company  name, and a 
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  examples demonstrate that the "permissive and prohibitive elements of the FCTC  Guidelines are 
sufficiently clearly expressed so as to allow for common an d repeated use by countries in 
designing their own tobacco plain packaging measures".1196 
7.383.   The parties also discuss the relevance of the fact that Australia and other Members notified 
their TPP measures  to the TBT  Committee to the characterization of the Article 11 and  Article  13 
FCTC Guidelines  as a "standard". The complainants  point to the fact that these notifications have 
been made under Article  2.9.2 of the TBT Agreement , which requires notifications to be submitted 
only when a relevant international stand ard "does not exist".1197 Australia  considers  that the Panel 
"should afford no probative value" to its notification of the TPP measures  to the TBT Committee 
since this notification was made in accordance with its practice "maintaining a high level of 
transparency in fulfilling obligations under the TBT Agreement ".1198 
Analysis by the Panel  
7.384.   As we have concluded above1199, a document may be considered to provide product 
characteristics and other relevant requirements "for  common and repeated  use", for the purposes 
of the definition of "standard" in Annex  1.2, if these characteristics or requirements were designed 
and intended for the specific  purpose of being frequently shared alike by all persons or things in 
question,  with the aim of achieving the optimum degree of order in a given context.  We further 
found that, to fulfil such function, a degree of clarity and specificity sufficient to enab le consistent 
and predictable implementation is required.1200 This is particularly important where what it is being 
assessed is the existence of an "international  standard"1201, given that "documents" not possessing 
sufficient specificity and clarity are unlikel y to achieve the intended "optimum degree of order" 
necessary to address the "actual or potential problem" giving rise to these documents, and thereby 
contribute to the objective of harmonization on the basis of such international standards.  
7.385.   In this insta nce, as discussed above, those aspects of the Article  11 and Article  13 FCTC 
Guidelines  that directly address tobacco plain packaging do not do so in a single location or in an 
uniform way; instead, tobacco "plain  packaging" is addressed and described in p aragraph  46 of the 
Article  11 FCTC Guidelines, on the one hand, and in paragraph  16 as well as in the 
"Recommendation" following paragraph 17 of the Article  13 FCTC Guidelines, on the other hand. 
Each of these Guidelines  formulates the relevant plain packa ging recommendation in terms that 
are related to the terms of the  specific treaty obligation the  implementation of which by 
FCTC Parties they intend to support.  
                                                                                                                                                  
variant name; (ii)  prescribed colour and shape for cigarette packages; (iii)  health warnings and other 
government mandated information permitted in standardized form; and (iv)  standardized appearance of 
cigarettes. Australia's commen ts on complainants' responses to Panel question No. 163, para. 117. See also 
Australia's second written submission, para. 245; and Australia's response to Panel question No. 164, 
para. 104. 
1196 Australia's comments on complainants' responses to Panel questio n No. 163, paras.  113 and 116. 
See also Australia's second written submission, para. 327 (arguing that the number of other Members 
considering tobacco plain packaging measures "fall[ing] within the parameters specified in the 
FCTC Guidelines" is evidence d emonstrating that just because these instruments leave "details such as the 
exact colour and size … to be prescribed by national a uthorities", this does not render them instruments 
ill-suited "for common and repeated use").  
1197 See, e.g. Honduras's second w ritten submission, paras.  516-517; Dominican  Republic 's second 
written submission, para. 845 and fns  859-860; Cuba's second written submission, paras.  160 and 167; and 
Indonesia's response to Panel question No. 70, paras.  98-99. 
1198 Australia's response to P anel question No. 127, paras.  178-180 (also stating that if the Panel would 
"attribute dispositive value" to this notification to the issue of whether an international standard exists, this 
"would seriously undermine the core transparency obligations of the TBT Agreement , which are 
self-reporting").  
1199 See para. 7.370  above.  
1200 We also said, however, that what the precise  degree of specificity for such requirements should be 
can only be  assessed in a case -by-case basis, depending on the type of "problem" addressed by the document 
claimed to be a standard, and the "context" under which this problem arises. See para. 7.370  above.  
1201 And this is further more so  when the task of considering the existence of an "international standard" 
is for the purpose of the second sentence of Article  2.5 of the TBT Agreement , which confers a " privileg e" in 
the form of a rebuttable presumption of conformity with a treaty obligation ( Article  2.2). See paras.  7.272  and 
7.275  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.386.   We have discussed above1202 the different ways in which the Article  11 and Article  13 FCTC 
Guidel ines address, and make recommendations in respect of, plain packaging of tobacco 
products. In this context, we observed that relevant parts of the Article  11 FCTC Guidelines and 
Article  13 FCTC Guidelines each describe certain recommended features of "plai n packaging", or 
more generally, of tobacco packaging, but do so in different terms and in different levels of 
detail.1203 These differences (including in scope, stringency of requirements, etc.) suggest that 
FCTC parties intending to devise tobacco "plain  packaging" measures "in  accordance  with" one or 
the other set of Guidelines would have a range of options available to them, with respect in 
particular to the regulation in packaging and/or products themselves of "brand  name", 
"brand  imagery", "logos" etc. F or instance, two Members may implement plain  packaging 
measures that are both significantly different in terms of their packaging specifications, and may 
yet be equally consistent with the guidance provided under paragraph  46 of the Article  11 FCTC 
Guideli nes. A party could decide to only "restrict" the use of "logos" and "brand images" in all 
tobacco packaging by determining that they only appear in one specific size and in one specific 
face of the package ("brand names" and "product names" would be, howev er, fully allowed on the 
packs, provided they are displayed in "standard colour and font style"), or, it could instead, go 
further and "prohibit" the use of any "logos" and "brand images" in all tobacco packaging (only 
allowing the use of "brand names" and  "product names" provided they are displayed in "standard 
colour and font style").1204  
7.387.   We recall our earlier observation that the specific elements of the  Article  11 and  Article  13 
FCTC Guidelines that Australia has identified as constituting an internationa l standard for tobacco 
plain packaging are part of the legal framework established under the FCTC, whereby FCTC  Parties 
commit to implement a wide range of interconnected effective tobacco control measures. Against 
this context, the  Article  11 and  Article  13 FCTC Guidelines, by their own terms, may be understood 
as recommending "plain  packaging" differently1205 because they intend this measure solely to 
serve as a means of assisting FCTC Parties in the implementation of obligations that, although 
related, addr ess different aspects or angles of policies to reduce demand1206 for tobacco: 
Article  11 (by regulating tobacco labelling and packaging with respect to the obligation to avoid 
consumers being misled and also to enhance effectiveness of health  warnings) and Article 13 (by 
regulating "packaging and product features" as part of a comprehensive  ban on 
"[t]obacco  advertising, promotion  and sponsorship").1207  
7.388.   These considerations are also an indication, in our view, that the specific elements of the  
Article  11 and  Article  13 FCTC Guidelines addressing plain packaging that Australia has identified 
as constituting an international standard for tobacco plain  packaging were not intended to provide 
a unified document "for  common and repeated  use" in respect of tobacco pl ain packaging, within 
the meaning of Annex  1.2 to the TBT Agreement  (and therefore for the purpose of the 
second  sentence of Article  2.5 of the Agreement),  in isolation from the broader context of 
implementing a comprehensive range of tobacco control measu res under the FCTC. Rather, we 
understand the different manners in which "plain packaging" is recommended under the two 
Guidelines to reflect the flexibility accorded to FCTC parties in determining the most appropriate 
manner of addressing packaging, inclu ding through the adoption of plain packaging, as a 
component of effective tobacco control measures under the FCTC. We find this approach to be 
consistent with the logic of the FCTC as an international framework  convention establishing 
different obligations  to adopt a range of effective tobacco control measures and setting out, 
through  the FCTC Guidelines, various modalities through which parties to the Convention may 
implement these obligations in light of their particular circumstances.  
                                                
1202 See paras.  7.335 -7.347 . 
1203 See para. 7.347  above . 
1204 The complain ants have alluded to this possibility. See, e.g. Honduras's response to Panel 
question  No. 163, p. 17. 
1205 See paras.  7.335 -7.347  and 7.385  above.  
1206 As indicated a t para. 7.325  and fn 1060 above, Articles 11 and 13 are both contained under Part  III 
of the FCTC, entitled "Measures relating to the reduction of demand for tobacco".  Article  7 of the FCTC lists 
Articles  11 and 13 as among those provisions under Part  III of the Convention addressing, more sp ecifically, 
"non-price measures to reduce the demand for tobacco".  
1207 We note again, in this respect, that footnote  4 to the Article  13 FCTC Guidelines, set out at para. 
7.310  above, refers to the Article  11 FCTC Guidelines  as being those " which address plain packaging with 
regard to health warnings and misleading information ". See Article  13 FCTC Guidelines, FCTC/COP/3(12), 
(Exhibit JE -21), Annex, fn 4 (appearing erroneously as fn 2). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.389.   The parties have al so discussed the extent to which differences or similarities between the 
TPP measures  and certain tobacco plain  packaging measures adopted or drafted by other Members 
confirm their respective views as to whether the Article  11 and Article  13 FCTC Guideline s are 
"documents" containing product specification "for  common and repeated  use". In this respect, they 
discussed adopted or drafted tobacco plain packaging measures by Ireland, the UK, France, 
Hungary, New  Zealand and Norway. We do not consider an examina tion of these domestic 
practices to be necessary to our assessment.  We are not persuaded, in particular, that evidence 
relating to domestic practices can directly inform whether these Guidelines, as such, constitute a 
standard. In  particular, to the extent  that such an assessment would imply an assessment or 
assumption on our part as to the extent to which these domestic practices reflect and are, or not, 
in accordance with the requirements of the standard at issue, we do not consider that we are in a 
position to make such assumptions.1208  
Whether compliance with the product characteristics and packaging requirements 
provided in the Article  11 and Article  13 FCTC Guidelines in respect of tobacco plain 
packaging is "not mandatory"  
7.390.   We now turn to whether complia nce with the product characteristics and packaging 
requirements provided by the Article  11 and  Article  13 FCTC Guidelines, as defined above, "is  not 
mandatory", which is the final element of the definition of "standard" under Annex  1.2 of the 
TBT Agreement  relating to the contents of the alleged standard, as outlined above .1209  
7.391.   Australia  claims that this condition has been also met because the Article  11 and  Article  13 
FCTC Guidelines "employ conditional rather than obligatory language."1210 Indonesia  and Cuba 
disagree. Indonesia  argues that the Article  11 and  Article  13 FCTC Guidelines are instead 
"mandatory" and, thus, not in  compliance with that definition. Indonesia argues that, while these 
FCTC Guidelines "purport to be non -binding recommendations", ultimate ly, they are intended to be 
"recommendations on how Parties should implement the 'mandatory' provisions of Articles  11 and 
13 [of the FCTC itself]"1211 on tobacco packaging and advertising. For Indonesia, the fact that no 
tobacco company has ever "adopted voluntarily" plain  packaging requirements, as described in the  
Article  11 and  Article  13 FCTC Guidelines, further confirms their non -voluntary nature.1212 Cuba 
understands the reference to non -binding documents that provide product characteristics 
for common and repeated  use, in the definition of "standard" in the TBT Agreement , as addressing 
these conditions to "producers" of these products, and not govern ment authorities.1213 Based on 
such understanding, and after comparing how the Article  11 and  Article  13 FCTC Guidelines 
address tobacco plain  packaging with how an ISO  standard1214 addresses dimensions for rigid 
rectangular transport packages, Cuba argues:  
Unlike those [ISO] standards, the FCTC guidelines  are completely different and aim to 
encourage the authorities  to impose binding technical regulation on producers. The 
FCTC guidelines  are not, and were never intended to be, binding technical standards 
to be directly observed by producers. That is why the FCTC guidelines  are not precise 
and prescriptive: they are policy recommendations for regulators and legislators, not 
                                                
1208 We consider, for similar reasons, unnecessary to assess whether the fact that Australia or other 
Members have notified their respective tobacco plain packaging measures under Article  2.9.2 of the 
TBT Agreement  can sh ed any light on the question of whether the Article  11 ad Article  13 FCTC Guidelines 
constitute a standard. We note, in this respect, Australia's point that if the Panel would "attribute dispositive 
value" to these notifications to the issue of whether an international standard exists, this "would seriously 
undermine the core transparency obligations of the TBT Agreement , which are self -reporting". Australia's 
response to Panel question No. 127, para. 180. 
1209 See para. 7.281  above.  
1210 Australia's first written submission, para. 573. See also Australia's second written submission, 
para. 330.  
1211 Indonesia's second written submission, para. 229. 
1212 Indonesia's second written submission, para. 229 (also contrasting the Article  11 and  Article  13 
FCTC Guidelines  with the US  "dolphin -safe labelling scheme" at issue in US – Tuna II (Mexico) , and saying that, 
unlike the former, the latter represented the "nature of a truly 'voluntary' standard" for it did not require tuna 
product importers to comply with that label as a condition to access the US  market).  
1213 Cuba's opening statement at the second meeting of the Panel, para. 48. 
1214 Standard  ISO 3394:2012(E) , entitled "Packaging  - Complete, filled transport packages and unit 
loads - Dimensions of rigid rectangular packages " (Exhibit HN D-121) (already referred at fns 1144 and 1175 
above) . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  detailed technic al guidance for producers. Paragraph  46 of the guidelines of Article  11 
even explicitly addresses the FCTC  Parties: " Parties should consider adopting 
measures to restrict or prohibit the use of logos colours, trademark images or 
promotional information ". How could a producer ever be expected to apply and use 
these guidelines in the same way that he can apply and use an ISO  standard? By 
contrast, companies seeking to produce and use rigid rectangular transport packages 
will know exactly what to do when using  ISO 3394.1215 
7.392.   The definition of "standard" in Annex  1.2 to the TBT Agreement  is relevant both for the 
legal characterization of a measure under the Agreement as a national  (domestic) standard (as 
opposed to a technical  regulation)1216 and for various TBT  discip lines addressing 
international  standards, including Articles  2.4 and 2.5. As can be inferred from the way they are 
disciplined in the TBT Agreement , international standards can serve, inter alia, as references for 
the development and adoption by government s of either domestic  regulations or domestic  
standards.1217 From this perspective, given this "dual"  purpose, we see no basis for, and therefore 
disagree with, Indonesia's and Cuba's arguments that the voluntary nature of a "standard", as 
defined under Annex  1.2 of the TBT Agreement , should only be assessed vis -à-vis the way the 
document is addressed to "producers" of the products concerned, and not governments.  
7.393.   With respect, more specifically, to the "not mandatory" nature of the Article  11 and  
Article  13 FCTC Guidelines, we note that in two of the relevant parts of these instruments 
expressly addressing "plain  packaging" (paragraph  46 of the Article  11 FCTC Guidelines and in the 
text following paragraph  17 of the Article  13 FCTC Guidelines), both texts state that FCTC  Parties 
"should  consider adopting " plain packaging "measures" or "requirements".1218  
7.394.   Additionally, plain packaging is addressed in paragraph  46 of the Article  11 
FCTC Guidelines in the form of a "recommendation". This language stands in contr ast, for instance, 
with that employed by Articles  11 and 13 of the FCTC.1219 We also note that this contrasts also 
with the way certain other measures are addressed within these Guidelines themselves. For 
instance, paragraph  44 of the Article  11 FCTC  Guidelin es state that "Parties should prohibit  the 
display of figures for emission yields (such as tar, nicotine and carbon monoxide) on packaging 
and labelling, including when used as part of a brand name or trademark."1220 Similarly, the 
Article  13 FCTC Guidelines contain a "recommendation" that "Parties should ban  'brand stretching' 
and 'brand sharing', as they are means of tobacco advertising and promotion."1221 
7.395.   For the foregoing reasons, we find that compliance with the product characteristics and 
packaging requirem ents provided by the Article  11 and  Article  13 FCTC Guidelines , as defined 
above, "is  not mandatory" , within the meaning of the definition of "standard" in Annex  1.2 to the 
TBT Agreement .1222 
                                                
1215 Cuba's opening statement at the second meeting of the Panel, para. 49. (emphasis  original)  
1216 A threshold question that was at issue, for instance, in US – Tuna II (Mexico) . Appellat e Body 
Report, US – Tuna II (Mexico) , paras.  178 and 187 -188. 
1217 See, e.g. Article  2.4 and Annex  3.F to the TBT Agreement , respectively.  
1218 Paragraph 1 of the Article  11 FCTC Guidelines  also clarifies that the purpose of this instrument is, 
inter alia, to " propose  measures that Parties can use to increase the effectiveness of their packaging and 
labelling measures". (emphasis added)  
1219 See, e.g. Articles  11.1(b) and 13.4 of the FCTC. These FCTC  provisions, however, seem to often 
describe such commitments in a  qualified manner. For instance, the full text of Article  11.1(b) of the FCTC 
reads: " Article  11 […] 1. Each Party shall […] adopt and implement, in accordance with its national law, 
effective measures to ensure that: […] (b) each unit packet and package o f tobacco products […] also carry 
health warnings […] and may include other appropriate messages. These warnings and messages: (i) shall be 
approved by the competent national authority; (ii)  shall be rotating; […] (iv)  should  be 50% … but shall be no 
less than 30% […] (v)  may be in the form of or include pictures or pictograms." T he texts of these two FCTC 
provisions are set out in full in paras.  2.104 and 2.105 above.  
1220 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 44. (emphasis  added).  
1221 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, "Recommendation " following 
paragraphs  22-24. 
1222 In these proceedings we need not, however, express a view, either as a legal or factual matter, on 
whether binding international i nstruments, in general, and any obligations established under the FCTC 
(including those in Articles  11 and 13), in particular, could also be considered as "not  mandatory" for the 
purposes of the definition of "standard" in Annex  1.2 to the TBT Agreement . In these proceedings, Australia 
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  Conclusion on the Article  11 and Article  13 FCTC  Guidelines as a "s tandard"  
7.396.   We have examined the instruments Australia claims constitute a "standard" for 
tobacco  plain packaging: the Article  11 and  Article  13 FCTC Guidelines. We have found that the 
relevant parts within these instruments, including those explicitly addres sing plain  packaging, 
taken in isolation from their context as part of the FCTC, do not constitute a "document" 
containing a "standard" within the meaning of the definition of "standard" in Annex  1.2 of the 
TBT Agreement . We also concluded that, while the parts of the Article  11 and  Article  13 FCTC 
Guidelines explicitly addressing plain  packaging could be considered to be "guidelines" providing 
for "product characteristics" (including with respect to packaging requirements), they do so in 
different ways, re flecting the flexibility provided to FCTC parties in determining how to implement 
their various obligations under the FCTC, including, as appropriate, plain packaging of tobacco 
products. This is consistent, overall, with the fact that FCTC Guidelines, by their own terms, are 
intended to "assist Parties in meeting their obligations" under, respectively, Article  11 and 
Article  13 of the FCTC. These Guidelines, and the obligations that they relate to, must be read "in 
light" of the relevant obligations in the  FCTC itself, as well as "other  provisions" of that Convention 
that are "also relevant to implementation of plain  packaging".1223 
7.397.   Overall, therefore, we find that, while the Article  11 and Article  13 FCTC Guidelines provide 
important guidance to FCTC parties in addressing packaging, and, as relevant, implementing plain 
packaging as an element of a comprehensive scheme of effective tobacco control policies, Australia 
has not demonstrated that they constitute a "standard" under Annex 1.2 of the TBT Agreement  
with respect to tobacco plain packaging . 
7.2.5.2.4   Overall conclusion on whether the Article  11 and  Article  13 FCTC Guidelines 
are "relevant international standards" and whether the TPP measures  are "in 
accordance with" these Guidelines under Article  2.5 (second senten ce) 
7.398.   We recall our statement above1224 that, should we conclude that the Article  11 and  
Article  13 FCTC Guidelines meet the TBT  definition of a "standard", we would then proceed to 
consider whether they are  also "international" in character, including in terms  of "recognition"  of 
the body that has adopted them .1225  
7.399.   In the present proceedings, the parties disagree on whether the body which adopted the 
Article  11 and Article  13 FCTC Guidelines , the FCTC  COP1226, is an " international standardizing 
body" for the purpose s of assessing the "international" character of these instruments1227, and 
whether it has "recognized activities in standardization" such that it should be considered an 
"international standardizing body" for the purposes of Article  2.5 of the TBT Agreement . 
7.400.   Having determined that Australia has not established that the Article  11 and  Article  13 
FCTC Guidelines constitute a "standard" for tobacco plain packaging within the meaning of Annex 
1.2, we need not assess further whether they are "international" in char acter.1228 We therefore 
make no determination in respect of whether the COP  FCTC is an international standardizing body 
or has recognized activities in standardization within the meaning of the relevant definition of 
"international standard", for the purposes  of the TBT Agreement . 
                                                                                                                                                  
only claims that the instruments that constitute a "relevant international standard" under the second  sentence 
of Article  2.5 are specific aspects of the Article  11 and Article  13 FCTC Guidelines, not the Convention itself . 
1223 WHO/FCTC  Additional Information to Panel, paras.  61 and 64 , at fn 63 above.  
1224 See para. 7.289  above.  
1225 See para. 7.333  above.  
1226 See paras.  2.98-2.99 above.  
1227 See, e.g. Honduras's second  written su bmission, paras.  508-515; Dominican  Republic 's 
second  written submission, paras.  854-893; Cuba's second written submission, paras.  167-181; Indonesia's 
second written submission, paras.  222-225 and 230 -253; and Australia's second written submission, 
paras.  331-341. 
1228 Or whether they are "relevant". See also, in a similar vein, Honduras's second written submission, 
para. 507. See also paras.  7.398  and 7.289  and, in particular, fn  995 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.401.   It also follows from these conclusions that we need not consider further whether the 
TPP measures  are "in accordance with" the relevant parts of the Article  11 FCTC Guidelines or  the 
Article  13 FCTC  Guidelines.1229 
7.402.   In light of the above, we find that Australia has not demonstrated that the TPP  measures 
are "in accordance with relevant international standards" for the purpose of the second  sentence of 
Article  2.5 of the TBT  Agreement. We also find, therefore, that the TPP  measures ca nnot be 
"rebuttably presumed not to create an unnecessary obstacle to international trade".  
7.403.   Notwithstanding this conclusion, we wish to make clear that the determinations we have 
reached a bove under the second  sentence of Article  2.5 do not imply any deter mination concerning 
the relevance of the FCTC, or any its instruments (including the Article  11 and Article  13 
FCTC Guidelines ) to other aspects of our analysis of the claims before us in these proceedings.   
7.404.   A respondent's failure to successfully invoke the rebuttable presumption under the 
second  sentence of Article  2.5 of the TBT  Agreement does  not, in our view, have any adverse 
implications for other aspects of its defence with respect to a claim under Articl e 2.2 of the same 
agreement . In the present proceedings, our determinations above in relation to whether the 
relevant parts of specific FCTC Guidelines  constitute, for the purposes of the second sentence of 
Article  2.5 of the TBT  Agreement, a "standard" wi thin the meaning  of Annex 1.2, therefore imply  
no determination on the potential relevance of the FCTC and related instruments, including 
relevant parts of the Article  11 and Article  13 FCTC Guidelines , to the remainder of our analysis 
under Article  2.2 of the TBT  Agreement . The complainants continue to bear the burden of making 
a prima  facie case that the TPP  measures are inconsistent with this provision.1230  
7.405.   More generally, the fact that a given instrument is not relevant or persuasive for one 
purpose under  a given claim does not, in our view, render it ipso facto  irrelevant for another 
purpose, including in the context of other aspects of the same claim . Rather, its relevance, if any, 
must be assessed in the context of each specific claim and the purpose fo r which it has been 
raised in that context. We note in this respect that all parties  in these proceedings have discussed 
and/or relied  on the FCTC and some of its instruments (including , in particular,  the Article  11 and 
Article  13 FCTC Guidelines )1231, not only with respect to Australia's invocation of the 
second  sentence of A rticle 2.5, but also regarding other  aspects  of the complainants' claims under 
Article  2.2 of the TBT  Agreement and Art icle 20 of the TRIPS  Agreement. The parties have, 
however, express ed different views on the relevance of these instruments for the analysis of the 
claims before us if they do not constitute an "international standard" under Article  2.5 of the 
TBT Agreement.  
7.406.   Honduras  considers that "the only avenue contemplated in the TBT  Agreement that would 
allow an international standard to temper  [the] obligation [under Article  2.2] is Article  2.5. There 
is no TBT provision indicating that, even if a particular instrument does not qualify as a relevant 
international standard, panels mu st nonetheless consider such instrument in their examination 
under Article 2.2."1232 Honduras also submits that while the FCTC and its Guidelines confirm the 
                                                
1229 See paras.  7.263  and 7.289  above. Some parties have also suggested that we take this 
approa ch. See, e.g. Honduras's response to Panel question  No. 66, p. 26; and Dominican  Republic 's response 
to Panel question No. 66, para. 292. 
1230 Our clarification finds support in certain statemen ts by the Appellate Body in EC – Hormones . In that 
dispute, the measure at issue was found not to enjoy the presumption of consistency with the SPS  Agreement 
(and the GATT  1994) because it did  not "conform to international standards", as required by Article 3.2 of that 
Agreement. The question before the Appellate  Body was whether any negative implications should ensue with 
respect to a respondent's defence against a claim of violation of Article  3.1 of the SPS  Agreement, when the 
measure at issue cannot enj oy that presumption of conformity. The Appellate Body clarified that just because 
the "Member imposing [a]  measure does  not benefit from the presumption of consistency set  up in Article  3.2", 
this does  not mean that this Member is "penalized by exemption o f a complaining Member from the normal 
burden of showing a  prima facie  case of inconsistency with Article  3.1 or any other relevant article  of the 
SPS Agreement  or of the GATT  1994." Appellate Body Report, EC – Hormones , para.  171. See also ibid. 
para. 102. See further, Appellate Body Report, US – Continued  Suspension , para.  532; Panel Report, Russia  –
 Pigs (EU), paras.  7.254, 7.261, 7.331 and 7.860 ; and  Brazil's third -party statement, paras.  4-5. 
1231 The Panel also received information regarding the FCTC and  the FCTC Guidelines directly from the 
WHO and the FCTC Secretariat. See section 1.6.7.1 above regarding the materials submitted by the WHO and 
the FCTC Secretariat and the Panel's request for additional information.  
1232 Honduras's response to Panel question  No. 130, pp.  44-45. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  harmful nature of smoking and the existence of international consensus on the legitimacy of 
smoking r eduction as an objective, the relevant question  before the Panel  is whether the 
TPP measures are more trade -restrictive than necessary . As the FCTC Guidelines  do not suggest 
that tobacco plain packaging is not more trade -restrictive tha n necessary, they ar e not pertinent to 
this dispute. Honduras also argues that the FCTC  Guidelines are not relevant because they do not 
constitute an element of interpretation of Article  2.2 of the TBT Agreement  under Article  31 of the 
Vienna Convention  (e.g. a subsequent agr eement between the parties regarding the interpretation 
of Article 2.2 or a relevant rule of international law ).1233 Honduras also does not see any role for 
the FCTC  Guidelines in the panel's analysis under Article  20 of the TRIPS Agreement, as this 
provision  does not contain a "rebuttable presumption" of consistency for special requirements 
conforming to an "international standard".1234 As "non-binding, soft law" instruments, Honduras 
submits that the FCTC  Guidelines,  in accordance with the Vienna  Convention , are not  relevant for 
interpreting  Article  20, especially "terms of art " such as "unjustifiably".1235 Finally, Honduras 
considers that the FCTC  Guidelines cannot be used as facts to demonstrate that the TPP measures 
are capable of achieving Australia's objective of improving public health because  "the scientific 
bases underlying [these instruments]  are un clear".1236 
7.407.   The Dominican  Republic  argues that if the presumption in the second sentence of 
Article  2.5 of the TBT  Agreement is not applicable, the FCTC Guidelines  "have no bearing on any of 
the legal or fac tual questions before the Panel".1237 The Dominican  Republic rejects, in particular, 
the notion that the adoption of the FCTC Guidelines  "in themselves " can serve as  evidence that the 
TPP measures " comply with all relevant aspects of the applicable legal standards " under both the 
TBT Agreement  and the TRIPS  Agreement , as "[t]he  Guidelines do not, for exam ple, demonstrate 
that [the TPP] measures  will ever reduce smoking ".1238 The Dominican  Republic  considers, in this 
respect, that the Panel "has a duty to make an objective assessment of the facts, as required by  
Article  11 of the DSU[, and that it] cannot 'contract out'  of this obligation through reliance on the 
work of another international body [, in particular]  when the other body declines to share its 
evidence or its assessment of that evidence ".1239 "At most ", the Dominican Republic continues, 
"the FCTC  Guidelines  … could confirm the legitimacy of the plain packaging as a measure with the 
objective of promoting public health. "1240 The recommendation in the Article  11 and Article  13 
FCTC Guidelines  that parties  consider implementing plain packaging  "does not constitute proof of 
the effectiveness of plain packaging in reduc ing smoking behaviour" and cannot " be more reliable 
than the  evidence on which it is based".1241 
                                                
1233 Honduras's response to Panel question No.  130, p. 45. See also Honduras's second written 
submission, para.  474. Honduras also states that neither the FCTC nor its Guidelines can "constitute a defence 
to a violation of the WTO  agreeme nts, for example that plain packaging would be necessary to comply with the 
FCTC Guidelines [given that i] t is well established that GATT Article  XX may exempt WTO inconsistent 
measures when they are necessary to secure compliance with WTO -consistent domes tic laws, not with 
international law ." Honduras's second written submission, para.  475 (referring to  Appellate Body Report, 
Mexico  – Taxes on Soft Drinks , para. 75 ). See also ibid. para.  474. 
1234 Honduras's response to P anel question No.  130, p.  45. See also  Honduras's second written 
submission, para.  463. 
1235 Honduras's response to P anel question No.  130, pp. 45 -46. Honduras also states that, given that 
tobacco plain packaging measures " go beyond the obligations imposed on  [FCTC Parties]" because they are not 
mandated by the FCTC, Australia's TPP measures, by virtue of the FCTC itself (Article  2.1), "can only be 
imposed  if [] consistent with international law, including the law of the WTO ". Honduras's second written 
submission, para.  472. Honduras also adds tha t "the WTO dispute settlement sy stem is intended to ' preserve 
the rights and obligations of Membe rs under the covered agreements' and to clarify 'those agreements' , not 
other international agreements, including the FCTC ", as confirmed by Article s 3.2 and 1 9.2 of the DSU and the 
terms of reference under Article  7 of the DSU, which refer  to the WTO covered agreements. Honduras's second 
written submission, para.  473. 
1236 Honduras's response to P anel question No.  130, p.  45. In this respect, Honduras also recalls  its 
arguments concerning the lack of information available on the scientific basis for the preparation and adoption 
of the FCTC  Guidelines. Honduras' s first written submission, paras.  135-137. See also Honduras's response to 
Panel question No. 70. 
1237 Domin ican Republic's second written submission, para.  917. See also responses to P anel question 
No. 89, para. 27; and No.  130, para. 314. 
1238 Dominican  Republic's second written submission, para.  918. 
1239 Dominican  Republic's second written submission, para.  920.  
1240 Dominican  Republic's response to Panel question No. 130,  para. 315. (emphasis original)  
1241 Dominican  Republic's second written submission, para.  543. The Dominican Republic recalls that 
"the FCTC Secretariat made publicly available the evidence considered  by the COP in adopting the Article  11 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.408.   Cuba considers that the FCTC Guidelines  "are not perti nent" for the Panel's assessment 
under Article  2.2 of the TBT Agreement  and Article  20 of the TRIPS  Agreement.1242 Cuba argues 
that the WTO dispute settlement system seeks "to preserve the rights and obligations of Members 
under the covered agreements" and to  clarify "those agreements", not other internation al 
agreements, such as the FCTC.1243 Cuba considers that t he FCTC Guidelines  "will be of little 
importance " in these disputes,  even as an "interpretative tool " under the Vienna Convention.1244 
For Cuba, t he relevant question under WTO rules, i.e. whether the specific plain packaging 
measure adopted by Australia is more trade -restrictive than necessary or unjustifiably encumbers 
or in some other way violates trademark rights, is not dealt with  by the FCTC or i ts Guidelines. 
"Since the harmful nature of smoking is not a question to be assessed in this dispute, [the FCTC 
and its Guidelines] should not be taken into account " when interpreting the TBT Agreement  or 
TRIPS  Agreement in the context of plain packaging m easures.1245 
7.409.   Indonesia  "recognizes that the [FCTC]  Guidelines are pertinent for th [ese] dispute [s] even 
though they are  not a 'relevant international standard'  under Article  2.5 of the 
TBT Agreement".1246 It also considers, however, that due to their non -binding  nature and hortatory 
language, t he FCTC Guidelines  "do not provide interpretive context for the TRIPS and 
TBT Agreement s and nothing in [these instruments]  can supplant obligations in the WTO ".1247 
While noting that a Member, if faced with a conflict between  what the FCTC recommends and what 
the WTO requires, "must comply with its WTO obligations ",1248 Indonesia also states that, 
"[f]ortunately, no such conflict exists in this case  … given that, "[i]n Indonesia' s view there is 
sufficient policy latitude to addre ss the packaging elements that raise concern under the FCTC, 
while still complying with all of the relevant WTO obligations. "1249 
7.410.   Australia  considers that, even if the Panel were to conclude that the Article  11 and 
Article  13 FCTC Guidelines  are not a relevant international standard under  the second sentence of  
Article  2.5 of the TBT Agreement , they are still "highly  relevant" at "each stage o f the analysis" of 
the claims  under both the TBT and TRI PS Agreements.1250 Australia also considers that  while the 
                                                                                                                                                  
Guidelines, but  not the Article  13 Guidelines", and that "[o] f the 22 listed studies  [that were considered by the  
COP in adopting the Article  11 Guidelines ], just one study, consisting of 1  page, examined plain packag ing". 
Dominican  Republic's second written submission, para.  544 (footnotes omitted). The Dominican Republic also 
submits that any "evidence" relied upon by the FCTC could only consist of predictive research that suffers from 
a number of serious flaws. Ibid . paras.  545-546. See also Dominican  Republic's second written submission, 
para. 919 and fn  926 and para. 927; and responses to Panel question No.  130, para. 316; and No.  66, 
para. 186. 
1242 Cuba's response to P anel question No. 130,  p. 17. Cuba also consider s amicus curiae  submissions by 
the WHO and FCTC Secretariat to be "irrelevant"  for the settlement of the present disputes, pointing out that 
"the FCTC itself has not been signed and/or ratified by all WTO Members", including Cuba, which is n ot an 
FCTC Party and did not participate in the adoption of the FCTC  Guidelines. Cuba submits that its WTO 
obligations cannot therefore "reasonably be determined by reference to the FCTC Guidelines".  Cuba's second 
written submission, paras. 382 -383. See also ibid. para. 361. 
1243 Cuba's second written submission, para.  355. 
1244 Cuba's second written submission, para.  356. See Cuba's second written submission, para s. 357-
359; and Cuba's response to Panel question No. 130, p.  17. 
1245 Cuba's second written submission, para.  360. See also Cuba's response to Panel question No. 130, 
p. 17. Cuba also argues that neither the FCTC nor the non -binding FCTC  Guidelines impose any obligation to 
adopt tobacco plain packaging, and notes that Artic le 2.2 of the FCTC permits " imposing stricter requirements 
that are consistent with the provisions of  the FCTC ' and are in acc ordance with international law'". Cuba's 
second written submission, paras.  361, 366 -368 and 370. Cuba also notes that during the d ebates for the 
preparation of the Guidelines with respect to plain packaging, " the representative of Australia indicated … 
[that] the ' Guidelines proposed that Parties should consider other measures, going beyond the requiremen ts of 
the [FCTC]'."  Ibid. par a. 368 (referring to Conference of the Parties to the WHO Framework Convention on 
Tobacco Control, Third Session, Durban, South Africa, FCTC/COP/3/REC/ 3 (17 -22 November 2008), p. 11).  
1246 Indonesia's response to Panel question No.  130, para. 81. 
1247 Indonesia' s response to Panel question No.  130, para. 81. See also Indonesia's opening statement 
at the first meeting of the Panel, para.  20. 
1248 Indonesia's opening statement at the first meeting of the Panel, para.  21. 
1249 Indonesia's opening statement at the first me eting of the Panel, para.  23. See also Indonesia's 
response to Panel question No.  130, para. 81 (stating that " the FCTC and WTO should be interpreted 
harmoniously as there is no conflict between FCTC and WTO obligations. "); and Indonesia's response to Pane l 
question No.  130, para. 83 (arguing that " compliance with the FCTC Guidelines  and WTO obligations can be 
achieved by imposing prohibitions or restrictions only on those elements of tobacco products and packaging 
that have been shown, based on evidence, t o mislead consumers or increase prevalence. "). 
1250 Australia's response to Panel question No. 130, para.  204. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TBT Agreement encourages  technical regulations to be in accorda nce with international standard s, 
it "imposes no particular obligations on Members with respect to the nature and extent of evidence 
on which they may rely before adopting a technica l regulation" .1251 For Australia, tobacco plain 
packaging measures "reflect [] a world -wide consensus in the scientific community and among the 
180 Parties to the FCTC that measures affecting consumer perceptions, intentions, and attitudes 
toward tobacco produ cts are apt to contribute, as part of a comprehensive tobacco control policy, 
to reducing smoking behaviour, and ultimately, to saving lives."1252 
7.411.   Some third parties  also addressed this question in their submissions  or statements.1253 
7.412.   We note that  it is not unco mmon in WTO disputes for parties to refer to, and panels and 
the Appellate  Body to rely on, non -WTO international instruments as evidence of fact1254 or to 
                                                
1251 Australia's closing  statement at the first meeting of the Panel, para.  17.  
1252 Australia's closing  statement at the first meeting of the Panel, para.  24. See also Australia's second 
written submission, para.  256; and Australia's response to Panel question No. 126, para.  172. 
1253 Brazil  believes that FCTC Guidelines should be taken into consideration as r elevant context in the 
panel proceedings under the WTO dispute settlement system, especially if such guidelines are qualified as 
relevant international standards under the second sentence of Article  2.5 of the TBT Agreement. Brazil's third -
party submission , para s. 13-17.  
The European Union  considers that irrespective of whether or not the FCTC Guidelines  relating to plain 
packaging are a relevant international standard within the meaning of the second sentence of Article  2.5 of the 
TBT Agreement , they must  be given appropriate weight in these proceedings . European Union's third -party 
statement, para. 1 2. The European Union observes that Article  2.2 of the TBT Agreement  requires the Panel to 
take into account the " risks non -fulfilment would create" and that, in assessing such risks, relevant elements of 
consideration are, inter alia , available scientific and technical information, related processing technology or 
intended end -uses of products. The European Union considers that the Guidelines fall within the o pen category 
delimited by the final sentence of Article  2.2 of the TBT Agreement . European Union's response to Panel 
question No.  8, para. 37. In assessing that risk, the European Union contends that the FCTC  Guidelines  are 
"relevant ", particularly because they speak precisely to the means by which the relevant international 
organisation considers that tobacco control can be effectively enhanced. Therefore, they will need to be 
considered and taken into account by the Panel, irrespecti ve of whether or not they are a "relevant 
international standard " within the meaning of Article  2.5 of the TBT  Agreement." Ibid. para. 38. With respect to 
the TRIPS  Agreement , the European Union also considers it "important that these evidence -based intern ational 
guidelines are accorded proper weight, by interpreting TRIPS provisions in a way that is supportive of WTO 
Members' right to protect public health ." European Union's third -party submission, para s. 36-38.  
Korea  submits that, while in principle "the object and purpose of other international agreements should 
not be allowed to undermine the interpretation or application of WTO Agreement  provisions , the value of the 
[FCTC] should be sufficiently respected ", given it is  "the most widely ratified convent ion among UN Member 
states". Korea's third-party statement, para. 5. 
Uruguay  notes that, in these disputes, t hree of the original complaining Members have signed the FCTC 
and have "played a role in the drafting of the [FCTC  Guidelines],  such as  those on plain packaging".  For 
Uruguay, while  "[i]t could be argued that the plain packaging measures are not binding under the [FCTC,]  
[they]  form part of the repository of rules governed thereby and must therefore be shared by its members; the 
latter sh ould not in principle challenge or undermine them in other forums. " Uruguay's third-party submission, 
paras . 102-103. 
1254 For instance, in EC – Asbestos , the panel relied on documentation originating from the WHO and the 
International Labor Organization (ILO ) as evidence that " regulations restricting the use of asbesto s could have 
been anticipated". Panel Report, EC – Asbestos , para. 8.295. In EC – Seal Products , the p anel considered that 
various sources submitted to it, including certain UN and ILO instrumen ts (i.e. t he 1989 UN Declaration on the 
Rights of Indigenous Peoples and the 1989 ILO Convention concerning Indigenous and Tribal Peoples in 
Independent Countries) , "taken in their entirety as factual evidence" , demonstrated that the rationale for 
includin g in the EU seal products' ban an exception for products from indigenous communities was  "justifiable". 
Panel Reports, EC – Seal Products , para. 7.295. The panel explained the basis for and purpose of relying upon 
such instruments as follows:  
 
In taking in to account the recognition given by international instruments in the context of the 
United Nations and the ILO to the interests of Inuit and indigenous communities, the Panel is 
mindful that these instruments are not WTO instruments and they do not set out  WTO 
obligations per se . We are considering the content of these instruments as part of the evidence 
submitted by the European  Union to support its position concerning the interests of Inuit and 
indigenous communities, not as legal obligations of Members.  
 
Ibid. para. 7.295 fn 475.  See also Panel Report, US – Clove Cigarettes  (relying on certain FCTC Guidelines , 
discussed in paras. 7.414 -7.415 below) . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  inform the interpretation of specific provisions under a covered agreement.1255 We also note, in 
particula r, that the FCTC and certain FCTC  Guidelines have been specifically discussed and relied 
upon as evidence in at least two previous WTO disputes, including one concerning claims under the 
TBT Agreement.  
7.413.   In Dominican  Republic  – Import and Sale of Cigarettes , the Dominican  Republic cited the 
FCTC in support of its argument on the international recognition of tax stamps as a legitimate 
method to prevent the smuggling of cigarettes and the resulting loss of tax revenue , 
notwithstanding the fact that b oth partie s had agreed that it was  not legally binding on them.1256 
Specifically, the Dominican  Republic argued that properly enforced tax stamps were required to 
mark, monitor, and collect data regarding cross -border trade in cigarettes in accordance with the 
FCTC.1257 That panel took this and other information before it into account in finding that it did not 
disagree with the Dominican  Republic's argument that " tax stamps may be a useful instrument to 
monitor tax collection on cigarettes and, conversely, to avoid tax ev asion".1258 
7.414.   The FCTC and certain FCTC  Guidelines were also referenced and discussed in detail  in US –
 Clove Cigarettes  in the context of claims under the TBT  Agreement .1259 In that dispute,  the panel, 
referring to certain FCTC  Guidelines as "WHO Partial Guidelin es"1260, considered the FCTC as part 
of the "broader factual context" of the US measure at issue1261 and observed that it was " aware of 
the important international efforts to curb smoking within the context of the WHO FCTC  and its 
WHO Partial Guidelines ."1262 It further relied on certain FCTC  Guidelines1263 to corroborate its 
conclusion that " in the mind of youth, flavoured cigarettes, including those flavoured with clove or 
menthol, are similar ".1264 The panel, having noted that "[b]oth parties seem to agree that t he 
WHO Partial Guidelines  are potentially  relevant to the dispute",  agreed  with the United  States  that 
                                                
1255 For instance, in US – Shrimp , the Appellate Body relied on several international conventions and 
international instruments (including inter alia  the United Nations Convention on  the Law of the Sea  – UNCLOS, 
and Convention on Biological Diversity  – CBD and the Convention on International Trade in Endangered 
Species of  Wild Fauna and Flora – CITES ) to support its conclusion that the meaning of the term "exhaustible 
natural resources" in Article  XX(g) of the GATT 1994 was not limited to just "non -living" resources (e.g. 
minerals). See Appellate Body Report, US – Shrimp , para s. 130 -132. 
1256 As explained  above, the FCTC was adopted in 2003, but only entered into force in 2005.  See 
para. 2.96 above.  Honduras sign ed the FCTC  on 18 June 20 04, shortly  before the secon d substantive meetin g 
of that panel with the parties. See Panel  Report, Dominican  Republic  – Import and Sale of Cigarettes , 
paras.  1.6 and 4.370 .  
1257 See Panel Report, Dominican  Republic  – Import and Sale of Cigarettes , para.  7.216 . 
1258 See Panel  Report, Dominican  Republic  – Import and Sale of Cigarettes , paras.  1.6 and 4.370 . 
Ultimately, however, the p anel concluded that the GATT -inconsistencies of the cigarette " tax stamp " 
requirements could not be justified because they were not necessary " [s]ince the Dominican  Republic  has not 
proved why other, reasonably available, less -GATT inconsistent, measures would not be able to achieve that 
same level of enforcement that it has chosen to attain". Ibid.  para. 7.230 . This finding was late r upheld by the 
Appellate  Body. See Appellate  Body Report, Dominican  Republic  – Import and Sale of Cigarettes , para.  128(a) . 
As explained above, the FCTC was adopted in 2003, but only entered into force in 2005.  See para. 2.96 above.  
1259 We note that neither of the parties  to the dispute i n US – Clove Cigarettes  were parties to the FCTC.  
Australia also refers to the panel's use of certain FCTC instruments as evidence o f fact in US – Clove Cigarettes  
as a precedent lending support for its view that FCTC instruments can be used in a similar way with respect to 
the claims at issue in these proceedings. See, e.g. Australia's response to P anel question No. 206, 
paras. 409-410; and Australia's  comments on complainants' responses to Panel question No. 206, para.  406. 
See also Brazil's third -party submission, para s. 15-16. 
1260 Partial Guidelines for implementation of Articles 9 and 10 of the Convention , adopted  at the fourth 
FCTC COP held in Punta del Este from 15  to 20 November  2010. Panel Report, US – Clove Cigarettes , para. 
2.30. 
1261 Panel Report, US – Clove Cigarettes , para.  2.2. We also note that that panel relied on the definition 
of "tobacco control " in Article  1(d) of the FCT C as meaning "a range of supply, demand and harm reduction 
strategies that aim to improve the health of a population by eliminating or reducing their consumption of 
tobacco products and exposure to tobacco smoke". Panel Report, US – Clove Cigarettes , para. 2.1 fn 3 . 
1262 Panel Report, US – Clove Cigarettes , para.  7.4. The FCTC and certain FCTC  Guidelines  were also 
described in the "factual context" section o f the panel report.  On appeal, although the Appellate  Body did not 
make express reference to the FCTC, i t "recognize [d] the importance of Members'  efforts in the World Health 
Organization on tobacco control." A ppellate  Body Report, US – Clove Cigarettes , para.  235.  
1263 See Panel Report, US – Clove Cigarettes , paras.  7.229 -7.231.  
1264 Panel Report, US – Clove Cigarettes , para.  7.232.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  they "do not necessarily apply directly to the particular regulatory needs of a particular 
country ".1265 However, the  panel also found that the  FCTC Guideli nes at issue:  
"[D]rawing on the best available scientific evidence  and the experience of Parties ", do 
show a  growing consensus within the international community  to strengthen tobacco -
control policies through regulat ion of the content of tobacco products,  including  
additives that increase  the attractiveness and palatability  of cigarettes. Thus , we 
consider that  the WHO Partial Guidelines  corroborate our understanding .1266 
7.415.   That panel further  relied on certain FCTC Guidelines  in its analysis under Article  2.2 of the 
TBT Agreement1267 as evidence  "reinforc[ing]  its understanding"1268 that "there is extensive 
scientific evidence supporting the conclusion that banning clove and other flavoured cigarettes 
could contr ibute to reducing youth smoking "1269, notwithstanding the fact that the measure 
recommended was not expressly identified in the FCTC itself .1270 We also note that the panel relied 
on particular  FCTC Guidelines  as factual evidence supporting certain findings under both 
Articles  2.1 and 2.2 of the TBT  Agreement, despi te the fact that it and the parties had agreed that, 
for the purpose of that dispute, no "relevant international standard" existed under either 
Article  2.4 or the second sentence of Article  2.5 of the TBT Agreement .1271 
7.416.   In the present proceedings, the FCTC an d its Guidelines have been referred to as evidence 
in support of specific arguments not only by Australia, but also by certain  complainants.1272 We see 
no basis t o dismiss  ex ante the relevance of these  instruments , based solely on the fact that they 
do not constitute an "international standard" for the purposes of the second sentence of Article  2.5 
of the TBT Agreement . In particular, we see no reason to assume that the FCTC , which has been 
                                                
1265 Panel Report, US – Clove Cigarettes , para.  7.230.  
1266 Panel Report, US – Clove Cigarettes , para.  7.230.  
1267 The p anel's findings with respect to Article  2.2 of the TBT  Agreement were not appeal ed. See 
Appellate  Body Report, US – Clove Cigarettes , para.  9. 
1268 Panel Report, US – Clove Cigarettes , para.  7.414. The Panel also relied on a 2007 WHO Report 
entitled " The Scientific Basis of Tobacco Product Regulation ". This report was produced by a study group, 
established pursuant to the FCTC , comprised of eleven experts in the field, supported by a  secretariat. See 
ibid. para.  7.413 . 
1269 Panel Report, US – Clove Cigarettes , para.  7.415. We also note that, in that dispute, Indonesia also 
referred to various measures set out in the FCTC "aimed at  preventing cigarettes sales to minors" in its list of 
available less trade -restrictive alternatives to the US ban on clove cigarettes . Ibid. para.  7.317. The United 
States  responded saying  that "mere[ly] listing of a number of different restrictions drawn from … the FCTC 
does not satisfy Indonesia's burden of proving that there is a less trade -restrictive measure that would achieve 
the U.S. objective at the level of protection that the U nited States finds appropriate". Ibid.  para. 7.324. The 
Panel agreed with the United  States  in this respect . Ibid. paras.  7.420 -7.423 . 
1270 "Finally, while a ban on flavoured -cigarettes is not one of the various measures set out in the 
[FCTC]  itself, we recall that p rohibiting the sale of flavoured cigarettes is actually one of the measures that has 
now been recommended in the WHO Partial Guidelines ". Panel Report, US – Clove Cigarettes , para.  7.427.  
1271 As we previously noted in footnote 929 above, in  US – Clove  Cigarettes , the panel did not begin its 
assess ment of  the claim under Article  2.2 "from any rebuttable presumption that the ban on clove  cigarettes is 
not an unnecessar y obstacle to trade" , in recognition of the parties' agreement that no "relevant international 
standard" within the meaning of the second  sentence of Article  2.5 existed.  Panel Report, US –
 Clove  Cigarettes , para.  7.331 (cited in Honduras's comments on Aus tralia's response to Panel question 
No. 147, para.  40; and in Cuba's second written submission, paras.  179-180 and 188).  See also ibid. 
para. 7.458 and fn 831 (where the panel concludes that, "[g] iven the facts of the present dispute and the 
absence of any  'relevant international standards', [Article  2.4 of the TBT Agreement] would not appear to be of 
any relevance").  
1272 For example, Honduras and Cuba cite Article 11 of the FCTC in the course of their arguments 
regarding "wear -out" effects of GHWs. Honduras' s response to Panel question No.  126, p. 38 and fn 148; 
Honduras's second written submission, para. 51 and fn 50; and Cuba's second written submission, para. 155 
and fn 56. The Dominican Republic also references Article 11 of the FCTC to support an asserti on that GHWs 
are intended to ensure that people do not misunderstand the health risks of smoking. Dominican Republic's 
comments on Australia's response to Panel question No.  148, para. 87 and fn 105. The Dominican Republic 
also relies upon the FCTC Article  11 Guidelines when discussing the relative importance of the front and back 
faces of a pack as compared to the sides and the relationship between the size of health warnings and their 
effectiveness. Dominican Republic's comments on Australia's response to  Panel question No.  204, para. 891 
and fn 958, and para. 897 and fn 973.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  adopted by 180 countries1273, and related instruments adopted under its auspices  could not 
inform , together with other relevant evidence before us, our understanding of relevant aspects of 
the matters with which they are  concerned,  namely  "tobacco control measures  … to reduce … the 
prevalence of tobacco use".1274 Our determination above in respect of the second sentence of 
Article  2.5 is, therefore, without prejudice to the relevance and probative value to be given to the 
FCTC and related instruments in the context of other aspects of our  analysis of the claims before 
us.1275  
7.417.   Finally, we wish to stress that any assessment and observations we make under this, or 
any other section of th ese Report s, with respect to the FCTC, its Guidelines , or any other 
FCTC instrument, is for the sole purpose of resolving the specific  legal and factual questions that 
stand before us in these proceedings, in relation to the claims before us under the relevant 
WTO covered agreements and pursuant to our limited mandate under the DSU.  
7.418.   Having determined that the TPP measures  do not benefit from a rebuttable presumption 
under the second sentence of Article  2.5 that they are not more trade -restrictive than necessary, 
we pursue our analysis under Article  2.2, in accordance with the approach outlined at section 7.2.2 
above .  
7.419.   Having determined that the objective pursued by the TPP measures  is to improve public 
health by reducing the use of, and exposure t o, tobacco products and that this is a legitimate 
objective within the meaning of Article  2.2 of the TBT Agreement , we must now conduct a 
relational analysis of different factors, including the degree to which the TPP measures  contribute 
to this objective,  the extent to which they are trade -restrictive, and the nature of the risks of 
non-fulfilment of the objective pursued and the gravity of the consequences that would arise from 
such non -fulfilment.  
7.420.   We note that no particular order is  a priori required in  all cases in considering the three 
aforementioned factors of the "relational analysis". However, in the circumstances of this case, we 
find it appropriate to consider first the degree of contribution of the TPP measures  to their 
objective, to the extent t hat there may be a correlation between the extent to which the measures 
contribute to this objective and their trade -restrictiveness. In this respect, without prejudice to our 
later analysis of this question, we note Australia's observation that  the TPP measures  will result in 
a limiting effect on overall trade in tobacco products because "(i) the measure will reduce the use 
of tobacco products (by discouraging uptake and relapse and encouraging quitting); and (ii) since 
imports will soon represent the enti rety of Australia's tobacco product market, with domestic 
production being phased out, a reduction in the use of tobacco products will necessarily limit 
overall trade in tobacco products".1276 
7.421.   In light of the potential relationship, as identified by Australia  itself, between the 
contribution of the measures to their objective and their effect on trade, we will consider first the 
contribution of the measures to their objective, and then their trade -restrictiveness. We will also 
identify the nature and gravity o f the risks of non -fulfilment of the objective pursued by Australia 
through these measures.  
7.422.   These various factors will inform our further assessment, as relevant, of whether the 
complainants have shown that there are less trade -restrictive alternative meas ures reasonably 
available to Australia, that would achieve an equivalent contribution to its objective, such that the 
TPP measures  would be more trade -restrictive than necessary within the meaning of Article  2.2.  
                                                
1273 WHO/FCTC Request for Permission to Submit Information , (Exhibit AUS -42 (revised)), para. 7; and 
WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 12.  See also paras. 2.97 and 7.250  and fn  908 
above .  
1274 FCTC, (Exhibits AUS -44, JE -19), Article 3, entitled "Objectives". We also note that some of the  
complainants argue that th e FCTC and its Guidelines are not relevant beyond their use for the purpose of the 
second sentence of Article  2.5 of the TBT  Agreement , inter alia because they are not pertinent for the purpose 
of clarifying , in accordance with customary rules of interpretat ion of public international law,  relevant  
provisions of the covered Agreements that are the object of the claims before us. We note however that 
neither the  FCTC nor its Guidelines  have been argued, in these proceedings, to inform  the interpretation of a 
specific provision of the covered  agreements before us.  
1275 See also footnote 894 above . 
1276 Australia's response to Panel question No. 119.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.3   The degree of contribution of the TPP meas ures to their objective  
7.423.   Having determined that the objective pursued by the TPP measures  is to improve public 
health by reducing the use of, and exposure to, tobacco products and that this is a legitimate 
objective within the meaning of Article  2.2 of the TBT Agreement , we now consider the extent to 
which the TPP measures  contribute to this objective. This contribution "must be determined 
objectively, and then evaluated along with the other factors mentioned in Article  2.2".1277 
Specifically, "a panel must see k to ascertain to what degree, or if at all, the challenged technical 
regulation, as written and applied, actually contributes to the legitimate objective pursued by the 
Member".1278  
7.424.   We therefore seek to determine, in this section, the degree to which the TPP measures , as 
written and applied, contribute , if at all,  to Australia's legitimate objective of improving public 
health by reducing the use of, and exposure to, tobacco products.  
7.425.   The parties have presented extensive arguments and evidence in support of their 
respective positions on the existence and degree of the TPP measures ' contribution to their 
objective. They also have different views on the approach that should be taken to this assessment. 
We therefore consider first our overall approach to the con duct of this assessment.  
7.2.5.3.1   Overview of the parties' arguments  
7.426.   Honduras  argues that the TPP measures  make no contribution to Australia 's objective, nor 
are they apt to do so. Honduras argues that the evidence relied on by Australia, both at the time 
of adoption of the measures and therefafter, was neither relevant nor probative.1279 It argues that 
the studies upon which Australia relied on are seriously flawed, to the extent that no government 
should regard them as serious science.1280 Honduras states that it and other complainants have 
provided robust evidence through market and sales data that confirm the lack of contribution of 
the TPP measures since their adoption.1281  
7.427.   Honduras states that market data shows that the TPP measures  have not reduce d smoking 
prevalence or tobacco  consumption . It further argues that principles of social science confirm that 
the measures not only cannot reduce smoking prevalence but wi ll actually result in consumption 
increase , and that economic theory indicates that by  imposing a uniform appearance on all tobacco 
products, plain packaging reduces consumer loyalty to brands, thus increasing price competition, 
the intevitable consequence of which is increase in demand .1282  
7.428.   Honduras further argues that medical science also d emonstrates that the TPP measures  
will not contribute to a reduction in prevalence. Smoking prevalence is determined by assessing 
different types of behaviour: namely, whether people take up smoking ( initiation ), whether they 
stop smoking ( cessation) and w hether they resume smoking after a period of abstinence 
(relapse) .1283 Smoking is a complex, multifaceted activity, with well -documented drivers that are 
not related at all to the packaging of the product.1284 Honduras further  contends that cessation and 
relapse  have well -documented drivers which are more complex than the mere appearance of 
tobacco products or attractive packaging.1285 Plain packaging fails to address the idiosyncratic 
factors that influence adolescents' decision -making, and, therefore, cannot disco urage adolescents 
from taking up smoking. Changing the packaging in which cigarettes are supplied is not likely to 
overpower the basic motives of an adolescent to smoke , which comes from the act of smoking 
                                                
1277 Appellate Body Reports, US – COOL , para. 461. 
1278 Appellate Body Reports, US – COOL , para. 461. (footnote omitted)  
1279 Honduras's second written submission, para. 33.  
1280 Honduras's first written submission, para. 888.  
1281 Honduras's second written submission, para. 36.  
1282 Honduras's first written submission, paras. 345-398 and 888 ( referring to  IPE Report , (Exhibit 
DOM-100); Klick Report , (Exhibit UKR -5); Gibson Report , (Exhibit DOM -92); and anecdotal state and 
federal -level data from Australia); Honduras's second written submission, paras.  58-61 and 100 -121; a nd 
Honduras's response to Panel question No. 199. 
1283 Honduras's first written submission, para. 403. 
1284 Honduras's first written submission, paras.  442 and 888; and Honduras's second written 
submission, para. 211 ( referring to  Fischer Report , (Exhibit DOM/HND -7)). 
1285 Honduras's first written submission, para. 442.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  itself, not from the tobacco package.1286 In addition , it is possible that the aura of mystery, risk, or 
transgression created by the TPP measures may lure teens into smoking activities.1287 
7.429.   Honduras further elaborates that Australia inappropriately relies upon behavioural theories 
to argue that the TPP measure s will contribute to their objective via a causal chain whereby plain 
packaging impacts three mechanisms which in turn are supposed to impact smoking behaviour. 
Even if the TPP measures  were to lower the appeal and increase the perceived risks of tobacco 
products, it may very well not affect ultimate smoking behaviour. Theories cannot demonstrate or 
prove a link between non -behavioural constructs, e.g. "surrogate" variables, such as attitudes, 
opinions, stated intentions, or perceptions of a cigarette pack,  and whether study participants 
would stop smoking or smoke less if only plain packs were available.1288  
7.430.   Honduras argues that Australia's comparison between tobacco packaging and advertising is 
inapplicable in the dark market of Australia and where there is a dominant GHW  on packaging . 
Packaging does not constitute promotion or advertising according to basic principles of marketing 
science. Even if it were, it is difficult to conceive that a person would take the important decision 
to become a smoker simply b ecause he or she was attracted to the package. At most, packaging 
could convince a person, who is already a smoker, to switch to another brand of tobacco products. 
Second, economic theory indicates that by imposing a uniform appearance on all tobacco produ cts, 
the TPP measures  create a market where producers must compete on the basis of price, resulting 
in lower prices and increased demand and prevalence.1289  
7.431.   Under WTO law, domestic regulation must be objectively justifiable and, where relevant, 
based upon objective and scientific evidence.1290 In Honduras's view, the studies that Australia has 
referred to before and after the implementation of the TPP measures  to justify its belief that they 
will contribute to a reduction in smoking lack scientific rigour and are vitiated by many flaws that 
cast doubt on the scientific objectivity of the research and the authors.1291 Australia's studies were 
based on unreliable, self -reported statements about possible behavioural intentions on the basis of 
which the study authors drew unwarranted conclusions.1292 No government should regard the 
studies upon which Australia relied as sound science.1293 
7.432.   Honduras argues that it would be reasonable to expect, and indeed the 
pre-implementation evidence predicted, that an intervention such as plain packaging would reveal 
its impact within the first two years of its implementation.1294 Australia's argument that the 
TPP measures  are expected to produce results over time and in combination with other measures 
is, Honduras argues,  self-serving and not  supported by qualitative or quantitative evidence that 
the measures are "apt" to make a material contribution, as required.1295 The nature, architecture 
and design of the measures are not apt to contribute to changing smoking behaviour in the short 
or long t erm, because they do not deal with the drivers of smoking.1296 Further, it is well -known 
                                                
1286 Honduras's first written submission, paras.  404-425 ( referring to  Steinberg Report , (Exhibit 
DOM/HND -6)); Honduras's second written submission, paras.  210-213 ( referring to  Steinberg Rebuttal Report, 
(Exhibit DOM/HND -10), among others) . 
1287 Honduras's first written submission, para. 441 (referring to  Satel Report,  (Exhibit UKR -7); Steinberg 
Report, (Exhibit DOM/HND -6); and Honduras's second written submission, paras.  210-213). 
1288 Honduras's first written submission, paras.  462-463, 484, and 494 (referring to Kleijnen Systematic 
Review , (Exhibit DOM/HND -4) and Peer Review Report , (Exhibit DOM/HND -3)); Honduras's second written 
submission, paras.  142-156 ( referring to  Ajzen Report , (Exhibit DOM/HND/IDN -3) and Ajzen Supplemental 
Report , (Exhibit DOM/HND/IDN -4); and Honduras's response to Panel question No. 202. 
1289 Honduras's first written submission, paras.  443-454 and 888 ( referring to  Steenkamp Report , 
(Exhibit DOM/HND -5); and Winer Report , (Exhibit UKR -9)); and Honduras's second written submission, 
paras.  36 and 201 -209 (referring to Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), among others).  
1290 Honduras's first written submission, para. 459 ( referring to  Appellate Body Report, US – Continued 
Suspension , para. 591).  
1291 Honduras's first written submission, paras.  455 and 457.  
1292 Honduras's second written submission, para. 33. 
1293 Honduras's first written submission, para. 888. 
1294 Honduras's first written submission, paras.  343-344 ( referring to  Pechey et al. 2013, (Exhibit 
JE-24(51)). See also Honduras's comments on Australia's response to Panel question No. 160. 
1295 Honduras's second written submission, paras.  40 and 43 -44 (referring to  Appellate Body Report, 
Brazil  – Retreaded Tyres ). See also Honduras's response to Panel question No. 126. 
1296 Honduras's closing statement at the first meeting of the Panel, para. 16; and Honduras's second 
written submission, para. 53. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  that a non -price based tobacco control measure has the strongest effect in the short run and is 
subject to  "wear-out", an effect which researchers have already observed i n Australia.1297  
7.433.   Honduras argues that empirical evidence of the actual effect of a measure on behaviour is 
the best evidence against which to test whether the architecture, structure and design of the 
measure is apt to contribute to the objective. Reliable a nd probative empirical evidence of the lack 
of actual impact of the measure more than two and a half years after its introduction is available 
and must be given primacy in the analysis.1298 It is not valid for Australia to focus only on theories 
when there ar e sufficient facts to assess the impact of the measures.1299 
7.434.   The Dominican Republic  states that Australia has offered a conceptual framework whereby 
the measures contribute to their objective at some unspecified time in the future via a chain of 
effects whereby the measures will work through three mechanisms (appeal, GHW effectiveness, 
deception); then, changes in those three mechanisms will, in turn, adversely affect beliefs, 
attitudes, and intentions (including perceptions and knowledge of smoking harm, enjoyment of 
smoking, and intentions to smoke); and, these changes will, ultimately,  act as antecedents to 
behaviour, and reduce smoking. Australia and its experts posit that changes in smoking behaviour 
will follow inevitably from a change in beliefs, attitudes, and/or intentions. This assumption, the 
Dominican Republic argues, rests on fundamental misconceptions regarding behavioural 
theories.1300 
7.435.   Further, the research relied upon by Australia to support its hypothesis suffers from many 
serious methodological flaws rendering it neither reliable nor probative. Applying standards of 
methodolo gical rigour that apply in social science research into consumer behaviour to the body of 
literature investigating the predicted behavioural effects of plain packaging reveals fatal flaws. 
These flaws include, in the Dominican Republic's view, (a) measurin g remote outcomes, such as 
visual appeal, beliefs, and attitudes and intentions towards smoking, rather than actual smoking 
behaviour; (b) employing non -experimental study designs that do not permit any conclusions to 
be reached regarding the effect of pla in packaging on the outcome measured; and (c) other 
methodological failings that permit the study results to be influenced by factors other than the 
plain packaging intervention.1301 Further, the process by which the research in support of plain 
packaging dev eloped  raises serious questions about its objectivity and reliability.1302 
7.436.   The Dominican Republic also rejects Australia's analogy between tobacco packaging and 
advertising, whereby (1) advertising causes people to smoke; (2) packaging is a form of 
advertisin g; and (3) removing branding from packaging is " capable of affecting" smoking 
behaviour. The Dominican Republic challenges the comparison between the small amount of space 
on the package not covered by the GHW and traditional advertising, and asserts that even before 
the TPP measures  were introduced, Australia 's packaging had negative  appeal, in contrast with 
traditional advertising, which communicates strongly positive messages. The demand effects of 
plain packaging, according to Australia's own expert, ca nnot be discerned by analogy with the 
demand effects of traditional advertising.1303 
7.437.   The Dominican Republic also contends that well -accepted axioms of social and medical 
science confirm that the TPP measures  will not be effective in achieving Australia 's stat ed goals. 
Branded packaging serves product identification and differentiation purposes. It does not change 
                                                
1297 Honduras's second written submission, paras.  28, 51 and 126 ( referring to Zacher et al. 2015, 
(Exhibits AUS -223 (revised), DOM -287)). See also Honduras's response to Panel question No. 126, section a.  
1298 Honduras's second written submission, paras.  38 and 50. See also Honduras's response to Panel 
question No. 71; and Honduras' s comment s on Australia's response to Panel question No. 160. 
1299 Honduras's second written submission, para. 145.  
1300 Dominican  Republic 's second written submission, paras.  13-14 (referring to Ajzen Report , (Exhibit 
DOM/HND/IDN -3)). See also Dominican  Republic 's closing statement at the second meeting of the Panel, 
para. 12; and Dominican  Republic 's response to Panel question No. 2, section A.  
1301 Dominican  Republic 's first written submission, paras.  56-65 (referring to the Kleijnen Systematic 
Review , (Exhibit DOM/HND -4); and Peer Review Report , (Exhibit DOM/HND -3)). 
1302 Dominican  Republic 's first written submission, paras.  68-80. 
1303 Dominican  Republic 's opening statement at the second meeting of the Panel, paras.  43-50 (referring 
to Dubé Report , (Exhibit AUS -11)); and Dominican  Republic 's response to Panel question No. 102, 
paras.  92-99. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the overall size of the market for the product.1304 Plain packaging will also not reduce smoking 
initiation, because adolescents have a propensity for r isk-taking behaviour and are attracted to 
smoking by the social rewards of engaging in the behaviour itself, not because of any consumer 
packaging.1305 Similarly, plain packaging will not increase smoking cessation or discourage relapse, 
because those behavio urs are not driven by packaging.1306 
7.438.   The Dominican Republic observes that the relative weight ascribed by a panel to evidence 
regarding a measure's structure and design, on one hand, and its expected or actual operation, or 
application, on the other, is neces sarily case -specific and influenced by variables including the 
evidence available, the relevance of the evidence, and the nature of the claims and arguments of 
the parties.1307 Evidence of actual operation may reveal that a measure's design and structure are 
misconceived, or are not operating as expected, and are thus not probative of whether the 
measure contributes to its objective. The Dominican Republic argues that, at this stage, evidence 
of actual operation is far more valuable than mere expectations.1308 Real-word empirical data, 
which is not opinion -based or predictive, permits an objective assessment of the actual 
behavioural effects of changing the appearance of tobacco products and their packaging, and is the 
most reliable and credible evidence available  to the Panel to assess the contribution these 
measures make to achieving their objective.1309 With close to three years' worth of data available 
at the time of its submission, the Dominican Republic argues that there is no evidence that the 
TPP measures  are having statistically significant effects on prevalence or consumption.1310 A 
survey conducted by Australia designed to evaluate the actual operation of the TPP measures  after 
implementation also reveals that, "aside from certain obvious changes in pack appeal  and the 
noticeability of health warnings that more -than-doubled in size", there is a consistent lack of 
evidence of changes in the so -called antecedents to smoking behaviour. Further, the "rather 
limited impact of the policies that we have seen to date will tend to weaken over time". Thus, the 
TPP measures  have changed neither the antecedents of smoking behaviour nor smoking behaviour 
itself.1311 In the Dominican Republic's view, the reali ty of the actual operation is that the 
TPP measures  "have not lived up to the expectations of either tobacco control researchers or the 
Australian government".1312  
7.439.   The TPP measures  cannot, the Dominican Republic argues, continue to be justified by 
short-term research -based predictions that have failed to materialize over an extended period.1313 
Australia's assertion that the impact of tobacco plain packaging on smoking rates will be most 
pronounced in the long term must be supported by robust evidence, and canno t be a matter of 
speculation. To ensure that WTO Members cannot circumvent scrutiny of their restrictive measures 
by simply asserting long -term effects, beyond the timeline of the panel proceedings, the Appellate 
Body in Brazil  – Retreaded Tyres explained that claims of future effects must be clearly defined 
and rigorously tested. The pathway must be established by " quantitative projections in the future, 
or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient 
evide nce". Australia has failed to adduce either. Rather, the evidence on which Australia relies 
                                                
1304 Dominican  Republic 's first written submission, paras.  81-82 (referring to Steenkamp Report , (Exhibit 
DOM/HND -5). 
1305 Dominican  Republic 's first written submission, para. 83 (referring to Steinberg Report , (Exhibit 
DOM/HND -6); and Dominican  Republic 's response to Panel question No. 102, paras.  87-88. 
1306 Dominican  Republic 's first written submission, para. 84 (referring to Fischer Report , (Exhibit 
DOM/HND -7)). 
1307 Dominic an Republic 's response to Panel question No. 71. 
1308 Dominican  Republic 's response to Panel question No. 2, para. 21; Dominican  Republic 's first written 
submission, paras.  555-556; and Dominican  Republic 's second written submission, paras.  310-312. 
1309 Dominic an Republic 's first written submission, paras.  47-55, 430, and 555 -558 (referring to IPE 
Report , (Exhibit DOM -100); and Klick Report , (Exhibit UKR -5)). See also Dominican  Republic 's comments on 
Australia's response to Panel question No. 206, para. 313. 
1310 Dominican  Republic 's second written submission, paras.  11-12 (referring to IPE Updated Report , 
(Exhibit DOM -303); and List Report (DOM/IDN -1)); and Dominican  Republic 's response to Panel question 
No. 199 ( referring to IPE Third Updated Report , (Exhibit DOM -375)).  
1311 Dominican  Republic 's second written submission, paras.  16-25 (quoting Ajzen et al. Data Report , 
(Exhibit DOM/IDN -2)); and Dominican  Republic 's response to Panel question No. 146, para. 6. 
1312 Dominican  Republic 's response to Panel question No. 71, paras.  345 and 348.  
1313 Dominican  Republic 's opening statement at the second meeting of the Panel, para. 55. See also 
Dominican  Republic 's response to Panel question No. 126, para. 279. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  predicted that the effect of plain packaging would have materialized by now, and that its effect will 
only weaken over time.1314 
7.440.   Cuba argues that post -implementation d ata on consumption and prevalence demonstrates 
that the TPP measures  have not contributed to reduced tobacco use in Australia. The 
complementary analysis of the data conducted by a number of independent experts fail to find 
evidence of an impact on prevale nce or consumption either within Australia's overall population or 
within the relevant sub -groups with which health experts are most concerned.1315 Nor do 
Australia's own post -implementation surveys show that the TPP measures  have impacted the 
mechanisms that  Australia considers will lead to a change in smoking behaviour.1316 Ultimately, 
there is no better test of the effectiveness of a policy than its implementation in the real world. 
The post -implementation data on prevalence and consumption must be taken as de cisive evidence 
of whether the TPP measures  can actually achieve their intended aim. Abstract hypotheses and 
speculative conclusions will not be adequate in the presence of credible evidence of the measures' 
actual effects.1317 Given the absence of even any s hort-term "shock" effect, and the widely 
accepted fact that health communications are subject to "wear out", any longer term effects on 
smoking behaviour are unrealistic.1318 
7.441.   Cuba also argues that Australia's rationale for adopting the TPP measures  was flawed, thus 
revealing why the measures have been ineffective. The studies that Australia relies upon do not 
provide a sound basis for concluding that the TPP measures  will reduce tobacco use. None of the 
studies measure actual tobacco consumption. Th ey utilise research designs which leave 
considerable doubts about the relia bility of any conclusions rea ched, and were implemented in a 
manner that gives rise to further methodological concerns.1319 Further, research regarding the key 
determinants of initiati on, cessation and relapse indicates that tobacco packaging is not a material 
factor.1320 
7.442.   Cuba argues that Australia's argument that the TPP measures  will "reduce the appeal of 
tobacco products to consumers" is flawed. First, studies do not establish that bran ded packaging is 
appealing in the Australian regulatory context, which includes a dominant 75% GHW on the front 
of the pack. Second, the effects of branding on the residual portion of the pack cannot be equated 
to advertising. Third, Australia fails to dem onstrate a link between the concept of appeal and 
tobacco consumption.1321 Australia's attempt to hide behind convoluted behavioural theories to 
establish a relationship between smokers' intentions and attitudes and their behaviour is 
unconvincing.1322  
7.443.   Cuba sub mits that Australia's claim that the TPP measures  will "increase the effectiveness 
of health warnings", thereby reducing smoking rates, is also flawed. Specifically, "[i]t is 
implausible to suggest that consumers … who … fail to notice [a GHW covering 75% of the front 
                                                
1314 Dominican  Republic 's response to Panel question No. 126, paras.  273-299; and 
Dominican  Republic 's second written submission, paras.  363-368. (emphasis original)  
1315 Cuba's first written submission, paras.  95-144; and Cuba's second written submission, 
paras.  112-115 and 266 -284 ( referring to  IPE Report , (Exhibit DOM -100); Klick Report  (Exhibit UKR -5); Klick 
Rebuttal Report, (Exhibit  HND-118); and Gibson Report , (Exhibit DOM -92), among others). See also Cuba's 
response to Panel question No. 199 (referring to Klick Supplemental Rebuttal Report , (Exhibit HND -122), 
among others).  
1316 Cuba's second written submission, paras.  316-335. 
1317 Cuba's second written submission, para. 40 (referring to  Appellate Body Report, US – Tuna II (Mexico) , 
para. 317). See also Cuba's response to Panel question No. 2 (annexed to its response to Panel question 
No. 138); and Cuba's comments on Australia's response to Panel question No. 160. 
1318 Cuba's second written submission, paras.  154-155 and 265. See also Cuba's response to Panel 
question No. 203 (referring to Ajzen r esponse to Panel q uestion Nos. 146, 202, and 203, (Exhibit 
DOM/HND/IDN -6)). 
1319 Cuba's first written submission, paras.  169-184 (referring to Kleijnen Systematic Review , (Exhibit 
DOM/HND -4); Klick TPP Literature  Report (Exhibit UKR -6); Peer Review Report  (Exhibit DOM/HND -3); and 
Viscusi Report  (Exhibit UKR -8), among others).  
1320 Cuba's first written submission, paras.  208-216; Cuba's second written submission, paras.  291-300 
(referring to McKeganey Report , (Exhibits DOM -105, CUB -72); Viscusi Report  (Exhibit UKR -8); Steinberg 
Report  (Exhibit DOM/HND -6); and Satel Report  (Exhibit UKR -7)). 
1321 Cuba's first written submission, paras.  201-207. 
1322 Cuba's second written submission, paras.  287-289. See also Cuba's response to Panel question 
No. 202 (referring to Ajzen resp onse to Panel q uestion Nos. 146, 202, and 203, (Exhibit DOM/HND/IDN -6)). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  face of the pack] will have their capricious attention appropriately re -directed because of plain 
packaging". Findings from studies on this subject "provide no basis for concluding that plain packs 
make warnings more effective". Even if they w ere, it can have little effect on smoking behaviour, 
given that the overwhelming majority of the population is already aware of the relevant risks.1323  
7.444.   Cuba, referring to Australia argument that packaging is a kind of advertising that can 
influence consumer responses, including purchasing and consumption behaviour, argues that 
Australia's own expert recognizes, however,  that evidence on the effects of advertising is not 
relevant for tobacco plain packaging. Tobacco packaging does not serve as advertising in 
Australia's dark and mature market for tobacco, where GHWs dominate the pack.1324 Further, the 
TPP measures  may have adverse effects on public health, by causing prices to decline and 
consumption and prevalence to increase. The TPP measures  may also increase t he appeal of 
smoking to rebellious teens.1325 
7.445.   Cuba endorses in general the arguments advanced by the other complainants with respect 
to the validity of the evidence presented in their first written submissions as well as the evidence 
put forward in their seco nd written submissions to demonstrate that the TPP measures  do not 
make a contribution to Australia's objective and that they have been ineffective.1326 
7.446.   Indonesia  notes that the Appellate Body has counselled that the contribution of a measure 
to its objective  can be demonstrated quantitatively or qualitatively, and can involve (i) the 
assessment of evidence or data, pertaining to the past or the present; as well as (ii) quantitative 
projections in the future, or qualitative reasoning based on a set of hypothes es that are tested and 
supported by sufficient evidence.1327 
7.447.   Indonesia claims that studies conducted by multiple researchers using different analytical 
approaches have failed to find any empirical evidence that the TPP measures  have reduced 
prevalence after i mplementation. Further, state -level evidence shows that in some parts of 
Australia prevalence has increased.1328 In instances, such as these proceedings, where there is 
actual evidence demonstrating the contribution (or in this case, absence of a contribution ) from a 
challenged measure, the Panel should give more weight to this evidence than to "the design, 
structure, and operation of the technical regulation".1329 
7.448.   Indonesia challenges Australia's assertion that the TPP measures  will contribute to 
decreasing smok ing initiation and increasing smoking cessation.1330 Australia failed to provide a 
sound empirical basis for the hypothesis that the TPP measures  will change the smoking 
behaviours targeted by them. Instead, it assumed that behavioural theory "proved" that at titudes 
toward the appeal of tobacco products and health risks affect actual smoking behaviour, which 
resulted in a number of flaws in the subsequent research.1331 The studies relied upon by Australia 
fail to reflect the reality of the marketplace, in which o nly plain packs, dominated by unappealing 
                                                
1323 Cuba's first written submission, paras.  222-227 (referring to Viscusi Report , (Exhibit UKR -8), among 
others).  
1324 Cuba's second written submission, paras.  301-309 (referring to Dubé R eport,  (Exhibit AUS -11); 
Winer Report  (Exhibit UKR -9); and Neven Report  (Exhibit UKR -3) (SCI), among others).  
1325 Cuba's first written submission, paras.  231-238 (referring to IPE Report , (Exhibit DOM -100); and 
Satel Report  (Exhibit UKR -7), among others).  
1326 Cuba's second written submission, para. 119. 
1327 Indonesia's second written submission, para. 171 ( referring to  Honduras's first written submission, 
para. 299, which cites Appellate Body Report, Brazil  – Retreaded Tyres , para . 150; Panel Report, China  – Raw 
Materials , paras.  7.480 -7.481, 7.484 -7.486; and Panel Report, China  – Rare Earths , para. 7.146).  
1328 Indonesia's first written submission, paras.  23, 114 -117, 320 -334, 341 -352, and 412 (referring to 
IPE Report , (Exhibit DOM -100); and Klick Report  (Exhibit UK R-5), among others). See also Indonesia's second 
written submission, paras.  192-193. Indonesia incorporates by reference the Dominican  Republic 's analysis of 
the post -implementation data in its second written submission. Ibid. para. 193. 
1329 Indonesia's resp onse to Panel question No. 71. 
1330 Indonesia's first written submission, paras.  412-416 (referring to Fischer Report , (Exhibit 
DOM/HND -7); and Steinberg Report  (Exhibit DOM/HND -6), among others).  
1331 Indonesia's second written submission, para. 190. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  GHWs, are available1332, and suffer from numerous serious methodological flaws that render their 
conclusions unreliable.1333  
7.449.   Indonesia urges the Panel not to allow Australia to deny that the TPP measures  are subject 
to scrutiny because they are part of a "suite of measures"1334 or will contribute to reducing 
smoking "in the long run".1335 Any contribution must be distinguished from the overall decline in 
smoking prevalence that has existed in Australia for year s and from the effect of the expanded 
GHW.1336  
7.450.   Australia  responds that, by removing "one of the last remaining frontiers for tobacco 
advertising in Australia" through the introduction of tobacco plain packaging, it "sought to sever 
the link between tobacco p roduct packaging and tobacco smoking behaviour, particularly for 
youth".1337 As acknowledged by the tobacco industry, and evidenced in marketing and public 
health science, left unregulated, tobacco product packaging can perform the same function as 
other form s of marketing and promotion, including advertising, especially in a dark market1338 like 
Australia.1339 Branding, packaging innovation, and design elements influence consumer behaviour 
by producing positive perceptions of the brand and tobacco products.1340 Youth can be motivated 
to begin smoking by tobacco packaging that communicates that the brand will fulfil important 
psychological needs, which outweigh any consideration of the potential risks.1341 Similarly, branded 
packaging can serve as a cue for maintaining tob acco use for smokers and those who have quit 
but are at risk of relapse.1342 Packaging thus functions as a form of advertising which  influences 
initiation, cessation, and relapse behaviours, thereby increasing overall demand for tobacco 
products.1343  
7.451.   Australia argues that "TPP fulfils its objectives" by way of a "mediational" model, or "causal 
chain", whereby the TPP measures  improve public health by impacting the three mechanisms 
identified in the TPP Act.1344 There is "strong empirical evidence" that each of the mechanisms will 
contribute to Australia's overall objective of protecting human health.1345 Namely, plain packaging 
decreases the appeal of tobacco products by (i) reducing the attractiveness of tobacco 
packaging1346; (ii) reducing positive perceptions of taste1347; and (iii) reducing positive perceptions 
of smokers.1348 Plain packaging also increases the effectiveness of health warnings by minimizing 
distractions of pack design and elements that suppress risk perception, as indicated by studies 
demonstrating (a) incre ases in visual attention paid to the warnings; and (b) increases in health 
warning recall and perceptions about the warnings' believability and seriousness.1349 Pack 
                                                
1332 Indonesia's opening statement at the first meeting of the Panel, paras.  32-33; and Indonesia's 
second written submission, paras.  186-187. 
1333 Indonesia's second written submission, para. 186. 
1334 Indonesia's opening statement at the first meeting of the Panel,  para. 27; and Indonesia's second 
written submission, para. 177. 
1335 Indonesia's second written submission, paras.  178-179; and Indonesia's response to Panel question 
No. 126. 
1336 Indonesia's opening statement at the first meeting of the Panel, para. 27; and I ndonesia's second 
written submission, paras.  172-176. 
1337 Australia's first written submission, paras.  60-61. 
1338 Australia explains that it is a "dark market" because it has a highly restricted regulatory 
environment for tobacco advertising and promotion. See  Australia's first written submission, para. 8 fn 3. 
1339 Australia's first written submission, paras.  66-86 and 207 -211 ( referring to  Tavassoli Report , 
(Exhibit AUS -10); and Dubé Report , (Exhibit AUS -11), among others).  
1340 Australia's first written submission, paras.  75-91 (referring to  Slovic Report , (Exhibit AUS -12); 
Biglan Report  (Exhibit AUS -13); and Fong Report  (Exhibit AUS -14), among others).  
1341 Australia's first written submission, paras.  92-96 (referring to Slovic Re port, (Exhibit AUS -12); and 
Biglan Report , (Exhibit AUS -13), among others).  
1342 Australia's first written submission, paras.  97-102 (referring to Brandon Report , (Exhibit AUS -15); 
Slovic Report , (Exhibit AUS -12); and Tavassoli Report , (Exhibit AUS -10), among  others).  
1343 Australia's first written submission, paras.  60-102 and 615 -645; Australia's second written 
submission, paras.  214-256 and 444 -450; and Australia's opening statement at the second meeting of the 
Panel, paras.  33-47. 
1344 Australia's first written submission, Part II.I, paras.  142-205. 
1345 Australia's first written submission, paras.  145-147. 
1346 Australia's first written submission, paras.  148-152. 
1347 Australia's first written submission, paras.  153-155. 
1348 Australia's first written submission, paras.  156-162. 
1349 Australia's first written submission, paras.  169-181. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  standardization also limits the ability of the pack to mislead by preventing the use of descr iptors, 
packaging design, colour, and structural innovation to mislead consumers about the harmfulness 
of tobacco products.1350 Both directly and via each mechanism, the TPP measures  affect consumer 
intentions and behaviour with respect to smoking.1351  
7.452.   Australi a adds that the evidence supporting tobacco plain packaging is extensive, 
comprehensive, and reliable, and the complainants' critiques fail to consider its "overwhelming 
weight" and "convergent nature". The complainants instead exaggerate the studies' limi tations and 
ignore their strengths, among other errors.1352 The most appropriate approach to discerning the 
effects of the TPP measures  in the early stages of its introduction was to rely upon experiments 
and surveys which consider drivers of choice, attitude s and, ultimately, the elicitation of 
behavioural intentions, one of the strongest predictors of future behaviour.1353 The complainants' 
dismissal of this evidence is mistaken, as non -behavioural variables are commonly relied on in 
consumer, psychology, and m arketing research journals and textbooks, and are considered strong 
predictors of behaviour in tobacco control.1354 Further, empirical evidence demonstrates the effect 
of the TPP measures  on smoking -related behaviour1355, as the complainants necessarily concede as 
a consequence of their argument that the TPP measures  have reduced consumers' willingness to 
pay for certain tobacco products.1356 
7.453.   The principal basis on which the complainants argue that the TPP measures  are not 
capable of contributing to their objective is their contention that the quantitative evidence does not 
indicate discernible reductions in smoking prevalence and tobacco consumption in Australia.1357 
The complainants have failed to establish that tobacco plain packaging will increase tobacco 
consumption1358, or that prevalence and consumption have not declined since the introduction of 
tobacco plain packaging. Australia considers the complainants' empiri cal post -implementation 
evidence on prevalence and consumption to be fundamentally flawed, and submits that the 
post-implementation data indicates that the TPP measures  have resulted in discernible reductions 
in prevalence and consumption.1359  
7.454.   Australia argues, however, that it has always been its expectation that the TPP measures  
will have their greatest effects in the long term.1360 As the measures have been in operation for a 
limited period of  time, the utility of the short -term quantitative dat a is "limited", particularly in 
light of its "numerous difficulties". Short -term prevalence and consumption data is likely to 
"mask[]" changes in initiation, consumption, relapse, as demonstrated by the delayed impact that 
the introduction of GHWs had upon  smoking prevalence rates in Canada.1361 The Appellate Body 
has acknowledged that the contribution of a technical regulation to its objectives, particularly in 
the case of a public health measure, need not be "immediately observable", and that effects of 
certain complex public health measures "can only be evaluated with the benefit of time".1362 
Accordingly, "any inability on the part of the complainants' experts to isolate a statistically 
significant plain packaging effect in short term prevalence and consumptio n datasets at this point 
                                                
1350 Australia's first written submission, paras.  187-195. 
1351 Australia's first written submission, paras.  163-168, 182 -186 and 196 -205. 
1352 Australia's first written submission, paras.  212-214, 60 7-614, and Annexure E, paras . 1-10 
(referring to Samet Report , (Exhibit AUS -7); Fong Report , (Exhibit AUS -14); Chantler Report, (Exhibits 
AUS-81, CUB -61); Stirling Review (Exhibits AUS -140, HND -130, CUB -59); and Stirling Review 2013 Update , 
(Exhibits AUS -216, CUB -60), among others); and Australia's second written submission, paras.  482-485. 
1353 Australia's first written submission, paras.  145-147. 
1354 Australia's first written submission, paras.  215-216. 
1355 Australia's second written submission, paras.  444-445 and 451 -481. 
1356 Australia's second written submission, paras.  476-478. 
1357 Australia's second written submission, para. 487. 
1358 Australia's first written submission, paras.  659-663; and Australia's second written submission, 
paras.  479-480. 
1359 Australia's first  written submission, paras.  664-682 (referring to Chipty Report , (Exhibit AUS -17), 
among others). See also ibid. Annexure E, paras.  11-86; Australia's second written submission, 
paras.  506-523; and Australia's opening statement at the second substantive me eting, paras.  13-20. 
1360 Australia's second written submission, paras.  495-499; and Australia's responses to Panel question 
Nos. 7 and 200.  
1361 Australia's response to Panel question No. 71, para. 194; and Australia's second written submission, 
Annexure A, paras.  597-634. See also Australia's response to Panel question No. 7. 
1362 Australia's second written submission, para. 436 (referring to Appellate Body Report, Brazil  –
 Retreaded Tyres , para. 151).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  in time does not prove that the tobacco plain packaging measure is not capable of contributing to 
its legitimate public health objectives".1363 
7.455.   Australia further argues that "having regard to the nature of the objective of the tobacco  
plain packaging measure, its characteristics as revealed by its design and structure, and the 
nature, quantity and quality of evidence available, the Panel should determine the measure's 
degree of contribution in qualitative terms".1364 Australia submits tha t there is no requirement to 
quantify the degree of contribution of a challenged technical regulation and  that, depending upon 
the circumstances, it is sufficient to demonstrate contribution  through "qualitative reasoning based 
on a set of hypotheses that are tested and supported by scientific evidence".1365 Australia refers to 
the Appellate Body's finding in EC – Seal Products  that, where evidence of the actual operation of 
the measure was "limited and uneven", contribution could be demonstrated by qualitativ e evidence 
indicating that the measure is " capable  of making and does make some  contribution to its 
objective, or that it did so to a certain extent ".1366 This, Australia submits, "is the methodology 
best suited to yielding a correct assessment of contributio n in the circumstances" of this 
measure.1367 Australia has presented evidence that "overwhelmingly establishes a causal link" 
between the specific mechanisms through which it is designed to operate and its general 
objectives – including evidence that tobacco packaging is a form of advertising, tobacco packaging 
affects perceptions of tobacco products, and tobacco packaging influences smoking behaviour. It 
adds that "[t]he aptness of tobacco plain packaging to contribute to its long term objectives is 
further b olstered by the fact that 130 parties to the FCTC recommended this precise measure as a 
means of furthering the FCTC's public health objectives".1368 
7.2.5.3.2   Main arguments of the third parties  
7.456.   Argentina , quoting the Appellate Body report in US – COOL , states that pa nels adjudicating 
a claim under TBT Article  2.2 must seek to ascertain the degree to which a technical regulation 
contributes to the achievement of a legitimate objective from "the design, structure, and operation 
of the technical regulation, as well as fr om evidence relating to its application". It further notes 
that the Appellate Body has explained, in the context of Article  XX of the GATT 1994, that "a panel 
must assess the contribution to the legitimate objective actually achieved by the measure at 
issue".1369 
7.457.   Brazil  believes that the measures' "degree of achievement" should be discerned by the 
design, structure and operation of the measure.1370 Brazil states that evidence relating to the 
application of the measure "should be taken into account as an objec tive piece of information with 
which to evaluate the design, structure, and operation of a measure", in part to ensure that 
measures that have not been fully implemented, but are apt to contribute, can still be deemed 
consistent with the covered agreements . It also suggests that in situations where measures have 
been recently implemented, panels may wish to apply "a longer temporal perspective".1371 
7.458.   Referring to the Appellate Body report in US – COOL ( Article  21.5 – Canada and 
Mexico) , Canada  states that "the nature of the objective of the technical regulation, its 
characteristics as revealed by its design and structure, and the nature, quantity, and quality of 
evidence that is available will have a bearing on whether the technical regulation's degree of 
contri bution to its objective can be assessed in quantitative or qualitative terms". Further, "it is the 
                                                
1363 Australia's second written submission, para. 492. 
1364 Austr alia's response to Panel question No. 71, para. 192.  
1365 Australia's second written submission, paras.  429 and 434 -439 (referring to Appellate Body Report, 
Brazil  – Retreaded Tyres , para. 151; and Appellate Body Reports, EC – Seal Products , para. 5.228); and  
Australia's response to Panel question No. 126 (referring to Appellate Body Reports, US – COOL ( Article  21.5 –
 Canada and Mexico), para. 5.209) . 
1366 Australia's second written submission, para. 435 (referring to Appellate Body Report, EC – Seal 
Products , para. 5.228 ). (emphasis original; footnote omitted)  
1367 Australia's response to Panel question No. 71, para. 192. 
1368 Australia's response to Panel question No. 126, paras.  171-172. 
1369 Argentina's third -party submission, para. 51 and fn 28. 
1370 Brazil's third -party response to Panel question No. 6. 
1371 Brazil's third -party response to Panel question No. 6. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  overall degree of contribution that a measure makes to its objective that is relevant in identifying 
the contribution of the measure in issue, rather than an y isolated aspect of contribution".1372 
7.459.   According to Canada, given the recent implementation of the plain packaging measure, 
and the fact that the TPP Act forms part of a comprehensive regime designed to address a complex 
public health problem, post -implement ation empirical evidence should be viewed together with 
relevant quantitative and qualitative future projections of the contribution of the measure to its 
objective.1373  
7.460.   China  also recalls the Appellate Body's guidance that a measure's degree of contribution  
may be discerned from the design, structure, operation, and application of the measure. It notes 
that a Panel must assess the measure's actual contribution, not its intended contribution.1374 The 
Appellate Body indicated in US – COOL ( Article  21.5 – Canada and Mexico) that the degree of 
contribution can be assessed in either quantitative or qualitative terms, depending on the 
particular circumstances of a given case.1375 In these proceedings, evidence concerning the 
post-implementation period may not off er decisive guidance, considering the relatively recent 
implementation of the measures.1376 China also argues that compliance with Article  2.2 does not 
require a minimum threshold of contribution . Rather, a low degree of contribution might be 
sufficient if th e extent of trade -restrictiveness is low.1377  
7.461.   The European Union  notes that the Appellate Body has indicated, in the context of 
Article  XX of the GATT 1994, that contribution may be demonstrated by reference to "evidence or 
data, pertaining to the past or pr esent" or by "a demonstration that the measure is apt to produce 
a … contribution", possibly by reference to "quantitative projections into the future or qualitative 
reasoning based on a set of hypotheses that are tested and supported by sufficient evidenc e".1378 
It encourages the Panel to apply an appropriately "long term temporal perspective" that would 
permit the measures to produce their intended effects.1379 It notes that the Panel "must consider" 
evidence that is offered regarding the post -implementation pe riod, but believes the weight to be 
assigned to any particular evidence should be determined on a case -by-case basis.1380 
7.462.   The European Union suggests that the Panel consider that the measures are "part of a 
comprehensive strategy of tobacco control measures" and that the Appellate Body has observed in 
similar situations that a measure's contribution may prove difficult to isolate in the short term.1381 
In examining the actual effects of the measure, the Panel will need to consider whether or not 
there is a genuin e and substantial relationship of cause and effect between the measure and the 
observed effects. In the event that the Panel is unable to separate and distinguish the causal 
impact of the measure at issue from other variables, the measure contributes to th e objective 
within the meaning of Article  2.2 of the TBT Agreement .1382 
7.463.   Japan  notes that the Appellate Body has held that "a panel adjudicating a claim under 
Article  2.2 must seek to ascertain from the design, architecture, structure and operation of the 
technical regulation, as well as from evidence relating to its application - to what degree … the 
challenged technical regulation actually contributes to the achieveme nt of the legitimate objective 
pursued by the Member".1383 The Appellate Body has also noted, in the context of assessing the 
contribution of a measure at issue, that "the nature of the objective of a technical regulation at 
issue, its characteristics as reve aled by its design and structure, and the nature, quantity, and 
                                                
1372 Canada's third -party statement, paras.  6-7. 
1373 Canada's third -party response to Panel question No. 6. 
1374 China's third -party submission, para. 76. See also Chi na's third -party statement, para. 18. 
1375 China's third -party response to Panel question No. 5. 
1376 China's third -party response to Panel question No. 6. 
1377 China's third -party submission, para. 77. 
1378 European Union's third -party submission, para. 71. 
1379 European Union's third -party response to Panel question No. 6; and European Union's third -party 
statement, para. 4. 
1380 European Union's third -party response to Panel question No. 6. See also European Union's 
third-party submission, para. 72. 
1381 European Uni on's third -party submission, para. 70. 
1382 European Union's third -party statement, para. 5. 
1383 Japan's third -party response to Panel question No. 6 (quoting Appellate Body Report, US – Tuna II 
(Mexico) , para. 317; and Appellate Body Reports, US – COOL , para. 373).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  quality of evidence available, may have a bearing on whether a relevant factor … can be assessed 
in quantitative or qualitative terms under Article  2.2, as well as on the degree of precision w ith 
which such an analysis can be undertaken".1384  
7.464.   Japan considers that evidence concerning the post -implementation period can be used as 
evidence relating to the measure' s application, and thus may be used to confirm the analysis of 
the design, structure an d operation of technical regulation for determining the contribution of the 
measure to its legitimate objectives. Such evidence should not be given decisive weight in part 
because it is difficult to isolate the actual contribution that can be attributed on ly to the measure in 
the post -implementation period.1385 
7.465.   Malawi  contends that evidence of an "actual effective contribution of technical regulations 
to the stated objective" is required to confirm the TPP measures .1386 The information and data 
presented by the c omplainants indicate that the measures have not been effective and have failed 
to change smoking behaviour. Australia has relied upon research papers that do not examine the 
effect of the measures on smoking behaviour1387, and its expert has noted that "the s moking rate 
is the result of many factors that have nothing to do with packaging".1388 It contends that there is 
no information deficit in Australia with respect to the harmful effects of smoking, and argues that 
the measures have not had any impact on the he alth warnings or information on the relative 
harmful nature of tobacco products.1389 
7.466.   New Zealand  supports Australia's position that "the tobacco plain packaging measure 
contributes to its public health objectives by reducing the appeal of tobacco products, in creasing 
the effectiveness of graphic health warnings, and reducing the ability of tobacco retail packaging to 
mislead consumers about the harmful effects of smoking or using tobacco products".1390 New 
Zealand suggests that, when assessing the significance an d weight to be assigned to each piece of 
evidence, the Panel consider that the measure is part of a comprehensive suite of measures whose 
impact will be most felt most significantly in the long term. The Panel is entitled to rely upon 
post-implementation e vidence, but immediate post -implementation evidence will "clearly be less 
persuasive" when a measure's objective is to change behaviour over the long  term.1391 
7.467.   New Zealand critiques the report submitted by Ukraine's expert, Professor Klick, which 
compared smo king status in Australia pre and post -plain packaging to smoking status in New 
Zealand (a country without tobacco plain packaging), over the same period of time. It agrees with 
Australia's expert Dr Chipty that the report contains flawed analysis and draws  invalid conclusions. 
First, the study sets up a false and virtually impossible evaluation test by looking for a marked 
short-term reduction in long -term outcomes, namely population smoking prevalence and tobacco 
consumption. Significant changes in the rat e of initiation and the likelihood of quitting or not 
relapsing – especially in the younger age groups that plain packaging targets – cannot be reliably 
detected by measuring the population -wide statistics in the short term. Second, the use of New 
Zealand as a comparison case is superficial and misleading, due to the failure to account for 
differences between the countries in the manner and timing of tobacco control interventions, 
particularly a 10 % excise tax increase undertaken uniquely by New Zealand in January 2013. 
Third, the data sets used by Professor Klick cannot be relied upon. The sales data relied upon to 
measure consumption displays volatility, fails to control for confounding factors (such as 
stock -piling in advance of a tax increase), and conta ins gaps which were filled -in with data sourced 
from the tobacco industry. Survey data used to measure prevalence may not be representative of 
the population, and does not include people who have never smoked, thereby rendering it 
incapable of measuring in itiation of new smokers. Fourth, the presentation of the survey results is 
misleading. Professor Klick used data sourced after tobacco products in plain packages were 
already on sale to represent the pre -plain packaging smoking rate, and utilized an averag ing 
                                                
1384 Japan's response to Panel question No. 5 (quoting Appellate Body Reports, US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.211).  
1385 Japan's third -party response to Panel question No. 6. 
1386 Malawi's third -party submission, para. 12. 
1387 Malawi's third -party submission, para. 9 (referring to  Vol. 24 of Tobacco Control (2015)).  
1388 Malawi's third -party submission, para. 9 (quoting Fong Report , (Exhibit AUS -14), para. 455).  
1389 Malawi's third -party submission, para. 10. 
1390 New Zealand's third -party submission, para. 96. 
1391 New Zealand's third -party response to Panel question No. 6; and New Zealand's third -party 
statement, para. 16. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  method that produced misleading results. A more natural presentation of the results reveals that 
smoking rates fell further in Australia than New Zealand and reached the same level at the end of 
the surveyed period. Due to its fundamental flaws, the re port should not be taken into account or 
given any weight in the Panel's overall assessment of the disputing parties' evidence.1392 
7.468.   Nicaragua  notes that the Appellate Body has counselled that panels must assess the 
contribution "actually achieved" by the meas ure at issue1393, and that "empirical evidence of the 
measure's actual effect on smoking behaviour is the most reliable way to test its effectiveness" 
and should be assigned "considerable weight".1394 Nicaragua does not consider that the measure 
was implemented only "relatively recently", and submits that two years is a proper period for 
assessing the effectiveness of a measure.1395  
7.469.   Qualitative survey and expert evidence as well as quantitative market evidence indicate 
that the plain packaging measure has not had a ny positive effect on the protection of health and is 
not likely to have any such effect in the future.1396 Qualitative evidence which examines the 
reasons why people smoke and why they find it hard to quit also confirms that trademarks and 
packaging are not drivers of smoking behaviour.1397 Economic analysis confirms that it is not 
plausible that the measure will contribute in any meaningful way to the reduction of 
prevalence.1398 Compared to the complainants' reference to direct behavioural evidence, 
Australia's r eliance on predictions by behavioural scientists and psychologists and studies 
demonstrating that people consider the plain packs with a 75% GHW to be less pretty is 
unpersuasive and fails to distinguish the effects of the larger GHW from the TPP measures . The 
empirical post -implementation data show that the measure has had no effect on smoking 
behaviour, and reliance on self -reported intentions or general beliefs and perceptions is insufficient 
to support an argument that plain packaging is contributing to  its health protection objective.1399 
7.470.   Nigeria  considers that the evidence presented by the complainants demonstrates that the 
TPP measures  have failed to contribute to the reduction of smoking and is not likely to reduce 
smoking in the future.1400 The facts show  that two years after the implementation of plain 
packaging, the measure has not contributed to the reduction of smoking or the changing of 
smoking behaviour more generally.1401 Economic analysis of supply and demand confirms the 
unlikely nature of any positi ve contribution of plain packaging.1402 It seems speculative to argue 
that the TPP measures  are likely to contribute in the future. The experts consider that packaging 
and trademarks do not play a role in taking up smoking or quitting. Nigeria also notes ther e is 
general awareness that smoking is very dangerous to consumers' health.1403 
7.471.   Norway  argues that the Appellate Body has held that the degree of contribution "may be 
discerned from the design, structure and operation of the technical regulation, as well as f rom 
evidence relating to the application of the measure".1404 It notes that in US – COOL ( Article  21.5 –
 Canada and Mexico) , the Appellate Body indicated that the nature of the objective of the technical 
regulation at issue, its characteristics as revealed by  its design and structure, and the nature, 
                                                
1392 New Zealand's third -party submission, paras.  12-13 and 101 -119; and New Zealand's third -party 
statement, para. 16. 
1393 Nicaragua's third -party statement, para. 35 (quoting Appellate Body Report, US – Tuna II (Mexico) , 
para. 317).  
1394 Nicaragua's third -party response to Panel question No. 6. 
1395 Nicaragua's third -party response to Panel question No. 6 (referring to Australia' s two -year PIR 
period and Pechey et al. 2013, (Exhibit JE -24(51)).  
1396 Nicaragua's third -party statement, paras.  39-40 (referring to Klick Report , (Exhibit UKR -5); and 
Gibson Report , (Exhibit DOM -92)). 
1397 Nicaragua's third -party statement, para. 41 (referring to Viscusi Report , (Exhibit UKR -8); Satel 
Report , (Exhibit UKR -7); and Steinberg Report , (Exhibit DOM/HND -6)). 
1398 Nicaragua's third -party statement, para. 42 (referring to Neven Report  (Exhibit UKR -3) (SCI)).  
1399 Nicaragua's third -party statemen t, para. 44; and Nicaragua's third -party response to Panel question 
No. 6. 
1400 Nigeria's third -party submission, paras.  28 and 33.  
1401 Nigeria's third -party submission, para. 30 (referring to Klick Report , (Exhibit UKR -5), and "market 
data and other objective evidence" submitted by the complainants).  
1402 Nigeria's third -party submission, para. 32. 
1403 Nigeria's third -party submission, para. 31. 
1404 Norway's third -party submission, para. 109 (quoting Appellate Body Report, US – Tuna II (Mexico) , 
para. 317). See also N orway's third -party statement, para. 15. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  quantity and quality of evidence available, may have bearing on whether contribution can be 
assessed in quantitative or qualitative terms, as well as on the degree of precision with which such 
analysis can be unde rtaken. In the same report, the Appellate Body reiterated it may suffice to  
demonstrate via quantitative reasoning or qualitative projections that the measure was "apt to 
produce a material contribution" to its objective in cases where it is difficult to i solate a measure 's 
contribution in the short term.1405 
7.472.   Norway submits that "one cannot draw conclusions exclusively from data on smoking 
prevalence in itself" and "consumer perceptions are relevant for the purposes of assessing the 
effect of tobacco control p olicies".1406 Norway suggests that the Panel "accord[] greater weight to 
the design, structure and operation of the measure", given the long -term nature of the measure 
and the challenges associated with obtaining robust empirical evidence.1407 
7.473.   In assessing contr ibution, Norway suggests that the Panel take into account the difficulties 
in measuring the effects of an instrument working in synergy with other measures, the 
overarching objective of promoting public health, and the expectation that the full effects of the 
measure may manifest themselves gradually over several years.1408 It agrees with Australia that 
the TPP measures  make "a unique contribution to its general public health objectives".1409  
7.474.   In Norway's view, it must amongst others be considered that (1) advert ising is an effective 
means to enhance sales, especially to reach new and young customers, and that banning 
advertising effectively reduces tobacco use; (2) the more comprehensive the advertising ban is, 
the more efficient it is; and (3) the packaging of t obacco products has effects similar to those of 
traditional advertising.1410 
7.475.   Oman  states that the TPP measures  aim to prevent tobacco advertising and promotion, 
and achieve its stated goals of: reducing the attractiveness and appeal of tobacco products to 
consumers, particularly young people; increasing the noticeability and effectiveness of mandated 
health warnings; and reducing the ability of the tobacco product packaging to mislead consumers 
about the harms of smoking. It subscribes to the argumentation and  factual evidence articulated 
by Australia that clearly demonstrates that plain packaging contributes to a reduction in smoking 
rates and tobacco consumption.1411 
7.476.   Singapore  states that the contribution of the TPP measures  to its public health objectives 
has to be understood and evaluated in the context of the comprehensive suite of tobacco control 
measures in Australia.1412 There is a wealth of evidence supporting the measures' effectiveness. 
No single study forms an evidence base by itself, but multiple well -conducted studies that point 
towards the same conclusions provide a strong evidence base for public policy. On the other hand, 
the expert reports relied on by the complainants to challenge the evidence base for plain 
packaging are flawed.1413  
7.477.   As the impact of new tobacco control policy measures on behaviour cannot be observed 
before implementation, new measures are inevitably based on predicted models of behavioural 
intention on subsequent tobacco use behaviours.1414 Singapore disagrees with the "complainants' 
narrow focus on smoking prevalence as the primary basis for assessing … contribution"1415 and 
states that the Panel should consider "the totality of the evidence", which includes "post -hoc" 
                                                
1405 Norway's third -party response to Panel question No. 5. See also Norway's third -party statement, 
para. 16. 
1406 Norway's third -party submission, paras.  114-115. 
1407 Norway's third -party response to Panel question No. 6. See also Norway's third -party statement, 
paras.  18-19. 
1408 Norway's third -party submission, paras.  111-112 (quoting Appellate Body Report, Brazil  –
 Retreaded Tyres , para. 151); Norway's third -party response to Panel question No. 6; and Norway's third -party 
statement, para. 19. 
1409 Norway's third -party submission, para. 113. 
1410 Norway's third -party submission, para. 115. 
1411 Oman's third -party statement, paras.  3 and 8.  
1412 Singapore's third -party submission, para. 70. 
1413 Singapore's third -party submission, para. 73; and Singapore's third -party statement, para. 21. 
1414 Singapore's third-party response to Panel question No. 6. 
1415 Singapore's third -party submission, para. 69. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  evidence.1416 Researchers from Australia have produced post -implementation data to demonstrate 
the TPP measures  have a) reduced the appeal of tobacco packs; b) increased the visibility of 
GHWs; and c) reduced the ability of tobacco packaging to mislead consumers about the harms of 
smoking. Nevertheless, the Appellate Body has cau tioned that "the results obtained from certain 
actions … can only be evaluated with the benefit of time".1417 
7.478.   Uruguay  notes that the TPP measures  are an important component of a comprehensive 
public health policy.1418 The measures are based on scientific and tec hnical information, and 
Australia has demonstrated a reduction in consumption, an increase in the understanding of 
tobacco impacts on health, and a correlation and causal link to the measures.1419 Australia has 
shown that the measures affect the behaviour of consumers and potential consumers of tobacco, 
particularly adolescents.1420 It is critical to note that, although Australia has provided reliable 
information and statistics, the TPP measures  can take time before concrete results are 
demonstrated and assessmen ts can be done.1421  
7.479.   Uruguay notes that tobacco manufacturers have used deceptive descriptors such as "light" 
and "mild" on packaging, ostensibly to denote flavour and taste; however, "light" and "mild" 
brands are often promoted, either subliminally or overtl y, as "healthier" products although 
scientific evidence demonstrates beyond any doubt that all cigarettes are equally harmful. Tobacco 
manufacturers have also used numbers in the names of cigarette brands, with up to 80% of 
smokers interpreting a lower num ber as an indicator of less tar and reduced risk.1422 After 
misleading terms on cigarette packages were prohibited, the tobacco industry continued the 
deception by using brand colours and variants with the aim of making consumers believe that one 
brand presen tation is less harmful than another.1423 
7.480.   Uruguay contends that packaging design and colour is important in affecting consumer 
perceptions of relative safety, and even taste.1424 So-called "plain" packaging brands, with the 
colours and brand images removed, are n ormally classified as less attractive and of lower quality 
than the designs of the original packs. "Plain" packages also increase the relevance and recall of 
health warnings on packages. Generally speaking, the findings suggest that many of the packaging 
elements currently used by manufacturers are inherently misleading to consumers and provide 
strong support for the effectiveness of "plain packaging".1425 
7.481.   Zimbabwe  contends that there is no probative evidence demonstrating a meaningful 
contribution of the TPP measures to the reduction of smoking prevalence in Australia. The studies 
to which Australia consistently referred in WTO committees and which were considered by 
Australia at the time of the adoption of the measure are speculative, partial and based on 
questionable methodologies. Based on the evidence submitted by the complainants, plain 
packaging does not contribute to raising the consumers'  already universal awareness of the risks 
associated with smoking nor does it provide a positive stimulus to quit. Mo re importantly, the 
market data available since the introduction of plain packaging does not reveal a further reduction 
in smoking or a positive change in smoking behaviour.1426 
7.482.   Zambia  states that it fails to see the contribution of the TPP measures  to their objective. 
After two years, no evidence shows that it reduces smoking prevalence or changes in smoking 
behaviour. The qualitative and quantitative evidence placed before the Panel shows the absence of 
                                                
1416 Singapore's third -party response to Panel question No. 6. See also Singapore's third -party 
statement, para. 21. 
1417 Singapore's third -party response to Panel question No. 6. See also Singapore's third -party 
submission, para. 70. 
1418 Uruguay's third -party statement, para. 6. 
1419 Uruguay's third -party submission, paras.  15 and 65.  
1420 Uruguay's third -party submission, para. 73. 
1421 Uruguay's third -party response to Panel question No. 6. 
1422 Uruguay's third -party submission, paras.  88-91. 
1423 Uruguay's third -party submission, paras.  92-99. 
1424 Uruguay's third -party submission, paras.  92-99. 
1425 Uruguay's third -party submission, para. 99. 
1426 Zimbabwe's third -party submission, paras.  27-28. See also Zimbabwe's third -party statement, 
para. 12 (referring to  Neven Report , (UKR -3) (SCI); Klick Report , (Exhibit UKR -5); and IPE Report , (Exhibit 
DOM-100)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  contribution  to the fulfilment of Australia' s stated ob jective and thus that there is no reason to 
expect any effect of the measure in the future.1427 
7.2.5.3.3   Approach of the Panel and structure of the analysis  
7.483.   As described above, our task at this stage is to determine, based on the arguments and 
evidence before us, "to what degree, or if at all", the TPP measures  contribute to Australia's 
objective of improving public health by reducing the use of, and exposure to, tobacco products. In 
particular, we must seek to determine the actual contribution of the measures, "as wri tten and 
applied", to this objective.1428  
7.484.   As observed by the Appellate Body, "[t]he degree of achievement of a particular objective 
may be discerned from the design, structure, and operation of the technical regulation, as well as 
from evidence relating to t he application of the measure".1429 However, no single approach is 
suited to conducting this type of analysis in all cases. Rather, we must adopt or develop "a 
methodology that is suited to yielding a correct assessment"1430 in the circumstances of this case.  
7.485.   As described above, all parties have presented arguments and evidence concerning the 
"design, structure and operation" of the TPP measures  as well as on their post -implementation 
effects, or "application". The parties appear to agree that the relevant legal  and evidentiary 
standards under Article  2.2 of the TBT Agreement  require a panel to consider all of the relevant 
evidence before it.1431 However, they have conflicting interpretations of this evidence. In essence, 
the complainants consider that the TPP measures  cannot contribute to their objective through the 
mechanisms identified in the TPP Act, and that post -implementation evidence shows that smoking 
prevalence has not in fact been reduced as a result of the TPP measures . Australia in essence 
respo nds that, contrary to the complainants' assertions, the measures are designed on the basis of 
a sound evidence base, and that available post -implementation evidence confirms that the 
measures are contributing to their objective of reducing smoking.  
7.486.   The pa rties also disagree generally on how the effects of the measures should be assessed, 
and the relative weight to be given, in the circumstances of this case, to qualitative and 
quantitative evidence regarding the measure's design and structure (mostly preda ting their 
implementation) and to post -implementation evidence relating to the application of the measures 
and their impact upon various smoking -related behaviours and outcomes. The complainants 
consider that, since post -implementation information about ac tual smoking behaviours is available, 
this should be the primary basis for the Panel's assessment of the contribution of the measures to 
their objective of reducing smoking in Australia.1432 Australia considers that in the early stages of 
the introduction of the measures, the most appropriate way to discern their effects was to rely on 
experiments and surveys which consider drivers of choice, attitudes and, ultimately, the elicitation 
of behavioural intentions .1433 It argues that the Panel should determine the me asures'  degree of 
contribution to their objectives in qualitative terms, as this is, in Australia's view, the methodology 
best suited to yielding a correct assessment in the circumstances of these particular measures.1434  
7.487.   We therefore first consider the over all approach that will be best suited to our assessment, 
taking into account both the characteristics of the measure s at issue and the nature and extent of 
                                                
1427 Zambia's third -party statement, para. 9. 
1428 Appellate Body Reports, US – COOL , para. 461. (footnote omitted)  
1429 Appellate Body Reports, US – COOL , para. 461. 
1430 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.210.  
1431 See Australia's response to Panel question No. 160, paras.  91-92 and 95; Honduras's response to 
Panel question No. 206, p. 51; Honduras's comment s on Australia's response to Panel question No. 160, 
para. 112; Dominican  Republic 's comment s on Australia's response to Panel question No. 160, para. 239; 
Cuba's comment s on Australia's response to Panel question No. 160, para. 21; and Indonesia's response to 
Panel question No. 206, para. 50. 
1432 See, e.g. Honduras's response to Panel question No. 71, p. 34; Dominican  Republic 's response to  
Panel question No. 71, paras.  348-349; Cuba's response to Panel question No. 71 (annexed to its response to 
Panel question No. 138) (agreeing with the response to Honduras to Panel question No. 71); and Indonesia's 
response to Panel question No. 71, para. 102. 
1433 Australia's first written submission, para. 147. See also Australia's response to Panel question 
No. 71, paras.  192-194. 
1434 Australia's response to Panel question No. 71, para. 192.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the evidence presented to us. In approaching this determination, while we are mindful that the 
burde n is on the complainants to demonstrate the existence of a violation of Article  2.21435, we find 
it appropriate to consider, as a starting point, the "design, structure and operation" of the 
TPP measures , as described by Australia, to inform our understanding  of the nature of the 
assessment to be conducted in the circumstances of these proceedings. This understanding will 
inform the selection of an appropriate methodology to assess the degree of contribution of the 
measures to their objective.1436 
7.488.   As described by  Australia1437, by design, the TPP measures  are intended to operate on the 
basis of a "causal chain model" or "mediational model" based on three specific mechanisms 
through which their public health objectives are to be achieved.1438 These objectives and 
mechani sms are reflected in Sections 3(1) and 3(2) of the TPP Act.  
7.489.   Specifically, as reflected in Section 3(1)(a) of the TPP Act, the TPP measures  are intended 
to improve public health by (i) discouraging people from taking up smoking, or using tobacco 
products; (ii) encouraging people to give up smoking, and to stop using tobacco products; and (iii) 
discouraging people who have given up smoking, or who have stopped using tobacco products, 
from relapsing; and (iv) reducing people's exposure to smoke from tobacco p roducts.1439 Section 
3(2) of the TPP Act provides, in turn, that:  
(2) It is the intention of the Parliament to contribute to achieving the objects in 
subsection (1) by regulating the retail packaging and appearance of tobacco 
products in order to:  
 
(a) reduce the appeal of tobacco products to consumers; and  
 
(b) increase the effectiveness of health warnings on the retail packaging of 
tobacco products; and  
 
                                                
1435 Appellate Body Report, US – Tuna II (Mexico) , para. 323; and US – COOL , para. 379. 
1436 We note the following observation of the Appellate Body in the context of Article  2.1 of the 
TBT Agreement : 
 
[H]aving promulgated the technical regulation containing the regulatory distinctions that result in 
the detrimental impact, t he responding Member will be best situated to adduce the arguments 
and evidence needed to explain why, contrary to the complainant's assertions, the technical 
regulation is even-handed and thus why the detrimental impact on imports stems exclusively 
from a  legitimate regulatory distinction.  
 
Appellate Body Report, US – Tuna II (Mexico) ( Article  21.5 – Mexico) , para. 7.33. (emphasis o riginal)
 Similarly, in an analysis of the measure's contribution to its legitimate objective in the context of 
Article  2.2, w e consider that Australia, as the implementing Member, will be best situated to explain 
what the design and structure of the measures are and therefore how they are intended to operate to 
contribute to their objective. We also note the first sentence of Article 2.5, which states: "A Member 
preparing, adopting or applying a technical regulation which may have a significant effect on trade of 
other Members shall, upon the request of another Member, explain the justification for that technical 
regulation in te rms of the provisions of paragraphs 2 to 4". See also para. 7.1087  below .  
1437 See para. 7.451  above.  
1438 See Australia's first written submission, section II.I.1 and para. 142 ( referring to  Fong Report , 
(Exhibit AUS -14), paras.  14-15). 
1439 TPP Act, (Exhibits AUS -1, JE-1), Section 3. Section 3 of the TPP Act states:  
 
(1) The objects of this Act are:  
(a) to improve public health by:  
(i) discouraging people from taking up smoking, or using tobacco products; and  
(ii) encouraging people to give up smoking, and to stop using tobacco products; and  
(iii) discouraging people who have given up smoking, or who have stopped using 
 tobacco products, from relapsing; and  
(iv) reducing people's exposure to smoke from tobacco products;  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (c) reduce the ability of the retail packaging of tobacco products to mislead 
consumers about the harmful effects of s moking or using tobacco 
products.1440 
7.490.   As Australia describes it in Figure 12 below, the TPP measures  are intended to contribute 
to Australia's objective in the following manner:  
 Tobacco plain packaging is intended to reduce the appeal of tobacco products to 
consumers, increase the effectiveness of the health warnings, and reduce the ability of 
the packaging to mislead consumers about the harmful effects of smoking (see sec ond 
column in Figure 12 below). Australia refers to these processes as the TPP mechanisms, 
as will the Panel.1441  
 If the TPP measures  operate as intended upon any one or  any combination of the above 
three mechanisms, then Australian consumers are expected to be discouraged from 
taking up smoking (initiation) or resuming smoking (relapse), and to be encouraged to 
stop smoking (cessation) and reduce exposure to second -hand smoke (see third column 
in Figure 12 below). We will refer to initiation, relapse, cessation as, more generally, 
smoking behaviours relating to the use of tobacco pro ducts.1442 
 As a consequence, positive public health outcomes, specifically reduced use of , and 
exposure to , tobacco products, and an associated reduction in tobacco -related disease 
and death, would arise (see fourth column in Figure 12 below).  
Figure 12: Australia's depiction of the TPP Act  
 
Source:  Australia's first written submission, para. 144 and Figure 9 ; and Fong Report, (Exhibit AUS -14), p. 
25. 
                                                
1440 TPP Act, (Exhibits AUS -1, JE-1), Section 3(2). See also TPP  Bill Explanatory  Memor andum, (Exhibits 
AUS-2, JE-7), pp. 1-2 and 6 -7; and TPPA Regulation Explanatory Statement, (Exhibit JE -22), p p. 1 and 10 -11. 
1441 At various points in time, Australia and its experts ha ve also referred to these mechanisms also as 
"mediators", "precursors", "predictors", and "leading indicators". See Australia's first written submission, 
para. 144 and Fig ure 9; and Fong Report , (Exhibit AUS -14), p. 25. 
1442 Australia has labelled these smoking  behaviours "Objects of the Act". We note that we determined in 
section 7.2.5.1.1.2  that the objective of the measures within the meaning of Article 2.2 of the TBT Agreement  
is to improve public health by reducing the use of, and exposure to, tobacco products.  For the purpose of th ese 
Report s, "smoking behaviours" are those directly related to the use of tobacco products, including, for 
example, in itiation, cessation, relapse, and consumption. "Smoking -related behaviours" are behaviours that 
are associated with these behaviours, such as purchasing tobacco products, calling a Quitline, concealing a 
pack in public, and eye movements directed to GHWs.  
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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7.491.   By design, therefore, the TPP measures , by changing the packaging and appearance of 
tobacco products, are intended to act in the first instance on the appeal of tobacco products, the 
effectiveness of GHWs, and the ability of the pack to mislead co nsumers about the harmfulness of 
tobacco products (the mechanisms ), which in turn is intended to influence smoking behaviour , 
resulting in positive public health outcomes. Impacts on the three mechanisms in the "causal 
chain" may be described as "non -behavioural" or "proximal" outcomes, while intention and 
behavioural outcomes, such as increased intentions to quit and increased quit attempts, which 
relate more closely to smoking behaviours such as initiation, relapse, cessation, and exposure to 
second -hand smoke, can be described as "distal" outcomes.1443 
7.492.   In the words of Australia's expert Professor Fong, the expected "causal chain" reflected in 
the design of the TPP measures  can be described as follows:  
One can make reasonable and confident predictions t hat if the plain packaging 
measure is shown to decrease appeal and/or increase the effectiveness of health 
warnings and/or decrease the ability of the package to mislead consumers about the 
harmfulness of tobacco products, the Objectives of the Act will li kely be achieved. If 
the Objectives of the Act are achieved then this will lead to positive short -term and 
longer -term public health outcomes.1444 
7.493.   The complainants dispute the evidentiary base underlying this design, and therefore the 
capacity of the measures , as designed, to produce the intended outcomes on smoking behaviours 
through the specific mechanisms described in this "mediational model".1445 They also consider that 
available evidence on the actual application of the measures demonstrates that they have n ot in 
fact had the intended impact on tobacco consumption and prevalence.1446 Further, the 
complainants consider that, to the extent that such evidence of actual  smoking behaviours is now 
available, this should be given preponderant weight in the Panel's asse ssment.1447  
                                                
1443 Fong Report , (Exhibit AUS -14), paras.  14-15 and 88 -90 (describing a "causal chain" and 
"mediational model"); Chaloupka Rebuttal Report , Exhibit (AUS -582), para. 2 (referring to "proximal" and 
"distal" outcomes); Australia's first written submission, paras. 142-144 and Fig ure 9 (describing a "causal 
chain"); NTPPTS Technical Report, (Exhibits AUS -570, HND -124, DOM -307), p. 21 (referring to  "proximal" and 
"distal" outcomes).  
"Distal" has been defined as follows: "outcomes such as increased interest in quitting, which ultimately 
lead to changes in tobacco use behaviors, including quit attempts" ( Chaloupka Rebuttal Report , (Exhibit 
AUS-582), para. 2); "evaluation of tobacco control policies needs to focus on more proximal exposure, belief 
and intention ou tcomes … before assessing more distal behavioural outcomes … the relationship between 
proximal belief outcomes with more distal intention and behaviour outcomes is underpinned by a large body of 
literature". NTPPTS Technical Report, (Exhibits AUS -570, HND -124, DOM -307), p p. 6 and 21.  
"Proximal outcomes" have been described as "reducing the appeal of tobacco products and increasing 
the noticeability of graphic health warnings" ( Chaloupka Rebuttal Report , (Exhibit AUS -582), para. 2); and 
"belief outcomes". N TPPTS Technical Report, (Exhibits AUS -570, HND -124, DOM -307), p p. 6 and 21. We note 
that Australia's expert Professor Chaloupka also refers to "intermediate" outcomes, such as "greater knowledge 
about the health consequences of tobacco use and increased pe rceptions of the risks from tobacco use". 
Chaloupka Rebuttal Report , (Exhibit AUS -582), para. 2. 
See also, refer ring to  the "causal chain" offered by Australia, Honduras's second written submission, 
para. 150; Dominican  Republic 's second written submission , paras.  371-376; Cuba's second written 
submission, paras.  287-289; and Ajzen Report , (Exhibit DOM/HND/IDN -3), paras.  6-7 and 29 -33. In analysing 
the results of the NTPPTS, the complainants' experts refer to "proximal" and "distal" outcomes, as they were 
denoted in the NTPPTS Technical Report. See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  47, 51, 83, 
and 233. The complainants frequently refer to the three mechanisms as "non -behavioural". See ibid. para. 51; 
Honduras's second written submission, para. 150; Dominican  Republic 's second written submission, paras.  14 
and 378; and Klick Supplemental Rebuttal Report , (Exhibit HND -122), para. 58.  
1444 Australia's first written submission, para. 143 (quoting Fong Report , (Exhibit AUS -14), para. 90). 
1445 See section 7.2.5.3.5.1  below.  
1446 See Appendices C and D below.  
1447 See, e.g. Honduras's response to Panel question No. 71, p. 34; Dominican  Repub lic's second written 
submission, para. 310; Dominican  Republic 's response to Panel question No. 2, para. 21; Dominican  Republic 's 
response to Panel question No. 71, paras.  348-349; Cuba's second written submission, para. 40; Cuba's 
response to Panel questi on No. 71 (annexed to its response to Panel question No. 138) (agreeing with the 
response to Honduras to Panel question No. 71); and Indonesia's response to Panel question No. 71, 
para. 102. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.494.   In Australia's view, the focus of the Panel in its contribution analysis  is not on quantitative 
evidence of immediately observable effects of the TPP measures  in the limited period of time since 
its introduction. For Australia, w hile such evidenc e is relevant to the Panel's inquiry, the Panel 
must give due regard to the nature of the mea sure's public health objectives,  the specific 
mechanisms through which the measure is designed to make its contribution to these objectives 
and the nature, quantit y and quality of all the available evidence across a range of relevant 
fields .1448 Australia considers that "[h]aving regard to the nature of the objective of the tobacco 
plain packaging measure, its characteristics as revealed by its design and structure, an d the 
nature, quantity and quality of evidence available" the Panel should determine the measure's 
degree of contribution in qualitative  terms and must accord greater weight to the design, structure 
and operation of the measure.1449  
7.495.   As we have determined abo ve, the objective of the measures is to improve public health 
by reducing the use of, and exposure to, tobacco products. The fulfilment of this objective through 
the TPP measures  is predicated on their ability to influence smoking behaviours , such as initi ation, 
cessation, and relapse. A consideration of the impact of the measures on such behaviours is 
therefore, a priori , directly relevant to an assessment of the degree of contribution of the 
measures to this objective. Specifically, it is consistent with the design and structure of the 
measures that evidence relating to their actual impact on the use of tobacco products in Australia 
should inform an assessment of their degree of contribution to their objective.  
7.496.   Indeed, Australia's expert Professor Fong po ints out that "tobacco control policies are best 
measured by their influence on downstream psychosocial variables such as knowledge, beliefs, 
attitudes and intentions, and on subsequent tobacco use behaviours ".1450 This is consistent with 
observations by rese archers in the field of tobacco control that "the optimal test of plain packaging 
would be its implementation and evaluation in a population -based setting"1451 and that 
notwithstanding any intuitive appeal, tobacco control policies "must be evaluated to provi de 
concrete evidence of their effects"1452 as "one cannot … be certain of the effectiveness of 
interventions before they are implemented".1453 Thus, "[t]obacco control practitioners and 
policy -makers need to be open to the possibility that data from evaluation e fforts will reveal that 
the assumptions underpinning the intervention are flawed".1454 We are also mindful that what we 
must ascertain is the actual degree of contribution of the measures, as designed and as applied.  
7.497.   We therefore consider  that, to the extent that relevant evidence is available, information 
relating to actual smoking behaviours and the use of tobacco products in Australia following the 
implementation of the measures should be an integral part of our assessment of the 
TPP measures ' contribution to Australia's objective of improving public health by reducing the use 
of, and exposure to, tobacco products.1455 The exact weight to be accorded to this evidence will, 
however, depend on its nature, quality, and probative value in respe ct of the question before 
us.1456  
7.498.   We also note that a significant part of the evidence before us consists of a number of 
studies, mostly predating Australia's implementation of the TPP measures , identified as the "plain 
packaging literature" ( TPP literature ), that sought to explore the expected operation in particular 
of the three mechanisms now reflected in the "causal chain" of the TPP Act. The complainants base 
their argument that the measures are not capable of achieving their intended outcomes in part on  
critiques of the reliability of these studies. The post -implementation evidence before us on the 
effects of the TPP measures  since their entry into force also relates not only to smoking prevalence 
                                                
1448 Australia's second written submission, para. 438.  
1449 Australia's  response to Panel question No. 71, paras.  192-193. (emphasis original)  
1450 Australia's first written submission, para. 146 (quoting Fong et al. 2006, (Exhibit AUS -132), 
pp. iii10-iii11). (emphasis added)  
1451 Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)), p.  1166.  
1452 Fong et al. 2006, (Exhibit AUS -132), p.  iii3. 
1453 2008 IARC Handbook, (Exhibits AUS -602, DOM -368), p. 15. 
1454 Borland and Cummings 2010, (Exhibit DOM -369), p. 632. 
1455 We note that Australia relies upon evidence relating to the actual impleme ntation of the measures to 
counter the complainants' assertion that the TPP measures  will cause the price of tobacco products to fall. 
Australia's first written submission, paras.  660-661. 
1456 See section 7.2.5.3.6  below on the nature of post -implementation evidence and the weight to be 
given to it.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and consumption, but also to the effect of the measures o n the type of "proximal outcomes" 
underlying the three mechanisms described above, through which the TPP measures  are designed 
to operate. We do not exclude, at this stage of our analysis, that such evidence relating to 
"proximal" outcomes reflecting the t hree mechanism of the TPP Act may, in combination with other 
relevant evidence before us, inform our assessment of the degree of contribution of the measures 
to their objective, to the extent that it would inform the impact of the measures on the smoking 
behaviours that are the ultimate target of the measures.  
7.499.   More generally, the relative weight to be attributed to specific evidence, including evidence 
relating to the design, structure and intended operation of the measures, on the one hand, and 
evidence re lating to their application, on the other hand, will depend on the nature and quality of 
such evidence and its probative value for the question before us. We must assess the 
TPP measures ' degree of contribution to their objective, as precisely as possible,  based upon the 
totality of the relevant evidence before us.1457 The level of precision to which this can be done will 
however depend on a number of factors:  
[T]he nature of the objective of the technical regulation …, its characteristics as 
revealed by its d esign and structure, and the nature, quantity, and quality of evidence 
available, may have a bearing on whether a relevant factor … can be assessed in 
quantitative or qualitative terms … as well as on the degree of precision with which 
such an analysis can  be undertaken.1458 
7.500.   In light of the above, we consider that evidence relating to the design, structure, and 
operation of the TPP measures  (including their anticipated impact on "proximal" outcomes 
reflecting the specific mechanisms through which they are desi gned to operate and on smoking 
behaviours), as well as evidence relating to the application of the challenged measures (including 
evidence relating to their actual effect both on proximal outcomes reflecting the mechanisms 
under the TPP Act and on smoking behaviours) is a priori  relevant to an assessment of the degree 
to which the TPP measures  contribute to Australia's objective of reducing the use of, and exposure 
to, tobacco products.  
7.501.   The TPP measures  cover "tobacco products", which the TPP Act defines a s 
"processed  tobacco, or any product that contains tobacco, that: (a) is manufactured to be used for 
smoking, sucking, chewing or snuffing; and (b) is not included in the Australian Register of 
Therapeutic Goods maintained under the Therapeutic Goods Act 1 989".1459 The Explanatory 
Memorandum to the TPP Bill adds that:  
The definition of "tobacco product" in the Bill means that generally any product 
containing tobacco, no matter how small the amount, will be within the scope of the 
Bill if it was manufactured fo r smoking, sucking, chewing or snuffing.  
This definition is based on the definition in the WHO FCTC. It is intended to 
encompass all tobacco products designed for human consumption, and will include, for 
example, cigarettes, cigars, roll -your-own tobacco, bidis, kreteks, little cigars, and 
dissolvable tobacco products such as tablets containing tobacco for sucking.  
It is important to note that therapeutic goods, which are aimed at helping people to 
quit their use of tobacco products, will not be regulated b y the Bill when they are 
included on the Australian Register of Therapeutic Goods. Products that contain 
nicotine but do not contain any tobacco will not be regulated by the Bill.  
The broad definition of "tobacco products" may encompass some tobacco produc ts 
which are unlawful, under Commonwealth, State or Territory laws that regulate the 
use and sale of tobacco, and that are not affected by the operation of this Bill.1460 
                                                
1457 See Appellate Body Report, Korea  – Dairy , para. 137. 
1458 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.211.  
1459 TPP Act, (Exhibits AUS -1, JE-1), Section 4.  
1460 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.502.   As a subcategory of tobacco products, the TPP Act defines "cigarette" as "a roll of cut 
tobacco for smoking, enclosed in paper".1461 The above  definitions also apply in the context of the 
TPP Regulations1462, which additionally define "cigar" as "a roll of cut tobacco for smoking, 
enclosed in tobacco leaf or t he leaf of another plant"1463, and "bidi" as "a tobacco product for 
smoking, not enclosed in paper, commonly known as a bidi".1464 
7.503.   A voluminous body of evidence was submitted by the parties in these proceedings. Most of 
this evidence either relates to cigarettes  or generally to tobacco products. Some of the evidence 
before the Panel is specific to cigarillos and cigars.1465  
7.504.   None of the parties suggest s that the approach of the Panel should differ, in respect of its 
analysis of the contribution of the TPP measures  in respect of different tobacco products .1466 
According to Australia, the relational and comparative analyses under Article  2.2 of the 
TBT Agreement  should mirror each other, and therefore the Panel should conduct a holistic 
analysis of tobacco products, rathe r than separate analyses of cigarettes, cigars and other tobacco 
products.1467 Cuba, while not suggesting that the approach taken to the analysis should be 
different in resp ect of different tobacco products,1468 argues that the TPP measures  have a 
disproportiona te effect on LHM cigars1469 and will not reduce LHM cigar prevalence and 
consumption.1470  
7.505.   To the extent that the objective pursued, and the mechanisms through which the 
TPP measures  are intended to contribute to this objective, are the same in respect of the va rious 
products covered by the TPP measures , we see no reason to assume that a different approach 
would be required, in considering the contribution of the measures to Australia's objective in 
relation to different types of tobacco products. Nonetheless, to  the extent that specific evidence is 
presented, that would have an impact on our conclusions concerning the degree of contribution of 
the measures to their objective in respect of specific tobacco products, we will consider such 
evidence in the course of our analysis.  Accordingly, we will assess the complainants' Article  2.2 
                                                
1461 TPP Act, (Exhibits AUS -1, JE-1), Section 4.  
1462 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.3.  
1463 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.3.  
1464 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 1.1.3.  
1465 Some evidence also addressed specifically RYO tobacco; however, no party made arguments with 
respect to this subgroup of tobacco prod ucts. 
1466 The Dominican  Republic  argues that it would be within the Panel's discretion to separately assess 
the evidence relating to cigars and cigarettes in its Article  2.2 analysis, but considers that there is no basis in 
the arguments or evidence before the Panel for a separate assessment of the trade -restrictiveness and 
contribution of the alternative measures as they apply to cigars and cigarettes, and that none of the parties 
has sought to make any relevant distinction in this respect. Dominican  Republ ic's response to Panel question 
No. 152. Likewise, in the context of Articles  22.2 and 24.3 of the TRIPS Agreement, the Dominican  Republic  
argues that distinctions between types of tobacco products entail no relevant factual or legal differences, 
although GIs are more likely to be relevant for LHM cigars. Dominican  Republic 's response to Panel question 
No. 44. Honduras similarly does not consider that a different assessment of the proposed alternative measures 
is required in respect of cigars and cigarettes . Honduras's response to Panel question No. 152. Further, in the 
context of Article  16.1 of the TRIPS Agreement, Honduras argues that there is no need for distinguishing 
tobacco products. Honduras's response to Panel question No. 29. Likewise, in the conte xt of Articles  22.2 and 
24.3 of the TRIPS Agreement, Honduras argues that as a matter of commercial reality, geographical indications 
are more likely to be relevant for LHM cigars, rather than for other tobacco products; however, the greater 
commercial rel evance of geographical indications for LHM cigars "is not legally relevant." Honduras's response 
to Panel question No. 44. Indonesia states that it makes no claims regarding cigars in this dispute but 
incorporates by reference the above points of Honduras and the Dominican  Republic. Indonesia's response to 
Panel question No. 152 ( referring to  Dominican  Republic 's response to Panel question No. 152; and Honduras's 
response to Panel question No. 152).  
1467 Australia's response to Panel question No. 152. 
1468 Cuba's  response to Panel question No. 152. Likewise, in the context of Article  16.1 of the TRIPS 
Agreement, Cuba argues that "while the basic principles of analysis mentioned above also correspond to the 
effect of the plain packaging measures on cigars and cigar ettes, for the reasons given, Cuba considers that the 
commercial impact of the measures is much greater for cigars than for cigarettes. Cigarettes are a "basic", 
low-value product; LHM cigars are higher value luxury products. The creation of an effective b rand image and 
product differentiation are key for the promotion of the premium status of LHM cigars. For this reason, the 
obstacles on the effective use of trademarks have a much greater prejudicial impact on cigars than on 
cigarettes." Cuba's response to  Panel question No. 29 (annexed to its response to Panel question No. 138). 
1469 Cuba's response to Panel question No. 29. 
1470 Cuba's first written submission, para. 273. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  claims for tobacco products in general, while taking into account, as necessary, relevant evidence 
specific to certain types of tobacco products.  
7.506.   Finally, we note that the operation of  the TPP measures , including their contribution to 
Australia's objective, must be viewed in the broader context of other tobacco control measures 
maintained by Australia. While this broader context does not remove or reduce the need to identify 
the contrib ution that the challenged measures themselves make to Australia's objective, it is a 
relevant consideration in our assessment, to the extent that it informs and affects the manner in 
which the measures are applied and operate, as a component of a broader s uite of complementary 
tobacco control measures.1471  
7.507.   In the interest of clarity of exposition, we consider first the evidence before us on the 
design, structure, and intended operation of the TPP measures , and subsequently, the evidence 
relating to their actual application. However, as described above, our overall assessment will be 
based on the entirety of the relevant evidence, taken together.  
7.508.   We first address, as a preliminary matter, some general issues raised by the complainants 
concerning the probati ve value to be given to certain evidence before us.  
7.2.5.3.4   Access to data and probative value of certain evidence  
7.509.   As described above, a considerable amount of factual evidence has been presented and 
relied upon by all parties in these proceedings. This includes n umerous expert reports 
commissioned by the parties for these proceedings as well as published scientific studies in a 
variety of fields.  
7.510.   In the course of the proceedings, Australia, Ukraine1472, and the Dominican Republic asked 
the Panel to exercise its disc retion pursuant to Article  13 of the DSU to request data, coding, and 
other materials , including material  underlying expert reports commissioned for the purposes of 
these proceedings and certain publications relied upon by Australia or its experts .1473 Taking  into 
account the requirements of due process as well as the potential usefulness of this information to 
the Panel's own assessment, and without prejudice to the relevance or evidentiary weight to be 
ultimately accorded to this evidence, the Panel invited Cancer Council Victoria ( CCV) and Cancer 
Council Queensland ( CCQ)  to provide, among other materials, the dataset underlying two 
published papers relied upon by Australia or its experts .1474 Citing ethical and legal obligations, and 
concerns that providing the  data would jeopardize its ability to conduct future studies, CCV and 
CCQ partly declined these requests.1475  
7.511.   The Dominican Republic and Honduras have questioned the extent to which publications 
based upon data that they did not have direct access to can be relied upon in these proceedings. 
The Dominican Republic claims that it is not possible to make an objective assessment of the 
findings of those studies for which they have not received full access to the underlying data, and 
invites us to infer that the u nderlying data that has been withheld is less favourable to 
Australia.1476 Honduras argues that it would be inappropriate for the Panel to rely on those studies, 
as the complainants have not had the opportunity to review the underlying data.1477 
7.512.   We note that, in  these proceedings, all parties have had access to, and submitted, a 
considerable – indeed, an unusually large – volume of evidence to support their claims and 
arguments. This has included the data and computer coding directly underlying numerous expert 
reports commissioned for the purposes of these proceedings, as well as a range of data underlying 
                                                
1471 See Appellate Body Report, Brazil  – Retreaded Tyres , para. 154. 
1472 See section 1.6.6 above with respect to DS434.  
1473 See section 1.6.7.3 above.  
1474 The two papers are (a) White et al. 2015b, (Exhibits HND -135, DOM -236, DOM -288); and (b) White 
et al. 2015a, (Exhibit s AUS-186, DOM -235). White et al. 2015b is referred to in th e Slovic Report, (Exhibit 
AUS-12), para. 87 and in the Fong Report, (Exhibit AUS -14), para. 348.  
1475 See paras.  1.99-1.100 above.  
1476 Dominican  Republic 's second written submission, paras.  443-445; and Dominican  Republic 's 
response to Panel question No. 134, paras.  12-16. 
1477 Honduras's second written submission, para. 160. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  certain publications relied on by Australia that sought to evaluate the effects of the TPP measures  
since their entry into force.1478  
7.513.   We do not consider that lack  of direct access to the full data underlying a peer -reviewed 
scientific publication should in itself lead the Panel to disregard such publication or its conclusions 
as evidence. We do not exclude that, where evidence is presented that may call into questi on the 
conclusions of certain research results reflected in scientific publications cited as evidence, this 
may be validly taken into account in assessing the probative value of that evidence in 
demonstrating the facts at issue. However, we see no basis fo r assuming that scientific 
publications presented as evidence in dispute settlement proceedings can only be validly 
considered by a panel, if access is also provided to the complete underlying research data. Indeed, 
as observed by Australia1479, such an appro ach would render reliance on such information, and the 
management of evidence in dispute settlement proceedings, unduly complex and ultimately 
unmanageable. We note in this respect that a range of scientific sources including, where relevant, 
scientific pu blications, has been relied upon by parties and taken into account as admissible 
evidence in prior panel proceedings.1480  
7.514.   More generally, in these proceedings, all parties have extensively discussed the validity 
and implications of conclusions drawn from a r ange of scientific studies in a variety of research 
fields, including on the basis of the many expert reports commissioned for these proceedings. In 
assessing the probative value of this evidence, we are mindful that our role is not to make 
scientific dete rminations or otherwise seek to resolve scientific debates. Rather, our task is to 
assist the DSB in resolving a dispute and, in this context, to make an objective assessment, based 
on the arguments and evidence before us, of the degree of contribution of the TPP measures  to 
their objective, as part of a broader determination on their consistency with Article  2.2 of the 
TBT Agreement .  
7.515.   In this context, we will need to assess on the basis of the evidence before us to what 
extent relevant facts have been esta blished, and the extent to which this evidence, taken as a 
whole, supports a conclusion that the challenged measures contribute to their objective. To the 
extent that this is the case, we will need to ascertain as precisely as possible to what degree they 
do so, in light of the nature and quality of the evidence before us. As observed above, the degree 
of precision with which this can be done will depend, inter alia, on the nature and quality of the 
evidence before us.  
7.516.   To the extent that scientific evidence  is relied upon, our assessment may include in 
particular a consideration of whether such evidence "comes from a qualified and respected 
source"1481, whether it has the "necessary scientific and methodological rigor to be considered 
reputable science" or refl ects "legitimate science according to the standards of the relevant 
scientific community"1482, and "whether the reasoning articulated on the basis of the scientific 
evidence is objective and coherent".1483  
7.517.   These considerations were first identified as relevant in the context of Article  5.1 of the 
SPS Agreement. The assessment required in reviewing the consistency of an SPS measure under 
Article  5.1 of the SPS Agreement and the assessment that we are called upon to perform in the 
context of Article  2.2 of the TBT Agreement  are not identical, but they similarly involve a 
consideration of relevant scientific evidence. The question that a panel must consider under 
Article  5.1 of the SPS Agreement relates to the existence of a proper risk assessment and whether 
the co nclusions reached in that assessment sufficiently warrant the measure at issue. As described 
                                                
1478 See section 1.6.7.3 above.  
1479 Australia's response to Panel question No. 134, paras.  11-18. 
1480 See, e.g. Panel Reports, US – Tuna II , (Mexico) , paras.  7.438 fn 634 and 7.498 fn 693; and US –
 Clove Cigarettes , paras.  7.403 -7.412.  
1481 Appellate Body Report, US – Continued Suspension , paras.  591-592. See also ibid. paras.  598 and 
601. These observations were made by the Appellate Body in the context of a consideration of the "scientific 
basis" of S PS measures under Article  5.1 of the SPS Agreement; however, we consider that they may be 
relevant, mutatis mutandis , to a consideration of the probative value of disputed scientific evidence in other 
comparable contexts.  
1482 See Appellate Body Report, US – Continued Suspension , para. 591. 
1483 See Appellate Body Report, US – Continued Suspension , paras.  591-592. See also ibid. paras.  598 
and 601.   WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  above, we are called upon, at this stage of our analysis, to make an objective factual 
determination on the degree to which, "if at all", the measures contribute t o their objective. In 
carrying out this task and arriving at factual findings in this respect, we have the duty to examine 
and consider all the evidence before us and to "evaluate the relevance and probative force of each 
piece thereof".1484 We consider that,  in this assessment, the types of considerations identified 
above as relevant in the context of a review of the scientific basis of a risk assessment under the 
SPS Agreement may, mutatis  mutandis , shed important light on "the probative force" to be 
ascribe d to disputed evidence of a scientific nature, also in the context of an assessment under 
Article  2.2 of the TBT Agreement .  
7.2.5.3.5   Design, structure and operation of the measures  
7.518.   In this section, we focus on evidence relating to the manner in which the TPP measu res are 
designed to operate, in other words, their "design, structure and operation". At this stage of our 
analysis, therefore, we focus primarily on evidence predating the implementation of the 
TPP measures  in Australia. This is without prejudice to our subsequent consideration of evidence 
relating to the actual application of the TPP measures  in the next section. As described earlier, our 
overall assessment of the degree of contribution of the measures to t heir objective will be based 
on a consideration of the entirety of this evidence.  
7.519.   As described above, the design underlying the structure of the TPP measures  reflects a 
causal chain or "mediational model" whereby the adoption of a uniform, standardized pre sentation 
of tobacco products and their retail packaging (i.e. "plain"  packaging) is intended to reduce the 
appeal of tobacco products to the consumer, enhance the effectiveness of GHWs and reduce the 
ability of the pack to mislead consumers about the harm ful effects of smoking, and thereby affect 
smoking behaviours.  
7.520.   The complainants contest the capacity of the TPP measures  to contribute to their objective 
through any of these mechanisms. They argue that the evidentiary base for the TPP measures , in 
particu lar the literature in support of tobacco plain packaging, is not of a quality or methodological 
rigour sufficient to provide a reliable basis to support the measures. They also argue that, even 
assuming that the measures would, as Australia argues, be apt to reduce the appeal of tobacco 
products, increase the effectiveness of GHWs or limit the ability of packaging to mislead 
consumers about the harmful effects of smoking, this will not have an impact on relevant smoking 
behaviours.  
7.521.   The complainants' critiq ue of the body of tobacco plain packaging -related studies 
(TPP literature ) cuts across an entire body of evidence relating to the anticipated effects of tobacco 
plain packaging, mostly consisting of studies predating the implementation of the TPP measures  in 
Australia and seeking to evaluate the potential impact of tobacco plain packaging on the three 
mechanisms now reflected in the TPP Act. We therefore consider this horizontal critique first. We 
then turn to a consideration of the evidence relating to eac h specific mechanism and associated 
behavioural outcomes underlying the design and structure of the TPP measures .  
7.2.5.3.5.1   Critique of the "plain packaging literature" ( TPP literature )1485 
7.522.   The complainants identify a group of 68 published papers, which report the res ults of 
studies conducted mostly prior to Australia's implementation of the TPP measures1486 and primarily 
focusing on the potential for tobacco plain packaging to impact the "non -behavioural" or 
"proximal" outcomes identified in the TPP Act.  
                                                
1484 Appellate Body Report, Korea  – Dairy , para. 137. 
1485 This expression is used by the Panel in th ese Report s without implying a specific list of relevant 
studies. As described below, the complainants have presented a set of 68 studies that they refer to as "the PP 
literature". They have also presented a number of expert reports containing reviews of relevant TPP -related 
studies, each of which defines the scope of review undertaken in the specific report. These lists overlap 
partially with the literature referred to by Australia. The Panel refers to this body of studies generally as "the 
TPP literature ". 
1486 See Pla in packaging literature, (Exhibit JE -24). Each of the 68 studies that were submitted as part of 
Exhibit JE -24 was assigned an individual exhibit number, from JE -24(1) through JE -24(68).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.523.   The complainant s engage in individual critiques of specific studies, and also argue that the 
TPP literature  as a whole, applying established social science research criteria1487, suffers from 
serious methodological flaws and lacks the scientific rigour and objectivity requi red to form a 
reliable evidentiary base for a policy intervention of this kind.1488 Australia responds that the 
TPP measures  are based upon "a wealth of evidence supporting [their] effectiveness" and that the 
complainants' critiques of the TPP literature  are "unjustified, irrelevant, and misrepresentative of 
the body of literature supporting the tobacco plain packaging measure".1489 
7.524.   In this section, we consider the complainants' overall critique of this literature, without 
prejudice to the weight to be given to t his body of evidence in our overall assessment.  
Main arguments of the parties  
7.525.   The complainants  argue that the TPP literature  as a whole suffers from flaws that prevent 
it from serving as reliable scientific evidence of the short or long -term effectiveness of the 
TPP measures . More specifically, the complainants consider that the TPP literature  does not meet 
the standards of objectivity or methodological rigour that generally apply to social science research 
on consumer behaviour. In suppo rt of this argument, the complainants commissioned expert 
reports, for the purpose of these proceedings, from three groups of experts: (1) Professor Inman 
et al.1490; (2) Kleijnen Systematic Reviews1491; and (3) Professor Klick.1492 Each applied a distinct 
review m ethodology.  
7.526.   First, the Dominican Republic and Honduras1493 commissioned a team of seven academics, 
led by Professor Inman, who have each published and served editorial functions in scholarly 
journals in the field of consumer behaviour, to conduct a "Peer Rev iew Project" of 55 plain 
packaging papers  (Peer Review Project).1494 The reviewers were instructed to proceed as if each 
paper was assigned to them as a reviewer for a leading scholarly consumer research journal, and 
to apply as a benchmark the criteria and r igour by which they would normally judge submitted 
manuscripts.1495 None of the reviewed studies were recommended for publication by any of the 
reviewers. Forty -six were "rejected" outright for methodological reasons, with no possibility of 
revision, while th e perceived flaws in the remaining nine studies, if corrected, were deemed 
substantial enough to potentially alter the studies' results and conclusions.1496 
7.527.   Second, the Dominican Republic and Honduras1497 commissioned a group of researchers, 
led by Professor Kleijnen, to systematically "identify, select and critically appraise" plain packaging 
studies using objective criteria and predefined processes  (Kleijnen Systematic Review) .1498 Among 
the 58 papers consi dered, Professor Kleijnen's team determined that 31 utilized an experimental 
                                                
1487 See Peer Review Project Rebuttal Report , (Exhibit DOM/HND -12), para. 6; and Kleijnen Systematic 
Review Second Rebuttal Report , (Exhibit DOM/HND -18), paras.  2 and 22 -23. 
1488 See Honduras's first written submission, paras.  455-517; Dominican  Republic 's first written 
submission, paras.  551-659; and Cuba's first written submissi on, paras.  169-184. See also Indonesia's second 
written submission, para. 186. 
1489 Australia's first written submission, Annexure E, paras.  3 and 6.  
1490 See Peer Review Report , (Exhibit DOM/HND -3); Peer Review Project Rebuttal Report , (Exhibit 
DOM/HND -12); and Peer Review Project Second Rebuttal Report, (Exhibit DOM/HND -17). 
1491 See Kleijnen Systematic Review , (DOM/HND -4); Kleijnen Systematic Review Rebuttal Report , 
(Exhibit DOM/HND -13); and Kleijnen Systematic Review Second Rebuttal Report , (Exhibit DOM/ HND-18).  
1492 Klick TPP  Literature  Report, (Exhibit UKR -6) (relied upon by Cuba: see Cuba's communication to the 
Panel of 13 July 2015) . 
1493 Cuba has also relied upon this expert report. Cuba's first written submission, paras.  170 and 172. 
Indonesia has refere nced discussions in the Dominican  Republic 's first written submission which refer to this 
report. See Indonesia's second written submission, para. 186 and fn  275. 
1494 See Honduras's first written submission, paras.  470-474; Dominican  Republic 's first written  
submission, paras.  569-572; and Peer Review Report , (Exhibit DOM/HND -3), paras.  12-14. 
1495 Peer Review Report , (Exhibit DOM/HND -3), para. 26 and Appendix A.  
1496 See Dominican  Republic 's first written submission, para. 575; and Peer Review Report, 
(Exhibit  DOM/HND -3), para. 17. 
1497 Cuba has also relied upon this expert report. See Cuba's first written submission, paras.  170 and 
172. Indonesia has referenced discussions in the Dominican  Republic 's first written submission which refer to 
this report. See Indonesia' s second written submission, para. 186 and fn  275. 
1498 Honduras's first written submission, para. 476; Dominican  Republic 's first written submission, 
para. 578; and Kleijnen Systematic Review , (Exhibit DOM/HND -4), p. 9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  design capable of drawing conclusions regarding the causal impact of plain packaging on the 
measured outcome.1499 These studies were then assessed for bias based upon "four generally  
accepted grounds of methodological 'validity'", each of which represents a potential source of bias: 
construct validity, internal validity, external validity, and conclusion validity.1500 The assessment 
concluded that each study was "implemented in a manner that gives rise to a considerable or high 
risk of bias" and thus none of the studies constitute reliable or probative sources for assessing the 
effects of the TPP measures .1501 
7.528.   Third, Cuba relies upon a report reviewing the literature underlying the TPP measu res 
conducted by Professor Klick  (Klick TPP Literature Report) .1502 The report focuses on 48 individual 
studies1503 and five reviews of the literature conducted by public health academics and 
governmental bodies.1504 Professor Klick concluded that the research is " an unsuitable foundation 
for public policy" due to methodological problems, concerns regarding objectivity, and a 
"disconnect between the research designs and the conclusions reached".1505  
7.529.   The complainants have also submitted reports from other experts who c ritique to varying 
degrees certain studies in the TPP literature .1506  
7.530.   The expert reports submitted by the complainants concluded that the research used by 
plain packaging advocates is "neither reliable nor relevant" for the purpose of implementing this 
policy in Australia.1507 Overall, the complainants contend that the studies share the following 
primary flaws1508: 
 Measuring the impact of packaging on attitudes, perceptions, and intentions, rather than 
on actual smoking behaviour1509; 
 Relying on survey data or informa tion solicited in focus groups or interviews, rather than 
employing an experimental design that is capable of drawing causal inferences1510;  
 Failing to control for demand effects and socially desirable responses1511; 
                                                
1499 See Kleijnen Systematic Review , (Exhibit DOM/HND -4), pp. 27-28. 
1500 Dominican  Republic 's first written submission, para. 589. Construct validity  "concerns whether the 
way(s) a researcher has measured a construct of interest (e.g. appeal of a cigarette pack or an aspect of 
smoking behaviour ) fully encapsulates that construct and whether the outcome measure has particular 
properties such as reliability"; internal validity  concerns "whether the study has measured the true effect, in 
other words, whether the attribution of causality to the inte rvention is valid"; external validity  is "concerned 
with the generalisability (applicability) of findings beyond the confines of the study"; and conclusion validity  
concerns "whether there is an appropriate correspondence between the methods actually emplo yed, the results 
and the researchers'  interpretation of findings concerning the relationship of interest". Kleijnen Systematic 
Review , (Exhibit DOM/HND -4), p. 23. 
1501 See Dominican  Republic 's first written submission, para. 589. 
1502 Cuba's first written submis sion, para. 172. Professor Klick is a law professor, economist, and expert 
in empirical legal studies. Klick TPP  Literature  Report, (Exhibit UKR -6), p. i and curriculum vitae  attachment.  
1503 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 16. 
1504 Klick TPP Literature  Report, (Exhibit UKR -6), pp. 16 and 58 -63. 
1505 Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 1, 6, and 63 -64. 
1506 See Satel Report , (Exhibit UKR -7) (relied upon by Honduras, the Dominican  Republic , and Cuba: see 
Honduras's communication to t he Panel of 8 July 2015; Dominican  Republic 's responses to Panel questions 
following the first substantive meeting, para. 1; and Cuba's communication to the Panel of 13 July 2015) ; 
Steinberg Report , (Exhibit DOM/HND -6); Ajzen Report , (Exhibit DOM/HND/IDN -3); Ajzen Supplemental Report , 
(Exhibit DOM/HND/IDN -4); and Ajzen Rebuttal Report, (Exhibit DOM/HND/IDN -5). See also Viscusi Report , 
(Exhibit UKR -8) (relied upon by Honduras and Cuba: see Honduras's communication to the Panel of 8 July 
2015; and Cuba's comm unication to the Panel of 13 July 2015) ; Mitchell Report , (Exhibit UKR -154) (relied 
upon by Indonesia: see Indonesia's communication to the Panel of 8 July 2015) ; and McKeganey Report , 
(Exhibits DOM -105, CUB -72). 
1507 See, e.g. Klick TPP  Literature  Report, (E xhibit UKR -6), p. 1. 
1508 See Dominican  Republic 's first written submission, para. 591. 
1509 See Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 1; Kleijnen Systematic Review , (Exhibit 
DOM/HND -4), pp. 32-33; Peer Review Report , (Exhibit DOM/HND -3), para. 61.iv.b; Ajzen Supplemental 
Report , (Exhibit DOM/HND/IDN -4), paras.  60 and 61.e; Viscusi Report , (Exhibit UKR -8), paras.  45-48; and 
Mitchell Report , (Exhibit UKR -154), para. 11. 
1510 See Honduras's first written submission, para. 497; Cuba's first written sub mission, paras.  174-175; 
and Kleijnen Systematic Review , (Exhibit DOM/HND -4), pp. 16-20, 31, and 49; and Fig ure 5. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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   Extrapolating real -world results from sample s and environments that are not 
representative1512;  
 Failing to control for confounding variables1513, such as GHWs and novelty effects1514; 
 Drawing conclusions that do not follow from the study's results1515; 
 A lack of objectivity in favour of study outcomes that sup port plain packaging, given:  
 Most of the studies post -date Australia's announcement in April 2010 that it would 
adopt plain packaging;  
 The preferences of the public health community and its journals; and  
 The small size of the tobacco control community, whe re a small group of researchers 
conducted the majority of the studies.1516 
7.531.   Australia  strongly criticizes the methodologies used in these reviews.1517 It considers that 
the complainants' granular critiques of the TPP literature  deconstruct studies against unreali stic 
criteria that exaggerate shortcomings in an attempt to distract from and diminish the results, at 
odds with established methods for informing policy through evidence.1518 Australia criticizes the 
"strategy" used by the complainants in their review of the  evidence base for plain packaging.1519  
7.532.   Professor Fong, in expert reports submitted by Australia, identifies the following general 
strategies and themes in the complainants experts' reports critiquing the TPP literature : 
 Illusion of rigour and demanding the "perfect" study;  
 Exclusive focus on smoking rates as the target of the TPP Act; 
 Almost exclusive focus on outcome measures of real -world behaviour;  
 Disregarding all non -experimental research;  
 Misleading or inaccurate reporting of evidence;  
 Presenting a min or point as a main conclusion;  
                                                                                                                                                  
1511 See Honduras's first written submission, para. 496; Dominican  Republic 's first written submission, 
paras.  598-600; Cuba's first written sub mission, para. 176; Klick TPP  Literature  Report, (Exhibit UKR -6), p. 1; 
Peer Review Report , (Exhibit DOM/HND -3), paras.  18.i and 61.i -61.ii; Kleijnen Systematic Review , (Exhibit 
DOM/HND -4), pp. 36 and 48; Viscusi Report , (Exhibit UKR -8), paras.  34-35 and 46; Ajzen Report , (Exhibit 
DOM/HND/IDN -3), paras.  179-188; Peer Review Project Rebuttal Report , (Exhibit DOM/HND -12), 
paras.  41-51; Satel Report , (Exhibit UKR -7), para. 65; and Ajzen Supplemental Report , (Exhibit 
DOM/HND/IDN -4), para. 61.h. 
1512 See Cu ba's first written submission, para. 178; Klick TPP  Literature  Report, (Exhibit UKR -6), 
pp. 2-3; Peer Review Report , (Exhibit DOM/HND -3), para. 18.ii; Kleijnen Systematic Review , (Exhibit 
DOM/HND -4), p. 36; and  Viscusi Report , (Exhibit UKR -8), paras.  39-42. 
1513 Peer Review Report , (Exhibit DOM/HND -3), para. 18.i; and Klick TPP  Literature  Report, (Exhibit 
UKR-6), pp. 50-51 and 56.  
1514 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), paras.  61.f and 61.h; Kleijnen Systematic 
Review Second Rebuttal Report , (Exhibit DOM/HND -18), para. 38; and Klick TPP  Literature  Report, (Exhibit 
UKR-6), p. 13. 
1515 See Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 2 and 63 -64; and Peer Review Report , (Exhibit 
DOM/HND -3), para. 18.iii.  
1516 See Honduras's first written submissi on, paras.  461 and 464 -466; Dominican  Republic 's first written 
submission, paras.  69-75; Indonesia's first written submission, paras.  29-30; Klick TPP  Literature  Report, 
(Exhibit UKR -6), pp. 1-2, 13, and 15 -17; and Peer Review Report , (Exhibit DOM/HND -3), para. 40. 
1517 Australia's first written submission, paras.  607-614 and Annexure E, paras.  3-10. 
1518 Samet Report , (Exhibit AUS -7), paras.  137, 148, and 152 ; and Fong Report , (Exhibit AUS -14), 
paras.  446 and 489 . 
1519 Samet Report , (Exhibit AUS -7), para. 137; and Fong Second Supplemental Report , (Exhibit 
AUS-585), para. 35-36. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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   Attributing any effects of plain packaging to novelty only;  
 Overemphasis on social desirability bias;  
 Overemphasis on demand effects;  
 Failing to address how claimed flaws could actually account for the results;  
 Exaggerating impact of limitations and ignoring study strengths;  
 Claiming a small set of authors involved in a majority of papers is a bias; and  
 Ignoring the convergence of evidence.1520 
 
7.533.   Australia also notes that the vast majority of the studies reviewed by the complaina nts 
were published in peer -reviewed scientific journals, including some of the leading scientific journals 
on public health and tobacco.1521 Thus, Australia contends, the studies have already been subject 
to "rigorous scholarly review".1522  
7.534.   The complainants  respond that the peer -review process is not fool -proof, that it can fail to 
prevent the publication of studies with significant flaws1523, and that publication is not a guarantee 
of reliable methodology and results.1524 They point to the Peer Review Project, wh erein seven 
marketing experts with experience in reviewing studies for publication provided an "objective 
critique … to assess whether the papers that form the body of the [] plain packaging literature 
would be accepted for publication in high -quality peer -reviewed academic journals".1525 These 
experts concluded that none of the studies were acceptable in their current form.1526  
7.535.   Australia 's expert Professor Fong observes that of the 55 articles considered as part of the 
Dominican Republic and Honduras's  Peer Rev iew Project, 39 had already been published in 
peer-reviewed journals. Yet none were "accepted" for publication as part of the complainants' 
hypothetical review. In other words, there was no overlap between the results of the peer  review 
process of the 20 s cientific journals across different scientific disciplines in which these articles had 
been published and the results of the Peer Review Project.1527 Likewise, Australia notes, the 
"Kleijnen Systematic Review uniformly indicated a high potential for bias" amo ng the 31 papers 
that were considered adequate for analysis.1528 Australia submits that these results are the product 
of overly strict distorted review criteria, misapplied in a manner that is inconsistent with 
established principles and methods of review.1529 Australia argues that the "implausible" 
conclusions of these reports, as well as their disparity with the results of the actual peer review 
process at a variety of journals, discredits the complainants' experts' assessments.1530 
7.536.   Australia' s expert Professor  Fong submits that individual studies are inevitably subject to a 
range of limitations but  that, considered collectively, the range of designs constitute a persuasive 
                                                
1520 Fong Report, (Exhibit AUS -14), paras.  446-493. 
1521 Fong Report , (Exhibit AUS -14), para. 450. 
1522 Fong Second Supplemental Report , (Exhibit AUS -585), para. 24. 
1523 Peer Review Project Rebuttal Rep ort, (Exhibit DOM/HND -12), para. 149. 
1524 Peer Review Project Rebuttal Report , (Exhibit DOM/HND -12), para. 148; and Peer Review Project 
Second Rebuttal Report, (Exhibit DOM/HND -17), para. 5. 
1525 Peer Review Report , (Exhibit DOM/HND -3), para. 1. 
1526 Peer Review Report , (Exhibit DOM/HND -3), para. 17. 
1527 Fong Second Supplemental Report , (Exhibit AUS -585), paras.  24-25. See also Peer Review Report , 
(Exhibit DOM/HND -3), para. 17. 
1528 See Samet Report  (Exhibit AUS -7), paras.  145-146. See also Kleijnen Systematic Review S econd 
Rebuttal Report , (Exhibit DOM/HND -18), para. 32 ("Each individual PP study suffers from a high or 
considerable risk of bias, and virtually always for multiple facets of validity.").  
1529 See Fong Report , (Exhibit AUS -14), paras.  528, 554 and 562; Fong S econd Supplemental Report , 
(Exhibit AUS -585), paras.  26-30; and Samet Report , (Exhibit AUS -7), para. 137. 
1530 See Australia's comments on the complainants' responses to Panel question No. 197, para. 345; 
Fong Report , (Exhibit AUS -14), para. 450; and Fong Second Supplemental Report , (Exhibit AUS -585), 
paras.  24-25 and 29.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  body of evidence.1531 Australia commissioned two experts who undertook comprehensive 
qualitativ e reviews of the plain packaging literature to determine whether the evidence "taken 
together as a whole" supports the effectiveness of tobacco plain packaging.1532 They both 
concluded that the weight of the evidence, from diverse sources that employed a vari ety of 
research designs, outcome measures, and participants, converges upon the conclusion that plain 
packaging will reduce the use of tobacco products.1533  
7.537.   Australia and its experts submit that their approach is that taken by "authoritative bodies 
of intern ational standing" such as the US National Cancer Institute, the International Agency for 
Research on Cancer (the World Health Organisation's cancer research unit), and the US Surgeon 
General .1534 Australia refers to US Surgeon General  Reports, the U S National  Cancer Institute, the 
US Institute of Medicine ( USIOM ), and the WHO to support its qualitative approach to assessing 
the available literature "as a whole"1535, while acknowledging that individual studies are inevitably 
subject to a range of limitations given  the challenges inherent in evaluating national -level 
policies.1536 According to Australia, the consistency of the results supports the conclusion that plain 
packaging has the potential to contribute to public health.1537 Australia draws further support for 
this conclusion from several external reviews of the TPP literature , which also agree that the 
evidence base for plain packaging is sound.1538  
7.538.   The complainants  challenge the accuracy of the external reviews of the TPP literature .1539 
They also disagree with the app roach followed by Australia's experts. The complainants argue that 
no matter how many studies point in the same direction, a review of the findings and conclusions 
alone tells nothing about the methodological quality of the body of literature. In their vie w, a 
                                                
1531 See Fong Second Supplemental Report , (Exhibit AUS -585), paras.  11-13. See also Fong Report , 
(Exhibit AUS -14), para. 447 ("[I]f the findings of multiple studies, all flawed in some way, p oint to the same 
conclusion, then we can be more confident about the validity of that conclusion"). See also Australia's first 
written submission, Annexure E, para. 6 ("No one study makes an evidence base, but a significant number of 
studies reaching the s ame conclusions, regardless of individual limitations or flaws, provide a strong 
evidentiary base for developing public policy.").  
1532 Australia's first written submission, Annexure E, para. 4. See Fong Report , (Exhibit AUS -14); Fong 
Supplemental Report , (Exhibit AUS -531); Fong Second Supplemental Report , (Exhibit AUS -585), para. 8; and 
Samet Report , (Exhibit AUS -7). Other experts commissioned by Australia have also discussed the nature of the 
TPP literature  in their reports. See Chaloupka Public Health Repor t, (Exhibit AUS -9); Chaloupka Second 
Rebuttal Report, (Exhibit AUS -590); and Slovic Report , (Exhibit AUS -12). 
1533 Fong Second Supplemental Report , (Exhibit AUS -585), paras.  8-9. See also Fong Report , (Exhibit 
AUS-14), paras.  448 and 492; and Samet Report , (Exhibit AUS -7), paras.  6, 117 and 136 -137. 
1534 Fong Second Supplemental Report , (Exhibit AUS -585), para. 10. See also Australia's second written 
submission, para. 255 (referring to Chaloupka Public Health Report , (Exhibit AUS -9), para. 74; and Samet 
Report , (Exhibit AUS -7), paras.  138-152).  
1535 See Australia's second written submission, paras.  238-243, 251, and 255; Fong Report , (Exhibit 
AUS-14), paras.  492-493; Fong Second Supplemental Report , (Exhibit AUS -585), paras.  10-14, 17 and 31; 
Samet Report , (Exhibit  AUS-7), para. 117; and Chaloupka Public Health Report , (Exhibit AUS -9), para. 74. 
1536 Fong Report , (Exhibit AUS -14), paras.  447 and 489; and Fong Second Supplemental Report , 
(Exhibit AUS -585), paras.  11-13. 
1537 Australia's second written submission, paras.  254-255. See also Fong Report , (Exhibit AUS -14), 
para. 492; and Fong Second Supplemental Report , (Exhibit AUS -585), para. 14. 
1538 Australia's first written submission, paras.  612-613 and Annexure E, paras.  8-9; Australia's second 
written submission, paras.  246, 248 -249, and 254; Fong Second Supplemental Report , (Exhibit AUS -585), 
para. 15; Samet Report , (Exhibit AUS -7), para. 122; and Slovic Report , (Exhibit AUS -12), paras.  116-117. See 
"Standardised Packaging of Tobacco: Report of the Independent Review Unde rtaken by Sir Cyril Chantler", 
April 2014, (Chantler Report), ( Exhibits AUS -81, CUB -61); C. Moodie, M. Stead, L. Bauld, A. McNeill, K. 
Angusa, K. Hinds, I. Kwan, J. Thomas, G. Hastings and A. O'Mara -Eves, "Plain tobacco packaging: A systematic 
review", UK Centre for Tobacco Control Studies, University of Stirling (2012), (Stirling Review), (Exhibits 
AUS-140, HND -130, CUB -59); C. Moodie, K. Angus, M. Stead, and L. Bauld, "Plain Tobacco Packaging 
Research: An Update", Centre for Tobacco Control Research, Institute for Social Marketing, University of 
Stirling (2013), ( Stirling Review 2013 Update ), (Exhibits AUS -216, CUB -60); and D. Hammond, "Standardized 
Packaging of Tobacco Products: Evidence Review, Prepared on Behalf of the Irish Department of Health", M arch 
2014, ( Hammond Review ), (Exhibit AUS -555).  
1539 Cuba's first written submission, para. 173; Cuba's second written submission, para. 312; Klick 
TPP Literature  Report, (Exhibit UKR -6), pp. 60-63; Mitchell Report , (Exhibit UKR -154); and Kleijnen Systematic 
Review Second Rebuttal Report , (Exhibit DOM/HND -18), paras.  64-68. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  convergence of evidence may simply be a reflection of repeated methodological flaws and biases in 
the literature.1540 
Analysis by the Panel  
7.539.   As described above, the complainants identify as the TPP literature  a body of 68 published 
studies, mostly predating Australia's adoption of the TPP measures , that sought to explore the 
effect of "plain packaging" for tobacco products.  
7.540.   The complainants' general critique of this literature is reflected in three main exper t 
reports1541 and encompasses a large number of studies. We note that it does not, however, cover 
the entire field of studies relied upon by Australia in these proceedings, and also covers studies 
that Australia has not expressly relied upon in these proceedi ngs in support of its argument that 
the TPP measures  contribute to their public health objective. Australia has expressly relied, in the 
context of the "contribution" analysis in these proceedings, on 47 of the 68 papers identified by 
the complainants as p art of the TPP literature .1542 Australia has also relied upon 401543 of the 55 
papers reviewed as part of the Dominican Republic and Honduras's Peer Review Project1544; 411545 
                                                
1540 Kleijnen Systematic Review Second Rebuttal Report , (Exhibit DOM/HND -18), paras.  31-38. See also 
Honduras's first written submission, paras.  462-463; Cuba's second written submission, paras. 314-315; and 
Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 15-17. 
1541 See generally  Klick TPP  Literature  Report, (Exhibit UKR -6); Peer Review Report , (Exhibit 
DOM/HND -3); and Kleijnen Systematic Review , (Exhibit DOM/HND -4). 
1542 Australia has directly cited in its submissions, and provided as exhibits, 47 of the articles that the 
complainants submitted as part of Exhibit JE -24. (1) Brose et al. 2014, (Exhibits AUS -263, JE -24(11)); (2) 
Centre for Health Promotion 1993, (Exhibits A US-142, JE -24(14)); (3) Donovan 1993, (Exhibits AUS -151, 
JE-24(16)); (4) Environics 2008a, (Exhibits AUS -179, JE -24(19)); (5) Ford et al. 2013a, (Exhibits AUS -137, 
JE-24(20)); (6) Gallopel -Morvan et al. 2013, (Exhibits AUS -162, JE -24(24)); (7) Goldberg et al. 1995, 
(Exhibits AUS -221, JE -24(26)); (8) Goldberg et al. 1999, (Exhibits AUS -209, JE -24(27)); (9) Hammond 2010, 
(Exhibits AUS -91, JE -24(28)); (10) Hammond et al. 2009, (Exhibits AUS -166, JE -24(29)); (11) Bansal -Travers 
et al. 2011, (Exhibits AUS -150, J E-24(3)); (12) Hammond et al. 2013a, (Exhibits AUS -177, JE -24(32)); (13) 
Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)); (14) Hoek et al. 2012, (Exhibits AUS -163, JE -24(35)); (15) 
Beede et al. 1990, (Exhibits AUS -147, JE -24(4)); (16) Maynard et al. 201 3, (Exhibits AUS -200, JE -24(40)); 
(17) Moodie and Ford 2011, (Exhibits AUS -189, JE -24(42)); (18) Moodie and Mackintosh 2013, (Exhibits 
AUS-185, JE -24(43)); (19) Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)); (20) Munafò et al. 2011, 
(Exhibits AUS -199, JE -24(47); (21) CBRC 1992, (Exhibits AUS -198, JE -24(13)); (22) Parr et al. 2011a, 
(Exhibits AUS -117, JE -24(49)); (23) Beede and Lawson 1991, (Exhibits AUS -153, JE -24(5)); (24) Parr et al. 
2011b, (Exhibits AUS -219, JE -24(50)); (25) Rootman and Flay 1995, (Exhi bits AUS -145, JE -24(53)); (26) 
Rousu and Thrasher 2013, (Exhibits AUS -228, JE -24(54)); (27) Scollo et al. 2014, (Exhibits AUS -507, 
JE-24(57)); (28) Thrasher et al. 2011, (Exhibits AUS -229, JE -24(58)); (29) Beede and Lawson 1992, (Exhibits 
AUS-202, JE -24(6) ); (30) Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)); (31) Wakefield et al. 2012, 
(Exhibits AUS -557, JE -24(63)); (32) Wakefield et al. 2013, (Exhibits AUS -184, JE -24(64)); (33) White et al. 
2012, (Exhibits AUS -160, JE -24(66)); (34) Young et al. 201 4, (Exhibits AUS -214, JE -24(67), DOM -285); (35) 
Bondy et al. 1994, (Exhibits AUS -143, JE -24(7)); (36) Borland and Savvas 2013a, (Exhibits AUS -135, 
JE-24(8)); (37) Borland et al. 2013, (Exhibits AUS -136, JE -24(9)); (38) Doxey and Hammond 2011, 
(Exhibits  AUS-156, JE -24(17)); (39) Al -hamdani 2013, (Exhibits AUS -203, JE -24(1)); (40) Gallopel -Morvan et 
al. 2012, (Exhibits AUS -152, JE -24(23)); (41) Germain et al. 2010, (Exhibits AUS -154, JE -24(25)); (42) 
Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)); (43) Hammond et al. 2013b, (Exhibits AUS -158, 
JE-24(31)); (44) Borland and Savvas 2013b, (Exhibits AUS -175, JE -24(10)); and (45) Zacher et al. 2014, 
(Exhibits AUS -222 (revised), JE -24(68), DOM -286)); (46) Moodie et al. 2012, (Exhibits AUS -174, JE -24(45)); 
(47) Van Hal et al. 2012, (Exhibits AUS -161, JE -24(60)).  
We also note that Australia has submitted and relied upon a newsletter article that was authored by the 
same researchers, and appears to discuss the same study, as another paper that was submitted by the 
complainants as part of Exhibit JE -24. Co mpare Northrup and Pollard 1995 , (Exhibit JE -24(48)) , with ISR 
newsletter, (Exhibit AUS -146).  
1543 Australia has cited directly to, and provided as an exhibit, 40 of the papers considered as part of the 
Peer Review Pro ject. See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at 
the back of th ese Report s. We also note that Australia has submitted and relied upon a newsletter article that 
was authored by the same researchers, and appears to discuss the same study, as another paper that was 
considered as part of the Dominican  Republic  and Honduras's Peer Review Project. Compare Northrup and 
Pollard 1995, (Exhibit JE -24(48)) , with ISR newsletter, (Exhibit AUS -146).  
1544 See Honduras's first wri tten submission, paras.  470-474; Dominican  Republic 's first written 
submission, paras.  569-572; and Peer Review Report , (Exhibit DOM/HND -3), paras.  12-14. 
1545 Australia has cited directly to, and provided as an exhibit, 41 of the papers considered as part of  the 
"Systematic Review". See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at 
the back of th ese Report s. We also note that Australia has submitted and relied upon a newsletter article that 
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  of the 58 papers considered as part of the Kleijnen Systematic Review1546; and each of the five  
reviews of the literature1547, and 3 61548 of the 48 individual studies identified by Professor Klick.1549 
Australia has relied, in addition, on a number of other sources1550 as well as on expert reports that 
it commissioned for the purposes of these proceedings.1551 
7.541.   As described above, the complainants' critique of this literature reflects a range of 
underlying concerns. These can be broadly categorized as relating to:  
 The objectivity of the research results and of the community of researchers conducting 
the studies;  
 The object of the studies, in particular their focus on non -behavioural "proximal" 
outcomes rather than smoking behaviours; and  
 The methodological rigour of the studies.  
7.542.   We address these aspects in turn.  
Objectivity of the TPP literature  
7.543.   The complainants qu estion the objectivity of the TPP literature  on three grounds. First, 
they contend that most of the papers post -date the Australian Government's announcement in 
April 2010 that it would adopt plain packaging of cigarettes.1552 Second, the complainants also 
suggest that the TPP literature  is predisposed in favour of study outcomes that support plain 
packaging due to the preferences of the public health community and its journals.1553 Third, the 
complainants submit that the objectivity of the studies is compromised  by the small size of the 
tobacco control community, where a small group of researchers conducted the majority of the 
studies.1554 
                                                                                                                                                  
was authored by the same researchers, and appears to discuss the same study, as another paper that was 
included in the Dominican  Republic  and Honduras's "Systematic Revie w". Compare Northrup and Pollard 1995, 
(Exhibit JE -24(48)) , with ISR newsletter, (Exhibit AUS -146).  
1546 Kleijnen Systematic Review , (Exhibit DOM/HND -4), pp. 7 and 27, and Appendix 2.  
1547 Cancer Council Victoria, "Plain Packaging of Tobacco Products: A Review of the Evidence", 12 August 
2011, (CCV Review 2011), (Exhibit AUS -86); US Surgeon General's Report 2012, (Exhibit AUS -76); Goldberg 
et al. 1995, (Exhibits AUS -221, JE -24(26); Stirling  Review, (Exhibits AUS -140, HND -130, CUB -59); Stirling 
Review 2013 Update , (Exhibits AUS -216, CUB -60); and Chantler Report (Exhibits AUS -81, CUB -61). 
1548 Australia has cited directly to, and provided as an exhibit, 36 of the papers considered as part of the 
Klick TPP  Literature  Report, (Exhibit UKR -6). See Table A: Papers Included in a Primary TPP Literature Review 
and/or Exhibit JE -24, at the back of th ese Report s. We also note that Australia has submitted and relied upon a 
newsletter article that was author ed by the same researchers, and appears to discuss the same study, as 
another paper that was included in the Klick TPP  Literature  Report. Compare Northrup and Pollard 1995, 
(Exhibit JE -24(48)) , with ISR newsletter, (Exhibit AUS -146).  
1549 Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 16 and 58 -63. 
1550 See, e.g. Kotnowski 2013, (Exhibit AUS -138); Kotnowski and Hammond 2013, (Exhibit AUS -139); 
d'Avernas et al. 1997, (Exhibit AUS -144); Al -hamdani 2011, (Exhibit AUS -159); Hammond and Parkinson 2009 
(Exhibit AUS -165); Difranza et al. 2003, (Exhibit AUS -92); Wakefield et al. 2002, (Exhibit s AUS-93, CUB -28); 
Createc 2008, (Exhibit AUS -167); Wakefield 2011, (Exhibit AUS -172); White 2011, (Exhibit AUS -173); 
Gallopel -Morvan et al. 2010, (Exhibit AUS -176); Moodie and Hastings, (Exhibit AUS -187); Mutti et al. 2011, 
(Exhibit AUS -217); and Gendall et al. 2012, (Exhibit AUS -178).  
1551 See, e.g. Samet Report , (Exhibit AUS -7); Chaloupka Public Health Report , (Exhibit AUS -8); 
Tavassoli Report , (Exhibit AUS -10); Slovic Report , (Exhibit AUS -12); Biglan Report , (Exhibit AUS -13); Fong 
Report , (Exhibit AUS -14); Brandon Report , (Exhibit AUS -15); Fong Supplemental Report , (Exhibit AUS -531); 
Slovic Rebuttal Report , (Exhibit AUS -532); B randon  Rebuttal Report, (Exhibit AUS -534); and Chalo upka 
Rebuttal Report , (Exhibit AUS -582).  
1552 See Honduras's first written submission, para. 461; Dominican  Republic 's first written submission, 
paras.  69-71; and Peer Review Report , (Exhibit DOM/HND -3), para. 40. 
1553 See Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 1-2, 13, and 15; Honduras's first written 
submission, paras.  464-466; Dominican  Republic 's first written submission, paras.  73-75 and 78 -79; and 
Indonesia's first written submission, paras.  27-30. 
1554 Dominican  Republic 's first written submission, paras.  72, 75, and 78. See also Klick TPP  Literature  
Report, (Exhibit UKR -6), pp. 2, 13 and 15 -17; and Peer Review Report , (Exhibit DOM/HND -3), para. 40. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.544.   With respect to the first point, we note that the evidence before us indicates that 
researchers began to explore the potential i mpact of tobacco plain packaging over two decades 
ago. Among the publications relied on by Australia or otherwise cited in these proceedings and 
referring to the possible merits of tobacco plain packaging, some date as far back as the early 
1990s.1555 The evi dence before us also suggests that there was a noticeable increase in the 
number of publications relating to plain packaging in recent years, including following the 
announcement by Australia of its intention to implement tobacco plain packaging.1556 However,  
this does not seem surprising, to the extent that one would expect scholarly interest in a policy 
intervention that has never before been implemented to intensify over time, as evidence develops 
on its potential impact. The intensification of research in this field may rather be taken as a sign of 
an interest of the research community in testing further this potential impact, without prejudice to 
the potential outcomes of such further research.  
7.545.   The complainants also suggest that the TPP literature  is pred isposed in favour of study 
outcomes that support plain packaging due to the alleged preferences of the public health 
community and the small size of the tobacco control community. Although "publication bias" is a 
known phenomenon1557, we see no basis to assum e that researchers in the tobacco control 
community or more broadly in the public health community would have an a priori  vested interest 
in supporting one type of tobacco control intervention over another.1558  
7.546.   At the same time, we note that a core group of researchers are frequent co -authors on 
multiple TPP literature  papers1559, and one of the most comprehensive literature reviews relied 
upon by Australia (and discussed below1560) was conducted by researchers who also co -authored 
some of the reviewed studies.1561 The author of one plain packaging study1562 consulted 33 
tobacco control experts, a number that she believed, in 2012, represented a "substantial 
                                                
1555 See, e.g. Beede et al. 1990, (Exhibits AUS -147, JE -24(4)); Centre for Health Pro motion 1993, 
(Exhibits AUS -142, JE -24(14)); Bondy et al. 1994, (Exhibits AUS -143, JE -24(7)); Donovan 1993, (Exhibits 
AUS-151, JE -24(16)); Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)); Golberg et al. 1995, (Exhibits 
AUS-221, JE -24(26); Beede and Law son 1992, (Exhibits AUS -202, JE -24(6)); and J. Madill -Marshall, M. 
Goldberg, G. Gorn, J. Liefeld, H. Vredenburg, "Two Experiments Assessing the Visual and Semantic Images 
Associated with Current and Plain Cigarette Packaging", Advances in Consumer Research , Vol. 23 (1996), 
p. 267, (Madill -Marshall et al. 1996), (Exhibit JE -24(39)).  
1556 See Dominican  Republic 's first written submission, paras.  70-71; and Plain packaging literature, 
(Exhibit JE -24). 
1557 See, e.g. Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 1-2. 
1558 See, e.g. Judge Kessler's response to this argument in United States v. Philip Morris, (Exhibit 
AUS-71), p. 8. 
1559 For example, among the 68 papers in Exhibit JE -24: David Hammond appeared as an author on 11  
papers (see Hammond 2010, (Exhibits AUS -91, JE-24(28)); Bansal -Travers et al. 2011, (Exhibits AUS -150, 
JE-24(3)); Gallopel -Morvan et al. 2012, (Exhibits AUS -152, JE -24(23)); Doxey and Hammond 2011, 
(Exhibits  AUS-156, JE -24(17)); Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)); Hammond et al. 201 3b, 
(Exhibits AUS -158, JE -24(31)); White et al. 2012, (Exhibits AUS -160, JE -24(66)); Hammond et al. 2009, 
(Exhibits AUS -166, JE -24(29)); Hammond et al. 2013a, (Exhibits AUS -177, JE -24(32)); Thrasher et al. 2011, 
(Exhibits AUS -229, JE -24(58)); and Wakefield  et al. 2012, (Exhibits AUS -557, JE -24(63))); Melanie Wakefield 
authored or co -authored 7 papers (see Wakefield et al. 2013, (Exhibits AUS -184, JE-24(64)); Zacher et al. 
2014, (Exhibits AUS -222 (revised), JE -24(68), DOM -286); Scollo et al. 2014, (Exhibits AUS-507, JE -24(57)); 
Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)); Wakefield et al. 2012, (Exhibits AUS -557, JE-24(63)); 
Wakefield et al. 2014, (Exhibit JE -24(65)); and Germain et al. 2010, (Exhibits AUS -154, JE -24(25))); Crawford 
Moodie appeared a s an author or co -author on 7 papers (see Moodie and Ford 2011, (Exhibits AUS -189, 
JE-24(42)); Moodie and MacKintosh 2013, (Exhibits AUS -185, JE -24(43)); Moodie et al. 2011, (Exhibits 
AUS-155, JE -24(44)); Moodie et al. 2012, (Exhibits AUS -174, JE -24(45)); Moodie  et al. 2012, (Exhibit 
JE-24(46)); Ford et al. 2013a, (Exhibits AUS -137, JE -24(20)); and Ford et al. 2013b, (Exhibit JE -24(21)) ); and 
Anne Marie MacKintosh co -authored 6 papers (see Ford et al. 2013b, (Exhibit JE -24(21)); Moodie and 
MacKintosh 2013, (Exhibits AUS -185, JE -24(43)); Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)); Moodie 
et al. 2012 (Exhibits AUS -174, JE -24(45)); Ford et al. 2013a, (Exhibits AUS -137, JE -24(20)); and Moodie et al. 
2011, (Exhibits AUS -155, JE -24(44))).  
1560 See paras.  7.585  et seq. below.  
1561 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 91-96 (lead author C. Moodie 
co-authored five of the 37 reviewed studies); and Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60), 
pp. 15-18 (lead author C. Moodie co -authored three of the 17 reviewed papers).  
1562 Pechey et al. 2013, (Exhibit JE -24(51)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  proportion" of international experts in the field.1563 Several authors of TPP literature  studies were 
also members of Australia's National Prevent ative Health Taskforce (NPHT) Tobacco Working 
Group  (TWG) , which recommended that the Government adopt plain packaging.1564 
7.547.   Australia's expert, Professor Fong, notes that "reviews of research studies in a given field 
should be undertaken by those with knowledge of the research domain and of the research norms 
of that research domain".1565 Nevertheless, the authors of a systematic review of the TPP literature  
(the Stirling Review) acknowledged that reviewing one's own work can creat e the appearance of a 
conflict of interest. Those authors took measures accordingly to minimize the risk of bias.1566 We 
also note that the author of a subsequent review, Sir Cyril Chantler, drew upon the involvement of 
the independent Evidence for Policy and  Practice Information and Co -ordinating Centre, based at 
the University of London, to discount allegations of bias against the Stirling Review by the tobacco 
industry and its experts.1567 We further note the presence of common principles governing authors 
and peer-reviewers that are designed to avoid conflicts -of-interest in published studies.1568 
7.548.   Moreover, some of the TPP studies identify and discuss a number of potential downsides to 
the introduction of tobacco plain packaging1569, which suggests to us that, where  concerns are 
identified, these are disclosed and discussed. We have also noticed that some of the studies report 
mixed outcomes.1570 In our view, this is a sign that those authors aim to objectively report study 
results notwithstanding the impact they may ha ve on the perception of the utility of plain 
packaging as an instrument of tobacco control policy.  
7.549.   Overall, therefore, we do not consider that we should a priori  discount the body of studies 
identified by the complainants as the TPP literature , based upon either the size of the research 
community from which it originates or assumptions relating to potential bias within this 
community. We further note that the studies reviewed by the complainants were authored by a 
total of more than 110 individuals, affilia ted with a number of different institutions, including 
University College London, the University of Surrey, the University of Melbourne, Sydney Medical 
School, the University of Paris 1 -Sorbonne, Pennsylvania State University, the University of 
Calgary, an d the University of Ottawa. These elements support the view that these studies "come 
from … qualified and respected source[s]".1571  
7.550.   Finally, we agree with Australia that, to the extent that convergent research outcomes 
would reflect the results of a range of  studies consistent with accepted standards in their 
respective fields1572, this may confirm the strength of the conclusions reached in individual 
                                                
1563 See Author's response to pee r reviews of Pechey et al. 2013 , available at 
<http://www.biomedcentral.com/1471 -2458/13/18/prepub >, accessed 7 October 2014, (Exhibit DOM -165), 
p. 2. 
1564 Compare NPHT Technical Report 2, (Exhibits AUS -52, JE -12), Acknowledgments (listing Rob Moodie 
as Chair of the Taskforce, Michelle Scollo as the writer of the report and T WG member, and Melanie Wakefield 
and Simon Chapman as members of the T WG) with the 6 8 papers included in Plain packaging literature, 
(Exhibit JE -24). 
1565 Fong Report , (Exhibit AUS -14), para. 449. See also Australia's first written submission, Annexure E, 
para. 6 (noting that "good evidence synthesis" requires collaboration among those who w ork in the same field 
and share relevant expertise).   
1566 See Stead et al. 2013, (Exhibit CUB -58), p. 8 (noting a "perceived conflict of interest can arise in 
systematic reviews conducted in specialised research areas" and indicating that "no member of the r esearch 
team who had been previously involved in packaging research extracted data, assessed study relevance or 
quality, or decided upon study inclusion").  
1567 See Chantler Report, (Exhibits AUS -81, CUB -61), p. 26, para. 4.7. 
1568 See, e.g. Samet Report , (Exhib it AUS -7), para. 140 ( referring to  the International Committee of 
Medical Journal Editors and the conflict -of-interest policy of the British Medical Journal  as reflective of current 
standards regarding authors and reviewers of scientific publications).  
1569 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), section 4.6.2, p. 81 ("Benefits or Harms 
Identified with the Policy Introduction"); and section 4.6.3, p. 82 ("Studies that Address the Potential Harms 
Identified").  
1570 See, e.g. Brose et al. 2014, (Exhibits AUS -263, JE -24(11)); Goldberg et al. 1999, (Exhibits 
AUS-209, JE -24(27)); Beede et al. 1990, (Exhibits AUS -147, JE -24(4)); Uppal et al. 2013, (Exhibit JE -24(59)); 
Wakefield et al. 2013, (Exhibits AUS -184, JE -24(64));  and White et al. 2012, (Exhibits AUS -160, JE -24(66)).  
1571 See Appellate Body Report, US – Continued Suspension , paras.  591-592. See also ibid. paras.  598 
and 601.  
1572 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. v. (noting the diversity of re search 
methods, samples, and study sites across the reviewed studies); Hammond Review , (Exhibit AUS -555), p. 30 
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  studies1573, rather than demonstrate publication or researcher bias.1574 We note in this respect the 
observation formu lated by a number of reviewers that "consistency of association" and "coherence 
of association" are of "particular relevance to evaluating the evidence related to plain 
packaging"1575, and that the TPP literature  studies demonstrate both.1576  
7.551.   In light of the ab ove, we are not persuaded that the time -frame over which the 
TPP literature  studies were conducted, preferences among researchers or publications for 
outcomes favourable to tobacco plain packaging, or the size of the relevant scientific community, 
provide,  in themselves , a basis for us to question the objectivity, and hence the general reliability, 
of the entire body of studies identified by the complainants as the TPP literature . Rather, at this 
stage of our analysis, and without prejudice to our further c onsideration of the contents of this 
research and the extent to which it supports the conclusions drawn from it, we note that these 
studies originate from qualified and respected sources within their respective communities.  
Focus of the TPP studies on "non -behavioural" outcomes  
7.552.   The complainants submit that one of the greatest methodological weakness of the 
TPP literature , which sought to inform the potential effectiveness of tobacco plain packaging as a 
population -level behaviour change intervention, is th at the "studies fail to measure smoking 
behaviour", the "outcome of interest from a policy perspective".1577  
7.553.   We first note that Australia does not dispute that many of the studies that form part of the 
TPP literature  focus on the impact of tobacco packaging on "proximal" or "non -behavioural" 
outcomes. In particular, as will be discussed in more detail below, much of the TPP literature  
focuses on the ability of plain packaging to have an impact on the three "mechanisms" through 
which the TPP measures  are inten ded to act: reducing the appeal of tobacco packaging, increasing 
the effectiveness of GHWs and reducing the ability of the pack to mislead the consumer about the 
harmful effects of smoking.1578  
7.554.   Australia argues that the complainants' experts err in their "ex clusive focus on prevalence 
as the only outcome of the [ TPP measures ]", and in "insisting on outcome measures of real -world 
behaviour".1579 Australia's expert, Professor Fong, considers that the complainants' experts have 
misidentified the target of the TPP Act, and ignored the actual stated objects of the Act and the 
mechanisms through which plain packaging will achieve these effects. The emphasis on 
prevalence, Australia argues, also fails to appreciate the many different causal influences on 
smoking pr evalence, including Australia's other tobacco control measures.1580  
7.555.   The focus of the TPP literature  on "non -behavioural" outcomes does not, in our view, 
constitute an inherent flaw, provided that this is understood as constituting one component of a 
broader evidence base. We note in this respect that the TPP measures  were designed to act on 
these "non -behavioural" or "proximal" outcomes, with a view to ultimately affecting smoking 
                                                                                                                                                  
(noting the "heterogenous mix of research designs" and wide variety of outcome measurements from different 
research domains); and Chantler Repor t (Exhibits AUS -81, CUB -61), para. 4.10 (noting the "wide range of 
research methods").  
1573 See Fong Supplemen tal Report, (Exhibit AUS -531), para. 151; and Fong Second Supplemental  
Report, (Exhibit AUS -585), paras.  8-9. See also Hammond Review , (Exhibit AUS -555), p. 30 (noting that the 
quantity of studies is sufficient to provide an informed opinion).  
1574 See, e.g. Klick TPP  Literature  Report, (Exhibit UKR -6), p. 15. 
1575 Samet Report , (Exhibit AUS -7), paras.  117 and 119. See also Hammond Review , (Exhibit AUS -555), 
p. 31.  
1576 Stirling Review, (Exhibits AUS -140, CUB -59), p. 90; Samet Report , (Exhibit AUS -7), paras.  125 and 
128; Fong Report , (Exhibit AUS -14), para. 71; Fong Second Supplemental Report , (Exhibit AUS -585) para. 31; 
and Hammond Review , (Exhibit AUS -555), p. 31. 
1577 Dominican  Republic 's first written submission, paras.  591-592. See also Honduras's first written 
submission, para. 463; Dominican  Republic 's first written submission, paras.  560 and 593 -597; Cuba's first 
written submission, paras.  171-172; Ind onesia's first written submission, paras.  317 and 416; Peer Review 
Report , (Exhibit DOM/HND -3), para. 61.iv.b; Kleijnen Systematic Review , (Exhibit DOM/HND -4), pp. 32-33; 
McKeganey Report , (Exhibits DOM -105, CUB -72), pp.43 -50; Ajzen Supplemental Report , (Exhibit 
DOM/HND/IDN -4), paras.  61i-61j; and Mitchell Report , (Exhibit UKR -154), para. 11. 
1578 See sections 7.2.5.3.5.2 , 7.2.5.3.5.3 , and 7.2.5.3.5.4 . 
1579 Australia's first written submis sion, Annexure E, para. 6. 
1580 Fong Report , (Exhibit AUS -14), paras.  451-462. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  behaviours. The three "mechanisms" identified in the TPP measures1581 adopted by A ustralia 
closely reflect the specific "non -behavioural" outcomes that were studied in a large proportion of 
the TPP literature  predating the adoption of the TPP measures .1582 We note that these are also 
referenced in the Article  11 and Article  13 FCTC Guideli nes.1583 
7.556.   The complainants also criticize the TPP literature  for its failure to measure smokers' actual 
tobacco use following exposure to plain versus branded packaging.1584  
7.557.   There appears to be some convergence among researchers that the ideal test of the 
effect iveness of plain packaging would have been a longitudinal randomized controlled trial in a 
population -based setting, where packaging is manipulated in some markets but not in others.1585 
The complainants' expert, Professor Ajzen, thus states that "it was esse ntial to test the impact of 
plain packaging on actual smoking behaviour prior to implementation of the TPP Act over a 
sufficiently long period of time". He asserts that "[v] ery few studies conducted in Australia before 
the TPP Act attempted to measure the impact of plain packaging on actual smoking behavior, and 
the researchers readily acknowledged some of the limitations of such studies".1586 Specifically, 
Professor Ajzen suggests that Australia should have conducted a controlled experiment in which 
participa nts would be assigned at random into branded and plain pack conditions, and the 
cigarette packs used would differ only in the presence or absence of brand imagery1587, to test the 
impact of plain packaging on actual smoking behaviour.  
7.558.   We note , however , that P rofessor Ajzen also identifies important limitations to the 
possibility of conducting such randomised controlled experiments. Specifically, Professor Ajzen 
explains that "the difficulty lies in the fact that the experimental situation created prior to 
implementation of the TPP Act is not an exact reproduction of the situation that would be 
encountered afterwards" and that this can jeopardize the experiment's external validity.1588 
Australia's expert Professor Fong also observes that it would be "unrealistic" to expect that 
participants assigned to the group to which branded packs are shown, could be convinced that the 
branded packs that they are being shown are new experimental pla in packs, given even 
non-smokers' familiarity with current cigarette packs.1589 The feasibility or utility of such 
experiments is similarly questioned in other evidence before us.1590 For example:  
                                                
1581 See, e.g. TPP Act, (Exhibits AUS -1, JE-1), Section 3.  
1582 See, e.g. Environics 2008a, (Exhibits AUS -179, JE -24(19)); Wakefield et al. 2008, (Exhibits 
AUS-149, JE -24(62)); Germain et al. 2010, (Exhibits AUS -154, JE -24(25)); Beede and Lawson 1992, (Exhibits 
AUS-202, JE -24(6)); Gallopel -Morvan et al. 2010, (Exhibit AUS -176); Centre for Health Promotion 1993, 
(Exhibits AUS -142, JE -24(14)); Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)); Hammond et al. 
2009, (Exhibits AUS -166, JE -24(29)); Hoek et al. 2009, (Exhibit JE -24(33)); and Donovan 1993, (Exhibits 
AUS-151, JE -24(16)).  
1583 See Article  11 FCTC Guidelines, FCTC/COP/3(10) , (Exhibit JE -20), Annex, para. 46 ("address[ing] 
plain pack aging with regard to health warnings and misleading information", according to the Article  13 FCTC 
Guidelines); and Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 16 and 
"Recommendation " following para. 17 (addressing plain packaging with regard to "packaging and product 
features" as elements of "advertisement and promotion").  
1584 See, e.g. McKeganey Report , (Exhibits DOM -105, CUB -72), p.43; and Ajzen Supplemental Report , 
(Exhibit DOM/HND/IDN -4), paras.  61.i-61.j. 
1585 See, e.g. C uba's first written submission, para. 175 ( referring to  Klick TPP  Literature  Report, (Exhibit 
UKR-6), pp. 6-7 and 14; and Kleijnen Systematic Review , (Exhibit DOM/HND -4), pp. 16-19). See also 
Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63), p. 1166; St irling Review, (Exhibits AUS -140, HND -130, 
CUB-59), p. 89; and Chantler Report, (Exhibits AUS -81, CUB -61), para. 1.19. 
1586 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 61.i. 
1587 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 55. See also Klick TPP  Literature  
Report, (Exhibit UKR -6), p. 6. Cf. Viscusi Report , (Exhibit UKR -8), para. 32 (noting the importance of an 
across -subject versus within -subject study design). We note that several TPP literature  studies did implement a 
between-subject design, albeit with non -behavioural outcome measurements. See, e.g. Wakefield et al. 2008, 
(Exhibits AUS -149, JE -24(62)); Germain et al. 2010, (Exhibits AUS -154, JE -24(25)); Doxey and 
Hammond  2011, (Exhibits AUS -156, JE -24(17)); and Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)).  
1588 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 56, pp. 12-13. 
1589 Fong Supplemental Report, (Exhibit AUS -531), paras.  167-168. Professor Fong also notes that a 
more realistic version of Professor Azjen's proposed study was in fact conducted prior to the implementation of 
the TPP measures . Smokers in several different cities in Scotland were provided with plain cigarette packages, 
and asked to smoke for one week from the plain packs, another week from branded packs, and to complete 
questionnaires twice a week measuring behavioural indicators such as forgoing cigarettes, thinking about 
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  It was suggested that the "ideal" SP [standardized packaging] stu dy, in line with 
"proper research design", would be a randomized controlled trial that randomized 
different cities over a "long time period" to having/not having SP. This is clearly an 
unfeasible proposition not least because population mobility would mean  that both 
groups have access to branded and standardized packages, rendering the results 
meaningless.1591 
7.559.   Professor Ajzen further observes that "a limitation on the study of smoking behavior is of 
an ethical nature".1592 This observation is also consistent with  other evidence before us suggesting 
that executing studies comparing smoking uptake among subjects exposed to plain versus 
branded packs is impossible for ethical reasons.1593  
7.560.   Professor Ajzen thus observes that, while it would have been possible and useful to test 
the impact of plain packaging on smoking behaviour prior to the implementation of the TPP Act1594, 
the "practical limitations of studying the impact of plain packaging on behavior prior to 
implementation of the [TPP] Act draw attention to the importan ce of the research … regarding the 
impact of plain packaging on the theoretical determinants of smoking behavior".1595 
7.561.   This conclusion suggests that, as Professor Ajzen himself acknowledges, while it may have 
been desirable in principle to conduct randomised controlled trials or large -scale longitudinal 
studies directly seeking to evaluate the potential impact of plain packaging on smoking behaviour, 
there were legitimate practical and ethical reasons for which this would have been difficult to carry 
out, prio r to the introduction of such a measure anywhere in the world. As Australia was the first 
country to implement plain packaging of tobacco products, the opportunity directly to observe 
actual smoking behaviours in the presence of plain packaging was also ve ry limited prior to the 
implementation of the TPP Act.  
7.562.   In light of the above, while we agree that the relevant evidence base underlying a policy 
intervention should seek to reflect as closely as possible the conditions under which the 
intervention will ta ke place, we are not persuaded that the evidence discussed above demontrates 
that the absence of a study , prior to the implementation of the measures, that utilized an "ideal" 
experimental design  allowing an  observation of  actual smoking behaviours  constit utes a flaw in the 
TPP literature, of such nature as to fun damentally undermine its probative value and the  
evidentiary base underlying the adoption  of the TPP measures . We also note that certain studies 
within the pre -implementation TPP literature  predating the implementation of the TPP measures  in 
Australia did in fact seek to assess smoking -related behavioural outcomes, although these studies 
were found to have "quite weak predictive value".1596  
                                                                                                                                                  
quitting, and consumption. Differences favouring  the plain packs were found in each of the indicators. Fong 
Supplemental Report , (Exhibit AUS -531), paras.  169-171. We also note that the merits of this study have been 
the subject of debate among the parties. See, e.g. Klick TPP  Literature  Report, (Exhibi t UKR -6), pp. 47-48. 
1590 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 17-18 and 88 -89; and Stead et al. 
2013, (Exhibit CUB -58), p. 8 (noting that randomized controlled trials and longitudinal studies of a policy 
intervention, such as plain p ackaging, are not feasible prior to implementation).  
1591 S. Ulucanlar, G. Fooks, J. Hatchard, and A. Gilmore, "Representation and Misrepresentation of 
scientific evidence in contemporary tobacco regulation: a review of tobacco industry submissions to the UK 
Government consultation on standardised packaging" , PLoS Medicine, Vol. 11 (2014), p. 6, (Ulucanlar et al. 
2014), (Exhibit AUS -501). (emphasis original; footnote omitted)  
1592 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), p. 13, para. 57. 
1593 See Chantler  Report, (Exhibits AUS -81, CUB -61), p. 13, para. 1.19 (noting that a trial comparing 
the uptake of smoking among children exposed to branded versus plain packaged cigarettes could "never 
receive ethical approval"). See also Hammond Review , (Exhibit AUS -555), p. 35 ("there is no ethical or feasible 
way to test the appeal of packaging or products among youth other than to measure perceptions of appeal and 
interest in trying a product"). But see Cuba's first written submission, para. 175 (arguing that assuming  a trial 
is unethical presumes that packaging design causes smoking).  
1594 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 58. 
1595 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 59. (emphasis original)  
1596 See, e.g. Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 89: 
 
It is also worth noting that findings regarding smoking -related attitudes, beliefs and behaviour 
from both the surveys and qualitative studies in the review are reliant upon self -report. W ithout 
any form of validation (such as validating reported changes in cigarette consumption) these have 
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  7.563.   At the same time, the constraints associated with mea suring the impact of plain packaging 
on actual smoking behaviours prior to the implementation of the TPP measures  do not dispose of 
the need to inform this question in the context of our assessment of the contribution of the 
challenged measures to their ob jective.  
7.564.   To the extent that the "mediational model" underlying the TPP measures  relies on a 
combination of the three mechanisms identified in the TPP Act (leading to the "proximal outcomes" 
that are the main focus of the TPP literature ) and their resultin g impact on smoking behaviours 
(e.g. initiation, cessation, and relapse), a consideration of "proximal outcomes" alone would not be 
sufficient to draw conclusions about the contribution of the TPP measures  to their public health 
objective. Rather, it would  be necessary to consider, in addition, the impact of these mechanisms 
on the relevant smoking behaviours leading to the desired public health outcomes, i.e. a reduction 
in the use of, and exposure to, tobacco products. As suggested by Professor Ajzen, an absence of 
direct empirical evidence on actual behaviours may make reliance on "the theoretical determinants  
of smoking behaviour" important in this context.1597  
Methodological rigour of the TPP literature   
7.565.   The complainants argue generally that the TPP literature  fails to meet accepted standards 
of methodological rigour, including in respect of study design and implementation, and in respect 
of the ability to draw the stated conclusions from the results of the studies.  
7.566.   The complainants rely in particular on three expert reports commissioned for the purposes 
of these proceedings (Inman et al.'s Peer Review Project1598, the Kleijnen Systematic Review1599, 
and the Klick TPP Literature Report1600, respectively), each of which assessed the quality of the 
TPP literature  under a distinct methodology. Other external reviews of th e TPP  literature have been 
referred to in these proceedings . We describe the se various  reviews of the literature below, before 
turning to an overall assessment in light of these reviews.  
The complaina nts' commissioned reviews of the TPP literature  
The Peer Review Project  
 
7.567.   Inman et al.'s Peer Review Project, as described above, involved the review of 55 tobacco 
plain packaging studies, applying as a benchmark the criteria and rigour by which the reviewers 
would normally judge submitted manuscripts in the field of consumer behaviour.1601 On the basis 
of this review, none of the studies at issue were considered fit for publication by any of the 
reviewers. Forty -six were "rejected" outright for methodol ogical reasons, with no possibility of 
revision, while the perceived flaws in the remaining nine studies, if corrected, were deemed 
substantial enough to potentially alter the studies' results and conclusions.1602 Professor Inman 
concludes that:  
In sum, havin g studied all relevant plain packaging papers and the reviewer reports, 
and applying mainstream criteria for methodological rigor that are found in standard 
textbooks, I must conclude that the plain packaging literature is of surprisingly low 
quality. The serious methodological flaws identified by the reviewers across the plain 
packaging studies make them unacceptable for publication in a major consumer 
                                                                                                                                                  
quite weak predictive validity. A common argument is that plain packaging research can never 
truly replicate real market conditions and, as such, the su ggested impacts on consumption, 
cessation and uptake are so far speculative.  
 
1597 Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 59. (emphasis original)  
1598 Peer Review Report , (Exhibit DOM/HND -3). 
1599 Kleijnen Systematic Review , (Exhibit DOM/HND -4). 
1600 Klick TPP  Literature  Report, (Exhibit UKR -6). 
1601 See Dominican  Republic 's first written submission, paras.  569-573; and Peer Review Report , 
(Exhibit DOM/HND -3), paras.  12-14 and 26 -27, and Appendix A.  
1602 See Dominican  Republic 's first written submission, para. 575; and Peer Review Report , (Exhibit 
DOM/HND -3), para. 17. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  research journal in their current form. This literature does not provide a reliable 
research basis for pu blic policy.1603 
7.568.   Australia argues that the fact that most of the papers that comprise the TPP literature  were 
published in 20 different peer -reviewed scientific journals1604, across a range of scientific 
disciplines, compromises the complainants' assertions that  it suffers from critical methodological 
flaws, as most of the studies were subject to "rigorous scholarly review" prior to publication.1605 
Australia describes, as an example, the peer review process at the journal Tobacco Control , a 
British Medical Journal  (BMJ) publication, as one in which a high proportion of submissions are 
rejected up -front, with the remaining papers assigned to an editor, who will then send it for 
external review to one or more reviewers selected from a database of experts. The paper ma y also 
be sent to a statistical reviewer. The process is designed to ensure that the paper "meets rigorous 
academic standards and fairly reflects the outcomes of the work".1606 Two such external reviews of 
published TPP literature  papers have been submitted a s exhibits in these proceedings.1607  
7.569.   We agree with Australia that the very fact that most of the papers at issue have been 
published in various specialized public health and medical journals, while the conclusion of the 
Peer Review Project is that none of th e reviewed studies would meet relevant publication 
standards, raises serious doubts about the criteria and benchmarks used by Professor Inman et al. 
in their review. We also note that the journals in which these papers were published include 
medical public ations as well as public health and tobacco control journals, while the aim of 
Professor Inman et al. was to evaluate the studies according to the criteria of leading consumer 
research journals.1608  
7.570.   Without prejudice to the existence, in individual studies r eviewed, of potential 
shortcomings that may have been validly identified in the Peer Review Project, we find it 
implausible that flaws of such a fundamental and pervasive character as to render each and every 
reviewed study unworthy of publication would ha ve entirely escaped the attention of researchers 
and reviewers in the relevant field of study. We concur with Australia that this outcome in itself 
suggests that the Peer Review Project reflects an excessively strict approach that does not in fact 
accurate ly reflect the accepted practices of the relevant scientific community.1609  
The Kleijnen Systematic Review  
 
7.571.   The second expert review of the TPP literature  relied on by the complainants, 
commissioned from Kleijnen Systematic Reviews, adopts a different appro ach, based on an 
analysis of the strength of the TPP literature  in terms of study design and outcomes measured , 
("traffic light matrix"), followed by an assessment of the methodological rigour of the studies, 
                                                
1603 Peer Review Report , (Exhibit DOM/HND -3), para. 69, p. 47. 
1604 The journals include: Addiction; American Journal of Preventive Medicine; American Journal of Public 
Health; Applied Economic Pe rspectives and Policy; Australasian Marketing Journal; BMC Public Health; BMJ 
Open; Education and Health; European Journal of Public Health; Frontiers in Public Health; Healthy Policy; 
Healthcare Policy; Journal of Adolescent Health; Journal of Business Re search; Journal of Health Psychology; 
Lancet; Nicotine & Tobacco Research; Public Health; Qualitative Health Research; Social Science and Medicine; 
The European Journal of Public Health;  and Tobacco Control . 
1605 Fong Second Supplemental Report , (Exhibit AUS -585), para. 24. 
1606 See Australia 's response to Panel question No. 134, paras.  5-8. 
1607 See Peer review of Pechey et al. 2013 , (Exhibit DOM -108); and Peer review of Lund and Scheffels 
2013, (Exhibit DOM -164). See also Author's response to peer reviews of Peche y et al. 2013 , available at 
<http://www.biomedcentral.com/1471 -2458/13/18/prepub >, accessed 7 October 2014, (Exhibit DOM -165), 
p. 2. 
1608 See Peer Review Report , (Exhibit DOM/HND -3), para. 13. 
1609 See, e.g. Fong Report, (Exhibit AUS -14), paras.  501-506. As one researcher stated:  
 
Science can be understood as a negotiated order sustained by craft conventions that are 
formulated, maintained, and altered over time within communities of practice. Methodological 
choices and compromises need to be made in response to contingencies; surrogate end points … 
are used when necessary; boundaries of acceptable limitations are defined; and different 
epistemologies (e.g., experimental, quantitative,  and qualitative methods) are not only tolerated 
but put to productive use singly and in combination.  
 
Ulucanlar et al. 2014, (Exhibit AUS -501), p. 11. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  using the "Study Design and Implementation Asse ssment Device" (Study DIAD).1610 This review 
concludes that:  
[T]he evidence base regarding the potential causal impact of plain packaging on 
reducing smoking prevalence or tobacco consumption is unreliable and lacks 
credibility. Three major concerns arise wi th the research that was assessed. First, half 
of the studies employed designs that are unsuitable for establishing causal inferences. 
Second, instead of focusing on the key outcome of smoking behaviour, virtually all 
studies measured more remote and less relevant surrogate outcomes, such as appeal, 
attitudes and intentions. Third, even for those studies that are suitable for establishing 
causal inferences, all were implemented such that the findings exhibit a considerable 
or high risk of bias.1611  
7.572.   We note th at, although the research question underlying th e Kleijnen Systematic R eview is 
identified as relating to the reliability of the evidence "about the potential causal impact of plain 
packaging on tobacco consumption or smoking prevalence, either directly or  indirectly through 
surrogate variables (behavioural intentions and/or 'other' outcome variables, such as appeal of 
tobacco products, effectiveness of health warnings, or perceived harm of tobacco products) "1612, 
the authors indicate that they "placed an emph asis on whether it is possible to infer that plain 
packaging has a causal impact on the outcome of interest, i.e. smoking behaviour". Specifically, 
the authors consider that "[b]ehavioural outcomes are the most relevant, as opposed to surrogate 
outcomes su ch as intentions and appeal", and that "[t]he relevance of these surrogate outcomes 
for ultimate smoking behaviours is unknown and needs to be demonstrated".1613  
7.573.   This assumption leads the authors to consider, in the first step of their assessment ("traffic 
light matrix") that the TPP literature  is "particularly weak in terms of measuring actual 
smoking -related behaviour", as "only two studies used an appropriate experimental design and 
measured actual smoking -related behaviour". This is one of the three "majo r concerns" identified 
with the TPP literature  in this review.1614  
7.574.   Another "major concern" identified by the Kleijnen Systematic Review is that "half of the 
studies employed designs that are unsuitable for establishing causal inferences".1615 This 
conclusion is  based on the identification, in the second part of the initial "traffic light matrix" 
assessment, of a "hierarchy" of study designs, based on their suitability for causal inference. In 
this classification, randomized experiments are ranked highest, follow ed by quasi -experiments, 
cohort and case -control studies, case series, cross -sectional studies, case studies, and finally 
expert reports. Randomized experiments are considered, under this hierarchy, to constitute the 
best available design because "if perfo rmed optimally, it excludes possible confounding by other 
factors that may influence the outcome".1616 Upon classifying each of the studies according to the 
design hierarchy, the reviewers determined that 27 papers did not merit further assessment in the 
next review phase, as their cross -sectional study designs "do not provide evidence from which 
causal inferences can be made about plain packaging".1617  
7.575.   In summarizing the results of the first step of their review, the "traffic light matrix", the 
authors conclude : 
[T]he plain packaging literature does not fare well in terms of this first stage of 
assessment, because half of the study outcomes are from designs that do not allow 
causal inferences to be drawn about the impact of plain packaging. For the half that 
do, all but two fail to measure the key outcome of smoking behaviour. The literature 
                                                
1610 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.3, p p. 7-9. 
1611 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.4, p. 9. 
1612 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.1, p. 7. (emphasis added)  
1613 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.3, p. 8. 
1614 Kleijnen Systematic Review , (Exhibit DOM/HND -4), sections 1.3 and 1.4, p p. 8-9. 
1615 Kleijnen Systematic Review , (Exhibit DOM/HND -4), sections 1.3 and 1.4, p p. 8-9. 
1616 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 3.4.1.1, p p. 16-19. 
1617 Kleijnen Systematic Review , (Exhibit DOM/HND -4), sections 3.4.1.3, 4.2. 1, and 4.2.2, p p. 20-22 
and 30 -33. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  would therefore benefit from being more robust in terms of study design and more 
relevant in terms of outcomes investigated.1618 
7.576.   The second stage of the Kleijnen Systematic Revi ew assessed the quality of the studies 
within the remaining 31 papers whose designs were deemed suitable for drawing causal 
inferences, namely experimental and quasi -experimental designs. The reviewers applied a Study 
DIAD intended to provide "a fine -grained examination of relevance of outcomes and the risk of 
bias within each of the studies".1619 The Study DIAD assessed the "risk of bias in a study against 
the four facets of 'validity' that are recognized throughout the social sciences as crucial to the 
desig n and implementation of experimental studies: construct, internal, external and conclusion 
validity".1620 The reviewers concluded that each of the studies have a "considerable" or "high" risk 
of bias for one or more facets of validity, thereby making their re sults unreliable.1621 
7.577.   Australia's expert, Professor Fong, submits that the Kleijnen Systematic Review employed 
"overly restrictive" and "completely unreasonable" criteria to assess the level of bias in individual 
studies.1622 Indeed, the extreme nature of the re sults of the Kleijnen Systematic Review, which 
identified fatal flaws in each of the assessed 31 papers (most of which were otherwise published in 
peer-reviewed journals) causes us again to question the standard by which the studies were 
judged, and whethe r the particular context of tobacco control research was taken into account.  
The Klick TPP Literature Report  
 
7.578.   The third review of the TPP literature , relied upon by Cuba, was authored by Professor 
Jonathan Klick of the University of Pennsylvania.1623 The Klic k TPP Literature  Report adopted a 
narrative approach to reviewing the literature relied upon by tobacco plain packaging advocates. It 
focuses on 48 individual studies, 3 6 of which Australia has directly relied upon in these 
proceedings1624, and five surveys of the literature conducted by public health academics and 
governmental bodies.1625 Professor Klick  concludes that, "[g]iven [] reliability and relevance 
concerns, the studies discussed in this report do not provide a sound basis upon which to base 
claims abo ut the expected effects of plain packaging regulations in Australia".1626 
7.579.   Professor Klick submits  that the individual studies suffer from threats to internal validity, 
defined as whether the conclusions about the contribution to the stated behavioural objecti ve in a 
study are justified.1627 The "most obvious threat to internal validity" is that "almost every available 
study draws a conclusion about smoking when the research design examines subjectively reported 
attitudes and preferences of the subjects, not actua l smoking behaviour".1628 This "disconnect 
between the research designs and the conclusions reached makes the entire literature 
unreliable".1629  
7.580.   As we have noted above, we consider that evidence pertaining to the impact of tobacco 
plain packaging on "non -behavi oural", "intermediate", or "proximate" outcomes, on the one hand, 
                                                
1618 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 4.2.3, p. 33. 
1619 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 4.2.4, p. 34. "Bias" refers to the degree 
to which the research methodology used may have  distorted the results by yielding inaccurate estimates of the 
true effect. Ibid. Section 2.1, p. 10. 
1620 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.3, p. 8 (emphasis original). See 
fn 1500 above for an explanation of the different types of validity.  
1621 Kleijnen Systematic Review , (Exhibit DOM/HND -4), section 1.3, p. 9. 
1622 Fong Report , (Exhibit AUS -14), paras.  537-555. 
1623 Klick TPP Literature  Report, (UKR -6), p. i and curriculum vitae attachment.  
1624 Australia has cited directly to, and provided as an exhibit, 37 of the papers considered as part of the 
Klick TPP  Literature  Report, (Exhibit UKR -6). See Table A: Papers Included in a Primary TPP Literature Review 
and/or Exhibit JE -24, at the back of th ese Report s. 
1625 Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 16 and 58. The five "surveys of the literature" 
reviewed by Professor Klick are (1) CCV Review 2011, (Exhibit AUS -86); (2)  US Surgeon General's 
Report  2012, (Exhibit AUS -76); (3) Goldberg et al. 1995, (Exhibits AUS -221, JE -24(26)); (4) Stirling Review, 
(Exhibits AUS -140, HND -130, CUB -59), Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60); and Stead 
et al. 2013, (Exhibit  CUB-58); and (5) Chantler Report, (Exhibits AUS -81, CUB -61). 
1626 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 3. 
1627 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 11. 
1628 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 11. 
1629 Klick TPP  Literature  Report,  (Exhibit UKR -6), p. 14. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and actual smoking behaviours, on the other, are both potentially pertinent to an assessment of 
the TPP measures ' contribution to the objective of improving public health by reducing the use  of, 
and exposure to, tobacco products through the TPP measures . As described above, the results of 
such studies may inform whether tobacco plain packaging impacts the "non -behavioural" or 
"proximate" outcomes that are a component of the causal chain or me diational model underlying 
the design and operation of the TPP measures . 
7.581.   Similar to the Kleijnen Systematic Review, Professor Klick offers a list of possible study 
designs assessing the impact of tobacco plain packaging, starting from those he considers as  most 
methodologically sound to those considered least sound. Field experiments and natural/quasi 
experiments (where changes in smoking are measured in two comparable jurisdictions after one 
adopts plain packaging), are ranked highest, while experiments tr acking impressions and 
intentions, and focus groups and interviews are ranked lowest. According to Professor Klick, "all of 
the available studies of plain packaging fall in the last two categories" and none of the reviewed 
individual studies meet "minimum thresholds for research design reliability and relevance".1630 
7.582.   Professor Klick further identifies methodological problems associated with the designs of 
the TPP literature  studies. Internal validity, he argues, is threatened by researchers who do not 
attempt to isolate the relevant sample group (i.e. excluding non -smokers who are unlikely to ever 
smoke from the sample) or ensure that the sample is representative.1631 Professor Klick also 
considers that the fact that non -Australian samples make up the bulk of the literature raises 
concerns about the likelihood that the results of those studies will be predictive of what happens in 
Australia (external validity), particularly considering Australia's regulatory environment.1632 
Further, Professor Klick contends, each of the individual studies discussed in his report involved 
participants observing the package in a focused sterile environment. This raises concerns, 
Professor Klick argues, regarding ecological validity, namely whether what is observed in the study 
environme nt will correspond to what occurs in reality.1633 
7.583.   Overall, the three reviews submitted by the Dominican Republic, Honduras, and Cuba 
conclude that the various individual studies that are part of the TPP literature  are flawed. From 
this, the reviewers deduc e that the literature  in support of tobacco plain packaging is neither 
reliable nor relevant to predicting the impact of the TPP measures in Australia,  and is unsuitable 
for establishing any causal link between tobacco plain packaging and smoking behaviours.1634 
7.584.   We note, however, that the TPP literature  has also been the subject of various external 
reviews conducted outside of these proceedings, which have also been referred to by the 
parties.1635 We describe these below.  
Other reviews of the TPP literature  
The Stirling Review  
 
7.585.   A systematic review of the literature relating to tobacco plain packaging1636 was 
undertaken by Crawford Moodie, a "prominent researcher in the area"1637, and colleagues from the 
University of Stirling, the University of London, the University of Nottingham, and the UK Centre 
for Tobacco Control Studies. An initial report was issued in 20121638 (Stirling Review) , followed by 
                                                
1630 Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 9-11. 
1631 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 14. 
1632 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 15. 
1633 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 16. 
1634 See, e.g. Peer Review Report, (Exhibit DOM/HND -3), paras. 61(iv) and 65; and Klick TPP Literature 
Report, (Exhibit UKR -6), p. 1.  
1635 See, e.g. Chantler Report, (Exhibits AUS -81, CUB -61); Stirling Review, (Exhibits AUS -140, 
HND-130, CUB -59); Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60). 
1636 The initial Stirling Review considered 37 studies that were reported in 50 papers. Stirling Review, 
(Exhibits AUS -140, HND -130, CUB -59), p p. 91-96. The subsequent Stirling Review 2013 U pdate considered an 
addition al 17 papers. Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60), p p. 2 and 15 -17.  
1637 Klick TPP Literature Report , (Exhibit UKR -6), p. 60. 
1638 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59). We note that two of the same researchers 
from the Univer sity of Stirling first conducted a review of tobacco plain packaging research at the request of 
the UK Department of Health in 2009. See Moodie et al. 2009, (Exhibit AUS -141). The 2009 review was, 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  a 2013 update1639 (Stirling Review 2013 Update) . The Stirling R eview was initiated in the context 
of a consultation conducted by  the British Government on the possible introduction of tobacco 
plain packaging in the UK:  
The review was conducted following the publication of the March 2011 White Paper 
Healthy Lives: Healthy People  which set out a renewed Tobacco Control Plan for 
England. One of the key actions identified in the plan was to consult on possible 
options to reduce the promotional impact of tobacco packaging, including plain 
packaging. This systematic review was commissioned to provide a comprehensive 
overview of evidence on the impact of plain packaging in order to inform a public 
consultation on the issue.  
… 
A total of 4,518 citations were identified following initial searching, and after screening 
and quality appraisal 37 studies were included. Data were extracted from e ach of 
these to inform a narrative synthesis organised around five main headings: appeal of 
cigarettes, packs and brands; salience of health warnings; perceptions of harm; 
smoking -related attitudes and behaviour; and barriers and facilitators to the 
introd uction of plain packaging.1640 
7.586.   Having considered in detail the study design and outcomes of each of the relevant studies 
identified through their initial screening and quality appraisal1641, the reviewers concluded as 
follows:  
This review found that there is str ong evidence to support the propositions set out in 
the Framework Convention on Tobacco Control relating to the role of plain packaging 
in helping to reduce smoking rates; that is, that plain packaging would reduce the 
attractiveness and appeal of tobacco products, it would increase the noticeability and 
effectiveness of health warnings and messages, and it would reduce the use of design 
techniques that may mislead consumers about the harmfulness of tobacco products. 
In addition, the studies in this review show that plain packaging is perceived by both 
smokers and non -smokers to reduce initiation among non -smokers and 
cessation -related behaviours among smokers.1642 
7.587.   The authors also assess the strengths and limitations of the Stirling R eview, observing 
that:  
The main strength of this project is that it is a systematic review of the relevant 
literature, with the studies it included identified as the result of careful and extensive 
searches. As such, while we cannot be sure we have found every single possibly 
relevant study, we can be confident that we have followed best practice with regard to 
our searching and have taken steps to avoid bias in the sample of studies we have 
retrieved. We have also checked the studies we have included for relevance and 
methodologic al rigour. This being the case, we can be confident that the statements 
we have made in this review genuinely reflect the current state of research evidence 
in this area.1643 
7.588.   The authors of this review also identify the limitations they see in the literature that their 
review is based upon. They identify certain limitations in the individual studies reviewed, including 
                                                                                                                                                  
however, "[b]rief", conducted under time constraints, and d id not purport to be systematic in nature. Ibid. title 
and p p. 1 and 18. It is our understanding that the subsequent Stirling Review, (Exhibits AUS -140, HND -130, 
CUB-59), considered both the research evaluated in Moodie et al. 2009, as well as newly -available evidence.   
1639 Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60). 
1640 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. i. 
1641 Four studies, in addition to the 37 that were ultimately reviewed, met initial relevancy requirements 
but were e xcluded following data extraction and a quality assessment. Stirling Review, (Exhibits AUS -140, 
HND-130, CUB -59), p p. 19-20. 
1642 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. v. 
1643 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 88. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  those arising from the fact that tobacco plain packaging wa s not yet in place in any country at the 
time that the studies were conducted. They also acknowledge the difficulty of drawing conclusions 
about expected outcomes, including behavioural outcomes, on the basis of surveys and qualitative 
studies. In addition , the authors note that all the reviewed studies "have been confined to a small 
number of high income countries, most of which have strong tobacco control", which "restricts the 
ability to predict the potential impact of plain packaging in less developed n ations".1644 
Nonetheless, overall, the authors conclude that:  
Despite these limitations it is worth emphasizing the remarkable consistency in study 
findings regarding the potential impact of plain packaging. Across studies using 
different designs, conducted in a range of countries, with young and older populations 
and with smokers and non -smokers the key findings are similar. This consistency of 
evidence can provide confidence about the observed potential effects of plain 
packaging. If and when introduced, ex isting evidence suggests that plain packaging 
represents an additional tobacco control measure that has the potential to contribute 
to reductions in the harm caused by tobacco smoking now and in the future.1645  
7.589.   Following the issuance of the  Stirling Review,  the authors, with the assistance of two 
additional colleagues, published an article on its main findings, focusing on the 25 quantitative 
studies among the 37 studies  considered , "in order to facilitate comparisons and synthesis of 
results between studies" .1646 Despite the reduced number of studies and designs reviewed in this 
paper, the authors again note that "the findings were largely consistent across different designs, 
countries, populations, smokers and non -smokers suggesting that we can be fairly confid ent about 
the potential effects of standardised packaging".1647 
7.590.   The Stirling Review team updated their report in 2013 by issuing an additional report 
analysing 17 further studies that had been published following the August 2011 cut -off date for the 
initial r eport. The Stirling Review 2013 U pdate concludes:  
As with the studies included in the original systematic review, most were conducted in 
a few high income countries, with 15 of the 17 studies included here having been 
conducted in Australia, New Zealand or  the UK. Of the 17 studies identified, nine 
assessed the impact of plain packaging on appeal and eight the impact of plain 
packaging on warning salience and effectiveness. Seven studies explored perceptions 
of product harm and eight explored the impact of pack design on smoking -related 
attitudes, beliefs, intentions and behaviour. Four studies considered potential 
facilitators or barriers to plain packaging …  
The findings of these 17 studies, discussed below, suggest that plain packaging would: 
reduce the a ppeal of cigarettes and smoking; enhance the salience of health warnings 
on packs; and address the use of packaging elements that mislead smokers about 
product harm.1648 
7.591.   In sum, the Stirling Review and Stirling Review 2013 Update  teams, following a review 
spanning 54 tobacco plain packaging studies reported in 67 papers, concluded that "plain 
packaging represents an additional tobacco control measure that has the potential to contribute to 
reductions in the harm caused by tobacco smoking" by reducing the appea l of cigarettes and 
smoking; enhancing the salience of health warnings; and addressing the use of packaging 
elements that mislead smokers about product harm.1649  
                                                
1644 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 89. 
1645 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 90. We note that this conclusion was 
reached on the basis of an analysis of those studies that were considered by the authors of the review to meet 
required standards in terms of relevance and quality, based on an initial screening process by the authors of 
the review. Hence it was not expressed as a substitute  for quality review.  
1646 See Stead et al. 2013, (Exhibit CUB -58), p. 4. 
1647 Stead et al.  2013, (Exhibit CUB -58), p. 8. 
1648 Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60), p. 2. (emphasis omitted)  
1649 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. v; and Stirling Review 2013 Update , 
(Exhibits AUS -216, CUB -60), p. 2. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.592.   The Stirling Review has been criticized by the complainants' experts.1650 Professor 
Kleijnen's team  thus stated that its review "sought to improve on the quality assessment standard 
applied in [the Stirling R eview] by taking a more comprehensive and rigorous approach that better 
assesses the risk of bias of the evidence, particularly in the Australian c ontext".1651 Likewise, 
Professor Klick claims that the Stirling Review "does not critically examine the studies or their 
conclusions, but simply provided a qualitative discussion of why … certain studies are more flawed 
than others".1652 In the same vein, the re view has been critiqued for being a "narrative synthesis", 
rather than a "meta -analysis showing overall effect size".1653  
7.593.   We note, however, that the original Stirling Review appraised each of the underlying 
studies for relevance and quality , applying  publish ed "quality tools", principles of good practice for 
conducting social research with the public , and principles of good practice for the critical appraisal 
of primary research.1654 On this basis, each of the 37 reviewed studies was assigned a relevance 
and qua lity score, distributed as shown below in  Table 2: 
Table 2: Relevance and quality ratings a warded by the Stirling Review  
 High  Medium  Low 
Relevance of studies  23 14 6 
Quality of studies  5 36 2 
Source :  Stirling R eview, (Exhibits AUS -140, HND -130, CUB -59), pp. 25-37.  
Note:  A total of 43 ratings were supplied for each criterion, because five of the 37 studies implemented 
multiple designs, each of which received a separate rating.  
 
7.594.   These scores indicate that a substantial majority of the studies were found to be of 
medium to high quality and relevance to the question of the effectiveness of tobacco plain 
packaging.  
7.595.   In addition, an independent review of the Stirling Review and the Stirling Review 2013 
Update was conducted in the context of a subsequent consultation at the requ est of the 
UK Government (the Chantler Report, discussed below). The Chantler Report verifi ed the quality of 
the primary evidence base in support of plain packaging, as well as the quality of the Stirling 
Review process itself.  
7.596.   Sir Cyril Chantler, who com missioned independent appraisals of the Stirling Review , the 
Stirling Review 2013 Update,  and the studies within, summarized the results as follows:  
 the Stirling Review was conducted according to recognised best practice;  
 whilst not agreeing on all details  of quality appraisal of the individual studies in 
the Stirling Review, all were considered appropriate for inclusion in its narrative 
synthesis; and  
 the [Stirling Review 2013 Update ], whilst not itself a systematic review, added 
useful information, and, generally speaking, included papers of individually higher 
quality than in the original review.1655 
                                                
1650 See, e.g. Mitchell Report , (Exhibit UKR -154), para. 35; McKeganey Report , (Exhibits DOM -105, 
CUB-72), p p. 43-50; Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 60-61; and Kleijnen Systematic Review , 
(Exhibit DOM/HND -4), section 2.3, p. 11; and Kleijnen Systematic  Review Second Rebuttal Report , (Exhibit 
DOM/HND -18), paras.  7, 43 and 64 -68. Cf. Chantler Report , (Exhibits AUS -81, CUB -61), paras.  4.4-4.5. 
1651 See Kleijnen Systematic Review , (Exhibit DOM/HND -4), p. 11. See also Kleijnen Systematic Review 
Second Rebuttal Report , (Exhibit DOM/HND -18), paras.  7, 43, and 64 -68.  
1652 Klick TPP  Literature  Report, (Exhibit UKR -6), p. 61. 
1653 See Chantler Report , (Exhibits AUS -81, CUB -61), para. 4.5. 
1654 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 19-20. 
1655 Chantler Report , (Exhibits AUS -81, CUB -61), para. 4.18. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  The Chantler Report  
 
7.597.   In April 2014, Sir Cyril Chantler presented a report1656 (Chantler Report) commissioned by 
the UK Secretary of State for Health, to advise, "taking into account existing and any fresh 
evidence, as to whether or not the introduction of standardised packaging is likely to have an 
effect on public health (and what any effect might be), in particular in r elation to the health of 
children".1657 
7.598.   As noted by the complainants' expert Professor Klick, Sir Cyril Chantler  did not conduct 
novel research.1658 Rather, he reviewed the relevant literature, including the s tudies underlying the 
Stirling R eview, studies regard ing the influence of media, promotion, and branding, tobacco 
industry documents, commissioned the independent reviews of the Stirling Review described 
above1659, and engaged in discussions with stakeholders in the plain packaging debate, including 
representat ives from the major tobacco companies. He also visited Australia in March 2014 to 
study the implementation of the TPP measures .1660 
7.599.   With respect to the nature of the evidence, Sir Cyril Chantler observes that he was asked 
whether the evidence shows "that it i s likely that there would be a public health impact" (of 
tobacco plain packaging) and that "[t]his is clearly not an issue which is capable of scientific proof 
in the manner one might apply, for example, to the efficacy of a new drug".1661 He also observes 
that no double blind randomized controlled trials of plain packaging exist and "none could 
conceivably be undertaken".1662 
7.600.   While noting that the evidence base is "modest "1663 and noting study design constraints, 
the Chantler Report concludes as  follows:  
Having reviewed the evidence it is in my view highly likely that standardised 
packaging would serve to reduce the rate of children taking up smoking and 
implausible that it would increase the consumption of tobacco. I am persuaded that 
branded p ackaging plays an important role in encouraging young people to smoke and 
in consolidating the habit irrespective of the intentions of the industry. Although I 
have not seen evidence that allows me to quantify the size of the likely impact of 
standardised packaging, I am satisfied that the body of evidence shows that 
standardised packaging, in conjunction with the current tobacco control regime, is 
very likely to lead to a modest but important reduction over time on the uptake and 
prevalence of smoking and thus have a positive impact on public health.1664 
7.601.   As part of his review, Sir Cyril Chantler addressed a number of criticisms of the underlying 
studies considered in the Stirling Review, which essentially overlap with those raised by the 
complainants in these proceedings in relation to the TPP literature :  
 there are no randomised controlled trials of standardized packaging;  
 each study had significant methodological flaws which invalidate the results;  
 studies looking at hypothetical situations and attitudes are of little predictive value; and  
 in particular the studies fail to demonstrate a link with actual behaviour.1665 
                                                
1656 Chantler Report, (Exhibits AUS -81, CUB -61). 
1657 Chantler Report, (Exhibits AUS -81, CUB -61), Annex A, p. 41. 
1658 Klick TPP Literature Report , (Exhibit UKR -6), p. 62. 
1659 See paras.  7.585  et seq.  
1660 Chantler Report, (Exhibits AUS -81, CUB -61), paras.  1.8-1.16; and Annex A, paras.  1-3. 
1661 Chantler Report, (Exhibits AUS -81, CUB -61), para. 1.19.  
1662 Chantler Report, (Exhibits AUS -81, CUB -61), para.  1.19. 
1663 Chantler Report (AUS -81, CUB -61), para. 6.2. 
1664 Chantler Report , (Exhibits AUS -81, CUB -61), p. 6, para. 18. 
1665 Chantler Report, (Exhibits AUS -81, CUB -61), para. 4.11. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.602.   Given the centrality of the debate on the quality of the evidence at issue, Sir Cyril Chantler 
commissioned, as described above, independent analys es of the primary evidence reviewed in the 
Stirling Review.1666 The studies were divided into two groups, quantitative and qualitative. The 
independent reviewers1667 evaluated them using an alternative appraisal structure to that applied 
by the Stirling Review t eam, to facilitate an independent judgment of the quality of the studies.1668  
7.603.   The assessment of the quantitative studies concluded that they were "conducted to a high 
standard" and that "the conclusions that were drawn are a reasonable reflection of the evid ence 
available".1669 Nearly half of the studies included in the original review, and seven out of 12 in the 
update, were assigned ratings indicating high quality and low risk of bias.1670 Similarly, the 
assessor of the qualitative studies concluded that the Stir ling Review is "a high quality systematic 
review" which was "clearly documented and follows recognised best practice for such reviews".1671 
She noted that her scores of three of the ten qualitative papers differed from those assigned by 
the Stirling Review te am, but indicated that this was not fatal and was a result of applying a 
purposefully different assessment tool.1672 She also concluded that the Stirling Review team 
properly utilized a narrative form of review, given the diversity of designs and types of stu dies 
analysed.1673  
7.604.   The Chantler Report has been criticized by Cuba and in a number of expert reports 
submitted by the complainants.1674 For the most part, these criticisms are of the underlying 
studies and the conclusions drawn from them, and duplicate critique s presented in these 
proceedings in relation to these studies.1675 Critiques of the Chantler Report also include that it is 
                                                
1666 We note that the reviewers of the quantitative studies considered by the Stirling Review indicate 
that their aim was to examine the evidence rather than to repeat the Stirling Review. Accordingly, each paper 
was appraised by a single independent reviewer rather than two reviewers. Chantler Report, (Exhibits AUS -81, 
CUB-61), Annex D, p. 49.  
1667 Dr Yanzhong Wang and Professor Janet Peacock of King's College London, and Professor Catherine 
Pope of Southampton University.  
1668 Chantler Report , (Exhibits AUS -81, CU B-61), para. 4.17. It appears that the four "mixed method" 
studies included in the Stirling Review were omitted from the evaluations conducted by Dr Wang, Professor 
Peacock, and Professor Pope. Compare Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), pp. 35-36 with 
Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-53 and Annex E, p p. 60-61. 
1669 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 49.  
1670 Chantler Report , (Exhibits AUS -81, CUB -61), Annex D, p p. 47-49. 
1671 Chantler Report , (Exhibits AUS -81, CUB -61), Annex E, p. 56.  
1672 Chantler Report , (Exhibits AUS -81, CUB -61), Annex E, p. 56. 
1673 See Chantler Report , (Exhibits AUS -81, CUB -61), para. 4.7, and Annex E, p. 56. 
1674 See, e.g. Cuba's first written submission, paras.  173-175 and 182; C uba's second written 
submission, paras.  46 and 312; Mitchell Report , (Exhibit UKR -154); Gibson Report , (Exhibit DOM -92), 
pp. 13-14; McKeganey Report , (Exhibits DOM -105, CUB -72), p p. 8-9; Klick TPP  Literature  Report, (Exhibit 
UKR-6), pp. 62-63; and Kleijnen  Systematic Review Second Rebuttal Report , (Exhibit DOM/HND -18), 
paras.  64-65 and 67 -68. 
1675 See " Tobacco packaging as a form of promotion or advertising " and " Impact of plain packaging on 
the appeal of tobacco products " within section 7.2.5.3.5.2  below  for a discussion of the relationship between 
branded packaging, tobacco advertising, and appeal (with respect to Cuba's first written submission, 
para. 196); " Focus of the TPP studies on "non -behavioural" outcomes " above and " Overall assessment " below 
within section 7.2.5.3.5.1  for a discussion of the designs of the TPP literature  studies, their methodological 
validity, and the feasibility of randomized controlled experiments (with respect to Cuba's first written 
submission, para. 175 and fn  210; and Mitchell Report , (Exhibit UKR -154), paras.  11 and 56 -58); and Klick 
Report , (Exhibit UKR -6), pp. 62-63); " Focus of the TPP studies on "non -behavioural" outcomes " above  for a 
discussion of the TPP literature 's use of "proximal" or "non -behavioural" outcomes and surrogate variables for 
smoking behavior (with respect to Cuba's first written submission, para. 173; and Mitchell Report , (Exhibit 
UKR-154), para. 11); " Relationship between attitudes and behaviours " within section 7.2.5.3.5.2  discussing 
behavioural theories and the relationships among appeal, beliefs, attitudes, intentions, and behavior (with 
respect to Cuba's first written submission, paras.  182(a),  and 204; second written submission, paras.  312-313; 
Mitchell Report , (Exhibit UKR -154), paras.  17-22; and Ajzen Report , (Exhibit DOM/HND/IDN -3), paras.  46 and 
95); See, e.g. paras.  7.550  and 7.641 ; and Slovic Report , (Exhibit AUS -12), para. 116, for a discussion of the 
convergence of the resul ts of the TPP literature  studies (with respect to Cuba's first written submission, 
para. 182(c)); Paras. 7.617  et seq. for a discussion of the TPP literature  assessing appeal in light of Australia's 
75% GHW (with respect to Cuba's first written submission, paras.  189-195, 205(b), 348(c); and second 
written submission, para. 46(c); and Mitchell Report , (Exhibit UKR -154), paras.  37 and 43 -45); p aras. 
7.1215 -7.1218  with regard to the im pact of tobacco plain packaging on the price of cigarettes (with respect to 
Klick Report , (Exhibit UKR -6), p. 63; and Mitchell Report , (Exhibit UKR -154), para. 46); " Smoking initiation " 
within section 7.2.5.3.5.2  for a discussion of risk factors and drivers of smoking initiation and the role of 
branded packaging (with respect to Mitchell Report , (Exhibit UKR -154), paras.  36, 41 -42 and 51 -56; and 
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  flawed due to allegedly inadequate consideration of certain types of evidence, i.e. 
post-implementation evidence1676, theories of adolesce nt health behaviour1677, or theories of 
automatic behaviour.1678 We note that evidence relating to these aspects has been presented in 
these proceedings , which goes beyond the materials that were relied upon in the Chantler 
Report .1679 This evidence is addressed in  these  Report s as part of our own assessment regarding 
the contribution of the TPP measures  to their objective, in light of the totality of the evidence 
before us.  
7.605.   To the extent that Sir Cyril Chantler may have "resolve[d] ambiguities in this evidence in 
favor of a move to standardized packaging"1680, or gave "'the benefit of the doubt' to possible 
future developments where they favour plain packaging"1681, we consider this to have been an 
exercise of judgment on Sir Cyril Chantler's part, to which he was entitl ed. We further note that 
the Report readily acknowledges weaknesses in the evidence and possible coun tervailing impacts 
of standardiz ed packaging1682, suggesting that it seeks to present a balanced assessment of the 
then-available evidence.  
Other surveys of t he literature  
 
7.606.   During the course of these proceedings, the parties referred to other surveys of the 
evidence which have reached positive conclusions regarding the likely impact of tobacco plain 
packaging.  
7.607.   Australia has referenced a "review of the evidence" prepared for the Irish Department of 
Health1683, and has also referred to a 2012 US Surgeon General 's Report as an "independent 
                                                                                                                                                  
McKeganey Report , (Exhibits DOM -105, CUB -72), pp. 15-23); " Impact of plain packaging on the salience and 
processing of GHWs " within section 7.2.5.3.5.3  with respect to the impact of tobacco plain packaging on the 
salience of health warnings (with respect to Mitchell Report , (Exhibit UKR -154), para. 35); " Ability of plain 
packag ing to increase the effectiveness of GHWs by improving risk awareness and risk beliefs " within section 
7.2.5.3.5.3 , discussing adolescents' awareness of the risks of smoking (with respect to Mitchell Report , (Exhibit 
UKR-154, para. 34); and paras.  7.738  et seq. discussing the distinction between primary and secondary 
demand (with respect to Mitchell Report , (Exhibit UKR -154), paras.  27-32). 
1676 See Cuba's first written submission, para. 182(b) ; Gibson Report , (Exhibit DOM -92), p. 13; Klick 
Report  (Exhibit UKR -6); McKeganey Report , (Exhibits DOM -105, CUB -72), pp. 8-9 and 11. Cf. 
Dominican  Republic 's response to Panel question No. 197, para. 264; Dominican  Republic 's comments on 
Australia's response to Panel question No. 196, paras.  579-581; and Kleijnen Systematic Review Second 
Rebuttal Report , (Exhibit DOM/HND -18), para. 68. The Panel considers the post -implementation data on the 
record in section 7.2.5.3.6  below.  
1677 See Mitchell Report , (Exhibit UKR -154), paras.  14-26. Theories of adolescent behaviour are 
discussed at " Smoking initiation " within section 7.2.5.3.5.2  of these Report s. 
1678 See Cuba's first written submission, paras.  205-207 and 348(c); Cuba's second written submission, 
para. 46(c); Klick Report , (Exhibit UKR -6), p. 63; and Mitchell Report , (Exhibit UKR -154), paras.  14-17. The 
Panel discusses the "affect heuristic" theory an d unconscious or automatic responses to branded packaging at 
paras.  7.725  et seq. See also Slovic Report , (Exhibit AUS -12), paras.  116-117 (respond ing to criticism of the 
Chantler Report's application of theories of automatic behaviour).  
1679 See section 7.2.5.3.3  for a discussion of the Panel's approach to the evidence regarding contribution 
presented in these proceedings.  
1680 Mitchell Report , (Exhibit UKR -154), para. 58. 
1681 Gibson Report , (Exhibit DOM -92), p. 13. 
1682 See, e.g. Chantler Report, (Exhibits AUS -81, CUB -61), para. 4.5 (acknowledging criticisms of the 
Stirling Review and the Stirling Review 2013 U pdate); para. 4.23 (acknowledg ing the argument that 
standardiz ed packaging could produce a perverse appeal for children); para. 4.21 (noting that the findings of 
the Stirling Review regarding smoking behaviour are "essentially indirect and 'speculative'"); paras. 5.1-5.3 
(indicating that an economist had been commiss ioned in order to thoroughly address the arg ument by 
opponents of standardiz ed packaging that it could cause large scale price reductions); para. 6.2 
(acknowledging that the ev idence base regarding standardiz ed packaging is "relatively modest"); and 
para. 6.11 (concluding that "after a careful review of all the relevant evidence … there is sufficient evidence 
derived from independent sources").  
1683 Australia's second written submission, para. 246 ( referring to  Hammond Review , (Exhibit 
AUS-555)). This review, completed in March 2014, examined more than 55 articles. It states, with respect to 
the methodological quality of the studies:  
 
The plain packaging literature includes a heterogeneous mix of research designs, with a wide 
variety of outcomes from different research domains. Plain packaging has been assessed using 
consumer perceptions, physiological measures of visual attention and neuroimaging, behavioural 
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  review of the literature".1684 The complainants' expert, Professor Klick, also classifies the 2012 US 
Surgeon General's Repo rt, as well as reports by CCV and Health Canada, as "surveys of the 
literature".1685 We distinguish, however, the Stirling Review and Chantler Report described above, 
which, in addition to synthesizing and summarizing the evidence, applied critical appraisal tools to 
each study in order to evaluate the overall quality of the evidence.1686 
7.608.   We note that no systematic review of the TPP literature  appears to have been undertaken 
in Australia prior to the adoption and implementation of the TPP measures .1687 A working gro up of 
the NPHT in Australia considered the evidence on tobacco plain packaging in a report outlining 
various recommended tobacco control actions, including the introduction of plain packaging. This 
report describes the main findings of certain relevant stu dies relating to tobacco plain 
packaging.1688 CCV published a "compilation of literature" in 2011, which "summarises the findings 
                                                                                                                                                  
tasks, as well as population -level cessation behaviour. A substantial proportion of these studies 
use e xperimental research designs, with high levels of internal validity, strengthening the level of 
causal inference that can be made. The diversity of the research designs and outcomes is a 
considerable strength of the evidence base.  
 
Studies on packaging ha ve been conducted with diverse samples, including youth and adults, as 
well as smokers and non -smokers.  
 
Hammond Review , (Exhibit AUS -555), p. 30. 
The review notes the consistency and coherence across different research methods and most outcomes 
examined,  which it describes as "a considerable strength of the evidence base" that increases the likelihood of 
a causal association with tobacco plain packaging . Hammond Review , (Exhibit AUS -555), p. 31. The volume of 
the evidence is sufficient, the review conclud es, to provide an informed opinion, namely  that: 
 
[T]obacco packaging is a critically important form of tobacco promotion, particularly in 
jurisdictions with comprehensive advertising and marketing restrictions, such as Ireland. The 
evidence indicates that  plain packaging reduces false beliefs about the risks of smoking, 
increases the efficacy of health warnings, reduces consumer appeal among youth and young 
adults, and may promote smoking cessation among established smokers.  
 
Hammond Review , (Exhibit AUS -555), p. i.  
1684 Australia's first written submission, para. 612 ( referring to  US Surgeon General's Report 2012, 
(Exhibit AUS -76)).  
1685 Klick TPP  Literature  Report, (Exhibit UKR -6), pp. 58-60 (critiquing US Surgeon General's Report 
2012, (Exhibit AUS -76); Goldberg et al. 1995, (Exhibits AUS -221, JE -24(26)); and CCV Review 2011, (Exhibit 
AUS-86)). 
1686 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 47, and Annex E, p. 56; and Stirling 
Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 19-20. 
1687 Austra lia explains tha t its decision to adopt the TPP measures was based on an extensive body of 
evidence available at the time, as well as the explicit recommendation of the Parties to the FCTC to adopt plain 
packaging as a means to implement their obligations under the FCTC (Australia's closing statement at the 
second substantive meeting, para. 5). See also Australia's closing statement at the second substantive 
meeting, para. 7.  
1688 NPHT Technical Report 2, (Exhibits AUS -52, JE -12). It states in relevant part:  
 
Cigarette brand names and package design enable the communication of personal 
characteristics, social identity and aspirations,[185] and are a crucial aspect of marketing the 
product.[186, 187] Consumer research indicates that decreasing the number of desi gn elements 
on the packet reduces its appeal and perceptions about the likely enjoyment and desirability of 
smoking.[188] Requiring cigarettes to be sold in plain packaging would reinforce the idea that 
cigarettes are not an ordinary consumer item. It woul d also reduce the potential for cigarettes to 
be used to signify status. Plain packaging would increase the salience of health warnings: 
research subjects show an improved ability to recall health warnings on plain packs.[189 -191] 
Plain packaging woul d pro hibit brand imagery, colours, corporate logos and trademarks, 
permitting manufacturers only to print the brand name in a mandated size, font and place, in 
addition to required health warnings and other legally mandated product information such as 
toxic con stituents, tax -paid seals or package contents. A standard cardboard texture would be 
mandatory, and the size and shape of the package and cellophane wrapper would also be 
prescribed. A detailed analysis of current marketing practices[187] suggests that pla in packaging 
would also need to encompass pack interiors and the cigarette itself, given the potential for 
manufacturers to use colours, bandings and markings, and different length and gauges to make 
cigarettes more "interesting" and appealing. Any use of perfuming, incorporation of audio chips 
or affixing of "onserts" would also need to be banned.  
 
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  of more than 25 published studies conducted to assess the likely impact of plain packaging".1689 
Neither publication, however, indic ates or suggests that it constitutes a systematic review or 
quality assessment of the evidence regarding tobacco plain packaging. We understand the post-
implementation review ( PIR) undertaken after the entry into force of the TPP measures  to have 
been inte nded to provide such an assessment, albeit in a post -implementation context.1690  
Overall assessment  
7.609.   As described above, the complainants consider that the TPP literature  as a whole is 
methodologically flawed, as an evidentiary base in support of tobacco plai n packaging. This 
conclusion is reflected in all three of the expert reviews described above commissioned by the 
complainants for the purposes of these proceedings, which largely overlap in the substance of their 
criticism.  
7.610.   One of the main criticisms addre ssed by the complainants to the TPP literature  is the fact 
that it focuses on the "proximal outcomes" of plain packaging, including the appeal of tobacco 
products, and fails to measure smoking -related behaviours. We have already determined, in this 
respect , that we are not persuaded that this constitutes, in itself, a flaw, provided that such 
                                                                                                                                                  
Industry opposition to restrictions on pack design is a strong indication of its importance to 
tobacco sales.[192]  
 
"In our opinion, [after taxation] the other two regulatory environment changes that concern 
the industry the most are homogenous packaging and below -the counter sales. Both would 
significantly restrict the industry's ability to promote their products." Morgan Stanley 
Research (2007)[193].  
 
NPHT Technical Report 2, (Exhibits AUS -52, JE -12), p. 20. Another section of the report discusses the 
elimination of the promotion of tobacco products through packaging:  
 
An experimental study of the effects of packaging on the image of smoking and character istics of 
tobacco products found that smokers of plain packs were rated as significantly less 
trendy/stylish, less sociable/outgoing and less mature than smokers of the original pack. 
Compared with original packs, smokers inferred that cigarettes from thes e plain packs would be 
less rich in tobacco, less satisfying and of lower quality tobacco.[91]  
 
A paper presented at the 2009 meeting of the Society for Research into Nicotine and 
Tobacco[92] found that substantial proportions of UK adult smokers and chil dren reported false 
beliefs about health risk based on packaging …  
 
… 
A case study presented at the World Conference on Tobacco or Health in Mumbai in March 
2009[98] demonstrated how the Dunhill brand was able to significantly increase sales and 
market sha re in the absence of any allowable media advertising following significant changes in 
packaging of the product and promotion to retailers encouraging more prominent display at point 
of sale.  
 
NPHT Technical Report 2, (Exhibits AUS -52, JE -12), p p. 99-101. The quoted passages cite the following eleven 
sources, four of which Australia has offered as exhibits in these proceedings: J. Scheffels J. A difference that 
makes a difference: young adult smokers' accounts of cigarette brands and package design. Tob Con trol. 
2008;17:118 -22; Wakefield et al. 2002, (Exhibit s AUS-93, CUB -28); Freeman B, Chapman S and Rimmer M. 
Review: The case for the plain packaging of tobacco products. Sydney: University of Sydney, 2007; Wakefield 
et al. 2008, (Exhibits AUS -149, JE -24(62) ); Beede and Lawson 1992, (Exhibits AUS -202, JE -24(6) ); Goldberg 
et al. 1999, (Exhibits AUS -209, JE -24(27) ); Strahan EJ, White K, Fong GT, Fabrigar LR, Zanna MP and 
Cameron R. Enhancing the effectiveness of tobacco package warning labels: a social psycholo gical perspective. 
Tob Control. 2002;11:183 -90; Wakefield M and Letcher T. My pack is cuter than your pack. Tob Control. 
2002;11:154 -6; Morgan Stanley Research Europe. Tobacco: Late to the Party. London: Morgan Stanley 
Research, 2007; Hammond D, Arnott D, Dockrell M, Lee A and McNeill A. Cigarette pack design and 
perceptions of risk among adults and youth. 2009 Joint Conference of SRNT and SRNT -Europe. Dublin, Ireland, 
2009 (sharing the same authors and a similar title to Hammond et al. 2009, (Exhibits AUS -166, JE -24(29)); 
and Lindorff K. Power of the packet: A case study for plain packaging. 14th World Conference on Tobacco or 
Health. Mumbai, 2009.  See NPHT Technical Report 2, (Exhibits AUS -52, JE -12), p p. 61 and 138.  
1689 CCV Review 2011  (Updated) , (Exhibit J E-16), p. 5. 
1690 See Tobacco Plain Packaging PIR, (Exhibit  AUS-624), p. 3. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "proximal outcomes" are understood to form one element of the "causal chain" in the "mediational 
model" underlying the design and operation of the measures.1691 
7.611.   Other key  criticisms of the relevant studies by the complainants include the inability of the 
chosen study designs to inform causal relationships with respect to the measured outcome, a lack 
of consideration of confounding factors, in particular GHWs, and the possi bility of demand effects 
and social desirability bias. We consider these aspects in turn.  
7.612.   With respect to study design, we note that the studies at issue are based on a range of 
study designs, including non -experimental qualitative studies and focus groups, and quantitative 
cross-sectional surveys. The complainants1692 and their experts, in particular Professor Kleijnen 
et al., contend that nearly half of the TPP literature  studies employed designs that were 
inappropriate for research questions addressing the causal impact of tobacco plain packaging. 
Professor Kleijnen offers a "widely accepted" hierarchy of study design types based upon their 
suitability for causal inferenc e.1693 Randomised experiments, quasi -experiments, and cohort and 
case control studies "may be capable of allowing causal inferences to be drawn", whereas 
cross-sectional studies, case studies, and expert reports "are not capable of allowing causal 
inferences to be drawn".1694 Professor Kleijnen et al. accordingly  determined that, among the 63 
different studies discussed across the 58 papers considered, 32 of the studies employed a 
cross-sectional (non -experimental) design to measure the impact of plain packaging on intentions 
and perceptions of smoking and pack design1695, and were thus not further assessed due to their 
inability to allow causal inferences to be drawn.1696 This approach, they claim, is "similar to other 
recent systematic reviews outside the plain packag ing domain" and reflects "accepted practice".1697  
7.613.   The evidence before us suggests that it is generally recognized that different study 
methods and designs may have diverse abilities to demonstrate relevant causal relationships and 
that in particular, properl y executed experimental designs may in principle have predictive 
superiority. At the same time, as discussed above, it has also been recognized that, in respect of 
tobacco plain packaging research, practical and ethical constraints would have affected the 
possibility of conducting the type of randomized experiment that may in principle have been 
considered to have the highest level of predictive value. There is no indication, in the Kleijnen 
Systematic Review, that such considerations were taken into accoun t in applying the chosen 
analytical framework to the TPP literature . We note in this respect that the Stirling Review, while 
indicating that some systematic reviews only include controlled trials, included in its review of the 
TPP literature  "all feasible study designs"1698, including non -experimental studies, as did the 
subsequent Stirling Review update and the Chantler Re port.1699  
7.614.   We further note in this respect the observation from a handbook for systematic reviews, 
cited by Australia, that "evidence from qua litative studies can play an important role in adding 
value to systematic reviews for policy, practice and consumer decision -making".1700 Kleijnen et al., 
while considering that non -experimental designs are not a recommended means of measuring the 
effectivene ss of an intervention1701, at the same time acknowledge that non -experimental studies 
are capable of "developing and examining ideas" and "identifying barriers and facilitators for 
behavioural change". Professor Inman also notes that non -experimental studies can provide 
                                                
1691 See paras.  7.555  and 7.564  above.  
1692 See, e.g. Honduras's first written submission, paras.  483 and 48 5-486; Dominican  Republic 's first 
written submission, para. 586; and Cuba's first written submission, paras.  174-175. See also Indonesia's 
second written submission, para. 186. 
1693 Kleijnen Systematic Review , (Exhibit DOM/HND -4), Section 3.4.1.1; and Kleijne n Sytematic Review 
Second Rebuttal Report, (Exhibit DOM/HND -18), para. 41. See also Peer Review Report , (Exhibit DOM/HND -3), 
para. 61.iv.a (noting that experiments are the preferred method for addressing questions of causal 
relationships).  
1694 Kleijnen Syste matic Review , (Exhibit DOM/HND -4), Section 3.4.1.1, p. 17. 
1695 Kleijnen Systematic Review , (Exhibit DOM/HND -4), Fig ure 5, p. 31. 
1696 Kleijnen Systematic Review , (Exhibit DOM/HND -4), Section 4.2.2, p. 33. 
1697 Kleijnen Systematic Review Rebuttal Report , (Exhibit DOM/HND -13), paras.  29 and 32.  
1698 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Section 3.2, p p. 17-18. 
1699 Chantler Report, (Exhibits AUS -81, CUB -61), Annex E, p. 56.  
1700 Australia's first written submission, Annex ure E, para. 6 (quoting Fong Report , (Exhibit AUS -14), 
para. 463).  
1701 Kleijnen Systematic Review Rebuttal Report , (Exhibit DOM/HND -13), paras.  29 and 34 -35. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  evidence of association or correlation.1702 We also note the observation by Professor Pope, whose 
independent quality assessment of the qualitative studies included in the Stirling Review was 
incorporated into the Chantler Report, that such studie s may reveal factors likely to be relevant or 
influential in behaviour.1703 Accordingly, we are not persuaded that the limitations of 
non-experimental designs are such as to justify, as suggested in the review of the TPP literature 
by Kleijnen et al., a whole sale exclusion of the relevance of  such studies to inform ing the effects of 
tobacco plain packaging on relevant outcomes.  
7.615.   The complainants further identify a number of specific limitations of the TPP studies, which 
they argue affect the  studies'  internal,  external, conclusion, and construct validity.1704 They 
observe in particular that most of the plain packs used in the TPP literature  studies failed to 
include a dominant GHW.1705  
7.616.   The evidence before us suggests that it is recognized, within the research commun ity, that 
study design s should take account of relevant variables that may affect the external, internal, and 
construct validity of the study, but also that certain constraints inherent in the construct of 
experimental studies may affect the extent to whic h all relevant factors, including potential 
sources of bias or confounding factors , may be accounted for simultaneously in a given study. 
Professor Fong thus quotes The Handbook of Social Psychology  in asserting that "it is next to 
impossible to design an experiment that is high in both internal and external validity".1706 We also 
note the observation by Australia's expert Professor Slovic that in the realm of tobacco control, it 
is particularly difficu lt to control for confounding factors.1707  
7.617.   In this respect, the complainants question in particular the validity of those TPP studies 
that compared branded and plain packs without dominant health warnings . The comparatively 
smaller amount of remaining space on Australian plain packs with a dominant GHW, they claim, 
would likely have a smaller impact on the measured outcomes of pack appeal, noticeability of 
GHWs, and beliefs and attitudes about harm.1708 Further, they allege that the dominant negative 
imagery res ulting from the large Australian GHW itself impacts the measured outcomes.1709 At the 
same time, one of the complainants' experts asserts that the use of differently sized GHWs in a 
single study across various experimental packs introduces a confounding varia ble1710 that 
threatens internal validity by preventing results from being attributable to plain packaging 
alone.1711  
7.618.   It seems unsurprising, in our view, that TPP literature  studies conducted prior to the 
implementation of the TPP measures  in Australia, and inte nded to examine the impact of tobacco 
plain packaging in various possible configurations, would have utilized a variety of different pack 
conditions, including different types and sizes of health warnings, given the novelty of the 
intervention and the vari ety of health warning requirements in place across the globe. As noted by 
Professor Fong, some of the studies varied the size of the warnings and the degree of branding in 
order to assess the effectiveness of various combinations.1712 
                                                
1702 Peer Review Report , (Exhibit DOM/HND -3), para. 61.iv.a.  
1703 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex E, p. 56. 
1704 See fn 1500, above.  
1705 See, e.g. Honduras's first written submission, para. 495; Dominican  Republic 's first written 
submission, paras.  608-611; Cuba's fir st written submission, paras.  12(b), 176(a), and 189; and Indonesia's 
second written submission, paras.  186-187. 
1706 Fong Report , (Exhibit AUS -14), para. 493. 
1707 Slovic Report , (Exhibit AUS -12), para. 120. 
1708 Honduras's first written submission, para. 495; Dominican  Republic 's first written submission, 
paras.  608-611; Cuba's first written submission, paras.  12(b), 176(a), and 189; and Indonesia's second 
written submission, paras.  186-187. 
1709 Honduras's first written submission, para. 495; Dominican  Republic 's first written submission, 
paras.  608-611; Cuba's first written submission, paras.  12(b), 176(a), and 189; and Indonesia's second 
written submission, paras.  186-187. 
1710 A confounding variable is a variable that is not a focus of the study, but is highly correlated with a 
variable that is. Peer Review Report , (Exhibit DOM/HND -3), para. 61.iii.  
1711 See, e.g. Kleijnen Systematic Review , (Exhibit DOM/HND -4), p. 45 (critiquing Hoek et al. 2011, 
(Exhibits AUS -148, JE -24(34)).  
1712 Fong Supplemental Report, (Exhibit AUS -531), para.  155 (referring to Hammond et al. 2013a, 
(Exhibits AUS -177, JE -24(32)); and Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.619.   Nonetheless, we also not e that some of the TPP literature  studies did include plain packs 
with dominant GHWs on the front of the pack.1713 Australia identifies two experimental studies 
specifically designed to measure whether plain packaging has an impact in the presence of large 
GHWs.1714 We note that the independent reviewers of the Chantler Re port assigned both of these 
studies a quality score of 5 out of 6, or "high".1715 We further note a study from New Zealand,  
which permitted a degree of comparison between plain and branded packs wi th a dominant GHW. 
This study found that packs with a 75% GHW were deemed "very unattractive, regardless of the 
level of branding present".1716 Wakefield et al. submit that the results of this study may have been 
influenced by the use of an arguably more appe aling white background on the plain packs rather 
than a brown background, as well as a novel GHW and a single front -of-pack view rather than a 
multi-dimensional view which displays branding or "plainness" to a greater degree.1717  
7.620.   We also note that the study commissioned by Australia, Parr et al. 2011b, to test the 
impact of plain and branded packages of roll -your-own (RYO) tobacco, cigarillos/little cigars, and 
premium cigars, assessed each of these with a 75% GHW.1718 Honduras1719, the Dominican 
Republic1720, and Cuba1721 argue that Parr et al. 2011b utilised an inadequate sample and suffered 
from metho dological flaws. In particular, they argue that, as regards premium cigars, Parr et al. 
2011b relies on responses from eight LHM cigar  smokers, none of whom were select ed randomly 
to participate in the research. Further, Parr et al. 2011b adopted a purely qualitative approach to 
                                                
1713 For example, the follow ing studies included packs where a GHW occupied more than 50% of the 
front pack face: Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)); Wakefield et al. 2012, (Exhibits AUS -557, 
JE-24(63)); Hoek et al. 2012, (Exhibits AUS -163, JE -24(35)); Hammond et al. 201 3a, (Exhibits AUS -177, 
JE-24(32)); Parr et al. 2011a, (Exhibits AUS -117, JE -24(49)); Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)); and Germain et al. 2010, (Exhibits AUS -154, JE -24(25)).  
1714 Thrasher et al. 2011, (Exhibits AUS -229, JE -24(58)); and Wakefi eld et al. 2012, (Exhibits AUS -557, 
JE-24(63)). Wakefield et al. 2012 employed a between -subjects experiment, which collected Australian 
smokers' ratings of positive pack characteristics, positive smoker characteristics, negative smoker 
characteristics, po sitive taste characteristics, and negative harm characteristics for each of six different packs, 
including a plain pack with a 70% GHW and a branded pa ck with a 70% GHW. The branded pack with a 70% 
GHW was rated more highly on positive pack characteristics  and positive smoker characteristics, while the plain 
pack with a 70% GHW was rated more highly on the negative smoker characteristic, "boring".  The packs rated 
similarly on measures of positive taste characteristics, while the branded pack received higher  ratings on 
negative harm characteristics.  Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)), p. 1164. Further, analysis 
of the ratings of these two packs, in conjunction with ratings of four other packs, each of which was either 
branded or plain and in cluded either a 30% or 100% GHW on the pack face, indicated that plain packaging had 
more of an effect on brand appeal and purchase intentions than increasing the size of the GHW. Wakefield et 
al. 2012, (Exhibits AUS -557, JE -24(63)), p p. 1163-1164. Thrashe r et al. 2011 assessed demand among 
smokers in the United States, via an auction, for variously packaged cigarettes, including a branded pack with 
a 50% GHW and a plainer pack with a 50% GHW. Bids for the more plainly packaged cigarette pack were 
lower, in dicating that plain packaging further reduces demand for cigarettes beyond the impact of a 50% GHW. 
Thrasher et al. 2011, (Exhibits AUS -229, JE -24(58)), p. 47. 
1715 See Chantler  Report , (Exhibits AUS -81, CUB -61), Annex D, p p. 48, 51, and 54. Thrasher et al. 
2011, (Exhibits AUS -229, JE -24(58)), was included in the original Stirling Review, and was assigned a quality 
score of "Medium". Stirling report, (Exhibits AUS -140, HND -130, CUB -59), p. 31. Wakefield et al. 2012 was 
published after the cut -off date of the original Stirling Review, and was included in the Stirling Review 2013 
Update, which did not assign quality ratings to individual studies. See Stirling update report, (Exhibits 
CUB-216, CUB -60). 
1716 Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)), pp.  185-186. Hoek et al. 2011 conducted a 
within -subjects best -worst experiment in which young adult smokers identified their preferred and 
least-preferred pack among thirteen different packs which displayed various degrees of branding alongside a 
30%, 50%, or 75% G HW on the front face. This study concluded that where graphic health warnings cover ed 
at least 50% of the pack face, respondents preferred plain packages.  
1717 Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)), p. 1165.  
1718 Parr et al. 2011b, (Exhbits AUS -219, JE-24(50)), p. 11. This study generally found that the plain 
packages minimised perceptions of appeal and quality, although the GHWs were perceived as equally 
noticeable on the branded and plain RYO and cigarillo/little cigar packages. The study also fo und that darker 
colours were seen to be more harmful to health than lighter colours. Among 6 packages tested with a 75% 
GHW, 5 with branding and one plain package, the plain package was perceived to contain the second most 
harmful RYO cigarettes, and the t hird most harmful cigarillos/little cigars. Ibid. pp. 25 -26 and 34. The study 
also noted a possible link between appeal, quality, and perceived harm with respect to cigarillos/little cigars. 
Ibid. p. 34. The impact of plain packaging on the noticeability o f health warnings or the ability of a pack to 
mislead regarding harmfulness to health were not tested in this study  for cigars .  
1719 Honduras's first written submission, paras.  530-537. 
1720 Dominican  Republic 's first written submission, paras.  66 and 628 -639. 
1721 Cuba's first written submission, paras.  263-267. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  its research on LHM cigar s to draw conclusions about the likely effects of a substantial public 
health intervention for an entire population of interest. Also, Parr et al. 2011b asked respondents 
to compare images of digitally created, unbranded, plain pack cigar tubes, carrying a full health 
warning, with images of existing branded cigar tubes with no health warning. As a result, 
according to Cub a, it is impossible to separate out the potential effect of plain packaging from the 
potential effect of the brand name and the health warning. The interviewers also presented 
respondents with a plain pack cigar band that did not display any information at  all and asked 
them to compare it with a fully branded band.1722 
7.621.   As Cuba and the Dominican Republic note, Parr et al. 2011b explains the reasons for some 
of these shortcomings. According to Parr et al. 2011b, the methodology for premium cigar 
smokers was qual itative and the number of interviewees was limited to eight due to difficulties 
recruiting large numbers of premium cigar smokers  in Australia.1723 Parr et al. 2011b adds that the 
brand name for the plain packaged brand "Mayfair" was chosen for cigarillos and  little cigars as 
there is currently no other similarly named tobacco product in the Australian market and there 
would be no latent association with the brand name among the research audiences.1724 According 
to Parr et al. 2011b, in the case of cigar tubes it  was not possible to produce images of branded 
products that would show both the health warning in full as well as the brand because of the 
specification that the health warning take up 60% of the circumference and 95% of the length of 
the tube. It was det ermined that images showing only the health warning or branding in part 
would not be useful for research purposes. In addition, time constraints meant it was not possible 
to create physical mock ups of cigar tubes.1725 
7.622.   We consider that these explanations prov ide relevant reasons for specific limitations of the 
methodology of Parr et al. 2011b criticised by Cuba, the Dominican Republic, and Honduras. In 
light of this, and while we agree with the complainants that a better methodology may have been 
preferable, w e note that, as  Cuba and the Dominican Republic point out, Parr et al. 2011b is the 
only pre -implementation study submitted in these proceedings that sought to investigate the 
impact of tobacco plain packaging on cigars and cigarillos.1726 We shall therefore take its 
conclusions into account in our subsequent analysis – to the extent that these contain relevant 
observations for assessing specific aspects of how plain packaging, in the design used by Parr 
et al. 2011b, may contribute to the objective of the TPP measures , in particular to certain 
mechanisms outlined by the TPP measures .  
7.623.   The complainants identify other instances where the validity of TPP literature  studies may, 
in their view, have been compromised, such as the use of non-representative samples that include 
non-smokers or do not reflect the demographics of the population1727, presenting subjects with a 
"false choice" between branded and plain packs, when only plain packs will be available following 
implementation1728, or the use of an unfamiliar brande d pack rather than an existing/familiar 
branded pack.1729 However, even assuming that various factors have impacted the validity of 
certain studies within the TPP literature  as the complainants argue, it is not always clear what 
impact such factors may have h ad on study results and the conclusions that may be drawn from 
them, either individually or taken together. We note in this respect Professor Fong's observation 
that these factors in most cases have an indeterminate impact upon study results.1730  
                                                
1722 Honduras's first written submission, paras.  530-537; Dominican  Republic 's first written submission, 
paras.  628-639; and Cuba's first written submission, paras.  263-267. 
1723 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 6. 
1724 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 6. See also ibid, p. 19. 
1725 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p.  18. 
1726 We note in this respect that Cuba itslef, while questioning the methodo logical soundeness o f this 
study, relies on it in particular in the context of its claim under Article  IX:4 of GATT 1994.  
1727 See, e.g. Klick TPP  Literature  Report, (Exhibit UKR -6), p. 14. 
1728 See, e.g. Dominican  Republic 's first written submission, para. 614; and Klick TPP Literature  Report, 
(Exhibit UKR -6), p. 12. 
1729 See, e.g. Peer Review Report , (Exhibit DOM/HND -3), para. 61.iii, p. 29; and Kleijnen Systematic 
Review , (Exhibit DOM/HND -4), p. 40. 
1730 Fong Report, (Exhibit AUS -14), paras.  507-509 and 553 -555. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.624.   The complai nants and their experts also identify socially desirable responding (SDR) and 
demand effects as common concerns in the tobacco plain packaging studies.1731 SDR arises when 
respondents in a study are simply giving the response that they believe is consistent w ith social 
norms and expectations – in this particular case about smoking and tobacco control policies – 
rather than their own true attitudes.1732 The complainants' expert Professor Ajzen explains how 
SDR can influence the results of the TPP research , and tha t it is the researchers' responsibility to 
make sure that the obtained results cannot be explained by reactive effects.1733 The complainants 
argue that the risk of SDR is particularly present in research contexts that involve issues of strong 
social norms and  expectations, addictive behaviour, or social ostracism, such as tobacco control 
research, and can be controlled by measuring each participant's tendency to engage in SDR and 
including the resulting scores in the analysis. None of the papers reviewed as pa rt of the Peer 
Review Project reported having accounted for the possibility of SDR.1734 Australia responds that 
several of the TPP studies employed a "between -subjects" study design, a method endorsed by the 
complainants' expert Professor Ajzen to reduce the possibility of bias1735, and claims that the 
complainants are applying a much more critical standard to the TPP research than the prevailing 
standard in the field of marketing.1736  
7.625.   Demand effects arise in the presence of research design features that may lead 
participants to anticipate the researchers' hypothesis and as a result to be inclined to respond as 
they think the researcher wishes them to respond rather than in accordance with their own 
attitudes and preferences.1737 The complainants' experts suggest that while the need to investigate 
such reactive effects is well -recognized in behavioural sciences and, more specifically, in the 
tobacco control literature, the plain packaging studies do not all report having accounted for those 
effects. The complainants als o explain how the studies could have accounted for them.1738 
Australia responds that the complainants fail to provide any evidence that biases are indeed 
present, and if so, how they could influence the results of any particular study, and that, in many 
cases , these supposed biases could not have influenced the findings.1739 Australia's expert also 
submits that, in a number of the studies where reactive effects were allegedly a "concern", any 
potential bias could not explain the results; and provides examples of cases where the standards 
of review used by the complainants' experts for plain packaging studies is not consistent with the 
standards of review used in this research field.1740 The complainants' expert Professor Ajzen does 
not agree that the designs of a num ber of TPP studies rule out the risk that reactive effects bias 
the study results1741 and argues that whatever impact plain packaging is observed to have, 
including on the appeal of tobacco products, is conceivably due to no more than such reactive 
effects.1742 Inman et al. allege that SDR and/or demand effects may be present in more than 70% 
of the 56 papers reviewed.1743 SDR and/or demand effects appear to be a systematic concern of 
                                                
1731 Honduras's f irst written submission, para. 496; Dominican  Republic 's first written submission, 
paras.  598-600; Cuba's first written submission, para. 176; Klick TPP  Literature  Report, (Exhibit UKR -6), p. 1; 
Peer Review Report , (Exhibit DOM/HND -3), paras.  18(i) and 61. ii; Kleijnen Systematic Review , (Exhibit 
DOM/HND -4), Section 4.2.5, p. 36; Viscusi Report , (Exhibit UKR -8), paras.  32 and 34; Ajzen Report , (Exhibit 
DOM/HND/IDN -3), paras.  179-188; Peer Review Project Rebuttal Report , (Exhibit DOM/HND -12), 
paras.  41-51; and Ajzen Supplemental Report , (Exhibit DOM/HND/IDN -4), para. 61.h. 
1732 Dominican  Republic 's first written submission, para. 598; Kleijnen Systematic Review , (Exhibit 
DOM/HND -4), Table 3, p.36; and Peer Review Report , (Exhibit DOM/HND -3), para. 61.i, p. 26. 
1733 Ajzen Report , (Exhibit DOM/HND/IDN -3), paras . 179-188; and Ajzen Rebuttal Report, (Exhibit 
DOM/HND/IDN -5), paras.  150-152. 
1734 Peer Review Report , (Exhibit DOM/HND -3), para. 61.i, p p. 26-27; and Kleijnen Systematic Review , 
(Exhibit DOM/HND -4), p. 48. 
1735 Australia's second written submission, para. 484. 
1736 Fong Report , (Exhibit AUS -14), para. 479. 
1737 Peer Review Report , (Exhibit DOM/HND -3), para. 61.ii. See also Ajzen Report , (Exhibit 
DOM/HND/IDN -3), para. 180. 
1738 See, e.g. Peer Review Report , (Exhibit DOM/HND -3), para. 61.ii; Kleijnen Systematic Review , 
(Exhibit DOM/HND -4), p. 48; and Ajzen Report , (Exhibit DOM/HND/IDN -3), paras.  179-188.  
1739 Australia explains that this is because the study design would have prevented such biases from 
impacting the resu lts, or the study's findings would be even stronger by finding relationships between 
measures despite the presence of supposed biases. Australia's first written submission, Annexure E, para. 6; 
Fong Report , (Exhibit AUS -14), paras.  480-484; and Fong Supple mental Report , (Exhibit AUS -531), 
paras.  144-151. 
1740 Fong Report , (Exhibit AUS -14), paras.  482-483. 
1741 Ajzen Rebuttal Report, (Exhibit DOM/HND/IDN -5), paras.  153-156. 
1742 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 182. 
1743 See Peer Review Report , (Exhibit DOM/HND -3), Appendix C.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Inman et al. with respect to studies featuring focus groups, telephone interviews,  or 
within -participant designs. It is also noted as a possible source of bias in studies involving children 
and those where the participants self -report results.1744  
7.626.   We note that the Chantler Report's independent reviewers acknowledged possible social 
desira bility effects in some of the studies that they reviewed.1745 Among the 37 quantitative 
studies considered in the Chantler Report, the independent reviewers noted social desirability bias 
as a comment or "key limitation" in relation to four of the studies.1746 It appears therefore that 
demand effects and socially desirable responding may have affected a subset of TPP studies, 
including some of those relating to the impact of plain packaging on the appeal of tobacco 
products. We note, however, that despite these c oncerns, the independent experts assigned each 
of those studies "high" overall  quality ratings, indicating that the presence of such risks may have 
a limited impact upon the overall quality of a study.1747 We further note that several other studies 
for which the Dominican Republic and Honduras's Peer Review Project identified a risk of bias from 
SDR or demand effects have nevertheless been assessed favourable overall quality ratings by the 
Stirling Review and/or the independent reviewers commissioned for the C hantler Report.1748 We 
have previously determined that the Stirling Review, as confirmed by the Chantler Report's 
independent experts, is a high -quality review of the literature that was executed in accordance 
with best practices.1749 Thus, even assuming that certain studies failed to account for such effects, 
we do not consider that we have a sufficient basis to draw conclusions on the extent to which such 
bias could, or actually does, affect the results of the studies at issue, and, as a result, call into 
question the probative value of the TPP literature . 
7.627.   Overall, we do not consider that we are in a position to draw definitive conclusions on the 
methodological merits of each individual study referred to in relation to the impact of p lain 
packaging on the various outcomes that they measure, including the three "proximal outcomes" 
reflected in the TPP Act. Nor, indeed, do we consider that it would be appropriate for us to do so. 
                                                
1744 See Peer Review Report , (Exhibit DOM/HND -3), Appendix C.  
1745 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55. 
1746 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55. "Social desirability bias" was 
noted in entries corresponding to Doxey and Hammond 2011, (Exhibits AUS -156, JE -24(17)); Hammond et al. 
2009, (Exhibits AUS -166, JE -24(29)); and Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)). Social 
desirability was also referred to with respect to a st udy that was presented at the SRNT 17th Annual Meeting in 
Toronto in 2011 and under review with a peer -reviewed journal at the time of the Stirling Review. The title and 
authorship of the subsequently published paper Hammond et al. 2013b, (Exhibits AUS -158, JE-24(31)), is 
similar to the description of this study, and a note at the bottom of p. 151 indicates that it was presented at 
the Society for Research on Nicotine and Tobacco Annual Conference in Toronto in 2011.  
1747 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 48 and 50. Each of the studies identified 
in fn 1746 above as at -risk of SDR were assigned overall quality/assessment ratings of 5 out of a total possible 
of 6, which is considered "high".  
1748 Compare Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 54 (assigning Borland et al. 
2013, (Exhibits AUS -136, JE -24(9)) an overall quality/bias assessment score of 5 out of 6), with Peer Review 
Report, (Exhibit DOM/HND -3), p. 606 (noting that the within -subjects design utilized in Borland et al. 2013, 
(Exhibits AUS -136, JE -24(9)), produces "impossible … to avoid" threats to validity in the form of SDR and 
demand effects); Chantler Report, (Exhibits AUS-81, CUB -61), Annex D, p. 54 (assigning Ford et al. 2013a, 
(Exhibits AUS -137, JE -24(20)) an overall quality/bias assessment score of 5.5 out of 6), with Peer Review 
Report , (Exhibit DOM/HND -3), p. 620 (noting social desirability biases in Ford et al. 20 13a, (Exhibits AUS -137, 
JE-24(20)), may be "systematic and large"); Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 50 
(assigning Germain et al. 2010, (Exhibits AUS -154, JE -24(25)) an overall quality/bias assessment score of 5.5 
out of 6), and Stir ling Review, (Exhibits AUS -140, HND-130, CUB -59), p. 28 (assigning Germain et al. 2010, 
(Exhibits AUS -154, JE -24(25)), a quality score of "Medium"), with Peer Review Report , (Exhibit DOM/HND -3), 
p. 293 (noting possible bias in Germain et al. 2010, (Exhibits AUS -154, JE -24(25)) due to parental recruitment 
of subjects as well as possible demand effects due to the novelty of the packs); Chantler Report, (Exhibits 
AUS-81, CUB -61), Annex D, p. 50 (assigning Donovan 1993, (Exhibits AUS -151, JE -24(16)) an overall 
quality/bias assessment score of 5 out of 6), and Stirling Review, (Exhibits AUS -140, HND-130, CUB -59), p. 26 
(assigning Donovan 1993, (Exhibits AUS -151, JE -24(16)) a quality score of "Medium"), with Peer Review 
Report , (Exhibit DOM/HND -3), pp. 176-177 and 180 (noting the possibility of social desirability bias in Donovan 
1993, (Exhibits AUS -151, JE -24(16))); and Chantler Report (Exhibits AUS -81, CUB -61), Annex E, p. 61 
(assigning Hoek et al. 2012, (Exhibits AUS -163, JE -24(35)), an overall quality/b ias assessment score of 6 out 
of 6), and Stirling Review, (Exhibits AUS -140, HND-130, CUB -59), p. 34 (assigning Hoek et al. 2012, (Exhibits 
AUS-163, JE -24(35)), a quality score of "Medium"),  with Peer Review Report , (Exhibit DOM/HND -3), 
pp. 463-464 (indica ting that it is unknown whether demand effects have influenced the results of Hoek et al. 
2012, (Exhibits AUS -163, JE -24(35))).  
1749 See paras.  7.595 -7.596  above  and 7.633  below . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Rather, as described above, what we must consider is the e xtent to which the body of evidence 
before us, as a whole, provides a reasonable basis in support of the proposition for which it is 
being invoked. In this assessment, to the extent that scientific evidence is being relied upon, we 
must determine whether s uch evidence has the "necessary scientific and methodological rigor to 
be considered reputable science" according to the standards of the relevant scientific 
community1750, as well as the extent to which its use in support of the measures at issue is 
"objecti ve and coherent".1751  
7.628.   In the present instance, it is clear from the above that a body of research developed, 
mostly prior to the implementation of the TPP measures  in Australia, with the aim of evaluating 
the potential impact of tobacco plain packaging on a range of outcomes, including the appeal of 
tobacco products, the salience of GHWs and the ability of tobacco packaging to mislead consumer s 
about the harmful effects of tobacco products. This research gave rise to a number of publications, 
emanating from a  range of recognized institutions conducting research on tobacco control, in 
support of the proposition that plain packaging of tobacco products would lead, inter alia, to a 
reduction in the appeal of tobacco products to consumers, increased effectiveness of GHWs , and a 
reduction in the ability of the pack to mislead consumers about the harmful effects of tobacco 
products.  
7.629.   It is recognized, including by Australia, that individual studies within this body of literature 
may have limitations, in terms of their  study design or implementation. However, credible 
evidence has also been presented to us, which suggests that certain ethical and practical 
constraints exist in the conduct of this type of research. As discussed above, this includes 
constraints in respect  of the ability to conduct the type of experiments that would in principle be 
considered optimal, such as large -scale randomized experiments1752, as well as limitations on the 
ability to design and implement a study in such a manner as to account effectively and 
simultaneously for all potential biases and confounding factors.1753  
7.630.   As described above, aside from the three reviews commissioned by Honduras, the 
Dominican Republic, and Ukraine (relied upon by Cuba) for the purpose of these proceedings, at 
least two c omprehensive reviews of the TPP literature  have previously been carried out, including a 
systematic review and an independent assessment of this review and the underlying studies  (the 
Stirling Review and the Chantler Report) . Both were conducted in the con text of the 
UK Government's consultations on the possible introduction of tobacco plain packaging.1754  
7.631.   While the various reviews before us do not all cover exactly the same group of studies, 
there is a significant overlap among them: of the 55 papers include d in the Peer Review Project, 
42 were included in the Stirling Review and its subsequent update1755, and 37 in the Chantler 
Report. Among the 58 papers that were the focus of the Kleijnen Systematic Review, 45 were 
included in the Stirling Review and its subsequent update1756, and 40 were evaluated in the 
Chantler Report.1757 Among the 48 studies reviewed by Professor Klick, 39 were included in the 
Stirling Review and its subsequent update1758, and 34 were evaluated in the Chantler Report.  
                                                
1750 Appellate Body Report, US – Continued Suspension , paras.  591-592. See also ibid. paras.  598 and 
601. 
1751 Appellate Body Report, US – Continued Suspension , paras.  592, 598, and 6 01. 
1752 See paras.  7.557 -7.562  above, regarding the practical and ethical limitations on the conduct of 
large-scale randomized experiments, in respect of tobacco plain packaging.  
1753 See paras.  7.615 -7.622  above.  
1754 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59); and Chantl er Report, (Exhibits AUS -81, 
CUB-61). 
1755 One of the Peer Review Project papers was excluded from the Stirling Review due to poor quality 
data, and six were published after the mid -September 2013 cut -off date for the Stirling Review 2013 Update . 
Two of the s tudies included in the Peer Review Project but not included in the Stirling Review were unpublished 
studies conducted by GfK Bluemoon at the request of Australia.  
1756 Four papers assessed in the Kleijnen Systematic Review were published after the Stirling Re view 
2013 Update's  mid-September 2013 cut -off date.  
1757 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s. 
1758 Four papers assessed by Professor Klick were published after the Stirling Review  2013 Update 's 
mid-September 2013 cut -off date.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.632.   We also note that the rev iews conducted in the context of the UK consultations, like those 
presented by the complainants in these proceedings, consider individual studies as well as the 
conclusions that may be drawn from the TPP literature  as a whole. These reviews focus on key 
questions of interest to our own assessment, including the expected impact of tobacco plain 
packaging on the three "non -behavioural" or "proximal" outcomes that correspond to the three 
mechanisms reflected in Australia's TPP measures , and, to a lesser extent , on smoking -related 
behaviours.  
7.633.   We further note that the main methodological criticisms expressed by the complainants in 
these proceedings in relation to the TPP studies duplicate critiques that were made to Sir Cyril 
Chantler during the course of his co nsultation for the UK Government, and did not lead him to 
conclude that the evidence base for plain packaging was flawed.1759 As described above, the 
preparation of the Chantler Report included a process whereby independent reviewers assessed 
the quality of i ndividual studies comprising the TPP literature , as well as the quality of the 
systematic review of this literature in the Stirling Review. These independent reviewers concluded 
both that the methodology followed in the Stirling Review was consistent with best practices, and 
that the underlying research was "robust".1760  
7.634.   As described above, the reviewers of the quantitative studies concluded that the Stirling 
Review w as conducted to a high standard and that the conclusions drawn are "a reasonable 
reflection o f the evidence available".1761 Specifically, they found that "the three main outcomes, 
appeal, health warning and harm were mainly addressed in the high quality papers".1762 With 
respect to the qualitative studies, the reviewer observes that this work "is necess arily small scale 
and indicative of factors likely to be relevant/influential in behaviour rather than offering the kinds 
of predictive accuracy associated with Randomized Trials or large scale quantitative analyses".1763 
The reviewer  notes that, in the absen ce of population studies or experiments "this is probably the 
best evidence available".1764 She concludes as follows:  
My conclusions are that, in the absence of strong experimental or quantitative 
analyses of actual behaviour, the qualitative research reviewe d provides a reasonable 
summary of attitudes and perceptions regarding plain packaging. This work suggests 
that: 
● Plain packaging is perceived as less attractive/appealing by smokers and 
non-smokers.  
● Colour and branding are important: gold and silver co nvey brand and quality, and 
'sludgy' brown/grey may be viewed more negatively by smokers and non -smokers.  
● Plain packaging increases the visibility/prominence of health warnings (however 
there is some evidence that smokers and non -smokers – including youn g people – are 
aware of, and/or can recall messages about health risks and harm but this may not 
alter behaviour).  
● Plain packaging may have different impacts on smoker and non -smoker populations 
(it may not deter current smokers or reduce brand familiari ty/loyalty and is unlikely to 
increase transaction times).1765 
7.635.   We accord particular weight to these assessments, which constitute an independent 
judgment, from qualified sources1766, of the quality of the studies underlying the Stirling Review, 
                                                
1759 See Chantler Report, paras.  4.5-4.10. In particular, t he Chantler Report considered criticisms that 
the Stirling Review and its associated update were: (a) a narrative synthesis rather than a meta -analysis 
showing overall effect size; (b) tainted by bias; and (c) demonstrated consistent results due to repeated flaws 
in the underlying studies  
1760 Chantler Report, (Exhibits AUS -81, CUB -61), para. 4.18. 
1761 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 49.  
1762 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 49.  
1763 Chantler Report, (Exhibits AUS -81, CUB -61), Annex E,  p. 56.  
1764 Chantler Report, (Exhibits AUS -81, CUB -61), Annex E, p. 56. 
1765 Chantler Report, (Exhibits AUS -81, CUB -61), Annex E , p. 57. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  as well as the quality of the Stirling Review itself, thereby lending credence to its overall 
conclusions regarding the anticipated impact of tobacco plain packaging.  
7.636.   The conclusions of this independent review and the Stirling Review, which together 
reviewed 49 of the sa me 69 papers (7 1%) considered across the complainants' three 
TPP literature  reviews (the Kleijnen Systematic Review, Peer Review Project, and the review 
conducted by Professor Klick), contrast with those of the complainants' experts. The Peer Review 
Projec t concludes that "the Plain Packaging literature as a whole falls short of providing compelling 
evidence  of the effect of plain packaging on the demand for tobacco products".1767 It is not clear to 
us, however, given the nature and constraints of the research at issue, that such "compelling 
evidence" could have been reasonably expected, especially prior to the adoption of tobacco plain 
packaging measures in Australia or elsewhere.  Rather, as discussed above, it may be expected 
that some flaws and limitations will inevitably affect individual studies, which do not necessarily 
invalidate the entirety of their conclusions.  
7.637.   The two comprehensive external reviews of the literature desc ribed above, the Stirling 
Review and Chantler Report, acknowledge the existence of such limitations in the TPP literature , 
including some of the type identified in the expert reviews commissioned by the complainants for 
the purposes of these proceedings. N onetheless, they found that these studies, on the whole, 
constituted the "best available evidence" and supported the conclusions drawn from them. We also 
note that the complainants have not presented a body of other studies that would suggest 
conclusions c ontrary to the converging conclusions reached by the main body of plain 
packaging -related literature.  
7.638.   In conclusion, i t may well be that the TPP literature  would "benefit from being more robust 
in terms of study design", as expressed in the Kleijnen Syste matic Review.1768 However, in light of 
the elements above, we are not persuaded that the complainants have demonstrated that this 
body of evidence, taken as a whole, lacks methodological rigour to such an extent that it should be 
considered not to constitute reputable science according to the standards of the relevant scientific 
community, or that Australia's reliance on it in these proceedings is not "objective and coherent". 
To the contrary, a systematic review awarded a substantial majority of the then -available tobacco 
plain packaging studies medium to high quality and relevance scores1769, assessments which were 
in turn substantiated by an independent review which confirmed that the studies are 
"methodologically sound".1770  
Overall conclusion on the critique of  the TPP literature  
7.639.   Overall, in light of the above, we find that the studies forming the TPP literature  come from 
respected and qualified sources, focus on relevant outcomes and have not been shown to be, 
overall, so methodologically flawed that they shoul d be dismissed in their entirety as an unreliable 
evidentiary base in support of tobacco plain packaging.  
7.640.   At this stage of our analysis therefore, we note the existence of a body of published 
studies, predating the implementation by Australia of the TPP measures , and supporting the 
hypothesis of an effect of tobacco plain packaging on the appeal of tobacco products, the 
effectiveness of GHWs, and the ability of packs to mislead the consumer about the harmful effects 
of smoking, as well as on some smoking -related behaviours.  
7.641.   While some of these studies may suffer from methodological flaws or limitations, some of 
which are identified in the relevant publications themselves, these were not considered fatal in an 
independent review. We note in this respect the observations by Australia that "individual studies 
                                                                                                                                                  
1766 We note that this independent review was conducted by academics commissioned by Sir Cyril 
Chantler who are not themselves authors of the reviewed studies. By contrast, some of the co -authors of the 
Stirling Review co -authored some of the reviewe d publications.  
1767 Peer Review Report , (Exhibit DOM/HND -3), para. 68. 
1768 Kleijnen Systematic Review , (Exhibit DOM/HND -4), Section 4.2.3, p. 33.  
1769 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 25-37. 
1770 See Chantler Report, (Exhibits AUS -81, CUB-61), para. 4.24 and p. 5, para. 13.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  within any body of literature will vary in their methodological strengths"1771 and that an 
assessment of the quality of the TPP literature  should take into account the totality of the relevant 
evidence, rathe r than seek to disaggregate the analysis in such a manner that each individual 
study would be judged in isolation for its ability to provide the basis for general conclusions.1772 
This view is echoed in the Stirling Review and Chantler Report, which take into  consideration, in 
their assessment, not only the quality of the individual studies under review, but also their 
combined strength and consistency with the wider literature and, in the case of the Chantler 
Report, other relevant evidence, including tobacco  industry documents.1773 Sir Cyril Chantler thus 
observes that:  
In my view the criticisms of the primary research have a tendency to take a "binary 
approach", dismissing studies in their entirety on the basis that each has some 
(usually identified) limitation s. The correct approach should be to take account of the 
limitation in considering the described results. Few research studies are without 
limitations, and undoubtedly many could be improved with insights from related fields, 
but this does not seem a reaso nable basis on which completely to discount the 
findings of over 50 peer -reviewed, published studies. Any scientific study can only, 
realistically, attempt to minimize risk of bias to contribute towards an overall estimate 
of a likely effect.1774 
7.642.   We also note  that, to the extent that the TPP literature  predates the implementation of the 
TPP measures , it could inform the design of Australia's measures but does not purport to reflect 
the actual outcomes of the TPP measures  as adopted by Australia. The TPP literature, in particular 
the body of studies conducted prior to the introduction of the TPP measures  and relied upon in 
these proceedings, is only one component of the relevant evidence before us. Australia, in 
recognizing the predominant focus of these studies  on "proximal" outcomes and the difficulty in 
measuring outcomes in a situation where the ideal study design is impracticable or unethical, 
recognizes this inherent limitation, which is similarly recognized in an early review of tobacco plain 
packaging lit erature.1775 
7.643.   Notwithstanding any potential limitations of these studies, taken individually or as a whole, 
we also have before us, in addition to the TPP literature , qualitative and quantitative research and 
evidence drawn from a variety of sources and fields , as well as empirical evidence relating to the 
application of the TPP measures  in Australia since their entry into force. This includes empirical 
studies addressing the actual impact of the TPP measures  on the three proximal outcomes that are 
the object o f most of the reviewed TPP literature  studies. As the complainants have observed, 
                                                
1771 Hammond Review , (Exhibit AUS -555), p. 33. See also Fong Report , (Exhibit AUS -14), paras.  489, 
493, and 527 (noting that it is standard practice to acknowledge a study's limitations, and then to draw 
appropriate co nclusions from the data that can be made despite the limitations).  
1772 See Fong Report , (Exhibit AUS -14), paras.  492-493. See also Hammond Review , (Exhibit AUS -555), 
pp. 33-34 ("[C]ausality is rarely, if ever, established on the basis of a single study; rath er, it should be 
evaluated based upon a body of research.").  
1773 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 20-23 (describing the method by 
which study results were synthesized); Chantler Report, (Exhibits AUS -81, CUB -61), para. 1.20 (noting that a 
considerable volume of evidence from interested parties on all sides of the debate was taken into account, as 
augmented by further tobacco control publications, internal tobacco industry documents, and wider marketing 
literature and practice ). See also Stead et al. 2013, (Exhibit CUB -58), p. 8 (describing the available research 
"overall" and comparing the findings to the wider marketing literature and other literature on health warnings).  
1774 Chantler Report, (Exhibits AUS -81, CUB -61), para. 4.14. 
1775 See Goldberg et al. 1995, (Exhibits AUS-221, JE -24(26)), p.  4: 
 
In marketing and social research, no single study or research method by itself can provide 
definitive answers to the research question, "What will consumers do if?" Without the benefit o f 
field experiments, such research can only determine what consumers would "say" they would do 
if. In this case, the Panel had to ask consumers what they would do if all cigarettes were only 
available in the same plain and generic packages. The Panel could  not measure what consumers 
will do – it could only measure what they say they would do, what they say they think about 
plain packaging, what they say they think about the idea, etc. Thus, this type of research 
question is much more difficult to answer tha n the types of research questions physical scientists 
typically ask. They can measure what molecules do if, but they cannot ask the molecules what 
they would do if?  
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  evidence relating to actual application of the measures should be given appropriate weight in our 
assessment.  
7.644.   We consider this additional evidence in section 7.2.5.3.6  below, and therefore do not seek 
to draw, at this stage of our analysis, any overall conclusion on the impact of the TPP measures  on 
relevant outcomes addressed in the TPP literature . The evidentiary weight to be given to this body 
of studies in our assessment will depend not only on its intrinsic quality, but also on its relevance 
to our overall assessment, in light also of other r elevant evidence before us.  
7.645.   With these initial determinations in mind, we consider further the evidence before us in 
relation each of the three "mechanisms" identified in the TPP Act, and the associated behavioural 
outcomes intended to arise from them, tha t underlie the design, structure and operation of the 
measures.  
7.2.5.3.5.2   First mechanism: impact of plain packaging on the appeal of tobacco 
products to consumers  
7.646.   As described earlier, the first "mechanism" through which the TPP measures  are designed 
to contribute to the achievement of their objective is by " reduc[ing] the appeal of tobacco products 
to consumers", which, in turn, is expected to influence smoking behaviours and thereby contribute 
to a reduction in the use of, and exposure to, tobacco products.  
7.647.   A rele vant assumption underlying this mechanism is that, where branding features are 
available on tobacco products or their retail packaging, these may act as advertising and thereby 
influence perceptions of tobacco products. The complainants disagree that tobac co packaging 
functions as advertising. As discussed above , the complainants also generally consider that the 
evidentiary base for the proposition that the removal  of branding features through the uniform 
presentation of tobacco products and their retail pa ckaging (plain packaging) will lead to a 
reduction of the appeal of tobacco products, is flawed. They further argue that plain packaging will 
not reduce the "coolness" factor of branded packs to adolescents1776 and will, at best, cause 
attitudes toward some b rands to become less positive and attitudes toward other brands to 
become more positive.1777 The complainants further argue that, even assuming that the appeal of 
tobacco products could be reduced through plain packaging, this would not have the expected 
"follow-on" effect on smoking behaviours, because packaging is not a driver of the relevant 
behaviours, namely smoking initiation, cessation or relapse.  
7.648.   In light of the parties' arguments, and taking into account the elements constituting the 
"causal chain" u nder the first mechanism of the measures, we consider below the following aspects 
of the design, structure and intended operation of the TPP measures , in relation to this "first 
mechanism"1778: 
 The role of tobacco packaging as a form of advertising or promoti on, and its impact on 
the perception of tobacco products;  
 The impact of tobacco plain packaging on the appeal of tobacco products; and  
 The impact of a reduction in product appeal on smoking behaviours .  
Tobacco packaging as a form of promotion or advertis ing  
7.649.   Australia considers that tobacco packaging  is a form of marketing and advertising, which 
can generate positive perceptions of a product, and that advertising increases demand for tobacco 
products.1779 Australia explains that "[b]y removing one of the las t remaining frontiers for tobacco 
advertising in Australia through the introduction of tobacco plain packaging, Australia sought to 
sever the link between tobacco product packaging and tobacco smoking behaviour, particularly for 
                                                
1776 See Steinberg Report, (Exhibit DOM/HND -6), paras.  54-57. 
1777 See Mitchell Report , (Exhibit  UKR-154), paras.  27-32. 
1778 As described above, we will consider the evidence relating to the application of the TPP measures  in 
the next part of our analysis. See section 7.2.5.3.6  below.  
1779 See Australia's first written submission, paras.  66-91 and 615 -626. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  youth".1780 The complainants c onsider however that packaging is not a form of advertising and 
does not have an impact on the decision to smoke.1781 In their view, therefore, the adoption of 
plain packaging does not eliminate "one of the last remaining frontiers for advertising".1782  
Main ar guments of the parties  
7.650.   The complainants  argue that there are significant differences between general advertising 
media, which are very versatile in terms of their ability to create brand imagery, and the limited 
role that branded packaging can play in comm unicating messages.1783 The complainants also 
argue that packaging needs to serve identification functions that necessarily limit its ability to 
convey messages in the way that mass advertising media do.1784 Australia responds that 
packaging can create a "billbo ard" effect that has the ability to act as "five -second commercials for 
the product"1785 and that packaging performs similarly to, "and in several cases favourably to", 
many forms of mass media advertising.1786 
7.651.   The parties further discuss the extent to which bra nd packaging acts as a form of 
advertising in the tobacco sector. The complainants  argue that branded packaging on tobacco 
products is used for the purposes of "brand differentiation", i.e. to influence the consumer's 
decision to purchase one brand over an other, rather than to influence the decision to purchase a 
tobacco product.1787 Australia  responds that tobacco packaging "can communicate descriptive and 
persuasive information to a consumer in a manner that influences her perceptions about the 
brand, the brand's image and the product itself".1788 It provides examples from tobacco industry 
docum ents to demonstrate that tobacco companies themselves have acknowledged the use of 
packaging as an advertising medium.1789  
7.652.   The parties also disagree on the extent to which tobacco packaging can act as advertising 
in the Australian context, that is, in the presence of, inter alia, a total advertising ban, 
point-of-sale restrictions, and GHWs occupying 75% of the pack surface.1790 The complainants 
consider that differences between packaging and mass media advertising are particularly 
pronounced in Australia's "dark market", where "dominant and ugly" GHWs leave very little space 
for branding; there is no opportunity for the packaging  to recall or evoke advertising as part of a 
communications mix; and there is virtually no opportunity for a potential consumer to see the 
limited space available for branding.1791 For the complainants, in this context, "it is not credible to 
                                                
1780 Australia's first written submission, para. 61 (footnote omitted) . See also Australia's second written 
submission, paras. 227 -236. 
1781 See, e.g. Honduras's first written submission, paras.  443-454; Honduras's response to Panel 
question No. 102; Dominican  Republic 's first written submission, paras.  671-686; Dominican  Republic 's 
response to Panel question No. 102; Indonesia's second writte n submission, paras.  27-28; Indonesia's 
response to Panel question No. 102; Cuba's first written submission, paras.  197-200; and Cuba's response to 
Panel question No. 102. 
1782 Dominican  Republic 's first written submission, para. 671. 
1783 See, e.g. Steenkamp Re port, (Exhibit DOM/HND -5), paras.  12 and 66 -75. We note that both Cuba 
and Indonesia have relied upon this report, which was submitted by the Dominican  Republic  and Honduras. 
See Indonesia's second written submission, paras.  27-28; Indonesia's response to Panel question No. 102; and 
Cuba's first written submission, para. 198. 
1784 See, e.g. Dominican  Republic 's first written submission, para. 676; Steenkamp Report , (Exhibit 
DOM/HND -5), para. 69; and Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), para. 25. 
1785 Australia's first written submission, para. 72 (referring to  Tavassoli Report , (Exhibit AUS -10), 
para. 16). 
1786 Tavassoli Report, (Exhibit AUS -10), para.  17. 
1787 See, e.g. Honduras's first written submission, para. 453; Honduras's second written submission, 
para. 304; Dominican  Republic 's first written submission, para. 666; Dominican  Republic 's response to Panel 
question No. 102, para. 77; and Steenkamp Report , (Exhibit DOM/HND -5), paras.  9, 50-60, 110, and 114.  
1788 Dubé Report, (Exhibit AUS -11), para.  13. 
1789 See Australia's first written submission, paras.  67-69; Australia's opening statement at the first 
meeting of the Panel, para. 18; and Australia's opening statement at the second meeting of the Panel, 
para. 32. 
1790 See sections 2.2.1 -2.2.2 and 2.2.4.  
1791 This a rgument is developed in particular in an expert report by Professor Steenkamp, relied upon by 
the complainants. See Steenkamp Report , (Exhibit DOM/HND -5), paras.  13, 76-86 and 116.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  suggest that the  use of non -misleading trademarks on the remainder of the pack would turn this 
packag e into an advertising tool" or create positive associations.1792 
7.653.   Australia considers that the fact that Australia is a dark market on the contrary "likely 
enhances" the abili ty of the pack to serve as an effective advertising vehicle.1793 This argument is 
developed in two expert reports submitted by Australia, by Professors Dubé and Tavassoli 
respectively. Professor Dubé argues that marketing impressions are created by packaging mostly 
at the point of consumption (rather than the point of sale) and that there is evidence to suggest 
that advertising media can be substitutes, as opposed to complements.1794 Professor Tavassoli 
considers that packaging provides "a potent means of adverti sing" in the Australian context, and 
discusses various concepts ("selective attention"1795, "size -invariance") in support of the notion 
that the power of branding imagery on packaging is not dependent on its size.1796 Professor 
Steenkamp responds that Professor Tavassoli's examples are inapt to explain the impact of TPP on 
overall demand, as they relate to market conditions that do not reflect the Australian context.1797 
Professor Steenkamp also responds to Professor Dubé's critique, contending that the studies 
Professor Dubé relies on to conclude that tobacco packaging would be more effective in a "dark 
market" do not support that conclusion.1798 
Analysis by the Panel  
7.654.   We do not consider it necessary, for the purposes of our findings, to determine in the 
abstract what would be a proper textbook characterization of product packaging in relation to 
advertising, and, in particular, whether "packaging" can be generally considered as a medium of 
advertising and promotion1799 or is more properly characterized as relating primari ly to the product 
itself.1800  
7.655.   Rather, as we understand it, the relevant question before us is, more specifically, the 
extent to which the aspects of tobacco products and packaging regulated by the TPP measures  can 
be considered to play a role in promotion an d communication about tobacco products1801, and the 
extent to which it may, as such, have an impact on perceptions relating to these products. This 
question is relevant to our determination, to the extent that an understanding of the potential 
impact of tobac co packaging on perceptions about tobacco products will inform our assessment of 
the capacity of the TPP measures , which regulate tobacco products through the removal of a 
number of branding features on tobacco products and their retail packaging, to affec t their appeal 
to the consumer (and, as a result, affect smoking behaviours and contribute to reducing the use 
of, and exposure to, tobacco products in Australia, including by reducing their appeal to the 
consumer).  
7.656.   We first note that some of the complaina nts, while emphasizing the distinction between 
communication and advertising1802, acknowledge that tobacco packaging "can be a vehicle for 
                                                
1792 See, e.g. Honduras's comment s on Australia's response to Panel question No. 204, para. 196. 
1793 Australia's opening statement at the second meeting of the Panel, para. 39. 
1794 Dubé Report, (Exhibit AUS -11), para. 13; and Dubé Rebuttal Report, (Exhibit AUS -583), para. 1. 
1795 In Professor Tavassoli's description, "selective attention refers to the process of determining which 
amongst competing items of information to process". Tavassoli Report , (Exhibit AUS -10), para. 110. See also 
ibid. paras. 111 -113. 
1796 Tavassoli Rebuttal Re port, (Exhibit AUS -588), heading 2 and paras.  21-24. See also Tavassoli 
Report , (Exhibit AUS -10), paras.  25-34. 
1797 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  46-47. 
1798 Steenkamp Second Rebuttal Report, (Exhibit DOM/HND -19), paras.  26-31. 
1799 See D ubé Report, (Exhibit AUS -11), paras.  25-26; and Tavassoli Report , (Exhibit AUS -10), para. 16. 
1800 See Dominican  Republic 's first written submission, para. 673; Steenkamp Report , (Exhibit 
DOM/HND -5), paras.  26-33 and Fig ure 3.1; and Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), 
paras.  50-54. 
1801 Honduras thus considers the debate about whether packaging is advertising not to be relevant, in 
that it accepts that packaging can be a vehicle for communication, but not every form of communication is 
advertising. See Honduras's comments on Australia's response to Panel question No. 204, para. 195. See also 
Cuba's comments on Australia's responses to Panel question Nos. 166, 170, and 204, para. 30 (indicating that 
whether use of a trademark or GI is "advertising" is "irrelevant").  
1802 See Honduras's commen ts on Australia's response to Panel question No. 204, para. 195.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  communicating quality perceptions to consumers".1803 Indeed, the complainants generally explain 
the nature of the economic impact of the TPP measures  for manufacturers with reference to their 
influence on the possibility of communicating to the consumer, through branding on tobacco 
packaging, about the qualities of tobacco products.1804  
7.657.   We also note that various documents referr ed to or presented as evidence in these 
proceedings identify a number of industry documents suggesting that the tobacco industry has in 
fact used packaging as an instrument of communication, including in the Australian market:  
"In the absence of any other  marketing messages, our packaging … is the sole 
communicator of our brand essence."1805 
"The most effective means Australia has had to get the consumer to notice something 
new post restrictions was a new/different packaging configuration."1806  
"In some key mar kets legislative restrictions mean that the only medium available to 
communicate with consumers is via packaging. The pack becomes the primary 
communication vehicle for conveying the brand essence. In order to ensure the brand 
remains relevant to target co nsumers, particularly in these darkening markets, it is 
essential that the pack itself generates the optimum level of modernity, youthful 
image and appeal amongst ASU30 [Adult Smokers Under 30] consumers".1807 
7.658.   We further note that the use of branded packaging  as an advertising tool for tobacco 
products was acknowledged as recently as 2014 in a statement made by British American Tobacco 
Australia (BATA) in the context of the consultations on plain packaging conducted for the UK 
Government: "tobacco companies, like other consumer goods companies, see branded packaging 
as one of the tools of advertising".1808  
7.659.   These elements sufficiently establish, in our view, that "branded packaging" can act as an 
advertising or promotion tool in r elation to tobacco products, and that this has in fact been 
considered to be the case by tobacco companies operating in the Australian market, even in the 
presence of significant restrictions on advertising in the period leading to the entry into force of the 
TPP measures .1809 Indeed, as observed by Australia and as suggested by the industry statements 
                                                
1803 Honduras's comments on Australia's response to Panel question No. 204, para. 195. See also Cuba's 
comments on Australia's responses to Panel question Nos. 166, 170 and 204, para. 34 (referr ing to a 
"trademark communication function" and stating that whether the display of a trademark on a package is 
described as "promotion" rather than "communication" is unimportant); Indonesia's comments on Australia's 
response to Panel question No. 204, paras. 60 and 63 (stating, as a "fact", that "branding is an element of 
marketing and provides a path of communicate with consumers" and that "us[ing] trademarks to distinguish a 
product inherently includes communicating with consumers"); and Neven Report , (Exhibit UKR -3) (SCI), 
section 4.1, p. 19 ("From an economic perspective, branding is a form of communication").  
1804 See, e.g. para. 7.1092  below.  
1805 Australia's first written submission, para. 67 (quoting Philip Morris, Marketing Issues Corporate 
Affairs Conference, (Exhibit AUS -82), p. 21). See also Slovic Report , (Exhibit AUS -12), para. 70. 
1806 RJ Reynolds, Australia Trip: Topline Learning, (Exhibit AU S-83), p. 2 (quoted in Australia's first 
written submission, para. 68). See also Slovic Report, (Exhibit AUS -12), para. 70.  
1807 Australia's first written submission, para. 8 (quoting British American Tobacco, Packaging Brief  
2001, (Exhibit AUS -23)). See also  Slovic Report , (Exhibit AUS -12), para. 71. 
1808 Australia's first written submission, para. 69 (referring to  Chantler Report, (Exhibits AUS -81, 
CUB-61), para. 3.22). See also JTI  v. Commonwealth , Transcript, (Exhibit AUS -84), line 735 (wherein counsel 
for Japan Tobacco International refers to the cigarette pack as "our billboard"); and Chaloupka Public Health 
Report , (Exhibit AUS -9), para. 58. 
1809 As regards cigars and cigarillos, we note that Parr et al. 2011b does not addr ess directly whether 
tobacco packaging is a form of advertising as regards cigarillos and cigars. Nonetheless, Parr et al. 2011b does 
show that the importance of packaging in establishing tobacco brand associations and perceptions also applies 
to cigarillo , little cigar and less frequent premium cigar smokers, and to a lesser extent also to more frequent 
premium cigar smokers:  "As with other plain packaging research, existing associations had a significant impact 
on how smokers viewed particular brands. In particular, packaging is a significant means of informing these 
perceptions. This is the case for RYO, cigarillo / little cigar and less frequent premium cigar smokers. For more 
frequent cigar smokers, rather than the packaging it is the cigar bands which act as markers of legitimacy and 
carry essential product information, in particular for single sale loose cigars." Parr et al. 2011b (Exhibit 
AUS-219, JE -24(50)),  p. 11. In addition, Parr et al. 2011b notes the brand attachment and loyalty of the 
cigarillo  smokers surveyed: "Cigarillo smokers in this study tended to have established brand relationships, 
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  above, product packaging becomes the only means of brand communication available, in a context 
where no other form of promotion or advertising is permitted in r elation to tobacco products.1810 
This understanding is supported by a 2012 report by the US Surgeon General  entitled Preventing 
Tobacco Use Among Youth and Young Adults  which regards tobacco packaging as a "highly visible 
form of marketing" that assumes great er importance as a promotional tool as exposure to other 
forms of marketing becomes increasingly restricted.1811  
7.660.   The evidence above, in particular the statements emanating from the tobacco industry 
itself, further indicate that a key purpose of the use of br anding on tobacco products, including 
packaging, is to generate certain positive perceptions in relation to the product in the eyes of the 
consumer, including, as described above, to "generate the optimal level of modernity, youthful 
image and appeal" amon g consumers.1812 We are not persuaded that branding on tobacco 
packaging cannot serve this promotional function  or generate certain positive perceptions  in the 
presence of Australia's expanded GHWs, which occupy 75% of the front pack face.1813  
7.661.   We further note t hat the use of particular packaging design features such as colours, 
graphic elements, texture, typography, opening mechanisms, and shapes has been documented as 
constituting an integral part of the use of branding on tobacco retail packs, for the purposes  of 
creating a brand image and positive associations with the products. Australia points to a "sizable" 
body of research indicating that brand features, such as pack colour, a key element of brand 
identity1814, affects perceptions of tobacco products and thos e who smoke them.1815 Eye-catching, 
brightly coloured packs, with prominent and bold designs, have been shown to invoke the 
strongest positive imagery1816, while features such as pack shape can reinforce branding and make 
products more appealing.1817  
7.662.   For example, reference is made to research conducted by the tobacco industry 
demonstrated that packs that deviated from a traditional flip -top box by utilizing features such as 
slide openings or rounded or beveled corners were associated with positive image attributes.1818 
Small and narrow "perfume packs" oriented towards women have been described as "glamourous", 
while a pack with an embossed logo was associated with high levels of sophistication.1819 Texture 
or lacquering has been used to create a tactile sensation, enablin g an emotional or affective 
connection with the product or package, while the use of fragrance has been found to connect to 
emotions, mood and memory.1820 Packaging features have thus been used to support "identity 
                                                                                                                                                  
only smoking specific brands. That said, while there was some sense that some brands were of higher quality 
than others, cigarillo smokers did not generally  have a large amount of previous knowledge of brands other 
than their preferred brand." Ibid. p. 8. 
1810 See section 2.2.2 above.  
1811 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 535. 
1812 British American Tobacco, Packaging Brief 2001, (Exhibit AUS -23). 
1813 Tavassoli Report, (Exhibit AUS -10), para.  25 (noting that advertisers invest in product placements 
which, when seen by television viewers, can be as small as branding covering 25% of a cigarette pack)  and 
para. 62 (explaining that brand imagery on packaging will have the same power to imbue products with 
meaning when it covers 25% of the pack, because the recognition of the image's identity or its impact on 
subsequent conceptual processing are unaffect ed by the image's size); Dubé Report, (Exhibit AUS -11), 
para. 56 (comparing the branding on a cigarette package with internet display ads on mobile devices); Slovic 
Report, (Exhibit AUS -12), para.  79 (stating that "even a small brand logo on the bottom of a pack is likely to 
produce positive affect that is reinforced thousands of times when a smoker reaches for a cigarette from a 
branded pack"); and Tavassoli Rebuttal Report, (Exhibit AUS -588), paras. 26 (stating that subtle cues on 
packaging can have a pot ent effect).  
1814 See Cancer Research UK, (Exhibit AUS -90), para. 1.5.1.  
1815 Biglan Report , (Exhibit AUS -13), para. 145. See also Slovic Report , (Exhibit AUS -12), paras.  74-77; 
Dubé Report, (Exhibit AUS -11), paras.  28-29 and 32; NCI Tobacco Control Monograph No. 19, (Exhibit 
AUS-77), p p. 107-108; J.R. Difranza, D.M. Clark and R.W. Pollay, "Cigarette Package Design: Opportunities for 
Disease Prevention", Tobacco Induced Diseases , Vol. 1, No. 2 (2003), (Difranza et al. 2003), (Exhibit AUS -92), 
p. 101; Hoek et al . 2012, (Exhibits AUS -163, JE -24(35)), pp.  632, 634, and 636.  
1816 Cancer Research UK, (Exhibit AUS -90), para. 4.3.6. See also Biglan Report , (Exhibit AUS -13), 
para. 98. 
1817 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 13. 
1818 K. Kotnowski and D. Hamm ond, "The Impact of Cigarette Pack Shape, Size and Opening: Evidence 
from Tobacco Company Documents", Addiction, Vol. 108, No. 9 (2013), p. 1658, (Kotnowski and Hammond 
2013), (Exhibit AUS -139), p. 1660. See also Fong Report , (Exhibit AUS -14), para. 168. 
1819 Fong Report , (Exhibit AUS -14), paras.  169-170, and 226.  
1820 Stirling Review, (Exhibits AUS -140, HND -130, CUB-59), p p. 14-15. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  branding", whereby brands appeal to the "ide al self" or "type" of person that the consumer aspires 
to be.1821 
7.663.   In light of the above, we are not persuaded that the complainants have demonstrated that 
tobacco packaging cannot act as an advertising or promotion tool , including in Australia's "dark 
market".1822 On the contrary, the evidence before us suggests that tobacco packaging may be 
used as an instrument of promotion. More specifically, the evidence before us also suggests that it 
may be used, and has in fact been u sed, to generate positive perceptions of tobacco products.  
7.664.   These findings are consistent with certain statements in the Article  13 FCTC Guidelines.1823 
Paragraph 3(c) of the "Purpose and Objectives" of these Guidelines provides that "a 
comprehensive ban on a ll tobacco advertising, promotion and sponsorship applies to all forms of 
commercial communication, recommendation or action and all forms of contribution to any event, 
activity or individual with the aim, effect, or likely effect of promoting a tobacco pr oduct or tobacco 
use either directly or indirectly" .1824 Paragraph 8 of the Article  13 FCTC Guidelines further states 
that "' Tobacco advertising and promotion' is not restricted to 'communications', but also includes 
'recommendations' and 'actions', which sho uld cover at least the following categories: […] (d) 
promotional packaging and product design features ".1825 Paragraph 9 further elaborates on the 
ways in which, "[p]romotional effects, both direct and indirect  may be brought about", including by 
the use of:  
[W]ords, designs, images, sounds and colours, including brand names, trademarks, 
logos, names of tobacco manufacturers or importers, and colours or schemes of 
colours associated with tobacco products, manufacturers or importers, or by the use 
of a part or parts of words, designs, images and colours. Promotion of tobacco 
companies themselves (sometimes referred to as corporate promotion) is a form of 
promotion of tobacco products or tobacco use, even without the presentation of brand 
names or trademarks. Adv ertising, including display and sponsorship of smoking 
accessories such as cigarette papers, filters and equipment for rolling cigarettes, as 
well as imitations of tobacco products, may also have the effect of promoting tobacco 
products or tobacco use.1826 
7.665.   Paragraph 15 of the Article  13 FCTC Guidelines further states that:  
Packaging is an important element of advertising and promotion. Tobacco pack or 
product features are used in various ways to attract consumers, to promote products 
and to cultivate and prom ote brand identity, for example by using logos, colours, 
fonts, pictures, shapes and materials on or in packs or on individual cigarettes or 
other tobacco products.1827 
7.666.   With these determinations in mind, we consider the arguments of the complainants that 
tobacco plain packaging does not have the capacity to reduce  the appeal of tobacco products to 
the consumer and, as a result, influence smoking behaviours. As described above, at this stage of 
our analysis, we focus on evidence relating to the design, structur e and operation of the measures. 
                                                
1821 See Tavassoli Report , (Exhibit AUS -10), paras.  74-85. 
1822 See fn 1338 above . 
1823 As described above, these Guidelines were adopted by the FCTC COP in 2008 to assist each Party to 
implement, "in  accordance with its constitution or constitutional principles", a "comprehensive ban of  all 
tobacco advertising, promotion and sponsorship" pursuant to Article  13 of the Convention. FCTC, (Exhibits 
AUS-44, JE -19), Article  13, para. 2; and Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21). The 
Article  13 FCTC Guidelines "give … guidance" to FCTC Parties for introducing and enforcing such a ban (or, for 
those Parties that are not in a position to undertake a comprehensive ban, applying restrictions as 
comprehensive as possible on "advertising, promotion and sponsorship"). Article  13 FCTC Guidelines, 
FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 1. See also sections 2.4 and 7.2.5.2  above.  
1824 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para.  3(c). (emphasis omitted)  
1825 Article  13 FCTC Guidelines, FC TC/COP/3(12), (Exhibit JE -21), Annex, para. 8. (emphasis added)  
1826 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 9. 
1827 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para. 15. Paragraph 15 is 
under the heading "Packaging and product features", under which, as discussed above, "plain packaging" is 
described in para. 16 and recomme nded in the " Recommendation " that follows para. 17. Ibid. Annex, 
paras.  15-17. See also section 2.4 and paras.  7.314 -7.315  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  We will consider further in section 7.2.5.3.6 below  the relevant evidence relating to the actual 
application of  the TPP measures . 
Impact of plain packaging on the appeal of tobacco products  
7.667.   As discussed above1828, the complainants generally consider that the literature in support 
of tobacco plain packaging (the TPP literature ) lacks the methodological rigour to support the 
proposition that the TPP measures  are capable of contributing to their objective. This body of 
literature includes a number of studies relating in part or in whole to the anticipated impact of 
tobacco plain packaging on the appeal of tobacco products. Australia disagrees with these 
criticisms and responds that numerous studies have established that tobacco plain packaging 
reduces the appeal of tobacco products by reducing the attractiveness of tobacco packagi ng, 
reducing positive perceptions of taste, and reducing positive perceptions of smokers.1829  
7.668.   Australia refers to a number of empirical studies1830, as well as the Stirling Review 
discussed above1831, which it argues have found that plain packaged tobacco products  are rated as 
substantially less attractive overall than the equivalent non -plain packaged products, particularly 
by young smokers.1832 Australia further argues that this was also the case for particular segments 
of the population, such as women targeted with  female design elements on packs associated with 
greater levels of attractiveness1833, as well as subjects from a range of cultures and 
demographics.1834  
7.669.   Australia notes that the Stirling Review summarised this evidence and found that:  
In terms of attractivene ss, plain packs were perceived as less attractive, exciting, 
fashionable, cool, stylish, appealing, nice and colourful than branded packs, and were 
less likely to be chosen in preference tests. Studies that tested a range of branded 
and unbranded packs fou nd that packs became more negatively rated as progressively 
more brand elements were removed.1835  
7.670.   Australia concludes that by altering consumers' positive perceptions of tobacco products, 
tobacco plain packaging brings about a reduction in the overall appeal  of tobacco products and 
positive perceptions of those who smoke them.1836  
                                                
1828 See " Main arguments of the parties " within section 7.2.5.3.5.1  above.  
1829 See Australia's first written submission, paras.  148-162. 
1830 Australia's first written submission, para. 151 fn  250 (referring to Centre for Health Promotion 1993, 
(Exhibits AUS -142, JE -24(14)); Bondy et al. 1994, (Exhibits AUS -143, JE -24(7)); d'Avernas et al. 1997, 
(Exhibit AUS -144)); Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)); ISR newsletter, (Exhibit 
AUS-146)); Beede et al. 1990, (Exhibits AUS -147, JE -24(4)); Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)); 
Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)); Bansal -Travers et al. 2011, (Exhibits AUS -150, 
JE-24(3)); Donovan 1993, (Exhibits AUS -151, JE -24(16)); and Gal lopel-Morvan et al. 2012, (Exhibits AUS -152, 
JE-24(23))).  
1831 Australia's first written submission, para. 151 fn 249 ( referring to  Stirling Review, (Exhibits 
AUS-140, HND -130, CUB -59), and a predecessor to the Stirling Review, C. Moodie, G. Hastings and A. F ord, "A 
Brief Review of Plain Packaging Research for Tobacco Products", Institute for Social Marketing, University of 
Stirling (2009), (Moodie et al. 2009), (Exhibit AUS -141)).  
1832 Australia's first written submission, para. 151 fn 251 ( referring to  Beede et  al. 1990, (Exhibits 
AUS-147, JE -24(4)); Beede and Lawson 1991, (Exhibits AUS -153, JE -24(5)); Centre for Health Promotion 
1993, (Exhibits AUS -142, JE -24(14)); Rootman and Flay 1995, (Exhibit AUS -145, JE -24(53)); Wakefield et al. 
2008, (Exhibits AUS -149, JE -24(62)); Germain et al. 2010, (Exhibits AUS -154, JE -24(25)); and Moodie et al. 
2011, (Exhibits AUS -155, JE -24(44))).  
1833 Australia's first written submission, para. 151 fn 252 ( referring to  Doxey and Hammond, (Exhibits 
AUS-156, JE -24(17)); and Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)).  
1834 Australia's first written submission, para. 151 fn 253 ( referring to  Hammond et al. 2013b, (Exhibits 
AUS-158, JE -24(31)); Al -hamdani 2011, (Exhibit AUS -159); White et al. 2012, (Exhibits AUS -160, JE -24(66)); 
Van H al et al. 2012, (Exhibits AUS -161, JE -24(60)); Gallopel -Morvan et al. 2013, (Exhibits AUS -162, 
JE-24(24)); and Hoek et al. 2012, (Exhibits AUS -163, JE -24(35))).  
1835 Australia's first written submission, para. 151 (quoting Stirling Review, (Exhibits AUS -140, 
HND-130, CUB -59), p. 84). 
1836 Australia's first written submission, para. 152.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.671.   Australia's expert Professor Fong further identifies a number of studies that he submits 
have shown that tobacco products in plain packaging are substantially less attractive to young  
smokers as well as smokers of all ages.1837 Professor Fong refers to the findings of the initial report 
of the Stirling Review, noting that:  
(1) All 19 studies identified found that plain packages were rated as less attractive 
than branded equivalent packs,  or were rated as unattractive, by both adults and 
children; (2) The 12 studies that compared perceptions of plain and branded packs 
consistently found that plain packs were perceived to be poorer quality by both adults 
and children; (3) Plain packs consis tently received lower ratings on projected 
personality attributes (such as "popular" and "cool") than branded packs; (4) Visual 
experiments measuring the strength of association between specific brands and 
person types found the association between particu lar brands and smoker identity 
weakened or disappeared with plain packaging; (5) Studies found that plain packs 
were perceived as being more likely to be smoked by "older" or "less fashionable" 
people than branded packs; and (6) The ten qualitative studies  that examined appeal 
found that: (a) plain pack colours have negative connotations; (b) plain packs weaken 
attachment to brands; (c) plain packs project a less desirable smoker identity; and (d) 
plain packs expose the reality of smoking.1838 
7.672.   As discussed abo ve, the complainants dispute the relevance and quality of the 
TPP literature generally. The complainants' review and critique of the TPP literature  overlaps in 
scope with, but is not identical to, the studies relied upon by Australia in relation to the imp act of 
the TPP measure s on the appeal of tobacco products. Overall, among the 51 papers identified by 
the Stirling Review and/or the Chantler Report as relating to the impact of tobacco plain packaging 
on the appeal of tobacco products1839, 40 were also asses sed by at least one of the complainants' 
three reviews of the TPP literature , the Peer Review Project1840, Kleijnen Systematic Review1841, 
and/or the review conducted by Professor Klick.1842 Australia has relied on 29 of these1843 in the 
course of these proceedings, a s reflected by their provision to the Panel as exhibits.1844 Australia 
                                                
1837 See Fong Report , (Exhibit AUS -14), para. 200 ( referring to , with reference to young smokers: Beede 
et al. 1990, (Exhibits AUS -147, JE -24(4)); Bondy et al. 1994, (Exhibits AUS -143, JE -24(7)); Centre for Health 
Promotion 1993, (Exhibits AUS -142, JE -24(14)); d 'Avernas et al. 1997, (Exhibit AUS -144); Northrup and 
Pollard 1995, (Exhibit JE -24(48)); and Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)); and with 
respect to smokers of all ages: Bansal -Travers et al. 2011, (Exhibits AUS -150, JE -24(3)); Donovan 1993, 
(Exhibits AUS -151, JE -24(19)); Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)); and Wakefield et al. 2008, 
(Exhibits AUS -149, JE -24(62)), and stating that two of these stu dies note a greater impact for youth).  
1838 Fong Report , (Exhibit AUS-14), para. 201. 
1839 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the end of 
these Reports. We note that the Chantler Report's reviewers of the quan titative studies did not identify 
"appeal" as a "main outcome" with respect to one of the papers, Pechey et al. 2013, (Exhibit JE -24(51)). We 
have included this paper in our count as the Chantler Report's reviewer of the qualitative studies, who also 
reviewed this paper, did consider "appeal" to be one of the "main outcomes covered". See Chantler Report, 
(Exhibits AUS -81, CUB -61), Annex D, p. 55; and Annex E, p. 61. We also note that the Stirling Review did not 
identify "appeal" as a "type of finding" in Ca rter S M, Chapman S (2006). Smokers and non -smokers talk about 
regulatory options in tobacco control. Tobacco Control, 15(5): 398 -404. 
http://dx.doi.org/10.1136/tc.2006.015818  (not on the record). We  have also included this paper in our count 
as the Chantler Report's reviewer of the qualitative studies did consider "appeal" to be one of the "main 
outcomes covered".  See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 32; and Chantler Report, 
(Exhibits AUS -81, CUB -61), Annex E, p. 60.  
1840 Peer Review Report , (Exhibit DOM/HND -3). 
1841 Kleijnen Systematic Review , (Exhibit DOM/HND -4). 
1842 Klick TPP  Literature  Report, (Exhibit UKR -6). 
1843 Additionally, we note that Australia has submitted and relied upon a newsletter article that was 
authored by the same researchers, and appears to discuss the same study, as another paper that was 
reviewed by all three of the complainants' TPP literature  reviews, and assessed by the Stirling Review and 
Chantler Report as measuring the impact of tobacco plain packaging upon the appeal of tobacco products. 
Compare Northrup and Pollard 1995, (Exhibit JE -24(48)), with ISR newsletter, (Exhibit AUS -146).  
1844 See Ta ble A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  also refers to a number of other papers that were not reviewed in one of the three reviews of the 
TPP literature  presented by the complainants.1845  
7.673.    As described above, we do not consider th at we are in a position to draw definitive 
conclusions on the methodological merits of each individual study referred to in relation to the 
impact of plain packaging on various relevant measured outcomes, or that it would be appropriate 
for us to do so. Ra ther, as described above, what we must consider is the extent to which the body 
of evidence before us, as a whole, provides a reasonable basis in support of the proposition that it 
is being invoked for, i.e. in this instance, the proposition that plain pac kaging of tobacco products 
will lead to a reduction in the appeal of tobacco products for consumers. In this assessment, as 
described above, we consider it pertinent to take into account the extent to which the scientific 
evidence relied upon has the "nece ssary scientific and methodological rigo ur to be considered 
reputable science"1846 as well as the extent to which the use being made of it is " objective and 
coherent".1847  
7.674.   With respect to the methodological rigour of the relevant studies, and notwithstanding th e 
potential limitations of individual studies, we consider that the Stirling Review and Chantler Report 
offer credible evidence with respect to the adequacy of the methodological rigour of the studies 
that assessed the potential impact of tobacco plain pac kaging on the appeal of tobacco products, 
taken as a whole. Among the 40 papers that measured the impact of tobacco plain packaging on 
the appeal of tobacco products (as determined by the Stirling Review and/or Chantler Report), and 
were reviewed in one or  more of the complainants' three TPP literature  reviews1848, 29 were 
assigned quality ratings during the course of the initial Stirling Review. Of these, two received a 
"high" rating, and 27 received a "medium rating".1849 Among the papers that received a medium 
rating, four also received a "low" rating for the focus group aspect of their underlying studies.  
7.675.   Thirty -five of the 40 papers considered in one or more of the complainants' three 
TPP literature  reviews, and identi fied by the Stirling Review and/or Chantler Report as relating to 
the appeal "mechanism", also received ratings from the independent reviewers of the Chantler 
Report. Of these, 23 were given a rating of between 5 and 6 (denoting high quality/low risk of 
bias), while the remaining 12 earned a score of between 3 and 4.5 (denoting moderate 
quality/moderate bias).1850 Thus, the independent reviewer of the qualitative studies concluded 
that "[o]verall the papers are satisfactory", while the reviewers of the quantit ative studies stated 
that the conclusions drawn in the Stirling Review (which included, inter alia, that tobacco plain 
packaging would reduce the appeal of tobacco products) were a "reasonable reflection of the 
evidence available".1851  
7.676.   We also note that the packaging features standardized by the TPP measures  align with 
those that were evaluated in the TPP literature  and other studies relied upon by Australia. Namely, 
the studies considered the presence, size, location, and use of, inter alia, colour, fonts, d esigns, 
shapes, opening mechanisms, descriptors, and warnings on tobacco packaging.1852 To the extent 
that the TPP Act's depiction of the first "mechanism" underlying the design and structure of the 
TPP measures  is closely aligned to the measured outcome in t he relevant studies, we also find that 
Australia's reliance on this evidence base in support of the capacity of the TPP measures  to 
                                                
1845 See, e.g. Gallopel -Morvan et al. 2010, (Exhibit AUS -176); Wakefield 2011, (Exhibit AUS -172); 
Hammond and Parkinson 2009, (Exhibit AUS -165); Wake field et al. 2002, (Exhibit s AUS-93, CUB -28); Gendall 
et al. 2012, (Exhibit AUS -178); Kotnowski 2013, (Exhibit AUS -138); Kotnowski and Hammond 2013, (Exhibit 
AUS-139); d'Avernas et al. 1997, (Exhibit AUS -144); Difranza et al. 2003, (Exhibit AUS -92); and Ha mmond 
2010, (Exhibits AUS -91, JE -24(28)).  
1846 Appellate Body Report, US – Continued Suspension , paras.  591-592. See also ibid. paras.  598 and 
601. 
1847 Appellate Body Report, US – Continued Suspension , paras.  592, 598, and 601.  
1848 See Kleijnen Systematic Review , (Exhibit DOM/HND -4); Peer Review Report , (Exhibit DOM/HND -3); 
and Klick TPP  Literature  Report, (Exhibit UKR -6). 
1849 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s; and Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Table 4.1.  
1850 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s; and Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, 
pp. 60-62 
1851 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 49, and Annex E, p. 56. 
1852 See, e.g. Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Table 4.1, p p. 25-37. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  contribute to its objective by reducing the appeal of tobacco products is "coherent and 
objective".1853 
7.677.   We also note that Austr alia has sought to ensure that the remaining features permitted on 
tobacco packs under the TPP measures , in particular the background colour and font on the 25% 
of the pack not covered by the GHW, were selected with a view to minimizing their 
attractivenes s.1854 In this respect also, to the extent that it has adopted TPP requirements that are 
intended to act upon the type of design and other features that are described in the TPP literature  
as affecting the appeal of tobacco products, and to minimize their att ractiveness, we also find that 
Australia's reliance on this body of evidence is "coherent and objective".  
7.678.   We note that only one of the cited studies, Parr et al. 2011b1855, addressed specifically the 
impact of plain packaging on the appeal of cigars and cigar illos. As regards cigarillo/little cigar 
smokers, plain packs are reported to be seen as "least appealing"1856 or "least palatable".1857 
Further, qualitative discussions reported in that study consistently found the plain pack to be 
unappealing and unattractive,  which was strongly tied to perceptions of low quality. In particular, 
it was felt the plain packaging has a significant effect in lowering the appeal of cigarillo 
smoking.1858 With respect to smokers of premium cigars, Parr et al. 2011b found that they 
"differed considerably in their attitude to cigars compared to smokers of other tobacco products", 
as "[s]moking cigars is felt to be a choice rather than an addiction or habit", and "is seen as a 
luxury and occurs most often in conjunction with a specific acti vity, for a specific occasion, or in a 
specific location".1859  
7.679.   Within the group of premium cigar smokers, Parr et al. 2011b distinguished less frequent 
smokers1860 from more frequent and connoisseur smokers1861, identifying them as two "very 
different types of cig ar smokers".1862 For less frequent cigar smokers, Parr et al. 2011b finds that 
the "presenting" or giving of cigars could play a major role in the perceived appeal, and that the 
plain packaged tube has a marked effect on the perceived appeal of cigar smoking.1863 Conversely, 
                                                
1853 We note also that the TPP measures  address, in addition to the packaging of tobacco products, the 
appearance of the products themselves, including cigar bands. This is consistent, in our view, with the 
objective of preventing the design features addressed by the TPP measures  from acting as  instrument s of 
promotion and advertising and creat ing the types of associations discussed above on the products themselves , 
thereby having an effect comparable to that of packaging.  
1854 Australia's first written submission, para. 118; and Parr et al. 2011a,  (Exhibits AUS -117, JE -24(49), 
p. 6. 
1855 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)).  
1856 Specifically, in quantitative testing, the plain packaged cigarillo tin was generally seen to be the 
least appealing pack and the pack containing the lowest quality cigarillos. Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50) , p. 8. 
1857 In qualitative discussions, the participants felt that the plain package pack was least palatable and 
that they would least want to smoke it themselves. Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1858 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1859 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1860 According to Parr et al. 2011b, "[t]he less frequent smokers of premium cigars in the study tended 
to smoke a premium cigar about twice a month on average (smokers who smoked cigars less frequently than 
this were excluded from participating in the study). Some of the less frequent cigar smokers were smokers of 
other tobacco products, including cigarettes. While th ey felt driven by habit to smoke cigarettes, cigar smoking 
was seen an occasional pleasure. Their cigar smoking was generally associated with a specific activity, such as 
a card game, or a specific occasion such as a success at work. These cigar smokers we re less knowledgeable 
about premium cigars and how to determine quality so were more influenced by brand names. They were more 
likely to assume quality based on origin, rather than have more detailed understanding of difference that the 
more frequent cigar  smokers had." Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1861 According to Parr et al. 2011b, "[m]ore frequent cigar smokers, were often extremely 
knowledgeable about the different types of cigars, and regularly smoked different brands of cigars  for 
enjoyment and as a learning activity. Preference for a specific brand was driven by a combination of factors 
such as best value for money, the amount of time available to enjoy the cigar, the company and the perceived 
quality of the tobacco used in th e cigar. The brand name and variant of the cigar provides an indication of this 
type of product information. The more frequent cigar smokers interviewed did not smoke any other tobacco 
product." Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1862 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
1863 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 10:  
 
The less frequent smokers take particular interest in the branding and packaging of cigar tubes. 
Their smoking is largely driven by social occ asions within which the "presenting" or giving of 
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  Parr et al. 2011b concludes that plain cigar tubes did not have the same impact in terms of 
lowering appeal or attractiveness of cigar smoking for more frequent or connoisseur cigar 
smokers.1864  
7.680.   In general, Parr et al. 2011b concludes that "[t]here are … differences in the strength of 
th[e] impact [of plain packaging, including GHWs,] depending on the types of cigar smokers 
involved":  
In general the connoisseurs and more frequent cigar smokers reported feeling that the 
plain packaging would be more of an inconvenience but ultimately not affect their 
smoking behaviour. In contrast the less frequent and more occasion based cigar 
smokers reported a much stronger feeling that plain packaging may have a significant 
effect on their smoking behaviour due to lowering the appeal of cigars.1865 
7.681.   Overall, therefore, the only pre -implementation study addressing specifically the impact of 
plain packaging on cigars and cigarillos suggests that smokers of cigarillos or little cigars and les s 
frequent smokers of premium cigars found plain packaged products less appealing, although plain 
cigar tubes did not have the same impact on frequent or connoisseur premium cigar smokers.  
7.682.   In light of the above, we take note of the existence of a body of studies, emanating from 
qualified sources, supporting the proposition that plain packaging of tobacco products would 
reduce their appeal to the consumer. We also note that the evidence in this respect is more limited 
in relation to cigars than in relation to cigarettes.  
7.683.   Notwithstanding any potential limitations of the above studies, taken individually or as a 
whole, we recall that we also have before us evidence relating to the actual application of the 
TPP measures  in Australia since their entry into forc e, including empirical studies in relation to 
their impact on the appeal of tobacco products. We consider this evidence in section 7.2.5.3.6  
below, and therefore do not seek to draw, at this stage of our analysis, an overall conclusion on 
the impact of the TPP measures  on the appeal of tobacco products to the consumer.   
                                                                                                                                                  
cigars can play a major role in the perceived appeal. The  branding also has a strong effect on 
their perceptions of quality in regards to their purchases and as such the plain packaged tube 
has a marked eff ect on the perceived appeal of cigar smoking. It significantly deglamourises the 
event and reduces their appeal as gifts or when presenting them to friends. The lack of brand 
association for the plain packaged products, in contrast with existing products, leaves them 
nothing "to go on" bar the colour of the tube. This was described as "muddy", "tar like" and 
highly unappealing. This lack of appeal is strongly tied to a perception of low quality.  
 
1864 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 10: 
 
For more frequent and connoisseur cigar smokers the [cigar] tubes did not have the same impact 
in terms of lowering appeal or attractiveness of cigar smoking. This is because they judge the 
quality of a cigar on criteria other than the branding, which can include the type of tobacco, the 
roll, the age and particular country and region of origin. The brand name is taken as a sign of 
authenticity or legitimacy of the product.  
 
The Report also considers the specific impact, for frequent and connoisseur cigar smokers, of plain package 
bands not containing brand name information:  
 
This information is most often contained on the cigar band. As such a plain pack band (which did 
not display any information) obscuring the branded band has a more significant impact as it 
deprives them of the product information which they use to inform their purchases. This lowers 
the desirability of any given particular cigar as they are unable to verify the product they are 
receiving as opposed to lowering the overall appeal of cig ar smoking which remains high.  
 
Ibid. We note however that the TPP measures allow the brand name to be shown on cigar bands  (see TPP 
Regulations, (Exhibits AUS -3, JE-2), Section 3.2.1(3)(a)) , so that  these specific findings are not directly 
pertinent to an  assessment of the impact of the TPP measures  on cigars.  
1865 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 40. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Impact of reduced product appeal on smoking behaviours  
7.684.   As described above, the "ca usal chain" along which the TPP measures  are designed to 
contribute to Australia's objective posits that the mechanisms of the TPP measures  (including 
reduced product appeal) have a consequential effect on smoking behaviours . Specifically, the 
"proximal ou tcomes" of the measures, including a reduction in the appeal of tobacco products, are  
expected to cause Australian consumers to be discouraged from taking up smoking ( initiation ), or 
resuming smoking ( relapse ), and to be encouraged to stop smoking ( cessati on).1866  
7.685.   Australia submits that the effect of tobacco control policies on these behaviours is best 
measured by their influence on "downstream psychosocial variables such as knowledge, beliefs, 
attitudes and intentions, and on subsequent tobacco use behaviour s".1867 In Australia's view, the 
evidence, which includes theoretical models of behaviour, confirms that behavioural intentions are 
immediate precursors to behaviour and are one of the strongest predictors of future behaviour.1868 
For Australia, "intentions are strongly related to measuring future behaviour", such that "the 
attitudes, perceptions and beliefs of consumers – most particularly young consumers – provide 
strong evidence of the effect of the tobacco plain packaging measure".1869 
7.686.   Honduras argues that an ac curate assessment of the contribution of the TPP measures  to 
Australia's objective can only be made by evaluating how they affect actual smoking behaviour  
and, in particular, that "[v]arious surrogate factors, such as changes in consumer attitudes and 
beliefs about smoking, cannot in themselves prove that a tobacco -control measure is effective".1870 
The Dominican Republic contends that behavioural theory does not establish that the 
TPP measures  will reduce smoking behaviour1871, and that Australia has not adequately tested the 
assumptions it made concerning the ability of product appeal and perception of health risks to 
affect smoking behaviour.1872 Cuba argues that Australia has not provided probative evidence of 
the "sole parameter that is important for the evaluation of the impact of [the TPP measures ], 
namely, its effect on actual smoking behaviour and tobacco consumption".1873 Indonesia similarly 
submits that " Australia simply assumed behavioral theory 'proved' that attitudes toward the appeal 
of tobacco prod ucts and health risks affect actual smoking behavior, which resulted in a number of 
flaws in the subsequent plain packaging research".1874 
7.687.   The question before us at this stage is whether the reduction in the appeal of tobacco 
products hypothesized to occur as  a result of the plain packaging of tobacco products could have 
an impact on subsequent smoking -related behaviours, as posited under the mediational model 
underlying the design and structure of the TPP measures . The complainants consider that Australia 
has not demonstrated that a reduction in appeal would in fact lead to changes in actual 
behaviours. In support of this argument, the complainants consider that the behavioural theories 
relied on by Australia do not support its assumptions on the ability of pr oduct perceptions (and 
health risks) in relation to tobacco products to effect changes in behaviours, and that tobacco 
packaging is not a driver of the relevant smoking behaviours.  
7.688.   For the purposes of this part of the analysis, t here is no disagreement be tween the experts 
for the complainants and Australia that the appeal of tobacco products to consumers can be 
considered an "attitude" towards tobacco products.1875 However, the parties disagree on the 
impact that a change in such attitudes can have on smoking  behaviours. The complainants dispute 
                                                
1866 We note that Section 3(1)(a)(iv) of the TPP Act also posits that an object of the TPP Act is to reduce 
people's exposure to smoke from tobacco products. See TPP Act, (Exhibits AUS -1, JE-1). 
1867 Australia's first written submission, para. 146 (quoting Fong et al. 2006, (Exhibit AUS -132), 
p. iii10). 
1868 Australia's first written submission, para. 145. 
1869 Australia's first written submission, para. 164. 
1870 Honduras's response to Panel question No. 2, p. 2. 
1871 Dominican  Republic 's responses to Panel question No. 2, para. 19, and No. 41, paras.  176-178. See 
also Indonesia's response to Panel question No. 2 ("incorporate[ing] by reference the Dominican  Republic 's 
response to this question").  
1872 Dominican  Republic 's response to Panel question No. 123. 
1873 Cuba's second written submission, para. 261. 
1874 Indonesia's second written submission, para. 190. 
1875 See Fong Report , (Exhibit AUS -14), para. 250; and Ajzen Report , (Exhibit DOM/HND/IDN -3), 
para. 45. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Australia's assertions regarding the expected correlation between attitudes and future behaviours 
in general. They also argue that a change in the appeal of tobacco  products cannot have an effect 
on the behaviours of i nterest in respect of those products (i.e. smoking behaviours), given that 
packaging is not a driver of such behaviours. We consider these two aspects in turn.  
Relationship between attitudes and behaviours  
7.689.   Australia's expert Professor Fong considers that "[n]on-behavioural, psychological 
variables are critically important variables in predicting and understanding consumer behaviour, 
both in conceptual models of consumer behaviour and research in consumer behaviour".1876 
Professor Fong states that " the startin g point for research on attitude -behaviour relationship is 
that such a relationship does indeed exist" .1877 Moreover, "[m]odels of consumer behaviour are 
dominated by mediational models that posit that marketing efforts influence psychological 
variables withi n the person, and these psychological variables, in turn, cause changes in future 
behaviour".1878 Professor Fong states that:  
Social psychological theories, notably the "Theory of Reasoned Action" [TRA] (Fishbein 
& Ajzen 1975), and research arising from such theories, have demonstrated clearly 
that attitudes are indeed related to behaviour. A considerable proportion of these 
attitude -behaviour studies have been devoted to examining the conditions under 
which attitudes may be more or less strongly related to be haviour.1879 
7.690.   The complainants consider that Australia's reliance on behavioural theory to establish a 
correlation between the operation of the mechanisms in the TPP Act and smoking behaviours is 
inappropriate. The Dominican Republic, Honduras and Indonesia re ly in this respect on an expert 
report by Professor Ajzen.1880 In respect of the proposition that "the starting point for research on 
attitude -behaviour relationship is that such a relationship does indeed exist", Professor Ajzen 
contends that the "exact oppo site is true".1881 He argues that:  
The starting point in the 1970s for developing my [TRA] was precisely to account for, 
and offer a solution to, the fact that there is a weak  relation between attitudes and 
behavior, such that attitudes do not reliably predic t behavior. … [M]y research 
revealed that general attitudes toward non -behavioral targets  (e.g. tobacco products) 
are poor predictors of actual behavior with respect to those targets. In contrast, 
attitudes toward a specific behavior  (e.g. smoking initiati on) are more likely to predict 
this behavior.1882 
7.691.   Professor Azjen also notes that the TRA was limited by its assumption that the behaviour 
in question "is a direct function of the intention to perform the behaviour". The Theory of Planned 
Behaviour (TPB) was thus developed "recognizing that … people often find it difficult or impossible 
to act on their avowed intentions".1883 Thus, the TPB posits that a decision to engage in behaviour 
is guided by "behavioural", "normative" and "control" beliefs, which then have flow-on effects for, 
respectively, a subject's attitude towards the behaviour in question, their subjective norms, and 
their perception of their own behavioural control.1884 Professor Ajzen illustrates this relationship in 
the following manner:  
                                                
1876 Fong Report , (Exhibit AUS -14), para. 94. 
1877 Fong Report , (Exhibit AUS -14), para. 252. 
1878 Fong Report , (Exhibit AUS -14), para. 95. 
1879 Fong Report , (Exhibit AUS -14), para. 252. 
1880 Ajzen Report , (Exhibit DOM/HND/IDN -3). We note that Cuba has not relied upon this report in its 
submissions. Cuba has, however, questioned the value of the behavioural theories put forward by Australia. 
Cuba's response to Panel question No. 146, p. 2. Cuba argues that Australia is attempting to "hide behind 
abstract and convoluted theories", which "can be developed to justify any conclusions", while the "best 
approach for measuring the effectiveness of [the TPP measures ] is through an analysis of the facts as reflected 
in the actual consumption data …". Cuba's second written submission, para. 289; and opening statement at the 
second meeting of the Panel, para. 11. 
1881 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 50. 
1882 Ajzen Report , (Exhibit DOM/HND/I DN-3), para. 50. (emphasis original)  
1883 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 59. 
1884 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 61. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 13: Diagram of the TPB1885 
 
Source:  Ajzen Report, (Exhibit DOM/HND/IDN -3), Figure 3, p. 19.  
 
7.692.   For Professor Ajzen, "the relations between successive links in the chain, though often 
quite substantial, are far from perfect", such that "the impact of changes in background factors or 
in beliefs – which are not direct determinants of intentions, much less behavior – may have to be 
quite large to carry all the way across to actual behavior".1886 In addition, " even if there are 
changes in a direct d eterminant  of behavioral intentions (e.g.  attitude toward the behavior), these 
may not change intentions if, for example, attitudes don't carry much weight in the prediction of 
intentions; and, even if behavioral intentions are changed to some extent, that  may not influence 
actual behavior, for example, because of a weak correlation between intentions and behavior or 
because of the influence of actual behavioral control (or both)".1887  
7.693.   We first note that we do not understand Australia's reliance on "social ps ychological 
theories", including the TRA and related research,  as suggesting or implying that a change in 
attitude in respect of a particular object will lead in every case  to a change in behaviour in respect 
of that object. We also do not understand Austr alia to disagree with the general proposition, 
reflected in Professor Ajzen's description above, that the correlation between beliefs, attitudes, 
behavioural intentions and actual behaviours depends on successive "links in the chain", and that 
the relation s between such links in a given context is a product of a combination of factors that will 
affect the strength of the correlation. This point appears clearly in Professor Fong's observation 
that a "considerable proportion of these attitude -behaviour studie s have been devoted to 
examining the conditions under which attitudes may be more or less strongly related to 
behaviour". Professor Fong thus articulates that downstream psychosocial mediators are affected 
by multiple means.1888 
7.694.   We also note Professor Ajzen's  own description, in a recent publication, of how the TPB 
informs the way in which attitudes and perceptions influence intentions and behaviours:  
                                                
1885 We will elaborate on these steps in our analysis, below.  
1886 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 82. 
1887 Ajzen  Report , (Exhibit DOM/HND/IDN -3), para. 83. 
1888 Fong Report , (Exhibit AUS -14), para. 252. See also Fong et al. 2006, p p. ii4-ii5. 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  All the theory stipulates is that people 's attitudes, subjective norms and perceptions of 
control follow reaso nably and consistently from their beliefs, no matter how the beliefs 
were formed, and that in this way they influence intentions and behaviour.1889 
7.695.   Overall, the above suggests that a significant body of research is devoted to the study of 
the correlation betw een attitudes, intentions and behaviours, and that the parties all acknowledge, 
with reference to this research, that the strength of the correlation between attitudes and 
behaviours is affected by the interaction of multiple factors.1890 As Professor Fong ex presses it, 
quoting separate work by Professor Ajzen, "low attitude -behaviour relations are neither 
unexpected, nor do they imply that attitudes are irrelevant for the prediction of behaviour".1891  
7.696.   Professor Fong further explains that his use of theory does "not put forward a line of 
argument that 'dispensed' with the need for empirical evidence or claimed that theories 'prove' the 
importance of appeal and perceived health risks to smoking behaviour", but rather "used 
behavioural theories as a way of providin g context and meaning for the available empirical 
evidence that examined the impact of plain packaging on beliefs, perceptions, and behaviour".1892 
Professor Ajzen similarly states that "[t]heories do not demonstrate or prove a link between 
non-behavioral con structs (e.g. beliefs, attitudes, intentions) and behavio r" but do "generate 
useful hypotheses  about the possible presence, or absence, of a causal link" that "must be 
confirmed or rejected through properly conducted research ".1893 We further note in this respect 
Professor Ajzen's acknowledgement that, while the "TPB is … not a theory of behaviour change " 
and is instead " meant to help explain and predict people 's intentions and behaviour ", it can 
nonetheless "serve as a useful framework for des igning effective behaviour change 
interventions ".1894  
7.697.   We understand Australia's reliance on "social psychological theories", including the TRA 
and related research,  in the context of its intervention on tobacco plain packaging as intending to 
support its arg ument that it is reasonable to expect a correlation to exist between a reduction in 
the appeal of tobacco products and subsequent smoking behaviours, such that reduced appeal will 
influence at least some  consumers in their smoking behaviours. This is refle cted in Professor 
Fong's description of the expected impact of Australia's TPP measures : 
One can make reasonable and confident predictions that if the plain packaging 
measure is shown to decrease appeal and/or increase the effectiveness of health 
warnings and/or decrease the ability of the package to mislead consumers about the 
harmfulness of tobacco products, the Objects of the Act will likely be achieved.1895  
7.698.   Professor Azjen, however, argues that under the TPB, "the three constructs of attitude 
towards a be haviour, subjective norm, and perceived behavioural control together predict 
intentions  to take up smoking and to quit smoking quite well", as such constructs " accounted for 
26% to 48% of the variance in intentions to start smoking  …"1896 but that "prediction  of actual  
behavior  from intentions and perceived behavioral control was much less successful".1897 
                                                
1889 I. Ajzen, "The Theory of Planned Behaviour is Alive and Well, and Not Ready to Retire: A 
Commentary on Sniehotta, Presseau, an d Araújo -Soares", Health Psychology Review (2014), (Ajzen, Health 
Psychology Review 2014), (Exhibit HND-134), p. 3. 
1890 See Ajzen, Health Psychology Review 2014, (Exhibit HND-134), p p. 3-4. 
1891 Fong Supplemental Report , (Exhibit AUS -531), para. 60 (referring t o M. Fishbein and I. Ajzen, 
Predicting and Changing Behavior: The Reasoned Action Approach  (Psychology Press, 2010), not on the record 
of these proceedings).  
1892 Fong Supplemental Report , (Exhibit AUS -531), para. 39. 
1893 Ajzen Report, (Exhibit DOM/HND/IDN -3), para. 13 (emphasis original) (cited by Honduras in 
para. 147 of its second written submission).  
1894 Ajzen, Health Psychology Review 2014, (Exhibit HND-134), p. 3. The extent to which behavioural 
changes may be induced by such interventions will, Professor Aj zen explains, depend on the circumstances: 
"For an intervention to have an appreciable effect on intentions, … it has to produce large changes in beliefs; 
and for the intention to lead to the desired behaviour, people must have the requisite resources and potential 
barriers to behavioural performance must be removed." Ibid. p p. 3-4. 
1895 Fong Report , (Exhibit AUS -14), para. 90. See also ibid. para. 306. 
1896 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 100. (emphasis original)  
1897 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 102. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.699.   As we understand it, therefore, the disagreement among the parties relate s primarily to 
the extent to which attitudes and perceptions , and changes in such attitudes and perceptions,  may 
be expected or assumed to have an influence on intentions and subsequent behaviours, in the 
specific context of the TPP measures . Specifically, the question at issue  at this stage of our 
analysis  is the extent to which a redu ction in the appeal of tobacco products may be expected to 
have an impact on smoking behaviours.  
7.700.   With this understanding in mind, we consider the evidence before us relating to the impact 
on smoking behaviours of a reduction in the appeal of tobacco produ cts through the 
TPP measures .  
Impact of a reduction in the appeal of tobacco products on smoking 
behaviours  
7.701.   Section 3(1) of the TPP Act identifies specific behaviours that Australia seeks to influence 
through the TPP measures  – that is, "discouraging peop le from taking up smoking, or using 
tobacco products" (which we refer to as initiation); "encouraging people to give up smoking, and 
to stop using tobacco products" (which we refer to as cessation); and discouraging people who 
have given up smoking, or who  have stopped using tobacco products, from relapsing (which we 
refer to as relapse).1898 
7.702.   The complainants consider that the TPP measures  cannot influence these behaviours, 
because they are driven by factors other than packaging, unlikely to be overpowered by a change 
in the packaging of tobacco products. Specifically, the complainants argue that research on the 
drivers of smoking initiation does not identify packaging as a factor influencing the decision to 
start smoking. They also argue that plain packaging c annot have an impact on cessation or relapse 
behaviours. We consider these different behaviours in turn.  
Smoking initiation  
Drivers of smoking initiation  
 
7.703.   The complainants argue that smoking initiation is driven by factors other than packaging, 
with the effect that packaging cannot have an influence on the decision to smoke.1899 Honduras 
refers to research identifying the drivers of smoking initiation as psychosocial characteristics, 
interpersonal influences, and community context (including price and availa bility of tobacco 
products).1900 The Dominican Republic argues that both the propensity for risk -taking, combined 
with societal factors such as the influence of peer pressure, increase the chances that young 
people will engage in risky behaviours, including s moking.1901 Cuba argues that smoking is a 
specific manifestation of the more general category of risk taking.1902 Indonesia argues that the 
main risk factors for adolescent smoking include psychological characteristics that incline people to 
smoke (sensation -seeking, tendencies toward negative emotions, impulsivity, and 
inattentiveness); peers and family members who smoke; and access to cigarettes.1903 
7.704.   The evidence before us regarding the factors affecting the initiation1904 of tobacco use 
focuses on adolescents and  young adults. As expressed by Australia's expert, Dr Biglan, this is 
                                                
1898 TPP Act, (Exhibits JE -1, AUS -1), Section 3(1)(a).  
1899 Honduras's first written submission, paras.  418-425. See also Dominican  Republic 's first written 
submission , paras.  689-700; Cuba's first written submission, paras.  208-213; and Indonesia's first written 
submission, para. 412. 
1900 Honduras's first written submission, paras.  412-416. 
1901 Dominican  Republic 's first written submission, para. 691. 
1902 Cuba's first written submission, para. 213. 
1903 Indonesia's first written submi ssion, para. 412. 
1904 The US Surgeon General defines "initiation" as having ever tried tobacco. This is distinct from 
experimental use (i.e. occasional use), and regular use (i.e. an increase in the frequency and quantity of use). 
In adolescence, regular use  "is often marked by a pattern of monthly or weekly use and may include 
psychological and physical dependence on tobacco". US Surgeon General's Report 2012, (Exhibit AUS-76), 
p. 429. This definition is also used by the USIOM . See R. Bonnie, K. Stratton, an d L. Kwan (eds.), Public Health 
Implications of Raising the Minimum Age of Legal Access to Tobacco Products , United States Institute of 
Medicine (The National Academies Press, 2015), ( 2015 USIOM Report ), (Exhibit DOM -232), p. 2-11. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  because "[v] irtually all smoking begins during adolescence or young adulthood".1905 Dr Biglan 
premises this point on findings of the US Surgeon General, which state that:  
Among adults who h ad ever tried a cigarette, 81.5% reported trying their first 
cigarette by the time they were 18 years of age, while an additional 16.5% did so by 
26 years of age. Among adults who had ever smoked cigarettes daily, 88.2% reported 
trying their first cigarett e by the time they were 18 years of age, while an additional 
10.8% did so by 26 years of age. About two -thirds (65.1%) of adults who had ever 
smoked daily began smoking daily by 18 years of age, and almost one -third of these 
adults (31.1%) began smoking da ily between 18 and 26 years of age. Therefore, 
virtually no initiation of cigarette smoking (<1 –2%) and few transitions to daily 
smoking (<4%) actually occur in adulthood after 26 years of age.1906 
7.705.   This observation accords with findings by the USIOM : 
Tobacco use by young adults (those between 18 and 24 years of age) also poses 
serious concerns. While nearly 90 percent of people who have ever smoked daily first 
tried a cigarette before 19 years of age, the fact that another 9.4 percent tried their 
first cigaret te before the age of 26 should not be overlooked … Additionally, only 54 
percent of daily smokers are smoking daily before age 18, but 85 percent are doing so 
by age 21, and 94 percent before age 25 … These data strongly suggest that if 
someone is not a re gular tobacco user by 25 years of age, it is highly unlikely they will 
become one.1907 
7.706.   In the Australian context, Professor Samet refers to data from the 2013 National Drug 
Strategy Household Survey (NDSHS) which "show[s] that the average age of initiation of  smoking 
over the age range 14 to 24 years has steadily risen since 1995 from 14.2 to 15.9 in 2013" and 
that "the age window of 14 to 24 is now the period of greatest risk for starting to smoke and 
adolescence remains a period during which initiation occur s".1908 
7.707.   The US Surgeon General summarizes1909 the risk factors associated with the initiation and 
use of tobacco products as: relatively low socio -economic status; the relatively high accessibility 
                                                
1905 Biglan Report , (Exhibi t AUS -13), para. 14. 
1906 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 134. This report also refers to "[o]ne of the 
most important —and widely cited —findings from the 1994 Surgeon General's report on smoking and health" 
which "was that virtually all  cigarette smoking begins before adulthood". Ibid. Referring to survey data, the 
1994 Surgeon General's report found that:  
 
Of all persons who had ever tried a cigarette, 88 percent had tried their first cigarette by age 18. 
The mean age of first trying a cigarette was 14.5 years. Thirty -five percent of the respondents 
had become daily smokers by age 18. Of those who had ever smoked daily, 71 percent had 
smoked daily by age 18. The mean age of becoming a daily smoker was 17.7 years.  
 
US Surgeon General's Re port 1994, (Exhibit CUB -66), p. 51. See also US Surgeon General's Report 1994, 
Executive Summary, (Exhibit AUS -73), p. 9. 
1907 2015 USIOM Report , (Exhibit DOM -232), p. 1-2. 
1908 Samet Report , (Exhibit AUS -7), para. 45. See also Biglan Report , (Exhibit AUS -13), para. 14. We 
note that a 2014 survey by Vision  One, commissioned by Cuba and assessing a considerably smaller sample, 
assessed that the mean age of cigarette initiation in Australia is 17.7. Vision One Report, Exhibit CU B-79, 
para. 14, chart 2 -3. Cuba note s, however, that this report acknowledges that its data concerning cigarette 
initiation is not necessarily representative of the cigarette smoking population in Australia, as it was looking at 
a subset of the cigarette smoking population, i.e. current LHM Cigar smokers who have ever smoked cigarettes 
on a regular basis. Cuba's first written submission, para. 249, referring to  Vision One Report, Exhibit CU B-79, 
para. 18. 
1909 This summary is provided in the Surgeon General's 2012 report, relying on conclusions drawn in its 
1994 report. We note that the entirety of the 1994 report, including the chapter concerning the drivers of 
initiation of tobacco use, has not been provided to us as evidence by the parties. Cuba has provided excerpts 
of that report and Austral ia has provided excerpts of its executive summary. See US Surgeon General's 
Report  1994, (Exhibit CUB -66); and US Surgeon General's Report 1994, Executive Summary, 
(Exhibit  AUS-73). A summary of findings on the epidemiology of tobacco use among young peopl e states:  
 
Sociodemographic, environmental, behavioral, and personal factors can encourage the onset of 
tobacco use among adolescents.  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and availability of tobacco products; perceptions by adolescents  that tobacco use is normative 
(i.e. usual or acceptable behaviour); use of tobacco by significant others and approval of tobacco 
use among those persons; a lack of parental support; low levels of academic achievement and 
school involvement; a lack of the skills required to resist influences to use tobacco; relatively low 
self-efficacy for refusal1910; previous tobacco use and intention to use tobacco in the future; 
relatively low self -image; and the belief that tobacco use is functional or serves a purpose.1911  
7.708.   A number of other expert reports submitted by the parties discuss the drivers of smoking 
initiation, and display similarity with the broad range of factors identified by the US Surgeon 
General as influencing youth smoking initiation.1912 Professor Viscusi su mmarizes the key factors 
that contribute to smoking initiation by youth as involving one's parents, siblings, friends, peers, 
access to cigarettes, personal characteristics, and cost.1913 Professor Mitchell refers to studies of 
underage smoking focussing on factors at the individual (genetic, cognitive, affective, and 
demographic characteristics), proximal (familial, interpersonal, social networks) and environmental 
(neighborhood, community , state, national) levels, and notes that within each level of analysis, a 
wide range of variables has been found to predict underage smoking initiation and 
continuation.1914 Professor McKeganey states that tobacco use "begins through a complex 
                                                                                                                                                  
…  
Behavioral factors figure heavily during adolescence, a period of multiple transitions to physical 
maturation, to a c oherent sense of self, and to emotional independence. Adolescents are thus 
particularly vulnerable to a range of hazardous behaviors and activities, including tobacco use, 
that may seem to assist in these transitions. Young people who report that smoking s erves 
positive functions or is potentially useful are at increased risk for smoking. These functions are 
associated with bonding with peers, being independent and mature, and having a positive social 
image. Since reports from adolescents who begin to smoke  indicate that they have lower 
self-esteem and lower self -images than their non -smoking peers, smoking can become a 
self-enhancement mechanism. Similarly, not having the confidence to be able to resist peer 
offers of tobacco seems to be an important risk f actor for initiation. Intentions to use tobacco and 
actual experimentation also strongly predict subsequent regular use.  
 
US Surgeon General's Report 1994, Executive Summary (Exhibit AUS -73), p p. 7-8. See also McKeganey 
Report , (Exhibits DOM -105, CUB -72), pp. 17-20. 
 
1910 Self-efficacy is described as being "related to an individual's confidence in achieving goals through 
personal efforts, such as the ability to resist smoking or to remain smoke -free after quitting". US Surgeon 
General's Report 2012, (Exhibit AUS-76), p. 447. 
1911 US Surgeon General's Report 2012, (Exhibit AUS-76), p. 427. 
1912 We note that Professor Heckman, in a report submitted by Ukraine, focuses on cognitive abilities (as 
a predictor of educational attainment, wages, and many other forms of economic and social success, including 
physical and mental health, and healthy behaviors and outcomes, including avoiding smoking, obesity, and 
eating fried foods) and non -cognitive skills  (which affect school performance and wages later in life, as well as 
on smoking, physical health, mental health, teen pregnancy, and participation in crime), while also noting the 
relevance of price and parental and peer smoking. He concludes that causal factors affecting youth smoking 
behaviour include prices, peers (social networks), parents, early family environments and investments in 
children. Heckman Report, (Exhibit UKR -144), paras.  21-42.  
1913 Viscusi Report , (Exhibit UKR -8), para. 111. See also ibid . paras.  112-119. 
1914 Mitchell Report , (Exhibit UKR -154), para. 52. Professor Mitchell elaborates that:  
 
A number of factors observable at the individual level are associated with increased risk of 
underage smoking. For instance, lower socioeconomic status m ales with lower academic 
achievement are at greater risk of smoking than females in general or other males who are from 
a different class or who are performing better in school.  Adolescents exhibiting certain behavioral 
and psychiatric disorders are at gre ater risk, as are victims of sexual abuse. Genetic markers 
indicating heritability for tobacco use have been found, and neurological correlates of tobacco 
use (in brain regions associated with decision -making and impulse control) have been found.  
 
A number  of factors in an adolescent's proximal environment can increase the risk of smoking. 
For instance, the presence of a smoker in the household increases the risk of underage smoking, 
as does the presence of a smoker within a peer grou p. Females appear to be  more susceptible to 
peer influences, but the influence of peers for all persons will depend on the status of those peers 
within the potential smoker's social network, family views on smoking, and individual beliefs 
about the costs and benefits of smoking,  as well as other individual, proximal, and environmental 
factors.  
 
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  interaction of  psychosocial risk factors, which broadly involve sociodemographic, environmental, 
behavioural, personal and interpersonal factors".1915 In this connection, Professor McKeganey 
refers to the US Surgeon General's 2012 report.1916  
7.709.   We note the shared views before us concerning the age -related factors that contribute to 
smoking behaviour among youth and young adults. The US Surgeon General, for example, notes 
that "a dolescence is a sensitive developmental period, characterized by brain changes and high 
levels of emo tionality, impulsivity, and risk -taking", and that "the plasticity of the adolescent brain, 
together with the relatively immature neurobehavioral systems necessary for self -control and 
affect regulation, confer a heightened vulnerability for the developmen t of smoking behavior".1917 
It adds that the period following early and middle adolescence (18 -25 years) has particular 
developmental significance with regard to smoking behaviour, as many risk behaviours peak 
during this period of life, including rates of su bstance use, smoking, risky driving, and unsafe 
sex.1918  
7.710.   The US Surgeon General, in making these observations, refers ( inter alia) to previous work 
by Professor Steinberg.1919 In its 2015 report, the USIOM , in reaching similar conclusions to the US 
Surgeon Gene ral with respect to the drivers of smoking initiation, also refers to research by 
Professor Steinberg.1920 In his expert report for Honduras and the Dominican Republic in these 
proceedings, Professor Steinberg sets out the "dominant model" of adolescent risk -taking, the 
"maturational imbalance" or "dual systems" model. According to this model:  
[H]eightened risk taking in adolescence is a natural byproduct of the asynchronous 
maturation of two different brain systems: a "reward system" (sometimes referred to 
as an "incentive processing system" or a "socioemotional system"), which is 
responsive to emotion, reward, and novelty, and a "cognitive control system," which is 
critical for impulse control, emotion regulation, and planned decision making. Briefly, 
the "du al systems" model posits that the incentive processing system becomes 
especially aroused early in adolescence, shortly after puberty, and that this arousal 
pushes the adolescent to engage in sensation -seeking in the pursuit of immediate 
rewards, but that t his arousal takes place before the cognitive control system has 
matured enough to provide much -needed self -control. The combination of a highly 
responsive incentive processing system and a still immature cognitive control system 
sets the stage of risk taki ng.1921 
7.711.   Professor Steinberg identifies three sets of risk factors for smoking during adolescence: 
psychological characteristics that incline individuals to smoke1922, interpersonal influences that 
encourage and support smoking1923, and a community context in which smoking is seen as normal, 
and where cigarettes are readily available and affordable.1924 This leads Professor Steinberg to the 
view that adolescents' behaviour is strongly influenced by their relationships with peers and their 
intense desire for peer approva l, which manifests through behaviours they associate with being an 
adult, such as smoking. Professor Steinberg argues that, "[g] iven the way that the adolescent 
brain works, there is an inherent appeal of behaviors that are exciting, that are perceived as 
                                                                                                                                                  
Examples of correlates at the environmental level include price and purchasing regulations: 
increasing the price of cigarettes through government regulation has been found to be an 
effecti ve means of reducing demand among underage smokers, and education of merchants 
about restrictions on sales to minors and increased enforcement of laws prohibiting sales to  
minors is associated with reduced underage smoking.  
 
Ibid. paras.  53-55. (footnotes omitted)  
 
1915 McKeganey Report , (Exhibits DOM-105, CUB -72), p. 15. 
1916 McKeganey Report , (Exhibits DOM-105, CUB -72), p p. 20-22. 
1917 US Surgeon General's Report 2012, (Exhibit AUS-76), p. 428. (references omitted)  
1918 US Surgeon General's Report 2012, (Exhibit AUS-76), p. 428. 
1919 US Surgeon General's Report 2012, (Exhibit AUS-76), p. 428. 
1920 2015 USIOM Report , (Exhibit DOM -232), p p. 3-2 to 3 -8. 
1921 Steinberg Report , (Exhibit DOM/HND -6), para. 19. (emphasis original)  
1922 Steinberg Report , (Exhibit DOM/HND -6), para. 36. 
1923 Steinberg Report , (Exhibit DOM/HND -6), paras.  37-38. 
1924 Steinberg Report , (Exhibit DOM/HND -6), para. 39.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  rewarding, and that are expected to elicit the approval of one's peers".1925 Professor Steinberg 
concludes that adolescents' interest in smoking comes primarily from the act of smoking itself, and 
its influence on peer approval and social status, and not from  other factors such as the package. 
He adds that changing tobacco packaging is not likely to overpower the basic motive of seeking 
approval from peers.1926 
7.712.   Australia's expert, Professor Slovic, agrees with Professor Steinberg that the high rate of 
risk-taking  in adolescence is the natural result of the asynchronous maturation of two brain 
systems: a reward system responsive to emotion and immediate pleasures and a cognitive control 
system essential for impulse control, emotion regulation, and planned decision making.1927 
Professor Slovic elaborates that "[t]he reward system becomes prominent shortly after puberty, 
but the control system is not fully developed until adulthood", and that this "asynchrony leads 
youth to be especially sensitive to rewards, immediate c onsequences of a decision, and the 
influence of peers".1928 Moreover, the "immaturity of the regions in the brain associated with 
cognitive control leads adolescents to act without thinking and to fail to make and carry out plans". 
Professor Slovic argues tha t "[e]xperimentation with smoking is likely a manifestation of the 
general tendency to seek new experiences and to engage in impulsive risk taking in the service of 
sensation seeking and having fun with friends".1929  
7.713.   Another of Australia's experts, Dr Biglan , also refers to previous work by Professor 
Steinberg in the context of his arguments that adolescents are motivated to use tobacco by 
concerns about fitting in with peers, as well as increased levels of sensation -seeking, risk -taking, 
rebelliousness, and anxiety and depression in motivating tobacco.1930 Dr Biglan also notes that 
during emerging adulthood the tendency toward high levels of risk taking may diminish, but not 
yet to the levels they will be later on1931, and that young adults are still concerned by s ocial 
acceptance, and that such concerns may affect levels of loneliness, depression and shame.1932 
7.714.   On the basis of the above descriptions, we observe a certain consistency in the evidence 
before us in respect of the drivers of smoking initiation, including t he developmental factors which 
have a bearing on the extent to which these drivers may lead to smoking initiation in adolescents 
and young adults.  
7.715.   Notwithstanding this convergence, we also note the observation by the US Surgeon 
General that "[c]igarette s moking among adolescents and young adults is a multi -determined 
behavior, influenced by the unique and overlapping combinations of biological, psychosocial, and 
environmental factors".1933 The USIOM  also reports that "[t] obacco use is the result of a complex 
and dynamic interplay of multiple converging developmental, social, and environmental factors" 
and that "[m]any of these factors are developmentally related, with adolescence and young 
adulthood as a key period of vulnerability to tobacco use and the progr ession to nicotine 
dependence".1934 
                                                
1925 Steinberg Report , (Exhibit DOM/HND -6), para. 52. 
1926 Steinberg Report , (Exhibit DOM/HND -6), para. 53. 
1927 Slovic Report , (Exhibit AUS -12), para. 21. See also paras.  107-111. Professor Slovic also refers to 
the reports by Professors V iscusi, Mitchell and McKeganey in his own discussion of the "[e]xperiential affective 
factors linked to young people's need for excitement, peer approval, and other soc ial influences". See ibid. 
paras.  50, 88 -104, and 115 -120. 
1928 Slovic Report , (Exhibit AUS -12), para. 21. See also paras.  107-111. 
1929 Slovic Report , (Exhibit AUS -12), para. 21. See also paras.  107-111. 
1930 Biglan Report , (Exhibit AUS -13), paras.  15-19. 
1931 Biglan  Report , (Exhibit AUS -13), para. 20. 
1932 Biglan Report , (Exhibit AUS -13), paras.  21-24. 
1933 US Surgeon General's Report 2012, (Exhibit AUS-76), p. 428. 
1934 2015 USIOM Report , (Exhibit DOM -232), p. 3-1. This view is echoed by Professor Heckman, who 
states:  
 
Over the past decades, scholars in many disciplines, including neuroscience, psychology, 
sociology, health policy, and economics have extensively studied youth and adult participation in 
a variety of risky behaviors, including smoking. The numerous studies of y outh smoking and 
initiation that have resulted from this research have not been able to identify any single factor 
that fully explains youth smoking behavior. There is a consensus view that there are many 
complex and interactive influences on youth smoking . 
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  7.716.   Professor Steinberg notes that, a lthough adolescents are more likely than children or 
adults to engage in risky behaviour, only a minority of adolescents smoke because of individual 
differences in personality and availabili ty1935 – "[g]enerally , the more risk factors that are present 
for an individual, the more likely she or he is to smoke".1936 
7.717.   Thus, while the evidence indicates shared views among various experts and institutions 
concerning the factors that can, individually or in combination, have an effect on the initiation of 
the use of tobacco products by youth, the view is equally shared that no single factor is 
determinative of such behaviour.  
7.718.   Neither the reports by the various public health bodies referred to above, nor th e expert 
reports before us, identify tobacco packaging as a driver of smoking initiation in the same way as 
they list the other factors of initiation identified above.1937 However, we do not understand 
Australia to argue that tobacco packaging is an independe nt factor that drives initiation of tobacco 
use. Rather, it argues that packaging plays a role in influencing some of the factors that are 
drivers of smoking initiation.1938 Specifically, Australia argues that tobacco packaging is a form of 
marketing that inf luences smoking behaviour by generating positive perceptions of tobacco 
products, including by communicating to young people that smoking the brand will help fulfil 
particular psychological needs.1939  
7.719.   Accordingly, what is at issue is not whether tobacco pack aging causes  adolescents and 
young adults to initiate smoking or is, in itself, an independent driver of smoking initiation. Rather 
our inquiry should focus on whether the evidence before us suggests that tobacco packaging has a 
bearing on the complex inte raction of factors that are understood to drive smoking initiation, 
including among youth, such that it would be capable of having an influence on the decision to 
smoke. This is expressed most clearly by the USIOM , in respect of advertising and promotion 
generally:  
The question is not, "Are advertising and promotion the causes of youth initiation?" 
but rather, "Does the preponderance of evidence suggest that features of advertising 
and promotion tend to encourage youths to smoke?"1940 
7.720.   Similarly, the question before us here is whether the evidence before us suggests that 
features of tobacco packaging can have an impact on the factors that drive smoking initiation, 
including among youth. We consider this question next.  
Influence of packaging on the drivers of sm oking initiation  
 
7.721.   As described above, in essence, the complainants' experts argue that tobacco use by 
adolescents (including, most relevantly, initiation) is best viewed in the context of the high -risk 
behaviours in which adolescents often engage as a resu lt of their neurological development, such 
as drug use and alcohol consumption. Professor Viscusi argues that the determinants of such 
behaviours are very similar as they involve peer influences, family background including parental 
and sibling influences,  the school environment, and socioeconomic status.1941 Professor Mitchell 
argues that an explanation for risky behaviour is found in developmental approaches to adolescent 
                                                                                                                                                  
 
Heckman Report, (Exhibit UKR -144), para. 18. See also Mitchell Report , (Exhibit UKR -154), para. 52. 
1935 Steinberg Report , (Exhibit DOM/HND -6), para. 42. 
1936 Steinberg Report , (Exhibit DOM/HND -6), para. 35. (references omitted) See also Fong Report , 
(Exhibit  AUS-14), paras.  275-276.  
1937 See McKeganey Report , (Exhibits DOM-105, CUB -72), p p. 16 and 41.  
1938 Australia's first written submission, para. 60. 
1939 Australia's first written submission, paras.  60-102. 
1940 1994 US IOM Report, Chap. 4, (Exhibit AUS -78), p. 131. The report concludes, "The answer is yes, 
and this is a sufficient basis for action, even in the absence of a precise and definitive causal chain." Ibid.  In 
this connection, we note that Professor Azjen seems to agree that a complex set of factors dri ve smoking 
initiation. See Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 92; Ajzen Rebuttal Report, (Exhibit 
DOM/HND/IDN -5), para. 205. We are surprised, therefore, that they both nonetheless consider that Australia 
must demonstrate a direct causative link between tobacco packaging and smoking init iation.  
1941 Viscusi Report , (Exhibit UKR -8), para . 113. See also Heckman Report, (Exhibit UKR -144), 
paras.  19-29. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  decision -making, which find that while adolescents possess the ability to reason logica lly about 
outcomes, they are more likely to attend to the immediate rewards rather than future costs that 
can come from engaging in risky behaviour, just at the time when their desire for new sensations 
and experiences increases.1942 
7.722.   Professor Steinberg elabo rates that young people smoke because the act of  smoking itself 
confers the approval of peers and the feeling of being adult because it is an activity reserved for 
adults, and the brand they select is immaterial.1943 Put differently, according to Professor 
Steinberg, the desired reward of smoking is inherent in the act of smoking itself, and so "[i]t is 
highly improbable that an adolescent who is interested in trying smoking will decline a cigarette 
from a friend because of the packaging from which the cigaret te is offered".1944 Professor 
Steinberg elaborates that risky behaviour by adolescents, including smoking, derives from the 
desire to seek approval of peers, and changing packaging is unlikely to overpower these 
motives.1945  
7.723.   Professor Steinberg also argues that  branding of tobacco products is less important to 
adolescents because of the way young people obtain cigarettes − that is, from friends, "often 
without necessarily seeing the package in which they were sold".1946 Professor Steinberg argues 
that the effect of  branding can only be relevant "in a world where branded packs are available", as 
it is "highly improbable on the face of it" that "the additional cool value added by packaging is so 
great that people will not smoke if the packages of cigarettes they buy c arry more minimal 
branding than at present".1947 He adds that it would be easy for underage smokers who are 
concerned about projecting a particular image to personalize the packaging of the cigarettes they 
smoke.1948 
7.724.   As we have noted, Australia's expert Professor Slovic agrees with Professor Steinberg in a 
number of important respects concerning adolescents' neurological development, risk -taking, 
experimentation with tobacco, and sensitivity to rewards and the influence of peers.1949 Where 
they diverge is th at Professor Slovic argues that Professor Steinberg's "characterization of youth 
risk taking is actually a strong argument in favor of plain packaging".1950 
7.725.   Professor Slovic refers to  "the importance of affect in guiding judgments, decisions and all 
forms of motivated behaviour". He uses "affect" to mean the specific quality of "goodness" or 
"badness" that may be "(a) experienced as a feeling state (with or without conscious awareness) 
and (b) demarcating a positive or negative quality of a stimulus". Professo r Slovic notes that 
"[a]ffective responses occur rapidly and automatically".1951 Reliance on such feelings can be 
characterized as the "affect heuristic" and, in Professor Slovic's view, the majority of risk -taking 
behaviors are motivated by affect rather tha n by deliberative analysis of quantitative probabilities 
or statistics.1952 Professor Slovic elaborates in the following terms:  
Although analysis is certainly important in many circumstances, reliance on affect and 
emotion is a quicker, easier, and more effic ient way to navigate in a complex, 
uncertain, and sometimes dangerous world … Many theorists have given affect a 
direct and primary role in motivating behavior. Epstein 's view on this is as follows:  
The experiential system is assumed to be intimately asso ciated with the 
experience of affect … which refer[s] to subtle feelings of which people 
are often unaware. When a person responds to an emotionally significant 
event … the experiential system automatically searches its memory banks 
for related events, inc luding their emotional accompaniments. … If the 
                                                
1942 Mitchell Report , (Exhibit UKR-154), para. 25. 
1943 Steinberg Report , (Exhibit DOM/HND -6), p. 4 and paras. 31 and 52 -53. 
1944 Steinberg Report , (Exhibit DOM/HND -6), paras.  31 and 53.  
1945 Steinberg Report , (Exhibit DOM/HND -6), para. 53. 
1946 Steinberg Report , (Exhibit DOM/HND -6), paras.  55-56 and 59.  
1947 Steinberg Report , (Exhibit DOM/HND -6), para. 57. 
1948 Steinberg Report , (Exhibit DOM/HND -6), para. 58. 
1949 Slovic Report , (Exhibit AUS -12), para. 107. 
1950 Slovic Report , (Exhibit AUS -12), para. 21. See also ibid. paras.  107-111. 
1951 Slovic Report , (Exhibit AUS -12), para. 27. 
1952 Slovic Report , (Exhibit AUS -12), para. 27. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  activated feelings are pleasant, they motivate actions and thoughts 
anticipated to reproduce the feelings. If the feelings are unpleasant, they 
motivate actions and thoughts anticipated to avoid the feelings.1953 
7.726.   In respect of smoking init iation, Professor Slovic refers to evidence from survey data and 
the tobacco industry which, in his view, indicate that "experiential and affective forces, rather than 
analytic decision making, are leading many young people to b egin smoking, a behavior that they 
later regard as a mistake".1954 In respect of tobacco advertising and promotion, Professor Slovic 
submits that a considerable variety of tobacco advertising and other promotions have been 
designed to associate positive image ry and positive affect with the act of smoking. Additionally, he 
continues, the affective cues emanating from the social environment are powerful influences on 
smoking behaviour (for example, having a good time with friends and avoiding the risk of peer 
disapproval are examples of social factors in which affect or experiential thinking dominates any 
tendency for analytic or deliberative thinking).1955 Thus, Professor Slovic argues that tobacco 
companies invest considerable resources in the development of packa ges to ensure they appeal to 
young people, and that the feeling produced by brand images and associations can exert powerful 
influences on behaviours that are not consciously recognized.1956 Professor Slovic thus critiques 
Professor Steinberg's submission for  not "examining the role of billions of dollars of sophisticated 
marketing that creates the cachet that leads the young person, driven by the brain 's early 
maturing reward system, to consider smoking and leads that person 's friend to offer a cigarette in 
settings where smoking is socially attractive".1957 He also argues that Professor Steinberg "neglects 
to consider restricting the availability of brands and other marketing imagery that have been 
designed to exploit the vulnerability of immature brains by enha ncing the emotional appeal of 
tobacco products".1958 
7.727.   Another of Australia's experts, Dr Biglan also agrees with Professor Steinberg that the act 
of smoking is important to newly initiating youth because of "what it says to peers and to the 
adolescent him or h erself"1959 and that " until they become addicted, their primary motivations 
involve the fulfillment of psychosocial needs such as acceptance by their peers and a sense of 
popularity, fun, and excitement".1960 He also explains that emerging adulthood is also  affected by 
concerns over social acceptance and social attachment.1961 On this basis, Dr Biglan states that 
"when young people have or aspire to a self -image that is consistent with their image of a smoker 
they are more likely to intend to smoke or to become  a smoker", and that the young people on the 
margins of social in -groups are more likely to be rebellious and risk -taking.1962  
7.728.   Dr Biglan refers to studies that he explains "show that the image that young people have 
of smokers is an important influence on th eir smoking and that those who have or aspire to such 
an image or who find that image attractive become more likely to smoke" and that in this context, 
smoking can be a ticket to social acceptance.1963 Specifically, beginning to smoke a particular 
brand "may seem to be a useful move, to the extent that the brand is effectively associated in 
their minds with social acceptance and with social attributes, such as autonomy, maturity, and 
ruggedness".1964 Psychological needs that induce young people to smoke "include having a positive 
masculine or feminine image, reducing psychological distress, being rebellious, and sensation 
seeking"; adolescents high in these needs are more likely to smoke, tobacco companies seek to 
                                                
1953 Slovic Report , (Exhibit AUS -12), para. 31 (referring to  Epstein, S. (1994). Integration of the 
cognitive and the psychodynamic unconscious. American Psychologist, 49 , p. 716, not on the record in these 
proceedings).  
1954 Slovic Report , (Exhibit AUS -12), para. 46. 
1955 Slovic Report , (Exhibit AUS-12), para. 60. See also ibid. para. 90. 
1956 Slovic Report , (Exhibit AUS-12), paras.  101-102. 
1957 Slovic Report , (Exhibit AUS-12), para. 111. 
1958 Slovic Report , (Exhibit AUS-12), para. 114. 
1959 Biglan Report , (Exhibit AUS -13), para. 157 (quoting Steinberg Report , (Exhibit DOM/HND -6, p. 4)). 
1960 Biglan Report , (Exhibit AUS -13), para. 157. 
1961 Biglan Report , (Exhibit AUS -13), para. 21. 
1962 Biglan Report , (Exhibit AUS -13), paras.  29-30. 
1963 Biglan Report , (Exhibit AUS -13), paras.  26-32. 
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  associate their brands with the fulfilment of one or more of these needs, and youth -popular brands 
associate their brands with the achievement of one or more of these needs.1965  
7.729.   For Dr Biglan, whether branded packs in Australia's dark market will influence young 
people to initiate and continue smoking hinge s on whether features of branded packs have the 
kind of influence that other features of marketing have:  
[D]o they communicate to young people that the brand and smokers of a brand have 
social characteristics that young people aspire to, such as stylishnes s, popularity, 
excitement, and sex appeal? Do they influence the young person to believe that 
popular people smoke the brand? Do young people find the branded pack attractive? 
Do the packs communicate that the branded cigarette will be easy to smoke? Good 
tasting? Easy to stop smoking? To the extent that branded packs have these effects 
on young people, then branded packs are simply another facet of marketing and we 
can expect them to influence young people to try smoking or to continue smoking.1966 
7.730.   We note th e disagreement between the experts concerning whether these elements would 
cause an adolescent or young adult to initiate smoking because of the act of smoking itself, or 
whether branding adds something additional independent  of the act of smoking. As note d above, 
for Professor Slovic, branding does add something additional, namely "the cachet that leads the 
young person, driven by the brain's early maturing reward system, to consider smoking and leads 
that person 's friend to offer a cigarette in settings w here smoking is socially attractive".1967 
7.731.   We recall our findings above that branded packaging can act as an advertising or 
promotion tool in relation to tobacco products and the evidence before us, in particular the 
statements emanating from the tobacco indus try itself, indicating that branding on tobacco 
products, including packaging, can generate certain positive perceptions in relation to the product 
in the eyes of the consumer. We also noted that the use of particular packaging design features 
such as colo urs, graphic elements, texture, typography, opening mechanisms, and shapes has 
been documented as constituting an integral part of the use of branding on tobacco retail packs, 
for the purposes of creating a brand image and positive associations with the pr oducts.1968 
7.732.   In addition, it is apparent from a number of industry documents referred to in these 
proceedings that such branding efforts, including as applied to packaging, are intended to create 
images that would be expected to act inter alia on perceptions o f the function of tobacco use, 
described above, to which adolescents and youth have been identified as being particularly 
sensitive.  
7.733.   A "research and planning memorandum" from RJ Reynolds thus describes, inter alia, the 
psychological effects of smoking, which it identifies as "group identification", "stress and boredom 
relief", "self -image enhancement", and "experimentation".1969 The memorandum goes on to 
                                                
1965 Biglan Report , (Exhibit AUS -13), para. 33 (referring to N CI Tobacco Control Monograph No. 19, 
(Exhibit AUS -77); and US Surgeon General's Report 2012, (Exhibit AUS -76). 
1966 Biglan Report , (Exhibit AUS -13), para. 77. 
1967 Slovic Report , (Exhibit AUS-12), para. 111. 
1968 See paras.  7.660 -7.663  above.  
1969 RJ Reynolds Memo 1973, (Exhibit AUS -69), p p. 6-8. The memorandum  noted that cigarette 
marketing "should not in any way influence non -smokers to start smoking" but recognized that "many or most 
of the '21 and under' group will inevitably become smokers, and offer them an opportunity to use our brands". 
Ibid. p. 1. The m emorandum goes on to state that, "[f]or the pre -smoker and 'learner' the physical effects of 
smoking are largely unknown, unneeded, or actually quite unpleasant or awkward". It continues that "[t]he 
expected or derived psychological effects are largely res ponsible for influencing the pre -smoker to try smoking, 
and provide sufficient motivation during the 'learning' period to keep the 'learner' going, despite the physical 
unpleasantness and awkwardness of the period". Ibid . p. 2. The memorandum sets out that : 
 
Brands tailored for the beginning smoker should emphasize the desirable psychological effects of 
smoking, also suggesting the desirable physical effects to be expected later. Happily, then, it 
should be possible to aim a cigarette promotion at the begin ning smoker, at the same time 
making it attractive to the confirmed smoker. The information and outline in Table I then may be 
used as a basis for arriving at some specifications for new "youth" brands and for determining 
how they should be promoted.  
 
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  consider the "image a new brand aimed at the youth market should have" and elaborates that 
"product imag e factors" should " emphasize participation, togetherness, and membership in a 
group, one of the group's primary values being individuality", " be strongly perceived as a 
mechanism for relieving stress, tension, awkwardness, boredom, and the like", " be assoc iated with 
doing one's own thing to be adventurous, different, adult, or whatever else is individually valued", 
"be perceived as some sort of new experience, something arousing some curiosity, and some 
challenge", "be different from established brands used  by the over -thirty and perhaps even 
over-twenty -five groups" and "[m]ust become the proprietary 'in' thing of the 'young' group"; and 
"not be perceived as a 'health' brand".1970  
7.734.   Further evidence relating to the marketing of specific brands presented or refe rred to in 
these proceedings illustrates the role of brand marketing, including through packaging, in 
conveying the type of images and perceptions that youth are known to be sensitive to and that 
have been identified above as contributing to smoking initia tion. For example:  
 In a document entitled "Packaging Brief" for the Benson & Hedges brand, it was noted 
that "it is essential that the pack itself generates the optimum level of modernity, 
youthful image and appeal amongst ASU30 [Adult Smokers Under 30] co nsumers".1971 
Among the "Key Consumer Benefit[s]" identified is "[p]ositively radiates the personal, 
emotional values of an 'impassioned spirit' inside & outside".1972 It continues that 
"Benson & Hedges embodies a true impassioned spirit by: Understanding that i t takes 
strength to achieve what you want out of life[;] Supporting the true emotions of the 
human spirit[;]  Actively encourages person to person contact among impassioned people 
all over the world[;] Possessing a reputation for quality that is the foundat ion for its 
confident, progressive attitude".1973 
 In a 1990 Philip Morris document entitled "Marketing New Products in a Restrictive 
Environment", the proposition is for "an innovative packaging concept which projects a 
distinctive young masculine appearance" .1974 In addition, "non[ -]traditional trademarks" 
are noted as a "new product idea" with the "target market" being "young adult urban 
European and the trademarks that appeal to them / reflect their lifestyle today".1975 In 
respect of a "refill" product idea, the  presentation notes that the idea of refill "changes 
the smoking ritual" by using "the ultimate container: a newly designed exclusive case 
that is an expression of personal identity" and would "make[] the product more socially 
acceptable".1976 With respect to  a "made to measure" product idea, it is noted that 
"consumers today look for self[ -]fulfillment and are consciously choosing those products 
which fit their individual lifestyles".1977 
                                                                                                                                                  
Ibid. p. 4. These "psychological effects" were defined in the paper as "group identification" (i.e. "participating, 
sharing, conforming, etc."), "stress and boredom relief" (i.e. "buys time, valid interruption, bridges awkward 
times and situations, something t o do, etc.") , "self -image enhancement" (i.e. "identification with valued 
persons, daring, sophisticated, free to choose, adult, etc.") and "experimentation" (i.e. "try something new, 
experiment, etc"). Ibid. pp. 6-8. 
1970 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. It further notes that the "name and appearance of 
the product will here become crucial in establishing the desired image". Ibid.  p. 10. It exemplifies this by 
noting that "the name chosen should have a double meaning" or be "one which evokes different but desirable 
responses from different age groups". It exemplifies this with reference to the Marlboro "western theme", 
which "suggests ind ependence, clean air, open spaces and freedom to the youth group, while at the same time 
suggesting the 'good old days', hard work, white hats over black hats, and the like to the older generation".  
Ibid. p. 10. 
1971 British American Tobacco, Packaging Brief 2001, (Exhibit AUS -23), p. 1. 
1972 British American Tobacco, Packaging Brief 2001, (Exhibit AUS -23), p. 2. 
1973 British American Tobacco, Packaging Brief  2001, (Exhibit AUS -23, p. 2. The advertising brief further 
identifies the "brand character" as " Inner Substa nce & Outward Style[;] Inner Confidence & Outward 
Success[;] Inner Imagination & Outward Expressiveness[;] Inner Determination & Outward Achievement[;] 
Inner Warmth & Outward Generosity[;] Inner Motivation & Outward Optimism[;] Inner Passion & Outward 
Energy[;] Inner Pride & Outward Joy[;] Inner Quality & Outward Reputation".  Ibid. p. 2. 
1974 Philip Morris, "Marketing New Products in a Restrictive Environment", Marketing Meeting, Naples, 
Florida (June 1990), Bates No. 2044762173/2364, (Philip Morris Marketing Meeting 1990), (Exhibit AUS-96), 
p. 12. 
1975 Philip Morris Marketing Meeting 1990, (Exhibit AUS -96), p. 24. 
1976 Philip Morris Marketing Meeting 1990, (Exhibit AUS -96), pp. 29 and 31.  
1977 Philip Morris Marketing Meeting 1990, (Exhibit AUS -96), p. 33. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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   In a 1992 Philip Morris document entitled "Opportunities in packaging inno vation" the 
"value of new" is identified as "looks different", "I'd have something different", "looks 
more contemporary; now; 90'[s]", "makes me feel special, makes me feel my brand is 
paying attention to me", "creates eye -appeal", "draws attention (jealou sy) from others", 
"renews my attention to what I have in my hand", "rekindles attachment, excitement 
about my brand", and "if I'm paying full price, I should be getting something creative, 
exciting, different".1978  
 In a document in respect of Alpine cigarettes by Philip Morris in 2000, the author noted 
that "smokers of this product are seen" as "[s]ophisticated", "[f]ashion conscious", 
"[y]ounger adult", "[c]onfident", "[o]utgoing/sociable", "[m]ore like me", "[m]ost 
popular", and "[f]airly innovative ".1979 
 In another document prepared for Philip Morris in 1994 , in discussing the Alpine smoker 
and "[w]hat … she want[s]", reference is made to: a "[f]eminine, upmarket social 
image" (elaborated in the following terms: "[s]ophistication", "[b]alanced success  as 
woman", and it is noted that "[t]he white filter & pack give this"), "emotional 
gratification" (elaborated in the following terms: "[w]ind down, regain control & 
confidence"; "[l]ook and feel attractive").1980 Under the heading "Repositioning Alpine for 
the 90's", a "[m]ove toward the Princess Image" is noted and equated with "[s]ofter, 
less driven (balance), less masculine, a bit more dreamy".1981 In respect of packaging 
and type styles, it is noted that "[i]deally want a cross between [][r]elaxed, trendy 
modernity of Squiggles" and "[r]efined quality image of Double Line".1982 
 In a Camel advertising development "White Paper", it is noted that: CAMEL's "current 
existing market image (i.e., brand perceptions, not advertising perceptions) includes 
aspects that are  highly consistent with the wants of younger adult males, and have a 
strong fit with what CAMEL has always stood for".1983 These aspects were said to include 
"independence", "doesn't follow crowd", "lives by its own beliefs", "stands up for beliefs", 
"not afr aid to express individuality", "enjoys being different", and "won't settle for 
ordinary".1984  
 Australia also submits a Philip Morris document entitled "Virginia Slims Rounded Corners 
Name/Pack Test", which sets out the results of a quantitative research stud y in respect 
of a proposal to change the packaging of Virginia Slims.1985 It notes that, in interviews 
conducted in fifteen malls in which different pack designs were tested, the "full flavour 
Modified Rounded Corners pack and lights Rounded Corners pack were  more likely to be 
associated with positive image attributes such as 'innovative', 'pack my friends would 
carry', 'sophisticated' and 'good value'".1986 
 In a pack test for Merit for Philip Morris, in "an effort to revitalize the Merit brand", 
research was con ducted to obtain reactions to alternative packages for different brand 
variants. The study states that the objective of the research "was to determine the 
relative appeal of each pack among Merit and competitive smokers, as well as to learn 
about the image ry and product attributes communicated by each pack".1987 Across all 
three variants, three packaging alternatives were ranked against a range of perceptions, 
                                                
1978 Philip Morris, Opportunities in Packaging Innovation , (Exhibit AUS -95), p. 3. 
1979 Philip Morris, Alpine Cigarettes , (Exhibit AUS-107), p. 12. 
1980 Colmar Brunton , Alpine Creative Presentation, (Exhibit AUS -108), p p. 9-10. (emphasis omitted)  
1981 Colmar Brunton , Alpine Cr eative Presentation , (Exhibit AUS -108), p. 11. 
1982 Colmar Brunton , Alpine Creative Presentation , (Exhibit AUS -108), p. 19. 
1983 Camel Advertising Development  White Paper, (Exhibit AUS-197), p. 3. 
1984 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
1985 Philip Morris, Virginia Slims Rounded Corners Name/Pack Test, (Exhibit AUS-168), p. i. 
1986 Philip Morris, Virginia Slims Rounded Corners Name/Pack Test, (Exhibit AUS-168), p p. i and iv. Full 
flavour cigarettes in "the Modified Rounded Corners pack were significantly more likely to be described as 'light' 
versus the Direct Translation Rounded Corners and Standard Box packs". Of the names under consideration for 
the rounded corners pack, "Sleek Box and Contour Box were considered most appealing and ap propriate in 
general", and "were aligned with more favourable imagery attributes including 'stylish', 'innovative', 
'contemporary', 'unique', 'classy sounding' and 'sophisticated'".  Ibid. p. v. 
1987 Philip Morris, Merit Pack Test, (Exhibit AUS-170), p. i. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  including whether the pack is "[f]or smokers my age", "[h]as a fresh, revitalized look", 
"[c]lassy lo oking", "[e]ye -catching", "[a]ttractive", "[h]igh quality", "[c]ould become 
popular among [Young Adult Smokers]", "[f]or someone like me", 
"[m]odern/contemporary", "[a] pack I'd like to carry", "[t]rendy", "[c]ool/hip", 
"[b]oring/dull", "[g]eneric", "[u]na ttractive" and "[c]heap looking".1988 
 In a study for RJ Reynolds concerning the Salem brand family, participants were asked 
to indicate how well they thought various statements described particular brands, 
including whether the brand is: "bold and dynamic"; " changing for the better"; 
"intriguing"; "up and coming"; "progressive"; and "for young adult urban smokers". 
Participants were also asked whether the brand "[r]eflects an attitude you like", "[h]as a 
mystical feel", and whether they "[w]ould recommend to a dult friend who smokes".1989 
 In a 1990  Philip Morris marketing presentation, in respect of the Longbeach brand, it is 
noted that "[s]ome of the reasons for the brand's success have been identified in 
qualitative research" and that "[i]t's [ sic] packaging and advertising have been found to 
project a personality that many super value smokers aspire to, [p]articularly its attitude 
of freedom, escape, mildness and its genuine mainstream brand value".1990 
7.735.   This evidence indicates to us that the tobacco industry and its  marketing agencies consider 
that tobacco packaging (including word, design, shape, and other features) can communicate a 
wide range of imagery relating not only to the characteristics of the product but also projecting 
images about its consumer, such as m odernity1991, a youthful image1992, "Inner Substance & 
Outward Style", "Inner Confidence & Outward Success"1993, "an expression of personal 
identity"1994, "[c]onfident", "[o]utgoing/sociable", "[m]ost popular"1995, can " emphasize 
participation, togetherness, and membersh ip in a group"1996; "individuality"1997; a way of " relieving 
stress, tension, awkwardness, boredom, and the like"1998; "be associated with doing one's own 
thing to be adventurous, different, adult, or whatever else is individually valued"1999; "be perceived 
as some sort of new experience, something arousing some curiosity, and some challenge"2000; 
make the user "feel special"2001; can "draw[] attention (jealousy) from others"2002; "emotional 
gratification"2003; a way to "[l]ook and feel attractive"2004; "[p]layful[ness], social adv enture & 
exertion"2005; a sense of being "stylish"2006, "[u]nique"2007, "[c]ool" or "hip"2008; "[t]raditional"2009; 
"[o]ld -fashioned"2010; "tough/rugged"2011, "trendy"2012, "expensive looking"2013, "cheap looking"2014, 
                                                
1988 Philip Morris, Merit Pack Test: Final Report, (Exhibit AUS-170), p. 16. 
1989 RJ Reynolds , Salem A&A Study, (Exhibit AUS-171), p. 95. 
1990 Philip Morris, 1990 Marketing Presentation, (Exhibit AUS-544), p. 18. 
1991 British American Tobacco, Packaging Brief 2001, (Exhibit AUS-23), p p. 1-2; Philip Morris, 
Opportunities in Packaging Innovation , (Exhibit AUS-95), p. 12; and Philip Morris, Merit Pack Test, (Exhibit 
AUS-170), p. 16. 
1992 British American Tobacco, Packaging Br ief 2001 , (Exhibit  AUS-23), p. 1. 
1993 British American Tobacco, Packaging Brief 2001 , (Exhibit  AUS-23), p. 2. 
1994 Philip Morris Marketing Meeting 1990, (Exhibit AUS -96), p. 29. 
1995 Philip Morris, Alpine Cigarettes, (Exhibit AUS -107), p. 12. 
1996 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. 
1997 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. 
1998 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. 
1999 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. 
2000 RJ Reynolds Memo 1973, (Exhibit AUS -69), p. 9. 
2001 Philip Mor ris, Opportunities in Packaging Innovation , (Exhibit AUS-95), p. 3. 
2002 Philip Morris, Opportunities in Packaging Innovation, (Exhibit AUS-95), p. 3. 
2003 Colmar Brunton , Alpine Creative Presentation, (Exhibit AUS -108), p. 10. 
2004 Colmar Brunton , Alpine Creative Presentation, (Exhibit AUS -108), p. 10. See also Philip Morris, New 
Parliament Pack Test, (Exhibit AUS-169), p. 13. 
2005 Colmar Brunton , Alpine Creative Presentation, (Exhibit AUS -108), p. 10. 
2006 Philip Morris, Virginia Slims Rounded Corners N ame/Pack Test, (Exhibit AUS-168), p. v; Philip 
Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 13; and Philip Morris, Merit Pack Test , 
(Exhibit  AUS-170), p p. 16-17. 
2007 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 13. 
2008 Philip Morri s, New Parliament Pack Test, (Exhibit AUS-169), p. 13; and Philip Morris, Merit Pack 
Test, (Exhibit AUS -170), p p. 16-17. 
2009 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 13; and Philip Morris, Merit Pack 
Test, (Exhibit AUS -170), p p. 16-17. 
2010 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p p. 13 and 41 -42. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "prissy"2015, "bold and dynamic"; "intriguing"; "up and coming"; "prog ressive"2016; and a notion of 
"independence"2017, "doesn't follow crowd"2018, "lives by its own beliefs"2019, "stands up for 
beliefs"2020, "not afraid to express individuality"2021, "enjoys being different"2022, "won't settle for 
ordinary"2023; "freedom"2024, "escape".2025  
7.736.   This evidence indicates to us that designers of packaging innovations in the tobacco 
industry are conscious of the power of branding, including design and other elements of 
packaging, to elicit certain responses in the minds of consumers and imbue those pr oducts with 
images with which the prospective consumer would want to be associated. Specifically, the 
evidence above suggests that tobacco packaging seeks to capture images and associations that 
are appealing to the consumer in respect of what that package  says about them  as well as the 
image of the owner that those packages conveys or elicits . In this respect, we agree with Professor 
Fong that:  
Product differentiation is key to tobacco packaging in that it increases appeal through 
package design (graphical and structural) aimed at making tobacco products 
attractive and aesthetically pleasing to the eye and engendering perceptions of 
positive prod uct quality characteristics, identity and personality characteristics , and 
positive taste perceptions.2026 
7.737.   The experts' views and tobacco industry documents summarized above provide evidence 
that the images and messages conveyed by tobacco packaging are of su ch a nature as to be 
capable of conveying a belief that tobacco use can fulfil certain needs, or create certain 
associations with the user. Moreover, as identified above, it is recognized that youth and young 
adults are particularly vulnerable to the initi ation of tobacco use in the event that they believe 
those needs can be fulfilled through tobacco use. Taken together, therefore, the evidence before 
us supports the view that the imagery and associations, with which tobacco products may be 
imbued by virtue  of their packaging, are of such a nature as to engender a belief that their use will 
attribute certain qualities to the user, and that adolescents are particularly vulnerable to acting on 
the basis of such beliefs by virtue of the nature of adolescent dec ision-making processes, as 
summarized above.2027 
7.738.   Notwithstanding this observation, we note the complainants' arguments that the impact of 
such branding, and the positive associations that it may generate, is limited to secondary demand 
(as opposed to primary demand).2028 Honduras describes this distinction as follows:  
                                                                                                                                                  
2011 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 41. 
2012 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 41; and Philip Morris, Merit Pack 
Test, (E xhibit  AUS-170), p p. 16-17. 
2013 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p p. 41-42. 
2014 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p. 41. 
2015 Philip Morris, New Parliament Pack Test, (Exhibit AUS-169), p p. 41-42. 
2016 RJ Reynolds , Salem A&A Study, (Exhibit AUS-171), p. 95. 
2017 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2018 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2019 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2020 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2021 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2022 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 3. 
2023 Camel Advertising Development White Paper, (E xhibit AUS-197), p. 3. 
2024 Philip Morris, 1990 Marketing Presentation, (Exhibit AUS-544), p. 18. 
2025 Philip Morris, 1990 Marketing Presentation, (Exhibit AUS -544), p. 18. 
2026 Fong Report , (Exhibit AUS -14), para. 165. (emphasis added)  
2027 We also note that the evid ence referred to in paragraphs 7.732 -7.736  indicates that such influence 
can be created by the trademark, but also a var iety of other design elements, including, for example, colours 
and shapes. Furthermore, such colours and shapes were still permissible prior to the introduction of the 
TPP measures  and were therefore, in our view, still capable of communicating these same messages. See also 
Biglan Report  (Exhibit AUS -13), Fig ure 6; United States v. Philip Morris, (Exhibit AUS -71), para. 2653 (quoting 
the US Surgeon General's 1994 report); and Chantler Report (Exhibits AUS -81, CUB -61), paras.  3.1-3.6. 
2028 Honduras's first writ ten submission, paras.  448-454; and Honduras's second written submission, 
para. 646. See also Honduras's second written submission, paras.  208-209; and Dominican  Republic 's first 
written submission, para. 683. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  As observed by Professor Winer, when assessing the effects of brands on demand for 
a product, it is essential to consider the distinction between primary and secondary 
demand. Primary demand refers to the total demand for products within an industry 
or product category. In the cigarette market, primary demand is the volume of 
cigarettes that consumers buy across all brands. Secondary demand is [a] measure of 
demand for a particular brand within a mar ket. In the cigarette market, secondary 
demand refers to the volumes of consumption of a specific brand, e.g. Dunhill, 
Marlboro, etc.2029 
7.739.   The complainants refer, in respect of this distinction and the role of marketing in respect of 
primary and secondary dema nd, to expert reports by Professors Winer and Steenkamp. Professor 
Winer argues that i n a mature market, like that for cigarettes, "branding does not affect the 
primary demand or market size but affects secondary demand, consumer choices within the 
market" .2030 For Professor Winer, a key reason that branding is most effective as a means of 
generating secondary demand in a mature market is that consumers already know about the 
product, its perceived benefits and disadvantages, and may be experienced repeat cust omers.2031 
In such a market, brand communications aid competitors in gaining share from other participants 
in the industry, rather than informing consumers of the existence of the product.2032 Professor 
Winer adds that the majority of consumers may not be willin g to switch brands, but the fact that 
some consumers will do so is a powerful incentive for brands to fight to maintain or increase their 
share, such that "[s]witching or the threat of switching is the essence of a competitive 
marketplace because brands mu st strive to improve their product, service and/or value proposition 
to grow or, at least, protect their share and continue to be profitable and provide value to their 
shareholders".2033 Professor Winer refers to a number of studies and notes that  "given adve rtising 
campaigns do not increase aggregate, primary demand in mature industries, the trademarked 
package features certainly cannot increase aggregate demand, particularly in the context of the 
known health risks and strong anti -smoking environment", espec ially given the lack of support 
from any of the other "usual promotional contexts".2034 
7.740.   Professor Steenkamp, though rejecting the notion that brand packaging is a dedicated 
advertising instrument, argues that if packaging has some advertising function, the ef fect of 
advertising on primary demand2035 is overstated.2036 He reviews a number of econometric studies 
of advertising elasticities to examine the extent to which increases in expenditures on tobacco 
advertising affect demand for tobacco products. Concluding tha t advertising has at best a 
negligible effect on primary demand, he continues that firms nonetheless advertise in order to 
increase inter -brand sales, to contribute to brand differentiation, to charge a premium price for 
their brands, and to create barrier s to entry for new entrants.2037  
                                                
2029 Honduras's first written submission, para. 450 (referring to  Winer Report , (Exhibit UKR -9), 
para. 28). See also Dominican  Republic 's first written submission, para. 683 ( referring to  Steenkamp Report , 
(Exhibit DOM/HND -5), para. 115; and Winer Report , (Exhibit UKR-9), p. 32). Honduras and the 
Dominican  Republic both rely upon the Winer Report, (Exhibit UKR -9). See Honduras's communication to the 
Panel of 8 July 2015; and Dominican  Republic 's responses to Panel questions following the first substantive 
meeting, para. 1. 
2030 Winer  Report , (Exhibit UKR-9), para. 29. 
2031 Winer Report , (Exhibit UKR -9), para. 29. 
2032 Winer Report , (Exhibit UKR -9), para. 30. 
2033 Winer Report , (Exhibit UKR -9), para. 31. 
2034 Winer Report , (Exhibit UKR -9), paras . 32-34. 
2035 Professor Steenkamp also uses the expressi on "category demand".  
2036 Steenkamp Report , (Exhibit DOM/HND -5), para. 90. 
2037 Steenkamp Report , (Exhibit DOM/HND -5), paras.  90-112. We also note Professor Neven's argument 
that, from an economic perspective, branding as a specific type of marketing strategy c an, first, increase the 
willingness to pay of consumers for a particular type of product; and, second, may increase the inclination of 
consumers to purchase a particular brand inside that product grou p. Professor Neven argues that, generally 
speaking, marketing measures are more likely to lead to market expansion effects when a product is new and 
when consumers are still relatively uninformed about its characteristics, and that over the lifecycle of a 
product, market expansion elements of branding (primary demand) tend to become less important, and are 
replaced by business stealing effects (secondary demand). When products "are mature, branding may in fact 
have hardly any market expansion value anymore at all". Neven Report , (Exhibit UKR -3) (SCI), p p. 20-25. See 
also Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  73-80. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.741.   Australia relies on expert reports by Professors Chaloupka and Tavassoli to contest these 
assertions. Specifically, Professor Chaloupka surveys various reports by, inter alia, the US Surgeon 
General, USIOM , and the US Nationa l Cancer Institute concerning the role of advertising and 
promotion on tobacco use (and specifically initiation), and critiques the complainants' experts for 
their failure to take into account such information. He also critiques the bases upon which they 
reach their conclusions on the effects of advertising.2038 Professor Tavassoli argues that advertising 
can be effective in stimulating primary demand in mature categories, and that brand -level effects 
can affect perceptions of product categories as a whole and  therefore can affect primary 
demand.2039  
7.742.   Australia refers to internal tobacco industry documents, findings by the United States 
District Court for the District of Columbia in United States v . Philip Morris, as well as reports by the 
US Surgeon  General , the US National Cancer Institute, the USIOM  and the WHO, in support of a 
causal link having been established between tobacco marketing and tobacco use, including the 
initiation of tobacco use.2040  
7.743.   We take note of the econometric studies referred to by Professor Steenkamp suggesting an 
"at best negligible impact" of advertising on primary demand for tobacco products.2041 However, 
we also note the limited ability of econometric evidence based on aggregate data to detect 
increases in consumption resulting from increase d advertising, as suggested in an analysis by the 
World Bank, as cited and co -authored by Professor Chaloupka.2042 Accordingly, we consider it 
appropriate to take due account also of other relevant evidence before us that may inform the 
potential impact of br anding features on tobacco packaging on demand for, and consumption of, 
tobacco products.  
7.744.   In this respect, the evidence before us makes clear that new smokers must continuously 
be recruited to maintain the primary demand for tobacco products at a level th at will sustain the 
industry and "replace" those who cease to use the product because they have quit or died. As the 
US Surgeon General has observed:  
                                                
2038 Chaloupka Public Health Report , (Exhibit AUS -9), paras.  57-88.  
2039 Tavassoli Report , (Exhibit AUS -10), paras.  42-53. 
2040 Australia' s first written submission, paras.  62-65. 
2041 We also note in this respect that the complainants have presented these arguments as an 
alternative to their main contention that packaging cannot be considered to act as advertising.  
2042 See Chaloupka Public Healt h Report, (Exhibit AUS -9), para. 79 (quoting Jha and Chaloupka 1999, 
(Exhibit AUS -51), p p. 49-50): 
  
These studies may be misleading for the following reasons. First, economic theory suggests that 
advertising will have a diminishing marginal impact on dema nd; that is, when advertising for a 
product increases, consumers will gradually respond less and less to additional advertising, and 
ultimately, advertising will stop making any impact on them at all. Advertising in the tobacco 
industry is at a relatively high level, around 6 per cent of sales revenue, about 50 per cent higher 
than the average industry. Thus any increased consumption that may result from increased 
advertising is likely to be very small and difficult to detect. This does not mean that, in th e 
absence of advertising, consumption would necessarily be as high as it is in the presence of 
advertising - only that the marginal impact of an increase in advertising is negligible. Second, 
data that record the impact of advertising on sales are usually highly aggregated for relatively 
long time periods, for all advertisers, in all media, and often over large populations. Any subtle 
changes that might be apparent at a more disaggregated level of analysis are therefore 
obscured. In studies that use less ag gregated data, researchers find more evidence of a positive 
effect of advertising on consumption, but such studies are expensive and time -consuming and, 
therefore, rare.  
 
We also note the "tropicana" example provided by Professor Steenkam in support of his  argument that 
the effects of a packaging change are limited to secondary demand. Professor Steenkamp expl ains that  a 
change in pack appearance in respect of the brand "Tropicana" led some consumers to shift to other brands, 
which Professor Steenkamp suggests indicates that the impact of such change is on secondary rather than 
primary demand for the product (in that cas e, orange juice). (see Steenkamp Report , (Exhibit DOM/HND -5), 
paras.  58-59). We note however the very different circumstances of that situation, as compared to the 
application of uniform packaging across all brands: in that example, competing products cont inued to be 
available to the consumer in their familiar packaging, and some consumers switched to those other brands.  As 
Professor Steenkamp acknowledges, this is a very different situation from that of tobacco plain packaging, 
where all brands are plain a nd there is no opportunity to switch to another product that has not been affected 
by the same change in packaging.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Young people are a strategically important market for the tobacco industry. Since 
most smokers try their f irst cigarette before age 18, young people are the chief source 
of new consumers for the tobacco industry, which each year must replace the many 
consumers who quit smoking and the many who die from smoking -related 
diseases.2043 
7.745.   The evidence further indicates that young adult smokers are a key target of brand 
marketing in light of their high degree of brand loyalty to their first brand choice. That this age 
group has a high degree of brand loyalty to their first brand choice has been recognized by the 
tobacco i ndustry.2044 Indeed, the industry has noted that "the aging of younger adult smokers 
combined with their brand loyalty guarantee the growth of a brand for decades", such that "[t]he 
future success of any cigarette brand is driven by its ability to attract you nger adult smokers, 
between the age of 18 and 24 years old", and that "smokers aged 18 -24 determine the future 
trends of the tobacco industry".2045 Indeed, as noted by the US National Cancer Institute:  
A successful tobacco brand must attract young smokers who  will ideally (from the 
manufacturer's perspective) go through a series of stages leading from 
experimentation, to loyalty to a particular brand, to increased consumption as they 
age and become mature smokers.  Because every day approximately 4,000 
adolesce nts between the ages of 12 and 17 initiate cigarette smoking,  the early years 
are critically important in helping young adult smokers settle on a brand for life, thus 
helping tobacco companies gain total brand share.2046 
7.746.   Taking these elements into account, we  agree with Professor Tavassoli's assessment that 
"[t]he critical question, from the perspective of product adoption, is not whether a category is 
mature or not, but whether a consumer is new to the category".2047 The evidence mentioned 
above indicates that i t is essential that new users be recruited to smoke in order to sustain the 
industry, and that youth are strategically important in this regard given that adolescence 
represents the age at which initiation generally occurs2048, and because of the high degree of 
brand loyalty that young people exhibit over the course of their tobacco use.  
7.747.   In light of the above, we are not persuaded that the impact of branding of tobacco 
produ cts, and the positive associations that it may generate, is limited, as the complainant s argue, 
to secondary demand. We are therefore also not persuaded that the evidence before us, taken as 
a whole, demonstrates, as the complainants argue, that tobacco packaging could not play a role in 
influencing the decision to smoke, and specifically on  smoking initiation, in particular among 
adolescents and young adults, by virtue of the positive perceptions and associated product appeal 
created by such packaging.  
7.748.   We further note that some of the evidence before us suggests that the age of initiation o f 
LHM cigar  smokers is significantly higher than that of cigarette smokers.2049 Cuba refers to an 
online survey of the Australian cigar market (the "Vision One Report")2050 which found that the 
majority of LHM cigar  smokers initiate when they are adults. Accordi ng to this report, of those 
sampled, the mean age of initiation in Australia for smoking LHM cigar s was found to be 31.1 
years, as compared to 17.7 years for cigarette initiation, and the modal age of LHM cigar  initiation 
                                                
2043 US Surgeon General's Report 1994, Executive Summary, (Exhibit AUS -73), p. 8. See also Tavassoli 
Report , (Exhibit AUS -10), para. 50 (stati ng that "[p]rimary demand also depends on the ability to attract new 
consumers without whom it will shrink in the long term"); and US Surgeon General's Report 2012, (Exhibit 
AUS-76), p. 541. 
2044 See Camel Advertising Development White Pape r, (Exhibit AUS-197), p. 1. 
2045 Camel Advertising Development White Paper, (Exhibit AUS-197), p. 1. (emphasis omitted)  
2046 NCI Tobacco Control Monograph No. 19, (Exhibit AUS -77), p.  159. 
2047 Tavassoli Report, (Exhibit AUS -10), para.  52. 
2048 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 134; US Surgeon General's Report 1994, 
(Exhibit CUB -66), p. 51. See also US Surgeon General's Report 1994, Executive Summary, (Exhibit AUS -73), 
p. 9. 
2049 Cuba's first written submission, para. 244.  
2050 Vision One Report, (Exhibit CUB -79), para. 11 (referenced in Cuba's first written submission, 
para. 245 et seq.).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  in Australia was recorded as 30 ye ars, as compared to 18 years for cigarette initiation.2051, Cuba 
adds that a statistical analysis of the results of the Vision One Report shows that only 2% of LHM 
cigar smokers started to regularly smoke LHM cigar s under 18, and only 30% by the age of 24.2052 
Data and analysis by the USSG in its 2014 report indicate that cigar use among youth and 
adolescents continued to follow a similar pattern.2053 
7.749.   Cuba notes that the Vision One Report acknowledges that the data it collected on cigarette 
initiation is not necessa rily representative of the cigarette smoking population in Australia as it was 
looking at a subset of the cigarette smoking population, i.e. current LHM cigar  smokers who have 
ever smoked cigarettes on a regular basis.2054 Therefore, Cuba also relies on stati stics on initiation 
presented by the 1994 US Surgeon General's Report to show the same patterns of behaviour with 
regard to cigarette smokers.2055 According to the 1994 US Surgeon General's Report, as regards 
the age of initiation, the data shows that whilst 53% of persons who had ever smoked a cigarette 
daily began smoking cigarettes daily before they reached 18, only 2% of persons who currently 
smoke LHM cigar s had started regularly smoking LHM cigar s by the same age. By age 29, almost 
all (98.1%) of persons  who had ever smoked cigarettes daily had begun smoking while less than 
half (49%) of persons who currently smoke LHM cigar s had started regularly smoking those 
products.2056 
7.750.   Cuba adds that smokers of LHM cigar s are significantly older than smokers of 
cigaret tes.2057 Of the respondents to the Vision One survey (all of whom answered that they 
currently smoke LHM cigar s on a regular basis), only 5% were aged between 18 and 25, whilst the 
majority (47.1%) were between 35 and 54 years of age (with 66.9% aged 35 or ab ove).2058 By 
contrast, of the respondents to the 2013 Victorian Smoking and Health Survey  (VSHS) , of whom 
86.7% smoked factory made cigarettes and only 2.6% did not smoke cigarettes, 26.1% were aged 
between 18 and 29, 42.2% were aged between 30 and 49, and 31.7% were aged 50 or above.2059 
7.751.   According to Cuba, the later initiation age range for consumers of LHM cigar s is significant 
because of what is known about tobacco initiation.2060 The US Surgeon General's 2012 Report 
concluded that tobacco prevention efforts sh ould be focused on youth because nearly all tobacco 
use begins in childhood and adolescence (88% of adult smokers who smoke daily report that they 
                                                
2051 Cuba's first written submission, para. 246 ( referring to  Vision One Report, (Exhibit CUB -79), 
paras.  14-15, charts 2 -3). Further, Cuba argues  that the Vision One Report shows that there is a sharp and 
steep incline in cigarette initiation as age progresses and a more moderate curve in initiation for LHM Cigar 
smoking, which is indicative of the finding that, of the survey respondents who had ev er smoked cigarettes 
regularly, 80% started smoking cigarettes when they were under 19 years of age, whereas a similar 
percentage of LHM Cigar smokers (69%) did not start smoking LHM Cigars regularly until the ages of 20 to 39.  
See also Cuba's first writte n submission, para. 247 ( referring to  Vision One Report, (Exhibit CUB -79), para. 16, 
chart 4).  
2052 Cuba's first written submission, para. 248 ( referring to  Vision One Report, (Exhibit CUB -79), 
para. 17). This compared to just over half (52%) of those who hav e ever smoked cigarettes started smoking 
them regularly when they were under 18, whilst almost all (92%) had started smoking them regularly by the 
age of 24.  
2053 See US Surgeon General 2014 report, (Exhibit AUS -37), page 735.  
2054 Cuba's first written submissio n, para. 249 ( referring to  Vision One Report, (Exhibit CUB -79), 
para. 18). 
2055 Cuba's first written submission, para. 249 ( referring to  US Surgeon General's Report 1994, (Exhibit 
CUB-66)). 
2056 Cuba's first written submission, para. 250 ( referring to  US Surgeon General's Report 1994, (Exhibit 
CUB-66), paras.  19-22, Chart 6).   
2057 Cuba's first written submission, para. 251. 
2058 Cuba's first written submission, para. 251 ( referring to  Vision One Report, (Exhibit CUB -79), 
para. 9(a)(ii) and Appendix I).  
2059 Cuba's first written submission, para. 251 ( referring to  Tobacco in Australia 2012, CUB Excerpts, 
(Exhibit CUB -13), Chap.  1, p. 3 (Methods), p. 5 (Table 1), and p. 6 (Discussion)). This was a telephone survey 
undertaken with adults aged over 18 residing in t he Australian state of Victoria, where just under one -quarter 
of the Australian population reside.  
2060 Cuba's first written submission, para. 252. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  started smoking by the age of 18 years)2061 and the Chantler Report also concluded that "most 
smokers become add icted when they are children or young adults".2062 
7.752.   Accordingly, Cuba concludes that, as LHM cigar s are hardly smoked by youth, and since 
older smokers are significantly less likely to be susceptible to plain packaging, regulating the 
appearance of 25% of the front surface of LHM cigar  packaging is unlikely to make any 
incremental contribution to reducing initiation levels in Australia for LHM cigar s.2063 Cuba notes 
that legislative proposals in the European Union and the United Kingdom reflect these demographic 
realities.2064 Cuba argues that this must have been based on data collated by the UK Office for 
National Statistics, which showed that in 2011 whilst 18% of people aged 16 to 19 smoked 
cigarettes, only 0.2% of this age group smoked cigars, and that in June 201 4 "almost all cigar 
smokers [we]re  … over 25 years of age".2065 
7.753.   In response, Australia points out that Cuba's own evidence indicates that 30% of smokers 
of large handmade (LHM) cigars started to smoke before the age of 242066, and that nearly half of 
all LHM cig ar smokers surveyed for the Vision One Report commissioned by Cuba had started 
smoking these products in their 20s.2067 Australia adds that when coupled with initiation rates of 
other cigar products such as small cigars and cigarillos, cigars are no longer th e domain of 
"traditional male smokers". Rather, cigar products are increasingly associated with an upscale 
status, luxury, affluence, sophistication and style, and the image of cigar smokers has adapted in 
recent years to reflect the changing consumer mark et.2068 This includes innovations such as the 
release of exclusive cigar tubes, brightly coloured "foil fresh" packaging and presentation in 
brightly coloured boxes.2069 Australia adds that consumers often keep these specialised cigar 
boxes, displaying them long  after purchase2070, and that the tobacco industry is well aware of the 
importance of product packaging for cigar products.2071 
7.754.   The evidence before us thus suggests that certain age and demographical differences 
exist, which might reduce the relevance of youth i nitiation for cigars, in particular LHM cigars 
                                                
2061 Cuba's first written submission, para. 252 ( referring to  US Surgeon General's Report 2012, CUB 
excerpts, (Exhibit CUB -26), p p. 3 and 8.  
2062 Cuba's first written submission, para. 252 ( referring to  Chantler Report, (Exhibits AUS -81, CUB -61), 
para. 6.11.  
2063 Cuba's first written submission, para. 254. 
2064 Cuba's first written submission, para. 255. The European Comm ission's proposal for a Revised 
Tobacco Products Directive currently permits European Union Member States to exempt various non -cigarette 
tobacco products, including cigars of all types, from requirements imposing increased graphic health warnings 
and rest ricting the use of certain flavourings as these products "are mainly consumed by older consumers, 
while the focus of this proposal is to regulate tobacco products in such a way as they do not encourage young 
people to start using tobacco".  Cuba's first wri tten submission, para. 255 ( referring to  European Commission , 
"Questions & Answers: New Rules for Tobacco Products", Memo/14/134 (26 February 2014 ), (Exhibit 
CUB-38)). Likewise, the public consultation document concerning the UK proposal to introduce regul ations 
requiring standardiz ed packaging of tobacco products explains that the proposed regulations are not intended 
to cover cigars, which are classed as a "specialist tobacco product" "given their low rates of use, particularly by 
young people".  Cuba's fi rst written submission, para. 255 ( referring to  UK Department of Health, "Consultation 
on the Introduction of Regulations for Standardised Packaging of Tobacco Products", June 2014 (Exhibit 
CUB-67), para. 5.12)  
2065 Cuba's first written submission, para. 255 (referring to  UK Department of Health, "Consultation on 
the Introduction of Regulations for Standardised Packaging of Tobacco Products", June 2014,  (Exhibit CUB -67), 
para. 5.10, in turn referring to the Office for National Statistics website (2013), Opinions and Lifestyle Survey, 
Smoking Habits Amongst Adults, 2012).  
2066 Australia's first written submission, para. 160 ( referring to  Cuba's first written submission, 
para. 248).  
2067 Australia's first written submission, para. 160 ( referring to  Cuba's first w ritten submission, 
para. 250).  
2068 Australia's first written submission, para. 160 ( referring to  Wenger et al. 2001, ( Exhibit AUS -182), 
p. 279; and Jamner 1999, (Exhibit AUS -183), p. 188).  
2069 Australia's first written submission, para. 82 (referring to  Swedis h Match , New Launch on Game , 
(Exhibit AUS -99), p. 5; Swedish Match, New Products, (Exhibit AUS -100), p. 23; and Swedish Match , Cigars for 
a Trend -Conscious Generation, ( Exhibit AUS -101), p. 10). 
2070 Australia's first written submission, para. 82 (referring t o Miller et al. 2015, ( Exhibits AUS -102, 
DOM-315), p. 4). 
2071 Australia's first written submission, para. 82 (referring to  Swedish Match, 2013 Annual Report, 
(Exhibit AUS -103), p. 9). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 345 - 
  relative to youth initiation of cigarette smoking.2072 However, as Australia points out, the data 
submitted by Cuba does not suggest LHM cigar use by youth and adolescents would be 
non-existent or that youth init iation would be totally irrelevant in the context of cigars, including 
LHM cigars. This is underscored by evidence before us on the importance accorded to cigar 
packaging by certain consumers, as well as the corresponding cigar marketing policies of tobacc o 
companies referenced by Australia. In particular, Australia has submitted evidence indicating that 
cigar marketing also features the use of imagery. In one published study relied on by Australia, 
the authors argue that increases in cigar smoking observed  in the late 1990s are attributable to 
the "positive and improving image of cigar smoking" which has resulted from cigar publications like 
Cigar Aficionado  and increased visibility and use by celebrities, and that cigar use is portrayed as 
"young, independ ent, vibrant, rebellious, and frequently female".2073 This assertion is supported by 
another published study presented by Australia, which describes the promotion of cigars by 
American rapper Snoop Dogg and likens this to other cigarette advertising campaigns  which 
targeted "young African -American men, and exploited the popular hip -hop musical genre to sell 
cigarettes".2074  
7.755.   These elements suggest that imagery relating to the branding of cigars is capable of being 
used to appeal to adolescent behaviour in a simil ar manner as has been observed in the context of 
cigarettes. We are therefore not persuaded that cigar packaging could not play a role in influencing 
the decision to initiate the use of cigars, in particular among adolescents and young adults, by 
virtue of  the positive perceptions and associated product appeal created by such packaging. More 
generally, given the acknowledged importance of branding in respect of cigars,2075 we see no basis 
to assume that packaging of cigars would not have the ability to contrib ute to the appeal of the 
products, in a similar manner to that observed in respect of cigarettes, such that a reduced 
opportunity to use brand imagery as a result of plain packaging of cigars would also have the 
ability to reduce their attractiveness.  
7.756.   Notwithstanding these conclusions, we acknowledge the observation, made in particular by 
Professor Ajzen, that the "carry -through" effect from perceptions of the product, in this case 
tobacco products, to attitudes towards it and ultimately, purchase decision s, is not automatic. 
Specifically, in relation to tobacco plain packaging, we see no basis to assume that an impact on 
proximal outcomes, including a reduction in the appeal of tobacco products, would in all cases  lead 
to a change in smoking behaviours. In deed, we do not understand this to be the assumption 
underlying the design and structure of the TPP measures . Rather, as discussed above, we 
understand the assumption underlying the operation of the TPP measures  to be that at least some 
consumers will be i nfluenced in their smoking behaviours, and be discouraged from taking up 
smoking, if the appeal of tobacco products is reduced through tobacco plain packaging, in 
combination with other tobacco control measures in place in Australia. The fact that this mea sure 
is, by design, one element of a broader range of tobacco control measures designed to act on 
various aspects of the complex and multifaceted decision -making involved in the decision to 
initiate smoking – including restrictions on the advertisement and  promotion of tobacco 
products2076 and social marketing campaigns2077 – is consistent with this understanding.  
Smoking cessation and relapse  
7.757.   The complainants also argue that the TPP measures  are not capable of having an influence 
on the other smoking behaviours targeted by the measures, namely smoking cessation and 
relapse. Honduras argues that the TPP measures  "are fundamentally ill -suited to have any effect 
on the behaviour of existing or f ormer smokers".2078 The Dominican Republic argues that "there is 
no credible evidence supporting Australia's position that the plain packaging measures could 
                                                
2072 We note that the US Surgeon General referenced US cigar initiation data showing an overall 
decrease among adolescents , but an increase among Hispanic young adults between 2006 and 2010. See 
US Surgeon General's Report 2012, (Exhibit AUS -76), p. 149. 
2073 Jamner 1999, (Exhibit AUS-183), p. 188. 
2074 A. Richardson, O. Ganz and D. Vallone, "The Cigar Ambassador: How Snoop Dogg uses Instagram to 
Promote Tobacco Use", Tobacco Control, Vol. 23 (2014),  (Exhibit AUS -180), p. 80. 
2075 See Cuba's response to Panel question No. 29 (annexed to its response to Pan el question No. 138). 
2076 See section 2.2.2 above.  
2077 See para. 2.71 above and section 7.2.5.6.4  below.  
2078 Dominican  Republic 's first written submission, para. 705. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  contribute to smoking cessation".2079 Cuba submits that "tobacco packaging is not a material factor 
in encouraging cessation or preventing relapse".2080 Indonesia asserts that "it is highly unlikely 
that [the TPP measures ] will have a significant effect on the number of people who stop 
smoking"2081 and that the " potential for [plain packaging] to ever generate a s ignificant effect on 
smoking prevalence is purely speculative".2082 Australia responds that, in the context of cessation 
and relapse, tobacco packaging "plays an important role" in "presenting a visual cue and reminder 
to those smokers who have, or are attemp ting to, quit smoking".2083 
7.758.   We therefore consider next the evidence before us on the drivers of smoking cessation and 
relapse and whether, as the complainants argue, these could not be affected by plain packaging of 
tobacco products.  
7.759.   Honduras and Cuba rely o n an expert report by Dr Satel, who submits that people who 
smoke (like users of drugs in general) have a bias towards satisfying short -term g ains over 
protecting one's long -term interests (which she refers to as "discounting")2084, and that plain 
packaging would not affect the discounting phenomenon.2085 She states that "[i] n the absence of 
discrete concerns about negative consequences, motivation to quit and confidence in one's 
capacity to quit, there is no evidence to suggest that plain packaging will genuine ly contribute to 
tipping the scales in favor of quitting".2086 Dr Satel discusses "conditioned cues" for smoking2087, 
which refer to " stimulus – such as the substance itself (the cigarette, its smell) or its container 
(the pack) – that provokes desire to smoke b ecause the link between stimulus and the positive 
effects of smoking has been tightly established through prior experience".2088 In Dr Satel's view, 
"[t]his form of learning represents classic Pavlovian conditioning" such that the pack, ashtray, or 
lighter it self can produce an urge to smoke. Dr Stael adds that "[u]nder a regime of plain 
packaging, a plain brown package – as opposed to a branded package – will simply become the 
normal visual cue to a smoker".2089 Dr Satel thus contends that even if it is correct that smokers 
and former smokers may respond to the sight of a cigarette pack or display with an urge to 
purchase, "it is unlikely that plain packaging will alleviate that urge", as "conditioned 
cue-substitution would presumably occur, and the plain pack wo uld simply take on the significance 
of the formerly branded pack".2090 Concerning relapse, Dr Satel posits that such behaviour is 
driven by "[e]pisodic events" such as divorce, the initiation of smoking by a partner, and conflicts 
with others as risk factors,  and that economic strain, insecure employment, socializing with people 
who smoke, and limited opportunities for respite and recreation, make quitters vulnerable to 
relapse.2091 She adds that predictors of relapse also include weight concerns and lack of a fe eling 
of self -efficacy. Thus, according to Dr Satel, when ex -smokers relapse, "they may desire the 
missed pleasures and benefits of smoking".2092 Dr Satel states that there is no compelling evidence 
that pack design plays an important role in stimulating resu mption of smoking2093, and that the 
appearance  of the pack itself "plays no role in the web of factors that motivate patients to remain 
smoke -free and to undertake cessation".2094 To the extent that a pack of cigarettes serves as a cue 
to pick up a cigarette, th e plain pack would serve as a reminder as well, as it would acquire the 
status of a conditioned cue.2095 
7.760.   In an expert report submitted by Honduras and the Dominican Republic, Professor Fischer 
argues that tobacco addiction results in repeated, elevated dopamine release that occurs in the 
                                                
2079 Honduras's first written submission, para. 442. 
2080 Cuba's first written submission, para. 214. 
2081 Indonesia's first written submission, para. 413. 
2082 Indonesia's first written submission, para. 420. 
2083 Australia's first written submission, para. 87. 
2084 Satel Report , (Exhibit UKR -7), paras.  22-23. Dr Satel refers to a tendency to "discount" and " a 
cognitive bias toward gratifying o ne's self in the present".  
2085 Satel Report , (Exhibit UKR -7), para. 25. 
2086 Satel Report , (Exhibit UKR -7), para. 33. 
2087 Satel Report , (Exhibit UKR -7), para. 37. 
2088 Satel Report , (Exhibit UKR -7), para. 38. 
2089 Satel Report , (Exhibit UKR -7), para. 39. 
2090 Satel Report , (Exhibit UKR -7), para. 42. 
2091 Satel Report , (Exhibit UKR -7), para. 34. 
2092 Satel Report , (Exhibit UKR -7), para. 34. 
2093 Satel Report , (Exhibit UKR -7), paras.  34-36. 
2094 Satel Report , (Exhibit UKR -7), para. 44. 
2095 Satel Report , (Exhibit UKR -7), paras.  39. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  presence of related cues (or "environmental stimuli that have previously been associated with 
smoking").2096 In Professor Fischer's view, this association, via Pavlovian or classical conditioning, 
grows "to the point where exposure to environmental stimuli that are associated with the behavior 
can induce a strong desire to take the drug ( i.e., craving )".2097 She no tes that this can be affected 
by, inter alia, cue-induced craving.2098 In respect of packaging as a smoking cue, Professor Fischer 
makes three contentions. First, she asserts that the link between cues, craving and smoking 
behaviour is "much weaker than one m ight expect"2099, as "just because cues may induce craving, 
it does not necessarily follow that craving prompts actual smoking behaviour".2100 Second, 
Professor Fischer alleges that there is a wide degree of variation in the extent to which different 
cues demons trate a capacity to induce craving, and that there is clear evidence for a hierarchy 
among cues in this regard2101, and that "there is evidence that the cigarette pack was the weakest 
of a series of established proximal cues".2102 Third, she maintains that under  tobacco plain 
packaging, "smokers will simply see one form of smoking cue replaced by another".2103 She 
elaborates that plain packs will very quickly acquire the cue status of the old package through the 
same process of classical conditioning, with the effec t that "while certain features of the 
appearance of the cue may have changed, its essential ability to act as a cue – arising through its 
association with cigarettes and smoking behavior – will remain the same".2104 Professor Fischer 
submits that if "essentia lly generic" cigarettes can exhibit salience, then "there is no reason plain 
packs cannot also be strongly salient absent brand imagery"2105, and that plain packs would not 
function differently from other generic cues with a strong contingency (such as cigare ttes, 
ashtrays, matches and environmental tobacco smoke). In her view, because "all packs look the 
same", plain packs could have stronger contingency than branded packs because a plain pack 
would be the only one associated with smoking among all smokers at  all times.2106 Professor 
Fischer also discusses relapse, and identifies the factors commonly associated with relapse as 
including negative affect (mood), higher nicotine dependence, and withdrawal symptoms.2107 
Professor Fischer points out that clinical samples  report that relapse can be predicted by the 
presence of withdrawal symptoms and higher levels of nicotine dependence; negative affect 
(mood); younger age at time of quit attempt; a history of comorbid psychiatric disorders, including 
past or current anxie ty disorders, depression, and schizophrenia; and absence of tobacco -related 
disease.2108 She also notes that at the population level, relapse has been associated with the 
presence of withdrawal symptoms and recently failed quit attempts; negative affect; a hi gher level 
of baseline nicotine dependence; gender; lower socioeconomic status; lower subjective social 
status; and high stress situations following a period of low stress.2109 She further states that the 
inability of current research to consistently identify  treatable factors associated with smoking 
relapse "highlights the complex, individual nature of the smoking -cessation process".2110 
7.761.   Australia submits an expert report by Dr Brandon, who asserts that, in respect of 
"conditioned cue reactivity", stimuli vary i n their ability to become effective conditioned stimuli on 
the basis of whether they are presented close to the unconditioned stimulus in both space and 
time (" spatiotemporal proximity"), will be apparent and garner the attention of the subject 
("salience" ), and will be reliably paired, with relatively few unpaired occurrences of the conditioned 
stimulus or unconditioned stimulus without the other ("strong contingency").2111 In applying  these 
criteria, Professor Brandon states that cigarette packs are nearly a lways present immediately 
                                                
2096 Fischer Report , (Exhibit DOM/HND -7), para. 34. 
2097 Fischer Report , (Exhibit DOM/HND -7), para. 34. 
2098 Fischer Report , (Exhibit DOM/HND -7), para. 35. 
2099 Fischer Report , (Exhibit DOM/HND -7), para. 64. 
2100 Fischer Report , (Exhibit DOM/HND -7), paras.  68-69. 
2101 Fischer Report , (Exhibit DOM/HND -7), para. 71. 
2102 Fischer Report , (Exhibit DOM/HND -7), para. 73. 
2103 Fischer Report , (Exhibit DOM/HND -7), para. 76. 
2104 Fischer Report , (Exhibit DOM/HND -7), para. 77. 
2105 Fischer Rebuttal Report , (Exhibit DOM/HND -11), paras.  23-25. 
2106 Fischer Rebuttal Report , (Exhibit DOM/HND -11), paras.  26-28. 
2107 Fischer Report , (Exhibit DOM/HND -7), para. 19. 
2108 Fischer Report , (Exhibit DOM/HND -7), para. 55. 
2109 Fischer Report , (Exhibit DOM/HND -7), para. 56. 
2110 Fischer Report , (Exhibit DOM/HND -7), para. 58. 
2111 Brandon Report , (Exhibit AUS -15), para. 42. Professor Brandon also argues that, in the tobacco 
context, nicotine deprivation and the opportunity to smoke are conditions which have been shown to improve 
conditioned responding to smoking -related cues. Brando n Report , (Exhibit AUS -15), para. 44. See also 
Australia's first written submission, paras. 97 -100. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  before an individual smokes (proximity); branding is designed to attract the attention of, and be 
memorable to, the consumer (salience); and there is near -perfect pairing between handling a pack 
and smoking (contingency).2112 Dr Brandon notes that it "is a reasonable argument"  to say that 
plain packages could acquire conditioned cue status , but adds that there "are reasons to believe 
that plain packaging would be a less effective conditioned cue than fully branded packaging".2113 
Specifically, "[w]hereas proximity would not change with plain packaging, [salience and 
contingency] might".2114 Dr Brandon elaborates that "[d]rab dark brown packaging with small, 
standardised text is designed to be less salient than fully branded tobacco pa ckaging" and, 
additionally, "the tight contingency between viewing one 's own brand and smoking is likely to be 
reduced".2115 In respect of relapse, Dr Brandon notes that relapse has been "reliably paired" with 
the presence of other smokers, the use of alcohol , stress and negative mood states, "among 
other[ situations]", and that such observations strengthen the evidence for cue -reactivity in 
smoking motivation.2116 On the basis of this connection with cue -reactivity, Dr Brandon's 
discussion of relapse behaviour i s made largely in the context of cessation, as summarized above.  
7.762.   In respect of this evidence, we note, first, that cessation and relapse, though identified as 
separate behaviours in Section 3(2) of the TPP Act that are expected to be impacted through the 
operation of the specific mechanisms in Section 3(1), are discussed together by all parties and the 
experts upon whose reports they rely.  
7.763.   Second, we note that there are some differences in the depictions of drivers of smoking 
cessation by Drs Satel and Bra ndon, and by Professor Fischer. However, we also note that they 
agree in respect of the brain chemistry underlying classical, or Pavlovian, conditioning, and accept 
that this is applicable in the context of addiction to tobacco products.2117 They also agree t hat a 
cue in this context can be sufficient to instigate a reaction within the brain of the addicted smoker 
– neither the complainants, nor Australia, nor their respective experts, contest that cue reactivity 
is one of many factors that may influence a smo ker's ability to quit, or a recent quitter's ability to 
remain so2118, though they do contest the strength of that relationship.2119 Finally, the parties, 
through their experts, also appear to agree that tobacco packaging can constitute a cue for the use 
of toba cco products, to the extent that it satisfies many of the elements common to cues.2120 
7.764.   The difference of view between the parties' experts concerns whether the adoption of plain 
tobacco packages in Australia will have any bearing on the elements that render t obacco 
packaging a cue, and will thus undermine the ability of the package to "present[] a visual cue and 
reminder to those smokers who have, or are attempting to, quit smoking".2121 In this connection, 
as described above, Dr Brandon sets out that "among the key characteristics of a strong 
conditioned stimuli" are spatiotemporal proximity, salience, and strong contingency.2122 The key 
divergence between the parties' experts in this respect relates to salience and contingency – 
                                                
2112 Brandon Report , (Exhibit AUS -15), para. 59. Professor Brandon also notes that the smoker usually 
chooses to light a cigarette after the onset of early nic otine withdrawal symptoms, which begin within 30 
minutes of the last cigarette, and that stronger conditioned responses are found when the smoker knows that 
there is an opportunity to smoke. He argues that these factors "that magnify conditioned responding  in 
smokers are also consistent with cigarette packs" as smokers "usually smoke after a period of nicotine 
deprivation, during the early stages of nicotine withdrawal", and "will likely see their pack during such a state". 
He also submits tha t "the cigaret te pack —unless it' s known to be empty —also signals the availability of 
smoking". Brandon Report , (Exhibit AUS -15), paras.  45 and 59.  
2113 Brandon Report , (Exhibit AUS -15), paras.  76 and 88.  
2114 Brandon Report , (Exhibit AUS -15), paras.  76 and 88.  
2115 Brandon Repor t, (Exhibit AUS -15), paras.  76 and 88.  
2116 Brandon Report , (Exhibit AUS -15), para. 49. 
2117 Satel Report , (Exhibit UKR -7), paras.  38-39; Fischer Report , (Exhibit DOM/HND -7), para. 34 (and 
generally Part E); and Brandon Report , (Exhibit AUS -15), paras.  39-41. 
2118 Satel Report , (Exhibit UKR -7), para. 38; Fischer Report , (Exhibit DOM/HND -7), para. 49; and 
Brandon Report , (Exhibit AUS -15), paras.  46-52. 
2119 Satel Report , (Exhibit UKR -7), paras.  44-46; Fischer Report , (Exhibit DOM/HND -7), Parts F and H; 
and Brandon Repor t, (Exhibit AUS -15), para. 83. 
2120 Satel Report , (Exhibit UKR -7), para. 39; Fischer Report , (Exhibit DOM/HND -7), Part I; and Brandon 
Report , (Exhibit AUS -15), paras.  60-69. 
2121 Australia's first written submission, para. 87. 
2122 Brandon Report , (Exhibit AUS -15), para. 42. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  specifically, whether plain packs ar e likely to be less salient and less contingent, and thus less 
effective as a cue than branded packages.2123 
7.765.   Concerning salience, Dr Brandon submits that "[d]rab dark brown packaging with small, 
standardised text is designed to be less salient than fully bran ded tobacco packaging".2124 He adds 
that: 
Indeed, the entire purpose of full branding, and the reason that the tobacco industry 
(and any other consumer product industry) uses brands and logos is to attract the 
attention of the consumer and to associate the pr oduct with the brand. Thus, an 
effective brand is, by definition, salient. It is doubtful that the tobacco industry would 
object to plain packaging if they truly believed that consumers did not attend to their 
full brand and logo and associate them with im mediate nicotine reinforcement 
effects.2125 
7.766.   This notion is echoed in an expert report by Professor Tavassoli, submitted by Australia, in 
which he argues that the TPP measures  can decrease the salience of tobacco packaging (that is, 
decrease the attention give n to tobacco packaging). He submits that attention is used to select 
information that is necessary and/or influential in subsequent judgements, such that marketers 
strive to control consumer attention in shopping environments, using vivid packaging and oth er 
attention -drawing techniques to encourage consideration of product offerings. He notes that 
"[c]olours, in particular, are important to marketers because they are an attention -grabbing 
device". He adds that, in Australia's dark market for tobacco produc ts (and before the 
TPP measures  were introduced), salience could not be effective at the point of sale, but 
post-purchase usage could be triggered by product packaging's salience.2126  
7.767.   Professor Fischer, for her part, submits that the comparison between the r elative salience 
of branded and plain tobacco packages overlooks the fact that Australian plain packs are 
"dominated by a large health warning", such that there is a limited possibility for the salience to 
differ due to the residual difference in brand ima gery.2127 Professor Steenkamp similarly argues 
that the absence of GHWs in the examples used by Professor Tavassoli ( inter alia) overlooks the 
negative message conveyed on Australian packages by the GHW.2128 
7.768.   In relation to these arguments, we note that the complainants' experts have not contested 
Australia's depiction of the notion of salience, which refers to the level of attention given (in this 
context) to tobacco packaging. Moreover, at least some of t he complainants' experts have 
acknowledged the capacity of features  of tobacco packaging such as  colours  or graphics , as 
specifically discussed by Professor Tavassoli  to have a degree of salience2129; they instead cont est 
the effect that such branding  elements ma y have given the concurrent presence and salience of 
GHWs (which they argue, on balance, convey a "dominant message" which is "highly 
negative"2130) and the role of other factors known to affect cessation and relapse generally.2131 In 
this respect, we note that Professor Fischer's argument is that, in light of these GHWs, there is a 
"limited possibility  for the salience to differ due to the residual difference in brand imagery"2132, 
and that Professor Steenkamp focuses on the relative effect  of the positive and nega tive messages 
conveyed by the branded and GHW -dominated portions (respectively) of tobacco packaging in light 
of the differences in size of those portions of the pack face, rather than on the existence  of both 
positive and negative messages.2133 
                                                
2123 See Fischer Report , (Exhibit DOM/HND -7), para. 66; and Brandon Rebuttal Report, (Exhibit 
AUS-534), para. 24. 
2124 Brandon Report , (Exhibit AUS -15), para. 76. 
2125 Brandon Rebuttal Report, (Exhibit AUS -534), para. 25. 
2126 Tavassoli Report , (Exhibit  AUS-10), para.  101. 
2127 Fischer Rebuttal Report , (Exhibit DOM/HND -11), para. 21. 
2128 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  42-43. 
2129 See Steenkamp Rebuttal Report, (Exhibit DOM/HND -14), para. 40, acknowledging the role of "vivid 
use of colours or graphics" as discussed by Professor Tavassoli as a factor of pack salience.  
2130 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), section 2.3.2 . 
2131 Fischer Rebuttal Report , (Exhibit DOM/HND -11), para. 21. 
2132 Fischer Rebuttal Report , (Exhibit DOM/HND -11), para. 21. (emphasis added)  
2133 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  36-39. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.769.   This eviden ce suggests to us that the use of visual features such as  colours or logos is 
understood to have in principle the capacity to have an impact on the salience of a pack and that a 
pack's salience is an element of its strength as a conditioned cue . The question  at issue is, rather, 
to what extent the salience of the pack , and therefore its ability to act as a cue, could be at least 
reduced  by the removal of such features on those  parts of tobacco packaging that are not covered 
by GHW requirements. In this respect, while we agree tha t the size of GHWs reduce s the part of 
the pack on which brand features may be used to achieve salience, relative to a pack that does not 
have such large GHWs, we are not persuaded that the complainants have demonstrated that thi s 
context would be  such as to entirely prevent branded features from contributing to the salience of 
the pack, and its ability to act as a cue.  
7.770.   We also note Dr Brandon's assertion that plain tobacco packages would have lower 
"contingency" and would also, b y extension, be a weaker cue than branded tobacco packages. Dr 
Brandon describes contingency in this context as relating to the extent to which the conditioned 
stimulus (the pack) and the unconditioned stimulus (the cigarette) are "reliably paired", in tha t 
there are relatively few unpaired occurrences of the conditioned or unconditioned stimulus without 
the other.2134 Dr Brandon describes how the cigarette itself is reliably paired with smoking, and 
notes that there is also near -perfect pairing between handli ng a pack and smoking.2135 Elsewhere 
in his report, Dr Brandon identifies that the contingency is between "viewing one's own brand and 
smoking".2136 In response, Professor Fischer submits, on the basis of a 1995 paper by Dr Brandon, 
that he:  
[A]ccepts a strong contingency ("high correlation with nicotine delivery") between 
smoking and generic proximal cues, such as cigarettes, ashtrays, matches, and 
environmental tobacco smoke. Consider cigarettes and plain packs. A smoker will see 
cigarettes in at least as many  situations as s/he sees plain packs. Although cigarettes 
are seen everywhere, Prof. Brandon accepts in his report and in his 1995 paper that 
they are a strong – if not the strongest – conditioned cue.2137 
7.771.   Dr Brandon does not address this contention in his se cond report. However, he submits, in 
a different context, that the notion that unbranded or minimally -branded cigarettes can be 
powerful cues to smoke does not indicate that branding is inconsequential, but instead indicates 
that cigarettes maximize the co ntingency factor associated with classical conditioning.  
7.772.   Overall, t his evidence sugge sts that the presence of branding  elements on tobacco 
packaging may increase the contingency of the package and smoking (i.e. the extent to which they 
are paired), such th at the removal of such branding elements would be apt, in turn, to reduce such 
contingency and thus reduce the ability of the pack to act as a conditioned cue. At the same time, 
however, we note that Australia's own expert, Dr Brandon, acknowledges that it  is a "reasonable 
argument" that plain packages would themselves acquire conditioned cue status, and that other 
generic items are also capable of acting as conditioned cues. This suggests that it is recog nized 
that in a market where only plain packs are av ailable, and where these are the only packs 
universally associated with smoking among all smokers at all times,  the removal of the ability of 
branding elements to act as cues on the pack  would not prevent the pack itself from continuing to 
act at least to some extent as a conditioned cue, to the extent that it is recognized to be closely 
paired/associated with the act of smoking .  
7.773.   We also note the evidence before us that underscores the addictive nature of other tobacco 
products, such as cigars.2138 We note in  this respect that Parr et al. 2011b addresses perceptions 
of "ease of quitting" in relation to cigars and cigarillos. It finds that plain packed cigarillos were 
perceived as "easiest to quit"2139 and that this is "driven by low desirability of the [plain pac kaged] 
                                                
2134 Brandon Report , (Exhibit AUS -15), para. 42. 
2135 Brandon Report , (Exhibit AUS -15), para. 59. 
2136 Brandon Report , (Exhibit AUS -15), para. 76. 
2137 Fischer Rebuttal Report , (Exhibit DOM/HND -11), para. 27. 
 2138 See Cigars: Facts and Figures, (Exhibit AUS-34) ("Cigars contain the same addictive, toxic and 
carcinoge nic compounds found in cigarettes and are not a safe alternative. In fact, a single large cigar can 
contain as much tobacco as an entire pack of cigarettes ."). 
2139 According to Parr et al. 2011b, "[o]n the measure of ease of quitting, there was no obvious 
consistency in how the different packs were ranked on perceived ease of quitting and the [plain] pack was seen 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  pack".2140 As regards premium cigars, Parr et al. 2011b concludes that "[f]or both types of cigar 
smoker there was little perceived need to 'quit' smoking"2141 but finds that there were differences 
in this respect "across the product and audience range":  
For example, whereas less frequent premium cigar smokers felt the plain packaging 
significantly lowers the appeal and suitability for specific occasions (such as gift 
giving) and were thus more likely to quit, frequent premium cigar smokers felt largely 
unaffected by plain packaging and therefore unlikely to quit because of it.".2142 
7.774.   On the basis of the foregoing, overall, we are not persuaded that the complainants have 
demonstrated that plain packaging of tobacco products, including cigars, is not capable of 
influencing smoking cessation or relapse by acting on the ability of the pack to act as a conditioned 
cue for smoking and thus affect the ability of smokers to quit smoking, or to remain quit.  
7.775.   At the same time, as in the context of initiation, we acknowled ge the observation that the 
"carry -through" effect from perceptions of the product, in this case tobacco products, to attitudes 
towards it and ultimately, purchase decisions, is not automatic. In the context of cessation and 
relapse, both Professors Ajzen (for the complainants) and Slovic (for Australia) highlight the 
difficulties of quitting smoking2143; Professor Ajzen characterizes this difficulty as a "behavioural 
control" factor, which in his view is the best predictor of intentions to quit within the con struct of 
the TPB.2144 From this Professor Ajzen concludes that, "[g]iven the relatively low empirical 
intention -behavior correlation, one would expect that even if research were to show that plain 
packaging lowers intentions to smoke or raises intentions to quit, these changes may not produce 
changes in actual behavior".2145 
7.776.   As we noted in the context of initiation, we do not understand the assumption underlying 
the design and structure of the TPP measures  to be that an impact on proximal outcomes, 
including a reduction in the ability of a pack to act as a conditioned cue following the introduction 
of tobacco plain packaging, would be expected in all cases  to lead to a change in smoking 
behaviours. Rather, as discussed above, we understand the assumption underlying the operation 
of the TPP measures  to be that at least some consumers would be influenced in their smoking 
behaviours, and be more inclined to quit (or disinclined to relapse, as the case may be) i f the 
ability of the tobacco package to act as a conditioned cue is reduced through tobacco plain 
packaging. The fact that this measure is, by design, one element in a set of tobacco control 
measures designed to act on various aspects of the complex and mu ltifaceted decision -making 
involved in the decision to smoke, including restrictions on the advertisement and promotion of 
tobacco products2146 and restrictions on the sale of tobacco products (including point of sale 
restrictions)2147 – is consistent with this understanding.  
Conclusion  
7.777.   In light of the above, we are not persuaded that the complainants have shown that the 
TPP measures  would not be capable of reducing the appeal of tobacco products, and thereby 
contribute to Australia's objective of improving publ ic health by reducing the use of, and exposure 
to, tobacco products.  
                                                                                                                                                  
to contain cigarillos that were easiest to quit. This result appeared to be influence d by varied interpretation of 
the question, as seen for RYO smokers." Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 9. 
2140 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 11. 
2141 "They  did not see themselves as 'addicted' to their habit in the same  way they perceived cigarette 
smokers to be 'addicted'. As there was no per ceived 'addiction'  there was also no need to quit. Both types of 
cigar smoker also had low perceptions of any health risks connected with their cigar smoking, which further 
contribu ted to the lack of perceived need to quit. As most did not smoke daily but rather weekly or once every 
two weeks they also did not feel their frequency of smoking warranted concern about health implications or a 
need to quit." Parr et al. 2011b, (Exhibits AUS-219, JE -24(50) ), p. 10. 
2142 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 10. 
2143 Ajzen Report , (Exhibit DOM/HND/IDN -3), paras.  102-104; and Slovic Report , (Exhibit AUS -12), 
paras.  53-55. 
2144 See generally Ajzen Report , (Exhibit DOM/HND/IDN -3), paras.  96-104. 
2145 Ajzen Report , (Exhibit DOM/HND/IDN -3), para. 105. 
2146 See section 2.2.2 above.  
2147 See section 2.2.4 above . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.778.   Rather, we find that credible evidence has been presented, emanating from recognized 
sources,  that plain packaging of tobacco products may reduce their appeal, by minimizing the 
ability of various branding features to create positive associations with tobacco products that could 
have an influence on smoking behaviours, including smoking initiation, cessation and relapse.  
7.779.   In addition, we recall that we also have before us evidence relatin g to the actual 
application of the TPP measures  since their entry into force, including empirical studies specifically 
addressing the impact of plain packaging on the appeal of tobacco products, which will be 
considered in section 7.2.5.3.6  below, and given appropriate weight. We therefore do not seek to 
draw, at this stage of our analysis, any overall conclusion on the impact of the TPP measures  on 
the appeal of tobacco products, and the extent to which any reduction in such appeal arising from 
the TPP measures  contributes to Australia's objective of improving public health by reducing the 
use of, and exposure to, tobacco products.  
7.2.5.3.5.3   Second mechanism: i mpact of the TPP measures  on the effectiveness of 
GHW s 
7.780.   As described above, the second "mechanism" through which the TPP measures  are 
designed to contribute to the achievement of their objective is by " increas[ing] the effectiveness of 
health warnings on th e retail packaging of tobacco products", which, in turn, is expected to 
influence smoking behaviours and thereby contribute to a reduction in the use of, and exposure to, 
tobacco products.  
7.781.   The complainants contest the ability of the TPP measures  to have an  effect on this 
"mechanism". Australia responds that the TPP measures  increase the visual attention paid to 
health warnings, make them more prominent and salient2148, and increase perceptions about the 
believability and seriousness and enhances recall of heal th warnings.2149 Australia further submits 
that increases in the effectiveness of health warnings affect consumer intention and behaviour.2150 
Main arguments of the parties  
7.782.   Honduras  argues that there is no basis for Australia to consider that plain packaging "will 
enhance the visibility of the on -pack graphic health warning"2151 which "are very visible". It adds 
that "empirical evidence demonstrates that Australian adolescents are well -aware of the health 
risks associated with smoking, and, in any event, their decision to smoke is driven by other 
factors, such as peer pressure, whether they are sensation -seeking, and are responsive to reward 
stimuli".2152 Honduras argues that most adolescen ts, when experimenting with smoking, are likely 
not even to see a tobacco package, as they obtain cigarettes from their friends usually when the 
cigarette has already been removed from its package.2153 Honduras refers to an expert report by 
Professor Viscusi,  in which he argues that increasing the effectiveness of warnings is only of 
behavioural consequence if consumers have an informational deficit and do not find existing 
warning to be credible.2154 Honduras refers to Professor Viscusi's observation that Austra lians are 
aware of the risks and personalize them, and that it is highly unlikely that increasing warning size 
or prominence will have any influence on smoking behaviours or consumer perceptions of health 
consequences.2155 
7.783.   Honduras refers to the expert report  by Professor Steinberg, which questions policies 
seeking to increase adolescent awareness of the health risks of smoking, with reference to recent 
research demonstrating that Australian adolescents are well aware of and understand the risks of 
smoking and  that "it is difficult to imagine how the introduction of plain packaging could – even 
conceptually – increase this awareness".2156 Honduras also submits that "these policies fail to 
                                                
2148 Australia's first written submission, paras.  176-179. 
2149 Australia's first written submission, paras.  180-181. 
2150 Australia's first wri tten submission, paras.  182-186. 
2151 Honduras's first written submission, para. 419. 
2152 Honduras's first written submission, para. 419. 
2153 Honduras's first written submission, para. 419. 
2154 Honduras's first written submission, paras.  419 fn 349. 
2155 Honduras's first written submission, para. 419 fn 349. 
2156 Honduras's first written submission, para. 417 (referring to Steinberg Report , (Exhibit DOM/HND -6), 
para. 44). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  consider the fact that an adolescent's decisions to engage in a potentially dangerous activity is 
based not only on the perceived risks of the activity but on its perceived benefits , and is largely 
influenced by his particular psychological characteristics as well as his emotional and social 
context".2157  
7.784.   The Dominican Republic  argues that the TPP literature  "fail[s] to assess the effect of plain 
packaging on packs dominated by a 75 percent graphical health warning".2158 The Dominican 
Republic submits that with a large GHW, there is a small amount of space  available for branding, 
which is likely to have a small impact, if any, on the outcomes measured in the TPP studies. The 
Dominican Republic submits that "more fundamentally, the dominant negative imagery  resulting 
from a large GHW will also have an impact on these outcomes".2159 
7.785.   The Domin ican Republic further submits that adolescents will continue to engage in 
smoking behaviour , even where it is "abundantly clear that adolescents are aware of and 
understand the risks of smoking and know that it has harmful long -term health consequences".2160 
Thus, the Dominican Republic submits, with reference to the expert report of Professor Steinberg, 
that "even if plain packaging were shown to increase the prominence of health warnings (which 
recent research in fact suggests is not the case), this would … have no influence on adolescent 
experimentation with, or use of, tobacco products".2161 
7.786.   Cuba argues that "[o] ne glance at any current Australian [GHW] should suffice to refute 
[Australia's] claim" concerning the effectiveness of GHWs.2162 Noting that the GHW covers 75% of 
the front face of the pack (in the case of cigarette packaging) and "is designed to make an impact 
and hold consumer attention", Cuba argues that the "prominence and powerful design" of these 
GHWs makes it "implausible to  suggest that consumers of tobacco products in Australia will fail to 
notice them or that any Australian consumers who do somehow fail to notice these warnings will 
have their capricious attention appropriately re -directed because of plain packaging".2163 Cuba 
refers to a 2013 study which "acknowledged that the findings in the literature relating to the 
[GHW] Effectiveness Claim are ' mixed '"2164 and to an expert report by Professor Viscusi, which 
concludes that "[t] he findings from the studies discussed  … provide  no basis for concluding that 
plain packs make warnings more effective ". Cuba also refers to a  report finding that once the GHW 
reaches 75% pack coverage, it " stands out"  to the same extent on plain and branded 
packaging.2165 Cuba also refers to Professor Vis cusi's discussion of a 2011 study which "concluded 
that '[t] aken together with the existing literature, it is plausible that plain packaging will increase 
the salience and impact of health warnings in those yet to establish a smoking habit'".2166 Cuba 
points out that the authors "accept that ' it is unclear whether increased visual attention to health 
warnings will translate to actual differences in cigarette smoking behaviour' ".2167  
7.787.   Cuba submits that, in any case, increased attention to health warnings does not 
necessarily imply that there will be significant changes in smoking rates in Australia.2168 For Cuba, 
"[t]here is no basis to conclude that the attention accorded to the health warning on a branded 
pack is inadequate for the necessary information about risk t o be conveyed", and "[n]othing in the 
literature suggests otherwise".2169 Cuba argues, with reference to Professor Viscusi's conclusions, 
that acting by increasing risk awareness can have little, if any, incremental effect on smoking 
                                                
2157 Honduras's first written submission, para. 417. 
2158 Dominican  Republic 's first written submission, para. 608-609. 
2159 Dominican  Republic 's first written submission, para. 610. 
2160 Dominican  Republic 's first written submission, para. 695 
2161 Dominican  Republic 's first written submission, para. 695. 
2162 Cuba's first written submission , para. 223. 
2163 Cuba's first written submission, para. 223. See also Cuba's first written submission, para. 349. 
2164 Cuba's first written submission, para. 224 (referring to Stead et al. 2013, (Exhibit CUB -58)). 
2165 Cuba's first written submission, para. 224 (r eferring to Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)), as discussed in Viscusi Report , (Exhibit UKR -8), para. 96). 
2166 Cuba's first written submission, para. 225 (referring to Munafò et al. 2011, (Exhibits AUS -199, 
JE-24(47)), p. 1508).  
2167 Cuba's first written submission, para. 225 (referring to Munafò et al. 2011, (Exhibits AUS -199, 
JE-24(47)), p. 1509).  
2168 Cuba's first written submission, para. 226 (referring to Munafò et al. 2011, (Exhibits AUS -199, 
JE-24(47)), p. 1509, Table 1). See also  Cuba's first written submission, para. 349. 
2169 Cuba's first written submission, para. 226 (referring to Viscusi Report , (Exhibit UKR -8), para. 71). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  behaviour in Australia, g iven that the overwhelming majority of the population is already aware of 
the relevant risks.2170  
7.788.   Cuba refers to the report by Australia's expert, Professor Tavassoli and considers that its 
conclusion that packaging can increase primary demand by inhibiting the effectiveness of GHWs is 
untenable. Cuba elaborates that there is no evidence to show that without plain packaging, GHWs 
will be less effective or visible. For Cuba, the appearance of a trademark on the remaining 25% of 
the front part of the pack will not have "any appreciable effect on consumers' appreciation of the 
health risks of tobacco use.2171 
7.789.   Indonesia 's arguments concerning whether the TPP measures  increase the effectiveness of 
GHWs relate to post -implementation evidence and are addressed in section 7.2.5.3.6.1 below .2172  
7.790.   Australia  argues that "[s]tudies into the effectiveness of graphic hea lth warnings indicate 
that effectiveness of the warnings can be greatly reduced by distraction caused by pack design". 
Australia contends that "[p]ackaging elements compete with health warning labels, drawing 
consumer attention away from the mandated healt h warnings,  and also adversely affect consumer 
perceptions of risk about the severe health consequences of tobacco use".2173 
7.791.   Australia does not agree with the complainants that Australians are fully informed of the 
health risks of smoking. Referring to the ex pert report by Professor Slovic, Australia argues that 
"knowledge of risk is 'a multilayered concept'  and studies of Australians  found that even though 
people are sometimes 'aware' that smoking can lead to adverse health consequences, they do not 
have even  a basic understanding of the nature and severity of these consequences".2174 This is 
"further compounded by what Professor Slovic terms 'optimism bias', whereby those who exhibit 
an awareness of health risks caused by smoking often think that it applies to o ther people more 
than themselves".2175 In Australia's view, "informed, rational decision making requires deeper 
levels of knowledge about the risks of tobacco use than many Australians currently have".2176 
7.792.   Australia adds that it has improved the Australian popul ation's knowledge of the risks of 
smoking through the introduction of GHWs,  but that this measure alone is not enough to ensure 
that Australians are fully informed of the risks of tobacco use. In Australia's view, branding and 
package design of tobacco pro ducts "can exert powerful influences on behaviour which may not be 
consciously recognised,  but which can influence understandings and perceptions of risks of 
smoking".2177 Australia contends that misperception of risk is compounded in relation to 
non-cigarett e tobacco products, as cigars are perceived as a "safe alternative"  because they are 
considered more natural and less harmful than cigarettes,  despite delivering nicotine in 
concentrations comparable to cigarettes and smokeless tobacco.2178 Australia argues t hat the 
TPP measures  were "designed to standardize pack elements which suppress risk perception and to 
ensure that the warnings on packs were both noticeable and presented in such a way as to have 
an influence on consumer perceptions and smoking behaviour. Australia points ou t that 
"adolescent experimentation with smoking usually happens without conscious consideration of the 
risks", and adds that "even for addicted smokers, branding and packaging designs can draw 
attention away from, or positively undermine, health warnings o n packs".2179  
                                                
2170 Cuba's first written submission, para. 227. 
2171 Cuba's second written submission, para. 307. 
2172 See Indonesia 's response to Panel question No. 46; and Indonesia's comments on Australia's 
response to Panel question No. 170. 
2173 Australia's first written submission, para. 169. 
2174 Australia's first written submission, para. 171 (referring to Slovic Report , (Exhibit AUS -12), 
para. 96). 
2175 Australia's first written submission, para. 171 (referring to Slovic Report , (Exhibit AUS -12), 
para. 92). 
2176 Australia's first written submission, para. 171. (footnote omitted)  
2177 Australia's first written submission, para. 172 (referring to Slovic Report , (Exhibit AUS -12), 
para. 102). 
2178 Australia's first written submission, para. 173 (referring to NCI Tobacco Control Monogr aph No. 9 , 
(Exhibits AUS -33, DOM -149).  
2179 Australia's first written submission, para. 174 (referring to Camel Advertising Development White 
Paper , (Exhibit AUS-197)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.793.   Australia also adds that it adopted "[o]ptimal combinations" of the size of GHWs with TPP 
following testing and recommendations from commissioned research and that as a result, the TPP 
measures increase the effectiveness of health warnings by i ncreasing the visual attention paid to 
them, making them more prominent and salient, removing the distraction caused by branding, 
increasing perceptions about the believability and seriousness of health warnings; and increasing 
consumer recall of health wa rnings to foster a deeper understanding of the health effects of 
tobacco use.2180 
7.794.   Australia submits that the overall weight of the evidence "strongly indicates that tobacco 
plain packaging leads to a greater noticeability of health warnings, particularly when  operating 
together with the increased size of the graphic health warnings".2181 This is largely because the 
visual interference and competition of brand images are greatly reduced.2182 For Australia, "[b]y 
reducing the positive imagery of tobacco product brandi ng and innovative packaging, there is 
strong evidence to suggest that both users and non -users of tobacco products will be much more 
likely to think about the information conveyed by health warnings, thereby deepening consumer 
understanding about the sever e consequences of tobacco addiction and use".2183 
7.795.   Australia further submits that, by removing competition and interference between health 
warnings and positive images conveyed on and by tobacco packaging, tobacco plain packaging is 
likely to increase the beli evability and seriousness of the messages contained in the health 
warnings.2184 Likewise, the TPP measures  "have also been found to increase consumer recall of 
health warnings on plain packs, compared with recall of health warnings on non -plain packaged 
packs ".2185 Australia submits that any increase in recall, believability and/or seriousness of health 
warnings will contribute to negating the positive associations conveyed by pack design, including 
brand imagery.2186 
7.796.   Australia also argues that this evidence demonst rates that increased effectiveness of 
health warnings influences potential consumers to resist the uptake of tobacco products and 
influences current consumers to quit smoking.2187 
Analysis by the Panel  
7.797.   At the outset, we note that the question before us is not  whether GHWs are an effective 
tobacco control measure, either in principle or in the enlarged form that is required in Australia by 
the Competition and Consumer (Tobacco) Information Standard 2011  (Cth)2188 (Information 
Standard),  implemented contemporaneous ly with the TPP measures .2189  
7.798.   We note in this respect that GHWs are recognized as a legitimate tobacco control measure 
under the FCTC. Article  11(1)(b) of the FCTC provides that each Party shall adopt and implement 
effective measures to ensure that "each uni t packet and package of tobacco products and any 
outside packaging and labelling of such products also carry health warnings describing the harmful 
effects of tobacco use, and may include other appropriate messages". This provision further states 
                                                
2180 Australia's first written submission, para. 175. 
2181 Australia's first written submission, para. 176. 
2182 Australia's first written submission, para. 176. 
2183 Australia's first written submission, para. 178. 
2184 Australia's first written submission, para. 180 (referring to Fong Report , (Exhibit AUS -14), 
para. 336).  
2185 Australia's first written submission, para. 180 (referring to Beede and Lawson, (Exhibits AUS -202, 
JE-24(6) ); and Al -hamdani 2013, (Exhibits AUS-203, JE -24(1)) ). 
2186 Australia's first written submission, para. 181. 
2187 Australia's first written submission, para. 182. Australia elaborates on this argument with respect to 
evidence post -dating the implementation of the TPP measures  concerning consumers' responses to GHWs.  
Australia's first written submission, paras.  183-184 (referring to Wakefield et al. 2015, (Exhibits AUS -206, 
DOM-306); Dunlop et al. 2014, (Exhibits AUS -207, HND -132, DOM -199); Fong Report , (Exhibit AUS -14), 
para. 432; and Miller et al. 2015, (Exhibits AUS -102, DOM -315)). This evidence will be considered in section 
7.2.5.3.6  below.  
2188 Information Standard, ( Exhibits AUS -128, JE -8). 
2189 See section 2.2.1 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  that thes e warnings "may be in the form of or include pictures or pictograms".2190 The Article  11 
FCTC Guidelines stipulate that:  
Globally, many people are not fully aware of, misunderstand or underestimate the 
risks for morbidity and premature mortality due to tobacco use and exposure to 
tobacco smoke. Well -designed health warnings and messages on tobacco product 
packages have been shown to be a cost -effective means to increase public awareness 
of the health effects of tobacco use and to be effective in reducing  tobacco 
consumption. Effective health warnings and messages and other tobacco product 
packaging and labelling measures are key components of a comprehensive, integrated 
approach to tobacco control.2191 
7.799.   Indeed, Honduras and Indonesia note their own domestic r equirements in respect of health 
warnings and their use on tobacco products within their respective territories.2192  
7.800.   We also note that p aragraph 46 of the Article  11 FCTC Guidelines states that the adoption 
of plain packaging measures2193 "may increase the noti ceability and effectiveness of health 
warnings and messages, prevent the package from detracting attention from them, and address 
industry package design techniques that may suggest that some products are less harmful than 
others".2194 
7.801.   The point of contention  is whether the TPP measures  can increase the effectiveness of 
GHWs in Australia, as envisaged by section 3(2) of the TPP Act, and thereby have an impact on 
smoking behaviours and contribute to Australia's objective of improving public health by reducing 
the use of, and exposure to, tobacco products.  
7.802.   The TPP Act, in identifying an "increase [in] the effectiveness of [GHWs] on the retail 
packaging of tobacco products" as one of the "mechanisms" through which the TPP measures  will 
contribute to their objectiv e, does not elaborate upon how "effectiveness" is to be understood in 
that context.  
7.803.   We note, in this respect, that the Article  11 FCTC Guidelines state, under the heading 
"Developing Effective Packaging and Labelling Requirements", that:  
Well-designed hea lth warnings and messages are part of a range of effective 
measures to communicate health risks and to reduce tobacco use. Evidence 
demonstrates that the effectiveness of health warnings and messages increases with 
their prominence . In comparison with smal l, text -only health warnings, larger 
warnings with pictures are more likely to be noticed, better communicate health risks, 
provoke a greater emotional response and increase the motivation of tobacco users to 
quit and to decrease their tobacco consumption . Larger picture warnings are also 
more likely to retain their effectiveness over time and are particularly effective in 
communicating health effects to low -literacy populations, children and young people. 
Other elements that enhance effectiveness include l ocating health warnings and 
messages on principal display areas, and at the top of these principal display areas; 
the use of colour rather than just black and white; requiring that multiple health 
                                                
2190 FCTC, (Exhibits AUS -44, JE -19), Article  11(1)(b) and Article  11(1)(b)(v), respectively.  
2191 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 3. These Guidelines 
address health warnings inter alia in paras.  7-31. 
2192 Honduras's first written submission, para. 115 (referring to Republica de Honduras, Ley Especial 
para el Control del Tabaco, Decreto 92 -2010, Diario Oficial Num. 32, 296 (21 August 20 10), (Exhibit 
HND-24)); and Indonesia's first written submission, para. 6 (referring to Australian Broadcasting Co rporation  
News, "Indonesia Pushes for Graphic Health Warnings on Cigarette  Packs ", (25 June 2014), available at: 
http://www.abc.net.au/news , accessed 27 September 2015, (Exhibit IDN -1)). 
2193 We recall that such measures are elaborated as being those that "restrict or prohibit the use of 
logos, colours, brand images or promotional information on packaging other than brand names and product 
names displayed in a standard colour and font style". See Article  11 FCTC Guidelines, FCTC/COP/3(10), 
(Exhibit JE -20), Annex, para. 46. 
2194 See Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 46. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  warnings and messages appear concurrently; and periodic rev ision of health warnings 
and messages.2195 
7.804.   We understand this passage to indicate that the effectiveness of GHWs may be determined 
with reference to their prominence, which affects their noticeability, their ability to communicate 
health risks and provoke an emotional response, and the motivation of smokers to quit or 
decrease consumption. The location, appearance and content of GHWs are also acknowledged as 
relevant to their effectiveness.  
7.805.   Australia's expert Professor Chaloupka depicts a conceptual model of the pathways through 
which GHWs would ultimately lead to reductions in smoking prevalence, which "emphasizes the 
importance of the salience and processing of health warnings, which affects their impact on 
perceived risk and other health knowledge, brand ap peal, and emotional responses, all of which 
contribute to quit intentions and other changes in smoking behavior, which will eventually lead to 
increased quit attempts, reductions in consumption, and successful cessation".2196 Professor 
Chaloupka depicts this as follows:  
Figure 14: Professor Chaloupka's conceptual framework for the evaluation of health 
warning policies  
 
Source:  Chaloupka Public Health Report, (Exhibit AUS -9), p. 71 . 
 
                                                
2195 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para. 7. (emphasis added)  
2196 Chaloupka Public Health R eport, (Exhibit AUS -9), para. 89, Figure 5.  
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.806.   This model identifies cessation knowledge, brand appeal, affective reactions, and health 
knowledge/risk perception, as relevant factors in an assessment of the effectiveness of GHWs. 
Such factors are expected to have a bearing on quit intentions (or, in respect of affective 
reactions, avoidance) and, ult imately, smoking behaviours . There appears to be a high degree of 
consistency between this model and the elements set out in the Article  11 FCTC Guidelines which 
have a bearing on the effectiveness of GHWs. In addition, we note that this conceptual framewo rk 
has been endorsed by the International Agency for Research on Cancer (IARC), which was 
established by the WHO , in a handbook on tobacco control  entitled  Methods for Evaluating Tobacco 
Control Policies2197 (2008 IARC Handbook).  
7.807.   We note that in a 2008 evalu ation of the effectiveness of GHWs in Australia, commissioned 
by Australia's DHA, participants were asked questions that sought to ascertain the salience and 
processing of health warnings, their cessation knowledge, affective reactions to GHWs, and their 
knowledge of the health effects and their perception of the risk associated with tobacco use.2198 
The measurement of such elements through these questions is consistent with the elements 
identified as relevant in the FCTC and by Professor Chaloupka.2199  
7.808.   We furth er note that the complainants have not directly addressed the relevance of these 
elements to an assessment of the effectiveness of GHWs. The complainants' expert Professor 
Viscusi argues that "[i] ncreasing the effectiveness of warnings as measured by 'reca ll, attention, 
seriousness and believability'  is only of behavioral consequence if consumers currently have an 
informational deficit and do not find existing warnings credible" which, he argues, is not 
established by the studies he critiques in his report.2200 He argues that "whether plain packs will 
enhance the effectiveness of warnings on risk beliefs depends on how much people know about 
the risks of smoking and how much having warnings on plain packs rather than regular packs will 
alter these risk beliefs" .2201 Professor Viscusi's statements in this respect suggest that, while he 
considers that they are not always of behavioural consequence, he does not suggest that the 
"recall … seriousness and believability"  of, and "attention" to, GHWs, are not relevant for  the 
purpose of understanding the effectiveness of GHWs.  
7.809.   Furthermore, we note that neither the complainants, nor their experts, seem to contest the 
notion that the effect of GHWs on health knowledge and/or risk perception is also relevant – 
indeed, the fa ct that the complainants direct much of their argumentation towards the notion that 
health awareness and risk perception is already high in Australia (and that this cannot be further 
improved by increasing the effectiveness GHWs, as we discuss in the next section) suggests that 
the complainants do not dispute the relevance of these elements.  
7.810.   As we understand it, what the complainants in essence contest is the ability of the 
TPP measures  to have an impact on those factors that affect the effectiveness of GHW s, including 
their visibility and noticeability (in light in particular of the size of GHWs in Australia), their ability 
to increase risk awareness (which the complainants argue is already very high in Australia) and, as 
a consequence, the ability of the TPP measures  to have an impact on smoking behaviours by 
increasing the effectiveness of GHWs. We consider each of these points in turn.  
Impact of plain packaging on the salience and processing of GHWs  
7.811.   Honduras argues that there is no basis for Australia to consider that plain packaging will 
enhance the visibility of on -pack GHWs.2202 The Dominican Republic argues in particular that the 
TPP literature  fails to assess the effect of tobacco plain packaging on packs dominated by a 75% 
                                                
2197 2008 IARC Handbook, (Exhibits AUS -602, DOM -368), p. 296. We note that this report contains "the 
views and opinions of an IARC Working Group on Methods for Evaluating Tobacco Control Policies", among 
whom were Professor Chaloupka and Professor Fong. This report also notes that "[o] ther psychosocial 
variables, such as social norms and bel iefs about the tobacco industry, could also be added to this model".  
Ibid. p. 298. 
2198 Shanahan and Elliott 2008 , (Exhibit CUB-15), p p. 196-224. 
2199 See paras.  7.798 -7.804  and 7.806  above.  
2200 Viscusi Report , (Exhibit UKR -8), para. 21. 
2201 Viscusi Report , (Exhibit UKR -8), para. 22. Professor Steinberg also makes refe rence to Australian 
adolescents ' pre-existing knowledge of the risks of tobacco use. See Steinberg Report , (Exhibit DOM/HND -6), 
para. 44. 
2202 Honduras's first written submission, para. 419.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  GHW.2203 Cuba submits that the 75 % GHWs are " designed to make an impact and hold consumer 
attention" and, "[g]iven the prominence and powerful design of these [GHWs], it is implausible to 
suggest that consumers of tobacco products in Australia will fail to notice them or that any 
Australi an consumers who do somehow fail to notice these warnings will have their capricious 
attention appropriately re -directed because of plain packaging".2204 
7.812.   Australia responds that a number of studies support the contrary view that plain packaged 
tobacco product s will increase the visual attention paid to health warnings, thereby making them 
more prominent and salient.2205 Australia further argues that the TPP measures  increase 
perceptions about the believability and seriousness  of health warnings , and enhance their 
recall.2206 Australia also argues that these effects are present across both adults and youth.2207 
7.813.   The evidence before us in respect of the impact of tobacco plain packaging on the 
effectiveness of GHWs includes certain studies that are part of the body of lite rature discussed 
above as the TPP literature  as well as evidence relating to the application of the TPP measures  
since their entry into force. In this section , we focus on evidence relating to the design and 
structure of the TPP measures , with respect to t heir aptitude to contribute to Australia's objective 
of reducing the use of, and exposure to, tobacco products by increasing the effectiveness of GHWs. 
We consider relevant evidence relating to the application  of the TPP measures , including evidence 
in res pect of their effect on increasing the effectiveness of GHWs, in section 7.2.5.3.6.1 below .2208  
7.814.   Australia's expert Professor Fong identifies a number of studies relating both to the impact 
of branding features as a potential source of distraction from GHWs, and to the expected impact of 
tobacco plain packaging on the salience, visibility and noticeability of GHWs, including the visual 
attention p aid to them, their cognitive processing and their recall. On the basis of these studies, he 
submits that " it is reasonable to consider that the tobacco plain packaging measure will increase 
the effectiveness of health warnings on the retail packaging of to bacco products, including 
cigarettes and cigar products".2209 In another expert report submitted by Australia, Dr Biglan, 
referencing many of the same studies as well as certain others submitted in these proceedings, 
concludes that " across a wide variety of m easures, subject populations (country, 
smoker/non -smoker, or adolescent/adult), investigators, and pack variations, the impact of health 
warnings strengthens when packs have no brand features".2210 Expert reports by Professors 
                                                
2203 Dominican  Republic 's first written submission, para. 608.  
2204 Cuba's first written submission, para. 223. See also Indonesia's first written submission, para. 13; 
and second written submission, paras . 186-187. 
2205 Australia's first written submission, paras.  176-179. 
2206 Australia's first written submission, paras.  180-181.  
2207 Australia's first written submission, paras.  177 and 179 (referring to Gallopel -Morvan et al. 2010, 
(Exhibit AUS -176); Environics 2008a, (Exhibits AUS -179, JE -24(19)); Moodie and Mackintosh 2013, (Exhibits 
AUS-185, JE -24(43)); and Mays et al. 2015, (Exhibit AUS -201)).  
2208 Indonesia focuses its arguments in respect of the effectiveness of GHWs on post -implementation 
evidence. See Indone sia's response to Panel question No. 146; and Indonesia's comments on Australia's 
response to Panel question No. 170, para. 47. 
2209 Fong Report , (Exhibit AUS -14), paras.  355-356. Professor Fong's conclusion follows his description 
of the results of a number of studies that are on the record of these proceedings, including those discussed in 
the following papers: Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)); Moodie and Mackintosh 2013, 
(Exhibits AUS -185, JE -24(43)); CBRC 1992, (Exhibits AUS -198, JE -24(13) ); d'Avernas et al. 1997, (Exhibit 
AUS-144); McCool et al. 2012, (Exhibit JE -24(41)); Van Hal  et al. 2012, (Exhibits AUS -161, JE -24(60)); 
Munafò et al. 2011, (Exhibits AUS -199, JE -24(47)); Maynard et al. 201 3, (Exhibits AUS -200, JE -24(40)); 
Northrup and Po llard 1995, (Exhibit JE -24(48)); Gallopel -Morvan et al. 2010, (Exhibit AUS -176); Parr et al. 
2011b, (Exhibits AUS -219, JE -24(50)); Beede and Lawson 1992, (Exhibits AUS -202, JE -24(6)); Al -hamdani 
2013, (Exhibits AUS -203, JE -24(1)); Germain et al. 2010, (Exh ibits AUS -154, JE -24(25)); Goldberg et al. 
1999, (Exhibits AUS -209, JE -24(27)); Environics 2008a, (Exhibits AUS -179, JE -24(19)); Environics 2008b, 
(Exhibit JE -24(18)); Borland et al. 2009a, (Exhibit AUS -210); Borland et al. 2009b, (Exhibit AUS -211); 
Hammon d et al. 2007, (Exhibit AUS -212); Borland 1997, (Exhibit AUS -213); Partos et al. 2013, (Exhibit 
AUS-204); Borland and Hill 1997, (Exhibit AUS -208); Hammond et al. 2006, (Exhibit AUS -190); and McCaul et 
al. 2006, (Exhibit AUS -205). Fong Report , (Exhibit AUS -14), paras.  314-354. 
2210 Biglan Report , (Exhibit AUS -13), para. 175. Dr Biglan's conclusion follows his consideration of the 
results of studies documented in the following pape rs, among others: Beede and Lawson 1992, (Exhibits 
AUS-202, JE -24(6)); Borland et  al. 2013, (Exhibits AUS -136, JE -24(9)); Environics 2008a, (Exhibits AUS -179, 
JE-24(19)); Gallopel -Morvan et al. 2010, (Exhibit AUS -176); Germain et al. 2010, (Exhibits AUS -154, 
JE-24(25)); Goldberg et al. 1999, (Exhibits AUS -209, JE -24(27)); Hammond et al . 2013b, (Exhibits AUS -158, 
JE-24(31)); Hammond et al. 2009, (Exhibits AUS -166, JE -24(29)); Hammond and Parkinson, (Exhibit 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Samet, Tavassoli, and Slovic, su bmitted by Australia, also refer to a number of studies in the 
context of their assertions that tobacco plain packaging increases the noticeability and salience of 
GHWs, and changes the attention paid to the risks of tobacco use; a number of these studies are 
on the record of these proceedings.2211 
7.815.   We note that in this context2212, Australia and its experts have provided, and refer to, a 
number of studies which indicate that the visual attention  paid to GHWs increases in the presence 
of plain packaging.2213  
7.816.   Of thes e papers, five2214 are critiqued in each of the reviews by Kleijnen Systematic 
Reviews 2215, Professor Inman et al.2216, and Professor Klick2217,; one is critiqued only by Professor 
Inman et al. and Professor Klick.2218 Two are not considered in any of the complainants' three 
literature reviews.2219 The critiques of the complainants' experts regarding these particular studies 
largely follow the criticisms that they make of the TPP literature  in general, which we have 
highli ghted above; namely, the (in)ability of the designs of these studies to inform causal 
relationships with respect to the measured outcome (in this case, the visual attention paid to 
GHWs); the presence of threats to the internal, external, and construct val idity of the studies, 
including possible demand effects and/or SDR; and the fact that the studies do not measure 
smoking behaviour.  
                                                                                                                                                  
AUS-165); Hoek et al. 2011, (Exhibits AUS -148, JE -24(34)); Moodie et al. 2011, (Exhibits AUS -155, 
JE-24(44)); Rousu and Thrasher 201 3, (Exhibits AUS -228, JE -24(54)); Thrasher et al. 2011, (Exhibits 
AUS-229, JE -24(58)); Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)). See Biglan Report , (Exhibit 
AUS-13), para. 174. 
2211 Samet Report , (Exhibit AUS -7), para. 125 (referring to a number o f pre-implementation papers, 
including Hammond et al. 2013a, (AUS -177, JE -24(32)); and Arora et al. 2013, (Exhibit JE -24(2))); Tavassoli 
Report , (Exhibit AUS -10), paras.  109-119 (referring to a number of pre -implementation papers, including 
Maynard et al. 2013, (Exhibits AUS -200, JE -24(40)); Beede and Lawson 1992, (Exhibits AUS -202, JE -24(6)); 
and Goldberg et al. 1999, (Exhibits AUS -209, JE -24(27))); Slovic Report , (Exhibit AUS -12), paras.  84-99 
(referring to a number of pre -implementation papers, including  Hammond et al. 2006, (Exhibit AUS -190); 
Hammond et al. 2009, (Exhibits AUS -166, JE -24(29)); Wakefield et al. 2002, (Exhibits AUS -93, CUB -28); and 
Kennedy et al. 2012, (Exhibit AUS -192)).  
2212 Australia's first written submission, paras.  176-179. 
2213 See, e.g. Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)), p. 6 (finding that 51% of 
students surveyed reported that it was easier to see the health warning on the plain package, whereas 29% 
considered that it was easier on the regular package, and 2 0% reported no difference); d'Avernas et al. 1997, 
(Exhibit AUS-144), p. 13 (reporting that, when participants were presented with different packs featuring 
different combinations of GHWs, colours, and branding, "significantly more daily smokers mentioned the health 
warning on the plain package (82%) than on the regular package (62%)"); Gallopel -Morvan et al. 2010, 
(Exhibit AUS -176), Table 1, p. 8 (finding that French youth who compared four cigarette package designs were 
more likely to notice the (written)  health warning first on non -branded designs, whereas branding was more 
likely to be noticed first for branded designs); Munafò et al. 2011, (Exhibits AUS-199, JE -24(47)), p. 1508 
(finding that, when tracking eye movement in the presence of plain and brand ed packages, "among 
non-smokers and weekly (i.e. light, non -established) cigarette smokers, plain packaging increases visual 
attention towards health warning information and away from brand information", but that "[t]his effect is not 
observed among daily (i.e. established) cigarette smokers"); Maynard et al. 201 3, (Exhibits AUS -200, 
JE-24(40)), p. 417 ("largely replicat[ing] and extend[ing]" the results of Munafò et al. 2011, (Exhibits 
AUS-199, JE -24(47))); McCool et al. 2012, (Exhibit JE -24(41)), p. 1272 (reporting that "[a]n overwhelming 
majority of participants" in semi -structured focus group interviews "regarded warning labels on plain packages 
as more potent, since 'there 's nothing to distract you from the warnings'");  Arora et al. 2013, (Exhibit 
JE-24(2)), p. 4 (reporting that 90% of participants in an opinion poll in India indicated that plain packaging 
would increase the noticeability and effectiveness of health warnings on tobacco products) ; and Borland et al. 
2013, (Exhibits AUS -136, JE -24(9)) . See also Australia's first written submission , paras.  176-179; Samet 
Report , (Exhibit AUS -7), para. 125; Tavassoli Report , (Exhibit AUS -10), para.  112; Biglan Report, (Exhibit 
AUS-13), para.  174; Fong Report, (Exhibit AUS -14), paras.  314-322. 
2214 Rootman and Flay 1995, (Exhibits AUS -145, JE -24(53)); Munafò et al. 2011, (Exhibits AUS -199, 
JE-24(47)); Maynard et al. 201 3, (Exhibits AUS -200, JE -24(40)); McCool et al. 2012, (Exhibit JE -24(41)); and 
Arora et al. 2013, (Exhibit JE -24(2)).  
2215 Kleijnen Sys tematic Review , (Exhibit DOM/HND -4). 
2216 Peer Review Report , (Exhibit DOM/HND -3). 
2217 Klick TPP Literature Report , (Exhibit UKR -6). 
2218 Borland et al. 2013, (Exhibits AUS -136, JE -24(9)).  
2219 d'Avernas et al. 1997, (Exhibit AUS -144); and Gallopel -Morvan et al. 2010 , (Exhibit AUS -176).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.817.   We note that six of these eight studies  were considered in the original Stirling Review 
report or the subsequent Stirling Re view 2013 Update2220; the three studies considered by the 
original Stirling Review report were given a quality score of "medium" (though the focus group 
component of Rootman and Flay 1995 was considered of "low" quality).2221 Considering the 
relevant studies as a whole, the Stirling Review concluded ( inter alia) that "the studies suggest 
that plain packaging tends to increase … the attention paid to [health warnings]".2222 Moreover, 
five of these studies were considered in the Chantler Report; one was given a score of 5 out of 6 
(denoting high quality/low risk of bias)2223, and the other four were given a score of either 42224 or 
4.52225 out of 6 (denoting moderate quality/moderate bias).2226 In respect of the qualitative 
studies, the reviewer concluded that, inter alia, "[p]lai n packaging increases the 
visibility/prominence of health warnings".2227 
7.818.   Overall, therefore, this group of studies in respect of visual attention paid to GHWs in the 
presence of plain packaging was favourably rated in the Stirling and Chantler reviews. Indeed , we 
note in this respect Cuba's observation, quoting an expert report by Professor Viscusi, that "[i]t is 
'almost tautological ' that the eye would be more drawn to a graphic health warning on a plain 
pack, which will inevitably have less to read than a br anded pack".2228 
7.819.   In addition, Australia's expert Professor Fong discusses the impact of not regulating the 
appearance of tobacco packaging on GHW effectiveness, referring, inter alia, to a study by Borland 
et al. 20132229 which "showed that bevelled pack shape d istracts more from warnings than a 
standard pack, and other non -standard pack designs which are banned under the [ TPP measures ] 
were also found to distract from warnings".2230 Australia concludes in this respect by quoting 
                                                
2220 The original Stirling Review considered Rootman and Flay 1995, (Exhibit JE -24(53)); Munafò et al. 
2011, (Exhibits AUS -199, JE -24(47)); and Gallopel -Morvan et al. 2010, (Exhibit AUS -176). Stirling Review, 
(Exhibits AUS -140, HND -130, CUB-59), p p. 27, 30, and 36. The Stirling Review 2013 U pdate considered 
Maynard et al. 201 3, (Exhibits AUS -200, JE -24(40)); Borland et al. 2013, (Exhibits AUS -136, JE -24(9)); and 
McCool et al. 2012, (Exhibit JE -24(41)). Stirling Review 2013 Update , (Exhibi ts AUS -216, CUB -60), p p. 15-16. 
2221 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p p. 27, 30, and 36.  
2222 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 52. See also Stirling Review 2013 
Update , (Exhibits AUS -216, CUB -60), p p. 5 and 7. "The f indings of these … studies … suggest that plain 
packaging would: … enhance the salience of health warnings on packs …". Ibid. p. 2. 
2223 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 54 (with respect to Borland et al. 
2013, (Exhibits AUS -136, JE -24(9))). We note that the Chantler Report did not identify GHWs as one of the 
main outcomes of this study. Ibid.  
2224 See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p. 51 (with respect to Gallopel -Morvan 
et al. 2010, (Exhibit AUS -176)).  
2225 See Chant ler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 51 and 54; and Annex E, p. 61 (with 
respect to Munafò et al. 2011, (Exhibits AUS -199, JE -24(47)); Maynard et al. 2013, (Exhibits AUS -200, 
JE-24(40)); and McCool et al. 2012, (Exhibit JE -24(41))).  
2226 Chantl er Report, (Exhibits AUS -81, CUB -61), Annex D, p. 49.  
2227 See also Chantler Report, (Exhibits AUS -81, CUB -61), Annex E, p. 57. 
2228 Cuba's first written submission, para. 225 (emphasis original; footnotes omitted) (quoting Viscusi 
Report , (Exhibit UKR -8), para. 74). Referencing Munafò et al. 2011, the Viscusi Report states that "[a] major 
finding of the study is that for daily smokers there was no effect whatsoever of viewing plain packs rather than 
regular packs." Viscusi Report, (Exhibit UKR -8), para. 75. The  relevant study found that "[a]nalysis of variance 
indicated more eye movements (i.e. greater visual attention) towards health warnings compared to brand 
information on plain packs versus branded packs", as "observed among non -smokers and weekly smokers, b ut 
not daily smokers", and concluded that "[a]mong non -smokers and non -daily cigarette smokers, plain 
packaging appears to increase visual attention towards health warning information and away from brand 
information." Munafò et al. 2011 (Exhibits AUS -199, JE-24(47)), p. 1505. See  also Stirling Review, 
(Exhibits  AUS-140, HND -130, CUB -59), p. 55; and Maynard et al. 201 3, (Exhibits AUS -200, JE -24(40)).  
2229 Borland et al. 2013, (Exhibits AUS -136, JE -24(9)). We note that this study was first published online 
in 2011, prior to the implementation of the TPP measures . The study identified a relationship between pack 
shapes and distraction from health warnings. Study participants rated the standard pack shape least distracting 
from health warnings compared with bevelle d and rounded packs. Ibid. p. 99. We note that this study  used 
GHWs covering 30% and 70% of the pack surface.  
2230 Fong Report , (Exhibit AUS -14), para. 309 (referring to Borland et al. 2013, (Exhibits AUS -136, 
JE-24(9)). We note that, in this context, Professor Fong also refers to a study by Moodie and Ford (2011), and 
the statement therein that " packaging not only allows tobacco companies to enhance the promotional offering 
by showcasing design and innovation, which often sets a new standard among cons umer products, but in doing 
so they distract from health warnings". See ibid. para. 312 (quoting Moodie and Ford 2011, (Exhibits AUS -189, 
JE-24(42)) , p. 175). We note that Moodie and Ford 2011, (Exhibits AUS -189, JE-24(42)), did not test for this 
effect.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Professor Fong's statement that by " reducing the positive imagery that branded packages of 
cigarettes create, there is good evidence that smokers and non -smokers will be more focused on 
the negative imagery of the health warnings, and be more likely to think about the risk information 
that t hey convey".2231  
7.820.   Australia, and in particular its expert Professor Fong, further identifies  and submit s a 
number of studies in support of the proposition that tobacco plain packaging increases the 
cognitive processing of warnings2232 and recall of GHWs2233, and enhance s the seriousness and 
believability of GHWs .2234 Professor Fong concludes that (in addition to his conclusions concerning 
the visual attention paid to GHWs, discussed above), "[o] n the basis of the available evidence  … it 
is reasonable to consider that  the tobacco plain packaging measure will increase the effectiveness 
of health warnings on the retail packaging of tobacco products, including cigarettes and cigar 
products."2235 
                                                
2231 Australia's first written submission, para. 179 (quoting Fong Report , (Exhibit AUS -14), para. 341).  
2232 See, e.g. Moodie and Mackintosh 2013, (Exhibits AUS -185, JE -24(43)), p. 6 (reporting that, when 
participants from Scotland smoked cigarettes from a fict itious plain pack for one week, and then from their own 
pack for one week, overall ratings of the warnings did not differ between the plain and participants' normal 
packs, but the warnings were rated as being read more closely on the plain pack than on the  participants' own 
packs, and thought about more on the plain pack relative to participants ' own packs ). See also Parr et al. 
2011b (Exhibits AUS-219, JE -24(50)), which, as Professor Fong notes, states that "[w] hen the graphic health 
warning has 75% pack c overage, plain packaging had limited additional impact on the noticeability of health 
warnings for RYO and cigarillo / little cigars". Parr et al. 2011b (Exhibits AUS-219, JE -24(50)), p p. 11 and 47; 
and Fong Report , (Exhibit AUS -14), para. 320. 
2233 Australia 's first written submission, para. 180 and fn  345 (referring to Beede and Lawson 1992, 
(Exhibits AUS -202, JE -24(6)) ; and Al -hamdani 2013, (Exhibits AUS -203, JE -24(1)) ). Beede and Lawson 1992 
found that recall of the presence of health warnings was greater among students for US plain packs than for 
US branded packs, but observed no significant difference for the more familiar New Zealand packs. Beede and 
Lawson 1992, (Exhibits AUS -202, JE -24(6)), p. 317. Al -Hamdani 2013 found that, of the four packages shown  
to participants, the two with the least branding information elicited the highest percentages of correct recall of 
GHWs, and that non -smokers (82%) were more likely to correctly recall the correct health warning than 
smokers (60.4%). Al -hamdani 2013, (Exh ibits AUS -203, JE -24(1)), p. 73. 
Australia's expert, Professor Fong, refers to studies which "reported mixed results regarding differences 
in recall on plain versus branded packages of cigarettes, depending on the specific message of the warning". 
Fong Rep ort, (Exhibit AUS -14), para. 333 (referring to Goldberg et al. 1995, (Exhibits AUS -221, JE -24(26)) 
and Goldberg et al. 1999, (Exhibits AUS -209, JE -24(27))). Goldberg et al. 1995 reported that in unaided recall, 
one warning ("Smoking can kill you") was reca lled by 44% of teenagers on the branded packages, and 50% of 
teenagers on the plain package. This was the only warning recalled by a "meaningful number" of subjects. In 
aided recall, two out of the three warnings used were more successfully matched with th e brand on which they 
appeared by those who viewed the branded pack, whereas for the third warning, 50% of those exposed to 
branded packs, and 50% of those exposed to plain packs, were able to successfully match the warning with the 
brand on which they app eared. Goldberg et al. 1995, (Exhibits AUS-221, JE -24(26)), p. 107. In a later study, 
Goldberg et al. 1999, the authors reported that recall of health warnings on two of the three subject packages 
was higher when subjects were exposed to the plain cigarett e packages. Recall of one warning was lower on 
plain packages. The authors attributed this difference to the content of the health warning. Goldberg et al. 
1999, (Exhibits AUS -209, JE -24(27)), p. 1434. Professor Fong also refers to Northrup and Pollard 199 5 and 
Germain et al. 2010. Fong Report , (Exhibit AUS -14), para. 332. In Northrup and Pollard 1995, the authors 
found that recall of health warnings did not vary by the type of plain package used (white compared to 
off-white), and that recall of the health warning was not enhanced by using plain packaging. However, recall of 
health warnings on the plain package was higher for light smokers and for daily smokers. Northrup and Pollard 
1995, (Exhibit JE -24(48)), p p. 28-30. Germain et al. 2010 found no differenc e in the ability of participants to 
recall the correct GHW between individuals who saw a plain pack with a 30% GHW and a plain pack with a 
80% GHW. Germain et al. 2010, (Exhibits AUS -154, JE -24(25)), p. 390. 
2234 See Northrup and Pollard 1995, (Exhibit JE -24(48)), Table 8, p. 18 (finding that students surveyed 
were more likely to say that plain packages make the health warning look more serious); Moodie et al. 2011, 
(Exhibits AUS -155, JE -24(44)), p. 369 (finding that smokers, who carried their cigarettes in their normal, and 
in plain mock -up, packs for the study period, did not, overall, vary their ratings of the noticeability, seriousness 
and believability of the warnings); Moodie and Mackintosh 2013, (Exhibit s AUS-185, JE-24(43) ), p. 370 
(finding, in a stud y similar to Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)), no noticeable difference in 
term of the perceived seriousness or believability of health warnings in a comparison between plain and 
branded packs). We also note that in the context of the seri ousness and believability of GHWs, Australia refers 
to Beede and Lawson 1992, (Exhibits AUS -202, JE -24(6)), and Al -hamdani 2013, (Exhibits AUS -203, 
JE-24(1)), in respect of consumer recall of warnings on plain packages. Australia's first written submission , 
para. 180 and fn  345. We have discussed these studies in footnote 2233 above.  
2235 Fong Report , (Exhibit AUS -14), para. 355. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.821.   The complainants' review and critique of the TPP literature  overlaps in scope wi th, but is 
not identical to, the studies relied upon by Australia in relation to the impact of the TPP measures  
on the effectiveness of GHWs. Among the 67 papers reviewed between  the original Stirling Review 
and the Stirling Review  2013 Update, 2 6 measured  impacts on GHWs (including recall, cognitive 
processing, seriousness and believability, as well as visual attention paid to GHWs on plain packs, 
discussed above) after "impact on GHWs " as a "type[] of finding[]" or "main outcome[]", as 
determined by the o riginal Stirling Review2236 or the Chantler Report.2237 Overall, 20 of these 
papers were also considered in one or more of the complainants' three literature reviews, the Peer 
Review Project, the Kleijnen Systematic Review, and/or the review conducted by Profess or Klick. 
Of these, Australia has directly relied upon 15 in the course of these proceedings, as reflected by 
their provision to the Panel as exhibits.2238 Australia also refers in this context to a number of 
other papers that were not reviewed in one of the three reviews of the TPP literature  presented by 
the complainants.2239  
7.822.   We also note that, among the 20 papers that measured the impact of tobacco plain 
packaging on GHWs which were considered in both the Stirling Review or the Stirling Review  2013 
Update, an d one or more of the complainants' three reviews of the TPP literature , 12 were included 
in the original Stirling Review, and received quality ratings. Eight were rated as being of "medium" 
quality, while four received a "medium" rating for the survey aspe ct of the underlying study and a 
"low" rating for the focus group aspect of the underlying study.2240 16 of the 20 papers also 
received quality scores from the independent Chantler Report. Of these, four were given a rating 
of between 5 and 6 (denoting high q uality/low risk of bias), while ten earned a score of between 3 
and 4.5 (denoting moderate quality/moderate bias), and two earned a score of 2 (denoting low 
quality/high risk of bias).2241  
7.823.   In respect of the salience of health warnings, the Stirling Review co ncluded, on the basis of 
the evidence it considered, that:  
 Overall, the studies suggest that plain packaging tends to increase the recall of 
health warnings, the attention paid to them and their perceived seriousness and 
believability.  
 Findings appear to be moderated by the type, size and position of health warning 
used.  
 Only one study examined sub -group differences, and reported that non -smokers 
and weekly smokers may pay more attention to warnings on plain packs than 
daily smokers.2242 
7.824.   In respect of cigars, we note some of the observations in Parr et al. 2011b addressing the 
salience of GHWs on cigar tubes, in the presence of plain packaging. While among frequent and 
                                                
2236 Stirling Review, ( Exhibits AUS -140, HND -130, CUB -59), Table 4.1.  
2237 Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, p p. 60-62. 
2238 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s. See also Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Table 4.1; and Chantler 
Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, p p. 60-62. We note that Australia has 
also submitted and relied upon a newsletter article that was authored by the same researchers, and appears to 
discuss the same study, as a paper that assesses the impact of tobacco plain packaging on GHWs and was 
considered by th e Stirling Review and each of the complainants' three TPP literature  reviews. Compare 
Northrup and Pollard 1995, (Exhibit JE -24(48)), with ISR newsletter, (Exhibit AUS -146).  
2239 See, e.g. Gallopel -Morvan et al. 2010, (Exhibit AUS -176); d'Avernas et al. 1997 , (Exhibit AUS -144); 
Hammond et al. 2007, (Exhibit AUS -212); Hammond et al. 2006, (Exhibit AUS -190); and Borland et al. 2009b, 
(Exhibit AUS -211).  
2240 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s. See also Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Table 4.1.  
2241 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the back 
of these Report s. See also Chantler Report, (Exhibits AUS -81, CUB -61), A nnex D, p p. 50-55, and Annex E, 
pp. 60-62. We also note that Gallopel -Morvan et al. 2010, (Exhibit AUS -176), which was not reviewed in the 
complainants' literature reviews, was assigned a "medium" rating by the Stirling Review, and a score of 4 by 
the Chan tler Report. See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 27; and Chantler Report, 
(Exhibits AUS -81, CUB -61), Annex D, p. 51. 
2242 Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), p. 52. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  connoisseur smokers of premium cigars "the [plain cigar] tubes were dis regarded"2243, the less 
frequent smokers of premium cigars2244 "had a stronger reaction to the plain pack tube", in 
particular the GHW2245:  
When presented with the plain pack tube they reported feeling the appeal and 
attractiveness of the tubes had been severely d ecreased. They reported feeling that 
part of the "fun" had been removed. Standing out most was the size of the health 
warning which was unavoidable.2246 
7.825.   Overall, therefore, the evidence before us suggests that a number of studies, emanating 
from qualified sou rces and favourably reviewed in external reviews, support the proposition that 
plain packaging of tobacco products would increase the effectiveness of GHWs. Specifically, it 
suggests that in the presence of plain packaging, GHWs on tobacco products are con sidered easier 
to see, more noticeable, perceived as being more credible and more serious, attract greater visual 
attention2247, are less subject to distractions caused by other packaging elements, and are read 
more closely and thought about more. We also not e the existence of mixed evidence in respect of 
whether tobacco plain packaging improves GHW recall, or affects whether GHWs are perceived as 
being more serious and believable. In this respect, we note the description by Australia's expert, 
Professor Samet , that the studies he reviews "are consistent in showing that plain packaging 
reduces the appeal of the cigarettes in the pack and enhances awareness of pictorial warnings on 
the pack"2248, though "[t]he evidence is not as abundant on the effect of plain pack aging on the 
salience of pack warnings".2249  
7.826.   Notwithstanding the potential limitations of these studies, taken individually or as a whole, 
we also have before us evidence relating to the actual application of the TPP measures  since their 
entry into force, in cluding empirical studies specifically addressing the impact of tobacco plain 
packaging on the effectiveness of GHWs. This evidence should be given appropriate weight in our 
assessment. We consider this evidence in section 7.2.5.3.6.1  below, and therefore do not seek to 
draw, at this stage of our analysis, any overall conclusion on the impact of the TPP measures  on 
the effectiveness of GHWs.  
7.827.   With thi s conclusion in mind, we turn now to consider whether an increase in the 
effectiveness of GHWs may be expected to affect risk beliefs and risk awareness in Australia, as 
contested by the complainants.  
Ability of plain packaging to increase the effectivenes s of GHWs by improving 
risk awareness and risk beliefs  
7.828.   As described above2250, it appears to be undisputed that an assessment of the 
effectiveness of GHWs is, as a general matter, informed by their ability to communicate 
information about health risks and th ereby increase levels of risk awareness. The complainants' 
submissions in this respect focus on the potential for such awareness to increase in the presence 
                                                
2243 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p.  40. Although "frequent cigar smokers did feel 
that the plain pack tube would have an impact on their purchasing enjoyment and the appeal of cigar smoking 
in general. They felt it would render the tobacconists and cigar sellers less appealing an d inviting as places to 
stop and sho p. Some reported that it might push their purchases online." Ibid. p. 41. 
2244 "Less frequent smokers reported that currently the purchasing of cigars was part of the ritual and 
enjoyment involved in cigar smoking. They rep orted that the 'revealing' of the cigars on a social occasion was 
one of the highlights of the process. A number of respondents reported paying particular attention to the tubes 
and packaging, and often spending more than they would normally, in order to i mpress guests, friends, or to 
give as gifts. The plain packaged tube was felt to take away this aspect of cigar smoking which was often cited 
as a main driver in their smoking behaviours." Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 41. 
2245 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 41. 
2246 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50) ), p. 41. 
2247 In this respect, we note Cuba's observation that it is " almost tautological " that the eye would be 
more drawn to a graphic warning on a plain pack, "which will inevitably have less to read that a branded pack". 
Cuba's first written submission, para. 225 (emphasis original) (quoting Viscusi Report , (Exhibit UKR -8), 
para. 74). 
2248 Samet Report , (Exhibit AUS -7), para. 128. 
2249 Samet Report , (Exhibit AUS -7), para. 129. 
2250 See paragraphs 7.803 -7.806  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  of plain packaging, in light in particular of existing levels of knowledge about the health risks 
arising from the use of tobacco products in Australia.  
7.829.   Honduras and Cuba argue that Australians, and in particular Australian adolescents, 
already have a high understanding and awareness of the risks associated with smoking and that 
their smoking behaviour  is not driven by that understanding and awareness.2251 The complainants 
rely in this respect on an expert report by Professor Viscusi2252, who argues that increasing the 
effectiveness of warnings as measured by "recall, attention, seriousness and believability"2253 is 
"only of behavioral consequence if consumers currently have an informational deficit and do not 
find existing warnings credible", which, he argues, is not established in any the studies 
underpinning the tobacco plain packaging.2254 He argues that "whethe r plain packs will enhance 
the effectiveness of warnings on risk beliefs depends on how much people know about the risks of 
smoking and how much having warnings on plain packs rather than regular packs will alter these 
risk beliefs".2255  
7.830.   Australia responds t hat "knowledge of risk is 'a multilayered concept'  and studies of 
Australians  found that although people are sometimes 'aware' that smoking can lead to adverse 
health consequences, they do not have even a basic understanding of the nature and severity of 
these consequences".2256 
7.831.   Professor Viscusi reviews a number of studies in support of the conclusion that tobacco 
plain packaging increases the effectiveness of health warnings in Australia and sets out a series of 
methodological concerns in respect of these st udies. In particular, he identifies the need to 
"carefully assess baseline knowledge among respondents" of risk beliefs, the purpose of which is to 
make possible meaningful comparisons with risk beliefs elicited after providing the warnings in a 
plain pack  environment.2257 Professor Viscusi notes that "[n]one of the existing plain packaging 
studies starts from a determination of the existing risk beliefs to compare with the risk beliefs 
resulting from plain packaging".2258 If there is no increase in risk beliefs,  then one cannot, in 
Professor Viscusi's view, conclude that plain packs foster a greater understanding of smoking 
risks.2259 Professor  Viscusi argues that plain packaging does not provide any new warning 
information and that there is no evidence that new war nings were not noticed before tobacco plain 
packaging. In his view, the plain pack studies "fail to assess the alleged informational deficit that 
plain packaging would fill and do not examine whether people's risk belief changes as a result of 
plain packag ing".2260  
7.832.   Professor Viscusi further submits that over time, "the progress that can be made through 
additional warnings efforts will taper off as people become better informed of the risks of 
smoking"2261, and "[o]nce people become generally aware of the major r isks posed by cigarettes, 
such as the mortality risk and lung cancer risk, there will be fewer gains in risk awareness that can 
be achieved, if any".2262 Professor Viscusi addresses risk beliefs in Australia, noting that "[t]here is 
substantial evidence in Au stralia that people are not only aware of the risks but also personalize 
the risks to themselves"2263; that "[e]ven before the current warnings were enacted, in an earlier 
warnings era, Australians indicated substantial risk awareness"2264; and that "[e]ven subgroups of 
                                                
2251 See Honduras's first written submission, para. 417; Cuba's first written submission, para. 227. 
2252 Viscusi Report , (Exhibit UKR -8) (relied upon by Honduras and Cuba).  
2253 Viscusi Report , (Exhibit UKR -8), para. 21 (referring to Stirling Review, (Exhibits AUS -140, HND -130, 
CUB-59), p. ii). 
2254 Viscusi Report , (Exhibit UKR -8), para.  21. 
2255 Viscusi Report , (Exhibit UKR -8), para.  22. 
2256 Australia's first written submission, para. 171. 
2257 Viscusi Report, (Exhibit UKR -8), paras.  36-38. 
2258 Viscusi Report, (Exhibit UKR -8), para.  38. 
2259 Viscusi Report, (Exhibit UKR -8), para.  43. 
2260 Viscusi Report, (Exhibit UKR -8), para.  44. 
2261 Viscusi Report, (Exhibit UKR -8), para.  99. 
2262 Viscusi Report, (Exh ibit UKR -8), para.  99. See also ibid. paras.  101-104. 
2263 Viscusi Report , (Exhibit UKR -8), para.  104. 
2264 Viscusi Report, (Exhibit UKR -8), para.  105. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the Australian population that one might think are difficult to reach with a broadly based warnings 
policy have received the risk information".2265 
7.833.   Honduras also refers to an expert report by Professor Steinberg, summarized above2266, 
and in particular his argument that " it is abundantly clear that Australian adolescents are aware of 
and understand the risks of smoking and know that it has harmful long -term health 
consequences".2267 He argues that "adolescents' awareness of the health risks of smoking is ne arly 
universal (and was achieved without plain packaging)", and that it is therefore "difficult to imagine 
how the introduction of plain packaging could – even conceptually – increase this awareness".2268  
7.834.   Australia's expert Professor Slovic submits that, con trary to the opinion of Professor 
Viscusi, many people do not adequately understand and appreciate the risks that smoking 
entails.2269 He argues that beginning smokers "give little conscious thought to risk", "are lured into 
the behavior by the prospects of fun, excitement, and adventure" and "begin to think of risk only 
after they have started to smoke regularly, become addicted, and ga ined what to them is new 
information and appreciation of smoking's health risks".2270 Professor Slovic adds that "[t]here is 
no evidence to show that adolescents, or others who start smoking, have adequate knowledge of 
the many diseases caused by smoking ", nor the experience of lung cancer, chronic obstructive 
pulmonary disease, or congestive heart failure.2271 
7.835.   Professor Slovic further argues that tobacco advertising and promotion, "of which the pack 
is a part", have been "designed to play a key role in this proc ess by exposing young people to 
massive amounts of positive imagery associated with smoking". Professor Slovic observes that 
these imagery and affective feelings are never mentioned by Professor Viscusi as motivators of 
smoking.2272 Professor Slovic suggests that "[t]hrough the workings of the affect heuristic, positive 
feelings suppress feelings of risk", such that scientific or statistical warnings are ignored or 
undervalued.2273 Professor Slovic considers that Professor Viscusi "also fails to appreciate [] tha t 
research has shown that knowledge of risk from smoking is a multilayered concept", at the "tip" of 
which is "superficial awareness that smoking is dangerous to health", and progresses through 
"level 2" (i.e. "knowing a bit about how and why smoking is da ngerous"). Professor Slovic argues 
that rational decision making requires deeper knowledge and, he argues, "few smokers have this 
deeper, experiential knowledge" (some of which has been shown to be provided by GHWs).2274  
7.836.   In an expert report submitted by Aust ralia, Dr Biglan also argues that a dolescents are not 
fully informed about the risks of smoking2275 and points out that both smoking and non -smoking 
adolescents underestimated the death rate due to these diseases.2276 Dr Biglan further argues that 
in contesting the notion  that p lain packaging affects risk perceptions, the complainants' experts 
reviewed only a portion of the empirical literature on the impact of plain packaging2277 and, in the 
case of Professor Viscusi, provided a critique which contains "inaccuracie s and misrepresentations" 
and overlooked " how clearly [the relevant studies] show the impact of plain packaging on health 
risk perceptions".2278 Reviewing a number of studies, Dr Biglan concludes that " across a wide 
variety of measures, subject populations (c ountry, smoker/nonsmoker, or adolescent/adult), 
investigators, and pack variations, the impact of health warnings strengthens when packs have no 
brand features".2279 
                                                
2265 Viscusi Report, (Exhibit UKR -8), para.  106. 
2266 See paras.  7.710 -7.711  and 7.722 -7.723  above.  
2267 Steinberg Report , (Exhibit DOM/HND -6), para. 44. See also Steinberg Rebuttal Report, (Exhibit 
DOM/HND -10), para. 12. 
2268 Steinberg Report , (Exhibit DOM/HND -6), para. 44. 
2269 Slovic Report , (Exhibit AUS -12), para. 90. 
2270 Slovic Report , (Exhibit AUS -12), paras.  90 and 92.  
2271 Slovic Report , (Exhibit AUS -12), para. 91. 
2272 Slovic Report , (Exhibit AUS -12), para. 90. 
2273 Slovic Report , (Exhibit AUS -12), para. 93. 
2274 Slovic Report , (Exhibit AUS -12), para. 97. 
2275 Biglan Report , (Exhibit AUS -13), para. 166 
2276 Biglan Report , (Exhibit AUS -13), para. 166 
2277 Biglan Report , (Exhibit AUS -13), paras.  167-169. 
2278 Biglan Report , (Exhibit AUS -13), para. 173. 
2279 Biglan Report , (Exhibit AUS -13), para. 175. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.837.   We understand the complainants to argue, in essence, that risks awareness levels in 
Australia  are such that there is no meaningful scope for an increase in health knowledge and/or 
risk perception in Australia through more effective GHWs. Professor Viscusi thus suggests that 
"[o]nce people become generally aware of the major risks posed by cigarett es, such as the 
mortality risk and lung cancer risk, there will be fewer gains in risk awareness that can be 
achieved, if any ."2280 
7.838.   We note that a number of studies submitted as evidence in these proceedings address the 
existing level of awareness among Austr alians concerning the risks associated with tobacco use, 
and the extent to which GHWs increase such awareness. For example, a study by Borland and Hill 
(1997)2281 found that the health warnings introduced in 1995 (which required written health 
warnings coveri ng no less than 25% of the face of the pack) achieved "high levels of awareness … 
at least among smokers"2282, as acknowledged by Professor Viscusi2283, while also noting that 
smokers who lacked awareness of the warnings may simply "have never noticed them".2284 The 
same study also states that "[m]any smokers still lack even a basic understanding of the major 
constituents of tobacco smoke or of their potential health effects, even though there was a small 
increase in knowledge at follow up", and that "[o]ne striking  finding was that smokers were far 
more likely to agree that smoking is addictive than to agree that it is harmful, and far more 
thought it was addictive than thought it was enjoyable".2285 The same paper notes that "[i]t is true 
that in Australia almost ever ybody has heard about dangers of smoking (as can be inferred from 
the data in this paper) but it does not mean that they know and believe all the information that is 
central to making rational decisions about whether or not to smoke".2286  
7.839.   Australia's expert  Professor Slovic refers2287 to a study based on data gathered in 2002 
from the International Tobacco Control Policy Evaluation Project 's (ITC Project ) 4-country survey, 
which indicates a high level of awareness in Australia of various conditions in smokers, following 
phone -based surveys involving prompted recall of those conditions.2288 A 2009 report2289 
commissioned by Australia's DHA to evaluate the effectiveness of GHWs on tobacco products also 
reports, as Professor Viscusi notes2290, a high level of awareness that  certain health risks are 
associated with smoking 2291, although levels of recall of the content of warnings, unaided2292 and 
                                                
2280 Viscusi Report , (Exhibit UKR -8), para. 99. 
2281 Borland and Hill 1997, (Exhibit AUS -208).  
2282 Borland and Hill 1997, (Exhibit AUS -208), p. 324. 
2283 Viscusi Report , (Exhibit UKR -8), para. 105. 
2284 Borland and Hill 1997, (Exhibit AUS -208), p. 324. 
2285 Borland and Hill 1997, (Exhibit AUS -208), p. 324. 
2286 Borland and Hill 1997, (Exhibit AUS -208), p. 324. 
2287 Slovic Report , (Exhibit AUS -12), para. 91. 
2288 The surveys considered in particular knowledge of lung cancer in smokers (94.3%), heart disease 
(88.7%), stroke (80.8%), lung cancer in non -smokers (69.0%), and impotence (35.8%). Hammond et al. 
2006, (Exhibit AUS -190), p. iii21. We note that Professor Sl ovic also refers in this context to a study by 
Hammond et al. 2009, (Exhibits AUS -166, JE -24(29)), in which participants from the United Kingdom were 
asked to compare five packs on the basis of their perception of the packs' taste, tar delivery, health ris k, 
attractiveness and either ease of quitting (for adult smokers) or the brand they would choose if trying smoking 
(for youth). See Slovic Report , (Exhibit AUS -12), para. 91. As this study is based in the UK, we are of the view 
that this study is not direc tly relevant to the question of existing levels of risk awareness in Australia.  
2289 Shanahan and Elliott 2008, (Exhibit CUB -15). 
2290 Viscusi Report , (Exhibit UKR -8), para. 105. 
2291 Specifically, the study reports that in Australia 91% of all smokers disagree wit h the statement: "I 
don't think smoking has any real negative effect on your health at all"; that 88% of smokers agree with the 
statement: "I think that smoking probably does increase the risk of a health problem occurring for me"; and 
that 96% "disagree w ith statements that smoking does not have any real health effect". Shanahan and Elliott 
2008, (Exhibit CUB -15), p. 181).  
2292 Shanahan and Elliott 2008, (Exhibit CUB -15), p. 66. Respondents identified the content of warnings 
to different degrees; specifically , respondents recalled "smoking causes mouth and throat cancer" (18%); 
"smoking – a lead cause of death"(18%); "smoking causes peripheral vascular disease/gangrene" (17%); 
"smoking causes emphysema" (9%); "smoking clogs your arteries" (5%); "don't let chil dren breathe your 
smoke" (4%); "quitting will improve your health" (3%); "smoking causes lung cancer" (34%); "smoking harms 
unborn babies" (29%); "smoking causes heart disease" (10%); "smoking causes blindness" (4%); "smoking 
doubles your risk of stroke" ( 3%); "smoking is addictive" (2%); and "tobacco smoke is toxic" (1%). Ibid. 
p. 66, Table 15. Results were further disaggregated on the basis of respondents' status as a smoker, recent 
quitter, non -smoker and ex -smoker. Ibid.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  aided2293, varied.  We note also a market research study referred to by Professor Viscusi in support 
of the point that the health warnings r equired in 2011 (that is, before their enlargement pursuant 
to the Information Standard) "are effective, so that smokers and the public at large have been 
informed of the risks".2294 That report also notes that "with very few exceptions, all respondents 
could  easily identify a specific health warning from the current suite that stood out to them", which 
"was often the one they avoided buying if they could".2295 Professor Steinberg, in his expert report, 
also refers to a Victorian Government study based on 2011  Australian Secondary Students Alcohol 
Smoking and Drug  (ASSAD)  Survey data2296 reporting high levels of awareness of various specific 
diseases associated with smoking.2297  
7.840.   This evidence suggests, overall, that Australians have a high level of awareness that 
smoking increases the risks of health problems in general. It also suggests a high, and in the case 
of some conditions, extremely high level of awareness of some specific health risks associated with 
tobacco use, but a notably lower level of risk awareness  in respect of certain conditions discussed 
in the evidence.  
7.841.   This evidence further indicates that GHWs have been effective in Australia at, inter alia, 
communicating certain specific effects of tobacco use to the Australian public and, in particular, 
bringing about gains in risk awareness that go beyond the "major" risks of "mortality … and lung 
cancer …".2298 For example, we note a 2012 study which found that Australian smokers, who were 
exposed to a GHW with the message that smoking causes blindness, were m ore likely to report 
when prompted that smoking causes blindness than smokers from Canada, the United States and 
the United Kingdom, who were not exposed to this same warning.2299 In this connection, we also 
note that the timing of many of the studies describ ed above indicates that they refer to periods 
                                                
2293 Shanahan and Elliott 2008, (Ex hibit CUB -15), p. 71. Respondents identified the content of warnings 
to different degrees; specifically, respondents recalled "smoking clogs your arteries" (83%); "smoking causes 
peripheral vascular disease/gangrene" (83%); "smoking causes mouth and throat  cancer" (82%); "smoking 
causes emphysema" (81%); "smoking – a lead cause of death"(73%); "don't let children breathe your smoke" 
(69%); "quitting will improve your health" (63%); "smoking causes lung cancer" (94%); "smoking harms 
unborn babies" (90%); "sm oking is addictive" (89%); "smoking causes heart disease" (89%); "tobacco smoke 
is toxic" (76%); "smoking doubles your risk of stroke" (64%); "smoking causes blindness" (61%); "smoking 
exposes you to more than 40 harmful chemicals" (65%); "quit now to redu ce your risk of chronic illness or 
premature death" (62%); and "these chemicals damage blood vessels, body cells and the immune system" 
(49%). See ibid. p. 71, Table 18.  
2294 Viscusi Report , (Exhibit UKR -8), para. 105. Parr et al. 2011c bears this out, insofa r as it states that:  
 
The reported behaviour of smokers demonstrated that current health warnings on packs are still 
effective. Although few smokers claimed to take notice or think about the current health 
warnings, many admitted to particular behaviours which indicated that the warnings have some 
impact. Many claimed to []  put the pack into something else (a cover or container); []  empty 
cigarettes into another container to carry; and/or [] ask retailers for packs with images less 
personally relevant or graphic".  
 
Parr et al. 2011c, (Exhibits AUS -119, CUB -75), p. 5. 
2295 Parr et al. 2011c, (Exhibits AUS -119, CUB -75), p. 25. The authors otherwise report mixed responses 
to the warnings, however, noting that "[s]mokers claimed that they viewed the health warnin gs as extreme 
and rare cases and responded in a rational manner, claiming to dismiss the health consequences as unlikely to 
occur to them", but that "even if they perceive them as extreme examples they impact on smokers at an 
emotional level as they highli ght areas of potential health concern of which they remain conscious".   
2296 ASSAD 2011 Report, (Exhibit DOM-360).  
2297 Steinberg Report , (Exhibit DOM/HND -6), para. 44. Professor Steinberg refers to this study in 
support of an argument that " greater than 90 perc ent of 12 -17 year -olds agreed or strongly agreed with 
statements that smoking causes lung cancer (97 percent), smoking increases the risk of having a heart attack 
(91 percent), smoking can harm unborn babies (93 percent), and causes mouth cancer (95 percen t), with high 
percentages for a range of other diseases".  The study also notes agreement or strong agreement in prompted 
recall with the notion that smoking is addictive (86%), is a leading cause of death (75%), causes diseases in 
toes and fingers (87%), c auses emphysema (84%), clogs arteries (83%), causes blindness (52%), doubles 
risk of stroke (85%), and is toxic (80%). ASSAD 2011 Report, (Exhibit DOM-360), pp. 110-111. 
2298 See, e.g. Shanahan and Elliott 2008, (Exhibit CUB -15). 
2299 Kennedy et al. 2012, (Exhibit AUS-192).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  during which GHWs in Australia have been of different sizes, and have contained different 
messages.2300  
7.842.   We further note that the 200 8 IARC Handbook suggests that "smokers in different parts of 
the world have diff erent levels of existing health knowledge", which "has implications for the type 
of messages to be included in warnings".2301 It cites as an example in this respect that "Australian 
smokers may have a relatively higher level of health literacy than smokers in  other regions, which 
may account for the decision to include a warning for 'peripheral vascular disease' on 
packages".2302  
7.843.   This evidence suggests to us that, in the context of their role in improving health 
knowledge and perception of risks, the content of GHWs is legitimately informed by gaps in 
knowledge within the relevant country, with the aim of addressing those gaps in knowledge. We 
are not persuaded, however, that the existence of a relatively high level of knowledge or risk 
awareness in Australia imp lies that GHWs could not be made more effective in achieving their 
objective of increasing such knowledge or risk awareness. It appears to us that such a view would 
be tenable only if assessed at the highest level of generality (namely that Australians con sider 
smoking to be harmful and to carry risks, which the evidence before us suggests is almost 
universally known), and if we were to assume that the need to inform individuals about the health 
risks associated with tobacco use is contingent only on the ex tent of general knowledge already 
existing in the relevant territory.2303 Professor Viscusi's own analysis appears to acknowledge that 
this is not the case, when he notes that "[t]hat the public is well informed does not imply that 
warning efforts should be a bandoned", as "[n]ew generations of potential smokers would still 
benefit from the information, and removing the warnings would imply that cigarettes have become 
safer".2304 The complainants' argument on the inability of plain packaging to improve the 
effecti veness of GHWs due to current levels of risks awareness in Australia would seem to imply 
that the effectiveness of GHWs would not be capable of being improved in any meaningful way, or 
even that they would no longer be necessary in Australia, which we do n ot understand the 
complainants to be suggesting.  
7.844.   We also note that the evidence before us suggests a lower level of risk awareness in 
relation to cigars. Parr et al. 2011b conclude that "[s]mokers of premium  cigars differed 
considerably in their attitude to cigars compared to smokers of other tobacco products."2305 Both 
types of cigar smoker also had "low perceptions of any health risks connected with their cigar 
smoking", and "[a]s most did not smoke daily but rather weekly or once every two weeks they 
                                                
2300 As we noted in section 2.2.1, tobacco health warning requirements were enacted by all Australian 
states and territories in 1973 and set out textual health warnings for cigarettes only. Subsequent measures at 
the fe deral level expanded the scope of the warnings with respect to their form (i.e. to include textual and 
graphic/pictorial warnings), size (i.e. as a percentage of the surface of the pack), position (i.e. on the front 
and/or back of packs), modalities (i.e. the variation and rotation of text and images) and scope (i.e. application 
of the requirements to other categories of tobacco products).  As of 1 March 2006, GHWs were required for 
almost all tobacco products – regular packages were required to feature a wa rning message that covered 25% 
of the area of the face of the pack on which it was printed, and explanatory messages were required to cover 
one third of the area of the face of the pack on which it was printed. Trade Practices (Consumer Product 
Information  Standards) (Tobacco) Regulations 1994  (Cth), (Exhibit AUS -322), Regulation 11. The Competition 
and Consumer (Tobacco) Information Standard 2011  (Cth), which sets out the current 75%/90% requirements 
for GHWs and explanatory statements, entered into force on 1 January 2012. See Information Standard, 
(Exhibits AUS -128, JE -8). 
2301 2008 IARC Handbook, (Exhibits AUS -602, DOM -368), p. 294. 
2302 2008 IARC Handbook, (Exhibits AUS -602, DOM -368), p. 294. 
2303 Shanahan and Elliott 2008, (Exhibit CUB -15), p. 181. In this conn ection, we are similarly not 
persuaded by Professor Viscusi's critique of a number of studies concerning the effect of plain packaging of 
tobacco products on the effectiveness of GHWs, on the basis that "[n]one of the existing plain packaging 
studies start s from a determination of the existing risk beliefs to compare with the risk beliefs resulting from 
plain packaging". See Viscusi Report , (Exhibit UKR -8), paras.  36-38 and 43 -44. Relatedly, and as discussed in 
"Focus o f the TPP studies on "non -behavioural" outcomes " within section 7.2.5.3.5.1  above, we are not 
persuaded that the focus on "proximal" outcomes in the TPP literature  constitutes, in itself, a flaw, provided 
that such "proximal outcomes", including the impact of plain packaging on increasing the effectiveness of 
GHWs, are understood  to form only one element of the "causal chain" in the "mediational model" underlying 
the adoption of the measures.  See paras.  7.555  and 7.564  above. We are therefore similarly not persuaded by 
Professor Viscusi's critique in this respect. See Viscusi Report , (Exhibit UKR -8), paras.  45-49. 
2304 Viscusi Report , (Exhibit UKR -8), para. 101. 
2305 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 370 - 
  also did not feel their frequency of smoking warranted concern about health implications".2306 We 
also note the observations by Australia, uncontested by the complainants, as to the higher 
harmfulness of a single cigar compared with a single cigarette2307 and misperceptions of actual 
cigar risks .2308 Further, we note the finding in Parr et al. 2011b in respect of plain packaged  cigar 
bags: " no one wanted to be seen carrying a bag with a large graphic health warning on it, or to 
have to look at the bag themsel ves. It did serve as a reminder of the negative effects of their cigar 
smoking".2309 
7.845.   In light of the above, we are not persuaded that the complainants have shown that 
existing levels of health knowledge and risk awareness in Australia are such that they could  not be 
increased if GHWs achieved greater salience and thereby have a greater ability to increase levels 
of risk awareness in respect to the health risks posed by tobacco products, in the presence of plain 
packaging.  
7.846.   Finally , we will consider the extent to which the complainants have demonstrated that, 
even if GHWs on tobacco products are considered easier to see, more noticeable, perceived as 
being more credible and more serious, attract greater visual attention, and increase levels of risk 
awareness, th is could , in any event , have no influence on quit intentions and smoking behaviours.  
Effect of an increase in the effectiveness of GHWs through plain packaging on 
quit intentions and smoking behaviours  
7.847.   Cuba argues that increased attention to health warni ngs does not necessarily imply that 
there will be significant changes in smoking rates in Australia, given that even in the case of 
branded packs, "observers pay attention to both the health warning and package design 
elements".2310 Cuba further argues that  "even if th[e] claim [that plain packaging will increase the 
effectiveness of GHWs] were true, because it operates by increasing risk awareness, it can have 
little, if any, incremental effect on smoking behaviour in Australia (given that the overwhelming 
majority of the population is already aware of the relevant risks)".2311 Honduras similarly refers to 
Professor Viscusi's observation that Australians are aware of the risks and personalize them, and 
that it is highly unlikely that increasing warning size or pr ominence will have any influence on 
smoking behaviours or consumer perceptions of health consequences.2312 The Dominican Republic 
also submits, with reference to the expert report of Professor Steinberg, that "even if plain 
packaging were shown to increase th e prominence of health warnings (which recent research in 
                                                
2306 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 10. Parr and Ell 2011 further finds that:  
 
Premium cigar smokers do perceive that there are likely to be health effects from premium cigar 
smoking. However, these are largely perceived as negligible compar ed to the smoking of other 
tobacco products. This is for a number of reasons:  
 less tobacco is perceived to be consumed as it is not habitual;  
 it is not p erceived as physically addictive; and  
 it is not perceived to impact on the lungs as much as cigarette smoke does as the smoke is 
not directly inhaled .  
 
Parr and Ell 2011, (Exhibit CUB -41), p. 27. 
2307 Australia's response to Panel question No. 13 (referring to American Lung Association, "Cigars: Facts 
and Figures", < http://www.lung.org/stop -smoking/about -smoking/facts -figures/cigars.html > accessed  
30 January 2015, ( Cigars: Facts and Figures), (Exhibit AUS -34)). See also Australia's first written submission, 
para. 30, (referring to  US National Cancer Institute, "Fact Sheet: Cigar Smoking and Cancer", 
27 October  2010, < http://www.cancer.gov/cancertopics/factsheet/Tobacco/cigars/ >, accessed  25 February 
2015, ( NCI Cigar Fact Sheet), (Exhibit  AUS-40); Samet Report , (Exhibit AUS -7), paras.  75-77; and WHO/FCTC 
amici curiae brief, (Exhibit AUS -42 (revised)) ). 
2308 See Australia's first written submission, paras.  173 and 197, and fn 2306 above. Likewise, 
Miller  et al. 2015 notes that "[c]igars and cigarillos were consistently viewed as less harmful and distinct from 
cigarettes, all of which is consistent with the way cigars have been positioned." Miller et al. 2015, (Exhibits 
AUS-102, DOM -315), p. 7. See also Australi a's first written submission, para. 173. 
2309 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 43. 
2310 Cuba's first written submission, para. 226 (referring to Munafò et al. 2011, (Exhibits AUS -199, 
JE-24(47)), p. 1509, Table 1). See also Cuba's first written submission, para. 349. 
2311 Cuba's first written submission, para. 227. 
2312 Honduras's first written submission, para. 419 fn 349. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  fact suggests is not the case), this would … have no influence on adolescent experimentation with, 
or use of, tobacco products".2313 
7.848.   Australia submits that increases in the effectiveness of GHWs affect  consumer intentions 
and behaviour. It submits that the personal health risks of tobacco use are an important motivator 
for consumer s to cease using tobacco products, and that the combination of plain packs with 
health warnings decreases positive perceptio ns of tobacco use and increases the understanding 
that tobacco use presents a health risk.2314 Australia also submits that reducing design elements 
on tobacco packaging to " detract from health warnings (and the serious and severe consequences 
of tobacco use),  has already started to have its desired effect of changing attitudes, which is likely 
to encourage quitting behaviour".2315  
7.849.   We understand the design and structure underlying the operation of the second 
mechanism under the TPP Act to be that at least some consumers will be influenced in their 
smoking behaviours if GHWs are made more effective as a result of plain packaging of tobacco 
products, in combination with other tobacco control measures in place in Australia. This is 
describ ed as follows by Professor Fong:  
Given my conclusion that the tobacco plain packaging measure would increase the 
effectiveness of health warnings on the retail packaging of tobacco products, I also 
consider it reasonable to conclude that this increase in e ffectiveness could lead to 
important behavioural effects  such as discouraging people from taking up smoking, or 
using tobacco products; encouraging people to give up smoking, and to stop using 
tobacco products; and discouraging people who have given up smo king, or who have 
stopped using tobacco products, from relapsing.2316 
7.850.   Based on the evidence before us, we see no basis to assume that, to the extent that 
tobacco plain packaging would make GHWs more effective through greater salience and processing 
of the ris k-related information that they convey, as described above, such increased effectiveness 
of GHWs could not, in combination with the other tobacco control measures applied by Australia, 
affect smoking behaviours.  
7.851.   We recall that the complainants have not cha llenged the conceptual model described above 
for the assessment of effectiveness of GHWs, as set out by Professor Chaloupka and reflected in 
the 200 8 IARC Handbook. This model associates changes in cessation knowledge, brand appeal, 
affective reactions, an d health knowledge/risk perception with changes in quit intentions , 
avoidance  and subsequent smoking behaviour.2317 We also do not understand  the complainants to 
have contested the ability of GHWs, in principle, to be effective .2318 Moreover, Australia and its 
experts, Professor Fong and Dr Biglan, refer to several studies which report an effect of GHWs on 
smoking behaviour.2319  
                                                
2313 Dominican  Republic 's first written submission, para. 695. 
2314 Australia's first writ ten submission, para. 182. 
2315 Australia's first written submission, para. 185. Evidence relating to the actual application of the 
TPP measures  is considered in section 7.2.5.3.6  below.  
2316 Fong Report , (Exhibit AUS -14), para. 356. (emphasis added)  
2317 See Figure 14 above.  
2318 We note that the Dominican  Republic  argues, on the basis of post -implementation data, which was 
also discussed in White et al. 2015a, (Exhibits AUS -186, DOM -235), that the antecedents that feature in 
Professor Chaloupka's model are absent in Australia, as are certain tobacco -related behaviours (such as 
making a quit attempt), and that as such the pathway cannot be inferred. See Dominican  Republic 's second 
written submission, paras.  526-529. As noted, evidence from Australia concerning the post -implementation 
period is the subj ect of section 7.2.5.3.6  below. We also note that the Dominican  Republic  submits a number of 
criticisms of a study by Professor Chaloupka (and other s) concerning the effect of GHWs in Canada in 2005 on 
smoking behaviour. See Dominican  Republic 's second written submission, paras.  530-535. See also Chaloupka 
Public Health Report , (Exhibit AUS -9); Chaloupka Rebuttal Report , (Exhibit AUS -582); IPE Updated  Report , 
(Exhibit DOM -303), ch 6; and  RJ Reynolds v. FDA , (Exhibit DOM-317). Notwithstanding these criticisms of the 
study by Professor Chaloupka, we do not understand the Dominican  Republic 's submission as challenging or 
questioning whether a connection e xists between GHWs and smoking behaviour per se . 
2319 Among these studies are Borland 1997, (Exhibit AUS -213) (finding that warnings that were noticed 
more often were associated with an increase in cigarettes foregone, and that cigarettes foregone was 
predict ive of increases in cessation); and Shanahan and Elliott 2008, (Exhibit CUB -15) (a  report for the 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 372 - 
  7.852.   Turning first to quit intentions , we note that, as described in Figure 14, th ese are identified 
as one of the relevant parameters for an a ssessment of the effectiveness of GHWs, as a precursor 
to smoking behaviours. Australia has submitted a number of studies in respect of the relationship 
between changes in noticeability of, salience of, and cognitive responses to, GHWs, and changes in 
behavioural intentions. It cites three studies suggesting a positive correlation between pack 
warnings and quit intentions or attempts.2320 Australia also refers to a 2009 study that specifically 
examined the effect of the different health warnings in Australia ( at the time of the study, a GHW 
covering 30% of the front and 90% of the back of the pack), Canada (a GHW covering 50% of the 
front and back of the pack), and the United Kingdom (a textual warning covering 30% of the front 
and 40% of the back of the pack) on variables including "two behavioural responses": forgoing 
cigarettes and avoiding the warnings. The study reported that Australians reported more 
avoidance of the warnings than Canadians and British respondents, but there was no significant 
difference b etween Canadians and Australians, or Australians and British respondents, in respect 
of foregoing cigarettes.2321 The authors also reported that the "strongest predictors of subsequent 
quitting" – which they identify as cognitive responses and foregoing cigar ettes – indicated that 
Australian warnings produced stronger cognitive responses and trend towards greater foregoing 
                                                                                                                                                  
Australian Government's DHA). Shanahan and Elliott 2008 reported on a study in which telephone survey 
respondents were asked a prompted question in regard to the behavioural effects of health warnings. Among 
smokers, health warnings were reported as helping smokers smoke less (36%), try to quit (43%), and think 
about quitting (57%). Forty -nine percent of smokers reported no effect on behaviour. Recent quitters reported 
that health warnings helped them smoke less (62%), try to quit (64%), think about quitting (75%), give up 
smoking (62%); and stay quit (55%). In prompted questioning, recent quitters (53%) and ex -smokers (11%) 
identified "Health warnings on cigare tte packets – Pictures" as a factor that helped them decide to quit 
smoking, whereas recent quitters (44%) and ex -smokers (14%) also identified "Health warnings on cigarette 
packets – Text" as a factor that helped them decide to quit smoking. 2% of recent quitters mentioned the text 
and 1% the pictures in respect of the main reason to quit). See ibid. p p. 118-122. Australia's expert, Dr Biglan, 
also refers to a 2011 study, in which an experimental auction was used to estimate the differences in demand 
assoc iated with different health warning label formats and different packaging formats (including plain 
packaging). Biglan Report , (Exhibit AUS -13), paras.  102-103 and 174 (referring to Thrasher et al. 2011, 
(Exhibits AUS -229, JE -24(58)); and Rousu and Thrasher  2013, (Exhibits AUS -228, JE -24(54))). Thrasher et al. 
2011 found that packages with the pictorial warning attracted a lower mean bid than the mean bid on the 
control pack (which featured a 50% text -only warning on one side of the pack), and that the mean bid for the 
package featuring a pictorial health warning was lower still on the plain unbranded package. Thrasher et al. 
2011, (Exhibits AUS -229, JE -24(58)). A separate paper discussing  the same study sought to estimate the 
percentage of US smokers that wo uld decrease their demand for cigarette packs with GHWs and with plain 
packaging. The authors reported that 45% of participants bid less for a package with a pictorial health warning 
than a package with a front text warning label, and 64% bid less for a pl ain package with a pictorial label than 
a package with a front text warning label. Rousu and Thrasher 2013, (Exhibits AUS -228, JE -24(54)). The 
authors of these two studies argue that the use of an auction -based methodology of this kind " may be 
preferable t o hypothetical valuation techniques such as hypothetical choice experiments or hypothetical 
auctions" because of the immediate monetary consequences, and the reduction of bias that can exist when 
consumers are asked for hypothetical valuations. Thrasher et  al. 2011, (Exhibits AUS -229, JE -24(58)), p. 42. 
See also Rousu and Thrasher 2013, (Exhibits AUS -228, JE -24(54)), p. 171. 
2320 A 2007 study considered smoking behaviour with reference to variables including quit attempts in 
the past year, and intention to qui t and found that those warnings that were more likely to be noticed and read 
(the warnings considered in this study were UK warnings) were also more likely to lead smokers to think about 
quitting, to think about the health risks of smoking, and had deterre d them from having a cigarette in 
comparison with smokers from other countries. Hammond et al. 2007, (Exhibit AUS -212), p. 207. In a 
telephone survey covering four countries, the object was to examine variations in smokers' knowledge about 
tobacco risks an d the impact of package warnings. The authors found that, inter alia , a higher level of health 
knowledge was positively correlated with planning to quit, and that the odds of planning to quit were greater 
among smokers who agreed that smoking causes the he alth effects identified in prompted recall, and increased 
in a linear fashion with the total number of health effects reported . Hammond et al. 2006, (Exhibit AUS -190).  
Another study using data from the same four countries  examined prospectively the impact of health warnings 
on quitting activity. Specifically, in a total of five waves, the authors used reactions to health warnings 
collected at one wave to predict cessation activity at the next wave. The authors examined w arning salience 
and cognitive respons es (i.e. thoughts about harm and of quitting, forgoing of cigarettes, and avoidance of 
warnings) as predictors of quit attempts, and of quitting success among those who tried (measured as one 
month of sustained abstinence, replicated across four wave -to-wave transitions). The authors determined that 
each of these indicia were significantly positively correlated with making a quit attempt by the next survey 
wave, though there were no consistent patterns of success. The authors also identified that cognitive responses 
and foregoing cigarettes were consistent predictors of making a quit attempt across all wave -to-wave 
transitions where they were measured (though the size of the effect was reduced when controlling for quit 
intentions).  Borland et al. 2009b, (Exh ibit AUS -211), p p. 669-672. 
2321 Borland et al. 2009a, (Exhibit AUS -210), p. 360. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 373 - 
  than the United Kingdom's  text-only warnings.2322 We note that these studies are not critiqued in 
the reports by Professors Kleijnen et al, Pr ofessors Inman et al, or Professor Klick. We also note 
that these studies are not critiqued by Professor Viscusi in his more general assessment of studies 
concerning the effect of plain packaging on GHWs.  
7.853.   Turning to actual smoking behaviours , in our earlie r analysis of the relationship between 
attitudes and behaviour2323, we noted that a body of research is devoted to the study of the 
correlation between attitudes, intentions and behaviours, and that the parties all acknowledge, 
with reference to this research , that the strength of the correlation between attitudes and 
behaviours in a given context is affected by the interaction of multiple factors.2324 We also found, 
in that context, that smoking behaviours are recognized to be influenced by a broad range of 
factors. 
7.854.   In the context of our analysis of the effect of changes in the appeal of tobacco products on 
smoking behaviours, we noted that we do not understand the assumption underlying the design 
and structure of the TPP measures  to be that a reduction in the ap peal of tobacco products would 
be expected in all cases  to lead to a change in smoking behaviours.2325 Similarly, we see no basis 
to assume that GHWs made more effective through changes in cessation knowledge, brand appeal, 
affective reactions, and health kno wledge/risk perception need to be assumed to systematically 
affect quit intentions and subsequently change smoking behaviour, to establish that increased 
effectiveness of GHWs through the introduction of tobacco plain packaging would have the ability 
to contribute to reducing the use of, and exposure to, tobacco products. As discussed above, we 
understand the reasoning underlying the structure and operation of the TPP measures  to be that at 
least some consumers will be influenced in their smoking behaviours, if GHWs are made more 
effective as a result of TPP, in combination with other tobacco control measures in place in 
Australia. We will therefore consider the effect of more effective GHWs on the relevant smoking 
behaviours, which are initiation, cessation and relapse, as elaborated in Section  3(2) of the 
TPP Act.  
7.855.   With respect to initiation, we note Honduras's argument that adolescents, who are 
"well-aware of the health risks  associated with smoking", are driven in their decision to smoke by 
peer pressure, whether they are sensation -seeking, and whether they are responsive to reward 
stimuli.2326 This argument accords more generally with the arguments made by all complainants in 
connection with the factors that drive adolescent smoking behaviour.2327  
7.856.   In our consideration of adolescent smoking behaviour, above, we noted a number of 
consistencies in the evidence before us in respect of the drivers of smoking initiation, including the 
developmental factors which have a bearing on the extent to which these drivers may lead to 
smoking initiation in adolescents and young adults (and with particular reference to adolescent 
risk-taking, short term  rewards, failure to take adequate account of risks, and the need to achieve 
peer approval).2328 We also concluded that the evidence indicates that the images and messages 
conveyed by tobacco packaging are of such a nature as to be capable of conveying a belief on 
adolescents and young adults that initia ting tobacco use can fulfil certain needs, and that it is 
recognized that youth and young adults are particularly vulnerable to acting on compulsions that 
are caused by those needs. Taken together, therefore, the evidence before us supports the view 
that t he imagery and associations, with which tobacco products are imbued by virtue of their 
packaging, are of such a nature as to tap into the vulnerabilities faced in particular by adolescents, 
by virtue of the nature of adolescent decision -making processes as  summarized above.2329 
7.857.   Consistently with these conclusions, in the context of the question at issue – whether 
GHWs, made more effective by plain packaging, could be expected to affect smoking behaviours – 
we recall in particular the agreement between the comp lainants' expert, Professor Steinberg, and 
Australia's expert, Professor Slovic, that "young people do not pay attention to risk 
                                                
2322 Borland et al. 2009a, (Exhibit AUS -210), p. 361.  
2323 See " Relationship between attitudes and behaviours " within section 7.2.5.3.5.2  above.   
2324 See Ajzen, Health Psychology Review 2014, (Ex hibit HND -134), p p. 3-4. 
2325 See para. 7.756  above.  
2326 Honduras's first written submission, para. 419. 
2327 See " Smoking initiation " within section 7.2.5.3.5.2  above.  
2328 See paras.  7.709 -7.714  above.  
2329 See para. 7.737  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  information".2330 In this sense, the prospect that plain tobacco packaging may enhance the visual 
attention paid to, or increase t he noticeability of, GHWs, may not in and of itself be sufficient to 
overcome the reward -seeking behavioural impulses of those adolescents for whom this impulse is 
a dominant factor in their decision -making.  
7.858.   We note, however, Professor Tavassoli's discussi on of the notion of "selective attention", 
and in particular that human brains are not capable of attending to numerous elements that may 
at once compete for attention.2331 Professor Tavassoli discusses, in that context, studies by 
Maynard et al. 2012 and Bee de and Lawson 1992, which are discussed above, in respect of 
eye-tracking indicating greater attention to GHWs on plain packs than on branded packs, and that 
recall of warnings was also enhanced when it did not compete with brand imagery.2332 Professor 
Tavass oli also discusses the concept of "goal competition", in which he argues that "the perceived 
value of a product is based on its perceived ability to satisfy consumption goals".2333 He argues 
that the "accessibility of a goal can also be influenced by the acti vation or accessibility of other 
goals", as "making one goal accessible will not only increase the impact of that goal on behaviour, 
but it will decrease the impact of unrelated or oppositional goals", because it is "difficult for people 
to entertain multi ple goals in their minds, and if one gains prominence, others are inhibited".2334 
Professor Tavassoli states that goal-competition research highlights "that there is a difference 
between whether people know something and how much influence that knowledge has on what 
people do in a given situation".2335 In this respect, he argues that goal -competition "does not 
require GHWs to change consumer beliefs about the health benefits of not smoking"; instead, "TPP 
can increase GHWs effectiveness by allowing GHWs to activate more effectively already held 
beliefs at critical moments, i.e. by limiting the activation of competing goals that momentarily 
inhibit the goal of staying healthy".2336 
7.859.   In response to this argument, Cuba argues that the appearance of a trademark on t he 
remaining 25% of the front of the pack will not have any appreciable effect on the consumers' 
appreciation of the health risks of tobacco use.2337  
7.860.   In our view, Professor Tavassoli's arguments, seen against the broader context of the 
factors recognized to influence smoking behaviours that we considered in earlier parts of our 
analysis, including smoking initiation among adolescents, suggest that the removal of the br anding  
elements that may constitute a cause for adolescents to associate tobacco products wi th positive 
imagery and rewards (on the basis of which they would be inclined to act, as discussed above), 
would remove, or at least significantly reduce, the competition (both in terms of attention, and 
between different goals) between the negative messag e conveyed by the GHW, and branding  
elements of the package. Such a conclusion appears consistent with Professor Chaloupka's model 
for understanding the functioning of GHWs, and in particular the bearing that GHWs can have on 
the overall appeal of the prod uct2338, in that in the presence of tobacco plain packaging the only 
message communicated by the packaging is the GHW, and that no association with rewards is 
communicated. In this respect, though we accept that knowledge of risk will not always be a 
sufficie nt motivator of adolescent behaviour, we are nonetheless not persuaded that the removal 
of branding elements, which we have found to communicate messages that appeal to adolescent 
reward -seeking behaviour, could not increase the effectiveness of GHWs by re moving those 
appealing elements that may compete with, and detract from appreciation of, the GHWs.  
7.861.   In respect of cessation and relapse, we recall the discussion by the parties, including 
through their experts' reports (which are most relevantly, in this co ntext, those submitted by Drs 
Satel and Brandon, and by Professor Fischer), in respect of the drivers of cessation and relapse. As 
we have discussed, much of these experts' discussion of cessation and relapse relates to the 
extent to which the absence of b randing on tobacco products influences whether tobacco 
                                                
2330 Slovic Report , (Exhibit AUS -12), para. 110 (referring to Steinberg Report , (Exhibit DOM/HND -6)). 
2331 Tavassoli Report , (Exhibit AUS -10), paras.  110-113. 
2332 Tavassoli Report , (Exhibit AUS -10), para. 112 (referring to Maynard et al. 201 3, (Exhibits AUS -200, 
JE-24(40)); and Beede and Lawson 1992, (Exhibits AUS -202, JE -24(6)), respectively).  
2333 Tavassoli Report , (Exhibit AUS -10), paras.  114-115. 
2334 Tavassoli Report , (Exhibit AUS -10), para. 116. 
2335 Tavassoli Report , (Exhibit AUS -10), para. 117. 
2336 Tavassoli Report , (Exhibit AUS -10), para. 117. 
2337 Cuba's second written submission, para. 307.  
2338 See paras.  7.805 -7.806  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  packaging can act as a conditioned cue and thus inhibit cessation or encourage relapse. These 
experts have not addressed specifically the effect of more effective GHWs on cessation and 
relapse. We note  however that all three of these experts2339 agree that concern regarding the 
health effects of tobacco use is a factor associated with successful quit attempts and/or 
cessation.2340 This is consistent with the observation by Professor Slovic that "[w]ith experi ence, 
the health risks and other adverse consequences of smoking became evident and stood as a major 
motivation to quit using cigarettes".2341 We also note that an expert report by Professor 
McKeganey, relied on by the Dominican Republic, identifies a number of studies that set out 
factors associated with cessation, among which are concerns over health and awareness of health 
consequences of smoking.2342 Professor Fong also refers to Professor McKeganey's report and 
observes that " factors such as concerns about t he health harms of smoking, lower consumption, 
and stronger motivation to quit are significant predictors of cessation".2343 
7.862.   This evidence suggests a convergence among the se experts on the role of concerns 
regarding the health effects of tobacco products  as a factor associated with motivation to quit and 
cessation. T his is consistent with the conceptual model set out by Professor Chaloupka and 
endorsed by the IARC  in respect of the effectiveness of GHWs, which identifies health knowledge 
and perceived risk as a mediator on which GHWs are intended to have an impact , and thereby 
affect quit intentions and, ultimately, smoking behaviours . This is also consistent with studies on 
the record of these proceedings2344, to one of which Professor Slovic also refers.2345 Moreover, the 
studies summarized above indicate that there is published evidence in support of a connection, for 
at least some smokers , between the noticeability of  GHWs and thoughts about quitting2346; about 
the health risks of smoking, and deterrence from having a cigarette2347; that levels of health 
knowledge are correlated with plans to quit2348; and that warning salience and cognitive responses 
are correlated with forego ing cigarettes and with quit attempts.2349 This evidence, taken tog ether, 
therefore suggests that the type of impact that plain packaging is anticipated to have on the 
effectiveness of GHWs , i.e. an improved awareness of health concerns associated with smokin g, is 
among those factors that are recognized as influencing the motivation to quit and cessation of the 
use of tobacco products. Moreover, as observed above, we do not understand the complainants to 
challenge the ability of GHWs  in general to have an impa ct on the level of awareness of the health 
risks associated with the use of tobacco products, or the relevance of such awareness to the 
motivation to quit and cessation . 
7.863.   In light of the above, we are not persuaded that the complainants have demonstrated th at 
there could be no correlation between increases in the effectiveness of GHW (as measured by 
changes in cessation knowledge, brand appeal, affective reactions, and health knowledge/risk 
                                                
2339 See Satel Report , (Exhibit UKR -7), paras.  26 and 33; Fischer Report , (Exhibit DOM/HND -7), 
para. 50; and Brandon Report , (Exhibit AUS -15), para. 79. 
2340 Dr Satel identifies the followin g "general predictors of cessation": motivation to quit (which is 
influenced by the immediacy of health concerns); a supportive, encouraging network of friends and family; and 
the smoker's sense of self -efficacy (i.e. degree of confidence that once they ha ve stopped smoking they can 
remain abstinent). Satel Report , (Exhibit UKR -7), paras.  21-33. Professor Fischer argues that successful quit 
attempts are associated with variables such as motivation, self -efficacy, lower nicotine dependence, and prior 
quit at tempts, younger age, lower cigarette consumption, and smoking -related health concerns. She associates 
smoking cessation with factors including motivation, self -efficacy, lower nicotine dependence, and prior quit 
attempts, older age, male gender, higher inc ome, low alcohol consumption, lower expected health benefit, 
level of education, and having a higher age of smoking initiation. Professor Fischer notes in her description that 
this list is not exhaustive. Fischer Report , (Exhibit DOM/HND -7), paras.  18-19 and 50 -51. The paper relied 
upon by Professor Fischer in this context also identifies health concerns as being a common motivator of quit 
attempts. See Hyland et al. 2006, (Exhibit AUS -226), p. iii83. Dr Brandon states that he considers that the 
variables i dentified by Professor Fischer are "all reasonable", though they "include only distal, stable 
characteristics, excluding proximal, environmental, and phasic variables". Brandon Report , (Exhibit AUS -15), 
para. 79. 
2341 Slovic Report , (Exhibit AUS -12), para. 52. 
2342 McKeganey Report , (Exhibit s DOM-105, CUB -72), pp. 24-27. 
2343 Fong Report , (Exhibit AUS -14), para. 588. 
2344 See, e.g. Partos et al. 2013, (Exhibit AUS -204) and McCaul 2006, (Exhibit AUS -205). Neither of 
these studies features in the complainants' literatu re reviews.  
2345 Slovic Report , (Exhibit AUS -12), para.  52. 
2346 Hammond et al. 2007, (Exhibit AUS -212).  
2347 Borland et al. 2009b, (Exhibit AUS -211).  
2348 Hammond et al. 2006, (Exhibit AUS -190).  
2349 Borland et al. 2009a, (Exhibit AUS -210); and Borland 1997, (Exhibit AU S-213).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  perception) and changes in quitting intentions or smoking behaviours , including initiation and 
cessation.  
7.864.   In respect of relapse, Dr Satel submits that this may be precipitated by stress and 
negative feelings that are typically evident in the hours leading up to relapse2350, and that 
"[e]pisodic events" (such as divorce, the i nitiation of smoking by a partner, and conflicts with 
others) and economic strain, insecure employment, socializing with people who smoke, and limited 
opportunities for respite and recreation, make quitters vulnerable to relapse.2351 Professor Fischer 
submits  that clinical samples report that several predictors of relapse to smoking are the presence 
of withdrawal symptoms and higher levels of nicotine dependence; negative affect (mood); being 
younger at the time of the quit attempt; a history of comorbid psych iatric disorders, including past 
or current anxiety disorders, depression, and schizophrenia; and absence of tobacco -related 
disease.2352 At the population level, she notes that relapse has been associated with the presence 
of withdrawal symptoms and recently  failed quit attempts; negative affect; a higher level of 
baseline nicotine dependence; gender; lower socioeconomic status; lower subjective social status; 
and high stress situations following a period of low stress.2353 Australia's expert Dr Brandon 
appears to agree with Professor Fischer, noting that these factors are "all reasonable", although he 
adds that they "include only distal, stable characteristics, excluding proximal, environmental, and 
phasic variables".2354 
7.865.   It seems to be agreed, therefore, that such  "episodic" events  can drive relapse, and 
suggest  that whether a smoker relapses depends at least in part on whether the effect of the 
episodic event is sufficient in its influence to overcome the impetus created by whichever factor 
caused a given smoker to quit in the first place. This is supported by s tudies on the record of these 
proceedings. For example, a literature review by McCaul et al. 2006 identified health concerns as a 
primary motivator for quitting in almost all studies reviewed, and suggested that motivation or 
cessation strategies include h aving smokers construct systems to remind themselves about the 
health consequences of smoking in order to, inter alia, assist in the maintenance of a successful 
quit attempt and rejuvenate quit attempts among those who have relapsed.2355 In addition,  
survey data collected between 2002 and 2009 of smokers in Australia, Canada, the United 
Kingdom,  and the United States analysed by Partos  et al. 2013 found that frequent noticing of 
health warnings among ex -smokers was associated with greater relapse one year lat er, but that 
this effect disappeared when the authors controlled for urges to smoke and self -efficacy. The 
authors also reported that participants who reported that health warnings make staying quit "a lot" 
more likely were less likely to have relapsed one  year later.2356 
7.866.   This evidence suggests to us that by influencing the extent to which GHWs  on tobacco 
products are considered easier to see, more noticeable, perceived as being more credible and 
more serious, attracting greater visual attention among non-smok ers and weekly smokers, less 
subject to distractions caused by other packaging elements, and read more closely and thought 
about more, the TPP measures  could impact the factors that drive cessation (including, in 
particular, concerns about the health effec ts of tobacco use). However, in making this observation, 
we note that there is significantly less evidence before us concerning the impact of GHWs, 
including those made more effective because of plain packaging, on preventing relapse.  
7.867.   In light of the foreg oing, we are not persuaded that the complainants have shown that 
improvements in the effectiveness of GHWs brought about by the TPP measures  could not be also 
associated with changes in smoking behaviours, and in particular with smoking initiation and 
cessation.  
                                                
2350 Satel Report , (Exhibit UKR -7), para. 34. 
2351 Satel Report , (Exhibit UKR -7, para. 34. 
2352 Fischer Report , (Exhibit DOM/HND -7), para. 55. 
2353 Fischer Report , (Exhibit DOM/HND -7), para. 56. 
2354 Brandon Report , (Exhibit AUS -15), para. 79. 
2355 See McCaul 2006, (Exhibit AUS -205), p. 53. 
2356 See Partos et al. 2013, (Exhibit AUS -204).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Conclusion  
7.868.   In light of the above, we are not persuaded that the complainants have demonstrated that 
the TPP measures  would not be capable of increasing the effectiveness of GHWs, and thereby 
contribut e to Australia's objective of improving public he alth by reducing the use of, and exposure 
to, tobacco products.  
7.869.   Rather, we find that credible evidence has been presented, emanating from recognized 
sources,  that plain packaging of tobacco products may increase the salience of GHWs, by making 
them easier  to see, more noticeable, and perceived as more credible and more serious . We are not 
persuaded that the complainants have demonstrated that these effects could not arise in Australia 
by reason of the large size of the GHWs applied simultaneously with the TPP measures , or that 
existing levels of risk awareness in Australia would render inutile any additional effort to increase 
such awareness and thereby affect risk beliefs. We are also not persuaded, in light of the evidence 
before us, that GHWs that would be more visible and noticeable, and perceived as being more 
credible and more serious, could not be expected to have an impact on smoking behaviours, 
including initiation, cessation and relapse.  
7.870.   In addition, we recall that we also have before us evidence relating to the actual 
application of the TPP measures  since their entry into force, including empirical studies specifically 
addressing the impact of plain packaging on the effectiveness of GHWs, which will be considered in 
section 7.2.5.3.6.1  below, and given appropriate weight. We therefore do not seek to draw, at this 
stage of our analysis, any overall conclusion on the impact of the TPP measures  on the 
effectiveness of GHWs, and the extent to which any change in that effectiveness has contributed to 
Australia's objective of improving public health by reducing the use of, and exposure to, tobacco 
products.  
7.2.5.3.5.4   Third mechanism: reducing the ability of the pack to mislead consumers 
about the harmful effects of smoking  
7.871.   As described above, the third "mechanism" through which the TPP measures  are designed 
to contribute to the achievement of their objective is by " reducing the ability of the pack to 
mislead consumers about the harmful effects of smoking" , which, in turn, is expected to influence 
smoking behaviours and thereby contribute to a reduction in the use of, and exposure to, tobacco 
products.  
7.872.   The complainants contest the TPP measures ' ability to contr ibute to Australia's objective 
through this "mechanism". Their challenge derives in part from their critique of the TPP literature, 
discussed in section 7.2.5.3.5.1  above, wherein the complainants  dispute  the relevance and 
reliability of the evidentiary base underlying the design and structure of the measures,  which 
includes studies that attempted to measure  the impact  of plain packaging on the abilit y of tobacco 
packaging to mislead consumers about the harmful effects of smoking. In addition, the 
complainants argue that the TPP measures  make no contribution to reducing prevalence by 
preventing misleading packaging because Australia 's current regulator y framework is capable of 
preventing, and does prevent, packaging from misleading consumers.  
7.873.   Australia responds that the TPP measures , by reducing the ability of tobacco products to 
mislead consumers about the relative harmfulness of brands, or product ty pes, will contribute to 
discouraging initiation and encouraging cessation of tobacco use. Where consumers are fully 
informed of the real risks and serious consequences of tobacco use, Australia argues, they are 
more likely to engage in quitting behaviour.  
7.874.   Australia refers to a number of studies predating the implementation of the TPP measures  
(including evidence drawn from the body of studies discussed above as the TPP literature ) and 
evidence relating to the application of the TPP measures  since their entr y into force. In this 
section , we focus on the design and structure of the measures, in respect of their aptitude to 
reduce the ability of the pack to mislead consumers about the harmful effects of smoking, and 
thereby contribute to Australia's objective of improving public health by reducing the use of, and 
exposure to, tobacco products.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.875.   We consider the application  of the TPP measures , and specifically the evidence in respect 
of their effect on the "proximal" outcomes (of which reducing the ability of the pack to mislead 
consumers ab out the harmful effects of smoking  is one) in section 7.2.5.3.6.1  below . 
Main arguments of the parties  
7.876.   Honduras  asserts  that the TPP measures seem to be based on the assumption that portion 
of the pack that is not occupied  by large GHWs could mislead consumers about the harmful effects 
of smoking or using tobacco products.2357 It recalls its argument that "there is no real and practical 
connection betwe en smoking behaviours (namely smoking initiation, cessation or relapse) and 
tobacco packaging", and that "smoking is a highly complex behaviour, which is not influenced by 
tobacco packaging".2358 Honduras also argues that, nevertheless, the report by Honduras 's and the 
Dominican Republic's expert, Mr Shavin, "demonstrates that the use of any design elements of 
packaging (including tobacco packaging) that are likely to mislead or deceive consumers could, if 
proper evidence is presented, be effectively dealt wit h under the existing legal and administrative 
structures in Australia".2359 Honduras argues that Sections 29 and 33 of the Australian Consumer 
Law (ACL) are adequate and broad enough to address the concern that tobacco packaging can 
"mislead consumers about the harmful effects of smoking or using tobacco products". Honduras 
refers to Mr. Shavin's statement that a representation that tobacco products are not as harmful as 
they actually are "could qualify as a false or misleading representation as to: (i) a 'st andard' or 
'quality' of a product", the "'performance characteristics' of a product" both w ithin the meaning of 
Section 29 , "and/or … the 'nature' and 'characteristics' of goods in the sense of Section 33 ".2360 
Honduras further explains that there  must be a causal link between the conduct and the 
outcome.2361 Honduras adds that this possibility must be assessed in relation to a particular class 
of persons to whom the representation is directed and who are allegedly being affected by the 
impugned conduct, and that  judges must consider the totality of all representations constituting 
the message, rather than focusing on one specific element thereof.2362 For Honduras, in the 
context of tobacco packaging, this means that "it is wrong to assess whether the packaging might  
cause consumers to be misled as to the health effects or otherwise the desirability of the tobacco 
products by considering only the trademarks in isolation , without considering the effects of all of 
the design elements in their context, including the grap hic health warnings" .2363 
7.877.   Honduras submits that the Australian Competition and Consumer Commission (ACCC) is 
entrusted with, inter alia, investigating possible breaches of the competition and consumer 
protection provisions of the Australian law and has strong ly enforced Australia's law against 
misleading or deceptive conduct. Honduras refers to Mr. Shavin's description of "specific examples 
of the ACCC's successful enforcement proceedings against tobacco companies, distributors and 
retailers", including its su ccessful action against the promotion by some tobacco companies of 
brands as "light", "ultra-light", "mild", "ultra-mild" or "low-tar", which, in the ACCC's view, resulted 
in misleading consumers about the dangers of smoking.2364 
                                                
2357 Honduras's first written submission, para. 518.  
2358 Honduras's first written submission, para. 519. 
2359 Honduras's first written submission, para. 520. Honduras elaborat es that, as set out by Mr Shavin, 
four section s of the Australian Consumer Law ( ACL) regulate misleading or deceptive conduct – Section 18 ("a 
general provision that establishes a broad prohibition on engaging, in trade or commerce 'in conduct that is 
misleading or deceptive or is likely to mislead or deceive'") ; Section 29 (which contains specific prohibitions on 
kinds of false or misleading representation); and S ections 33 and 34, ("which address goods and services, 
respectively, and provide that a  person must not, in trade or commerce, engage in conduct "that is liable to 
mislead the public as to the nature,… the characteristics … of any goods").  Honduras's first written submission, 
para. 521 (referring to D. Shavin, "Prohibitions Against Misleadin g and Deceptive Conduct Pursuant to the 
Australian Consumer Law and the Australian Competition & Consumer Commission 's History of Effective 
Enforcement Thereof", 4 October 2014, ( Shavin Report ) (Exhibit DOM/HND -1), paras.  18-22; and Competition 
and Consume r Act 2010  (Cth), Excerpts, (Exhibit HND -66), Sections 29(1)(a) and 29(1)(g)).  
2360 Honduras's first written submission, para. 523. 
2361 Honduras's first written submission, para. 524. 
2362 Honduras's first written submission, para. 524. 
2363 Honduras's first written submission, para. 524 (referring to Shavin Report , (Exhibit DOM/HND -1), 
paras.  49-53). 
2364 Honduras's first written submission, para. 529. Honduras explains that as a result of the ACCC's 
action, the companies gave an undertaking, amongst other things, to ce ase these activities and to provide 
funding for a consumer education campaign.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.878.   In Honduras's view, this "demonstrates that there is a comprehensive and robust legal and 
administrative framework in Australia to address any misleading or deceptive conduct, including in 
the context of tobacco retail packaging"; and that "the Australian authorities responsible for 
enforcing ACL against such conduct (namely the ACCC), have acted successfully and diligently 
against tobacco companies, distributors and retailers, when there was credible evidence that the 
investigated companies did in fact eng age in misleading or deceptive acts".2365 This "shows that 
the plain packaging measures are superfluous" and that "[t]hey will not contribute to Australia's 
objective to reduce smoking prevalence by eliminating the alleged misleading or deceptive 
elements of tobacco packaging".2366 
7.879.   The Dominican Republic  argues that t he TPP measures  have not contributed to reducing 
any tobacco consumption that would result from misleading packaging as the ACCC can and does 
already intervene to prohibit deceptive packaging . Specif ically, the Dominican Republic submits 
that " Australia has had in place for many years a highly effective regulatory regime to tackle 
misleading packaging, and the [TPP] measures have contributed nothing to this pre -existing 
capability to reduce any tobacc o consumption that would result from such misleading 
packaging".2367 
7.880.   The Dominican Republic relies on an expert report by David Shavin QC, who "explains how 
the Australian Competition & Consumer Commission ('ACCC') has made use of the pre -existing 
and longsta nding consumer protection regime to prevent misleading of consumers, through 
packaging or otherwise, including for tobacco products".2368 Mr. Shavin concludes that the 
TPP measures  will not contribute anything beyond the regime and mechanisms that already 
existed in Australia (and continue to exist) toward reducing the risk that tobacco packaging 
misleads consumers about the harmful effects of smoking,2369 as the use of any design element on 
tobacco packaging likely to mislead or deceive consumers could, if prope r evidence is presented, 
be dealt with as misleading or deceptive conduct under Australian law.2370 The Dominican Republic 
argues that the provisions of the ACL are "broad enough to address one of the key concerns of the 
[TPP] Act – that tobacco packaging can  'mislead consumers about the harmful effects of smoking 
or using tobacco products'".2371 The Dominican Republic refers in addition to Mr. Shavin's 
submission that the ACL 's prohibition on misleading or deceptive acts has been interpreted 
broadly, and "creates powerful incentives for steps to be taken against packaging and other acts 
likely to mislead consumers, through the ability of the ACCC or private parties to bring actions 
resulting in the imposition of civil penalties or criminal sanctions for vi olations".2372 The Dominican 
Republic submits that Australia already has at its disposal the power to prevent any ability of 
tobacco packaging "to mislead consumers about the harmful effects of smoking or using tobacco 
products"', and "makes good use of such power through the ACCC 's investigations and 
enforcement actions".2373 Thus, in the Dominican Republic's view, "the [TPP] Act  fails to contribute 
                                                
2365 Honduras's first written submission, para. 529. 
2366 Honduras's first written submission, para. 529. See also Honduras's closing statement at the first 
meeting of the Panel, para. 10. 
2367 Dominican  Republic 's first written submission, para. 725. 
2368 Dominican  Republic 's first written submission, para. 726 (referring to Shavin Report , (Exhibit 
DOM/HND -1), p. 9). 
2369 Dominican  Republic 's first written submission, para. 726 (referring to Shavin Report , (Exhibit 
DOM/HND -1), para. 15). 
2370 Dominican  Republic 's first written submission, para. 727 (referring to Shavin Report , (Exhibit 
DOM/HND -1), para. 13). The Dominican  Republic  refers to Section 29 of the ACL, as well as Sect ion 18, the 
latter of which "is a related, although more generalized, obligation, providing that a person 'must not, in trade 
or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive'".  
Dominican  Republic 's first wr itten submission, para. 728 (referring to ACL, (Exhibit DOM-110)).  
2371 Dominican  Republic 's first written submission, para. 729 (quoting Shavin Report , (Exhibit 
DOM/HND -1), para. 23). For example, "an explicit or implicit representation that tobacco products  are not as 
harmful as they actually are would qualify as a false/misleading representation as to a 'standard' or 'quality' or 
'nature' of a product within the meaning of sub -section 29(1)(a) of the ACL", and, furthermore, such a 
representation would quali fy as a false/misleading representation as to the "performance characteristics" of a 
product, within the meaning of sub -section 29(1)(g) of the ACL. Ibid.  
2372 Dominican  Republic 's first written submission, paras.  730-731. 
2373 Dominican  Republic 's first written submission, para. 735. Dominican  Republic 's first written 
submission, para. 732 (referring to Shavin Report , (Exhibit DOM/HND -1), and Shavin Pre -Vetting Report, 
(Exhibit DOM/HND -9), paras.  73-74). Reference is also made to t he ACCC's inves tigations of "allegations that 
the use of such descriptors constituted misleading or deceptive actions in violation of Australian consumer 
protection law, resulting in three major tobacco companies entering into legally enforceable undertakings to, 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  to the objective of reducing tobacco consumption through the prevention of misleading information 
on tobacco packa ging, as there was no need in Australia to supplement the existing regime".2374 
7.881.   Cuba argues that the claim that plain packaging reduces the ability of packaging to mislead 
consumers about the harmful effects of smoking cannot justify the TPP measures .2375 Cuba 
elaborates that it "does not dispute that it is possible for design elements and information placed 
on the retail packaging of tobacco products to convey misleading information about the harm or 
the relative harm associated with the consumption of tobacco p roducts".2376 However, Cuba 
submits that Australia's claim in this respect "only works as a justification for the [TPP] Measures if 
one adopts the far -reaching assumption that all of the design elements included on tobacco 
product packaging are deceptive".2377 Cuba adds that if, as Cuba contends, only a subset of design 
elements can be classified as deceptive then the appropriate regulatory response is to require that 
the relevant manufacturers remove any such deceptive material from product packaging. Cuba 
argue s that there are existing mechanisms under Australian law that achieve this outcome.2378 
Cuba submits that, in contrast, "by banning all design elements and outlawing the inclusion of a 
broad range of information (including innocuous elements such as the Haba nos GI and the Cuban 
Government Warranty Seal)", Australia has "imposed an overbroad restriction that goes further 
than necessary to attain any possible public health benefit".2379 For Cuba, this "indiscriminate 
approach is disproportionate in light of the al ternatives available to Australia".2380 Cuba 
summarizes that the appropriate regulatory response is not plain packaging but a requirement that 
the relevant manufacturers remove any such deceptive material from product packaging, and 
Australian law already con tains such a requirement.2381 Moreover, Cuba argues that "[n]one of the 
studies assessing this matter address the effect of any misperceptions as to risk on actual smoking 
behaviour".2382 
7.882.   Indonesia  argues that, "as a factual matter", if Australia considers that any specific 
typeface currently used in a registered trademark is misleading to consumers, the ACCC has 
existing authority to de -register such trademarks, but has taken no such action to date .2383 
7.883.   Australia  responds that, when coupled with packaging innovations to detract from health 
warnings, the packaging of a tobacco product contributes to misleading consumers about the 
serious health consequences of using such products.2384 Australia adds that " [s]uch misperceptions 
have been compounded by the tobacco industry's deliberate attempts to market some types of 
brands of tobacco products as 'safer' than others, by creating 'light' or 'low tar' cigarettes, which 
were previously marketed as having less d istinct flavour and lower delivery of harmful chemicals 
compared with regular cigarettes".2385 Australia submits that "[t]here is a large body of evidence 
that the [ TPP measures ], by limiting the ability to use packaging design, colour and structural 
innovati ons through standardization of the packaging, reduces the ability of the retail packaging of 
tobacco products to mislead consumers (particularly young consumers) about the harmfulness of 
tobacco products".2386 
7.884.   Australia refers to various studies on the use of  certain colours2387 and argues that in using 
colours to convey certain meanings, the design of tobacco product packages continues to reinforce 
                                                                                                                                                  
inter a lia, cease the use of such descriptors and contribute AUD 9 million to fund a consumer education 
campaign".  Dominican  Republic 's first written submission, para. 733. 
2374 Dominican  Republic 's first written submission, para. 735. 
2375 Cuba's first written submiss ion, para. 350. 
2376 Cuba's first written submission, para. 229. 
2377 Cuba's first written submission, para. 229. 
2378 Cuba's first written submission, para. 229 (referring to Heydon Report , (Exhibit UKR -11). 
2379 Cuba's first written submission, para. 230. 
2380 Cuba's first written submission, para. 230. 
2381 Cuba's first written submission, paras.  350-351; and Cuba's second written submission, para. 48. 
2382 Cuba's first written submission, paras.  350-351; and Cuba's second written submission, para. 48. 
2383 Indonesia's  second written submission, para. 183. 
2384 Australia's first written submission, para. 187. 
2385 Australia's first written submission, para. 188. 
2386 Australia's first written submission, para. 188. 
2387 Australia's first written submission, para. 189. Australia ref ers to a study that "found that smokers 
of gold, silver, blue or purple brands were more likely to believe their own brand might be 'a little less harmful' 
compared to smokers of red or black brands", and "studies [which] have found that the use of blue, g old, and 
white is often used to convey mildness,  while darker and richer colours were seen as conveying strong 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  misperceptions about the notion that some tobacco brands or types are less harmful than 
others.2388  
7.885.   Australia submits  that, while an undertaking entered into between the ACCC and the 
tobacco industry in Australia in 2006 resulted in the withdrawal of descriptors such as "mild", 
"extra mild" and "light",  the tobacco industry "continued to use a variety of colours to help convey 
certain associations such as taste, harshness and product strength".2389 Australia's expert, 
Professor Tavassoli, notes that similar tactics were used in other jurisdictions, where Pall Mall Filter 
and Pall Mall Lights became Pall Mall Red and Pall Mal l Blue respectively . The ban on misleading 
descriptors may thus "have been only partially effective, based on the learned associative meaning 
of colour".2390 In this way, "the package design and colouring used for 'light' or 'low -tar' products 
has been an imp ortant component of the overall strategy to mislead consumers into believing 
certain brands or product types are less harmful".2391 
7.886.   Australia submits that tobacco industry documents "clearly describe use of colours and 
shading to create perceptions of reduced  strength by the tobacco industry"2392 and that its own 
commissioned research "confirmed earlier findings, concluding that darker colour s [on packs] were 
seen to contain cigarettes which were more 'harmful to health' and 'harder to quit'" and that 
lighter colours were seen to be less "harmful to health", and "easier to quit".2393 Australia adds 
that d rab dark brown  packaging , which was chosen for the implementation of the TPP measures , 
was rated as containing tobacco products that are harder to quit, and were most harmful to 
health.2394 Australia submits that "[u] nique and creative package designs, in addition to special 
shapes, opening styles, and filters, have been used to differentiate brands and product types 
based on their harmfulness in the minds of consumer s".2395 This is exemplified by narrow 
"perfume" type packs which, Australia argues, are portrayed as a fashion accessory rather than a 
health risk;  small packs with "super slims" which, Australia contends, are portrayed to offer lower 
levels of addiction; and  more masculine packs, which Australia argues are suggestive of being 
heavier or stronger.2396 
7.887.   Australia argues that p lain packaging removes the design and structural features of 
tobacco product packaging which mislead consumers and  reduces false beliefs abou t the 
harmfulness of product types or brands or variants by standardiz ing the package structure.2397 
Australia adds that o ther product characteristics, such as the colour of the tipping paper, also 
convey the sense in the minds of consumers that particular pr oducts are less harmful.2398 Australia 
also argues that t he misleading effect of packaging is also evident across tobacco product types, 
and that a study in Australia on the effect of tobacco plain packaging on cigar products linked  the 
standardiz ation of pac kage structure and colour design to the perception that those products in 
plain packaging were more harmful.2399  
7.888.   Australia further argues that in reducing brand and product category appeal and regulating 
pack design and structure, plain packaging contributes  to reducing false beliefs held by consumers 
about the "relative harmfulness" of tobacco product types and brands and variants.2400 Australia 
argues that the TPP measures  reduce the ability of the tobacco package to mislead consumers and 
potential consumers ( and particularly youth) by requiring that drab dark brown be utilised for all 
tobacco product packaging which, in Australia's submission, removes the effect of colour and 
                                                                                                                                                  
flavour". Ibid. (referring to Mutti et al. 2011, (Exhibit AUS -217); Difranza et al. 2003, (Exhibit AUS -92); 
Wakefield et al. 2002, (Exhibit s AUS-93, CUB -28); NCI Tobacco Control Monograph No. 19, (Exhibit AUS -77); 
and Parr et al. 2011a, (Exhibits AUS -117, JE -24(49))).  
2388 Australia's first written submission, para. 189. 
2389 Australia's first written submission, para. 190. 
2390 Australia's first written submission, para. 190. 
2391 Australia's first written submission, para. 191. 
2392 Australia's first written submission, para. 191. 
2393 Australia's first written submission, para. 192. 
2394 Australia's first written submission, para. 192. 
2395 Australia's first written submission, para. 194. 
2396 Australia's first written submission, para. 194. 
2397 Australia's first written submission, para. 193. 
2398 Australia's first written submission, para. 194. 
2399 Australia's first written submission, para. 195 ( referring to  Parr et al. 2011b (Exhibits AUS -219, 
JE-24(50)).  
2400 Australia's first written submission, para. 196. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  design elements on perceptions of harm for smoking and non -smoking adults, youth , and young 
women , and by standardizing package designs.2401 
7.889.   Australia also argues that tobacco plain packaging reduces the opportunities to mislead 
consumers about the health risks of individual products, which "is of particular relevance in the 
case of non -cigarette tobacco products, which are still consistently viewed as less harmful and 
distinct from cigarettes".2402  
7.890.   Australia concludes that , "by reducing the ability of the tobacco pack to mislead, the 
tobacco plain packaging measure works together with other tob acco control policies such as public 
education efforts and health warnings to continue to inform consumers as to the harmfulness of all 
tobacco product types as well as to encourage cessation behaviour", which "directly contributes to 
the public health obj ectives of the tobacco plain packaging measure, as set out under subsection 
3(1) of the TPP Act".2403 
7.891.   Australia does not dispute that " the ACL could be used to address" this mechanism, though 
it "is not nearly as effective in achieving this objective as the tobacco plain packaging 
measure".2404 Australia elaborates that "[t]obacco plain packaging has prevented any misleading 
package from being released onto the Australian market since its full implementation in December 
2012", whereas "using litigation under the  ACL to restrain the use of misleading packaging would 
involve: a case -by-case approach  and significant cost and uncertainty of outcome, even in 
circumstances where Australia has extensive evidence to demonstrate that particular packaging 
techniques are mi sleading".2405 
Analysis by the Panel  
7.892.   The complainants consider that the ACL already provides a legal mechanism sufficient to 
address any concern Australia may have in respect of whether tobacco packaging can mislead 
consumers and through which any packaging h aving this effect can be removed from the market , 
such that the TPP measures  would not be capable of making a contribution to this mechanism in 
excess of what i s already achieved by the ACL . Australia responds that the TPP measures  reduce 
the ability of th e pack to mislead consumers about the harmful effects of smoking and, in doing so, 
are more effective in preventing Australians from being misled than the ACL.  
7.893.   At this stage of our analysis, the question before us is whether the structure, design  and 
opera tion of the TPP measures  is such that they  would  have the capacity to reduce the ability of 
tobacco packaging to mislead consumers about the harmful effects of smoking, and thereby 
contribute to Australia's objective of improving public health by reducing the use of, and exposure 
to, tobacco products.  
7.894.   We first consider the evidence in relation to the capacity of plain packagin g to reduce the 
ability  of tobacco packaging to mislead consumers about the harmful effects of tobacco products , 
notwithstanding the  existence of a regulatory framework in Australia to address such effects . In 
light of the complainants' arguments that no additional  reduction could be expected from th e TPP 
measures in light of the pre -existing legal framework in Australia for the prevention of misleading 
practices, we also consider whether the presence of this legal framework implies that no additional 
benefit could be gained in this respect from the introduction of the TPP measures . 
                                                
2401 Australia's first written submission, para. 196. 
2402 Australia's first written submission, para. 197. 
2403 Australia's first written submission, para. 200. Australia argues, with reference to Fong Report , 
(Exhibit AUS -14), para. 52, that the TPP measures  will "likely" cause (i) " current smokers of regular (non -light) 
brands who are health -concerned may be more likely to understand and believe that light cigarettes are not 
less harmful and therefore may be more likely to quit smoking rather than switching from regular to light 
cigarettes"; (ii) "current smokers already smoking light cigarettes may be more likely to understand and 
believe that their o wn brand is not less harmful and therefore may be encouraged to quit"; and (iii) 
"non-smokers may be less likely to start to smoke and experimental smokers may be less likely to progress to 
increase their frequency and quantity of smoking because they are more likely to understand and believe that 
certain brands are not less harmful than others, and that there is no health benefit to smoking a light brand 
compared to a regular brand".  Australia's first written submission, para. 199. 
2404 Australia's first writ ten submission, para. 731. 
2405 Australia's first written submission, para. 731. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.895.   We note that some of the complainants' arguments, and in particular some of Cuba's 
arguments, are formulated in terms of whether plain packaging is an "appropriate" or 
"disproportionate" regulatory response, to address the ability of tobacco packs to mislead  
consumers about the harmful effects of smoking. At this stage of our analysis, however, we limit 
ourselves to a consideration of the capacity of the TPP measures  to reduce the ability of the pack 
to mislead consumers about the harmful effects of smoking, and thereby contribute to Australia's 
objective of reducing the use of, and exposure to, tobacco products. This question is distinct, in 
our view, from whether an equivalent contribution could be achieved through other means that 
may be less trade -restrict ive. We note in this respect that the complainants have, elsewhere in 
their submissions, proposed, as a reasonably available alternative to the TPP measures , that 
Australia adopt a "pre -vetting mechanism" for tobacco packaging to be administered by the ACC C, 
to assess individual tobacco packaging features, before a pack is placed on the Australian market. 
We will consider this proposed alternative in section 7.2.5.6.5 below , in the context of our 
"comparative analysis" under Article  2.2.  
Whether the TPP measures  can, by design, reduce the ability of tobacco 
packaging to mislead consumers about the harmful effects of smoking  
7.896.   The complainants do not present detailed arguments  in addition to those addressed in 
section 7.2.5.3.5.1  above , in respect of whether  the design of the TPP measures  is such that they 
can reduce the ability of retail packaging of tobacco products to mislead consumers about the 
harmful effects of smoking ,2406 including in the specific Australian context where a 75% GHW 
covers the front pack face . 
7.897.   Australia refers to repor ts by the US Surgeon General and the US National Cancer 
Institute, tobacco industry documents, published papers, and  a number of empirical studies in 
support of its argument that the elimination of colour contributes to reducing the ability of the 
pack to mislead consumers2407, that plain packaging removes design and structural features of 
tobacco product packaging which mislead consumers2408, and that the reduction of the ability of 
the pack to mislead affects consumer intentions and behaviour.2409 Australia's expe rt Professor 
Fong further identifies a number of studies published prior to the adoption of the TPP measures , 
that he argues indicate that " there is strong evidence to suggest that the plain packaging measure 
will have the effect of reducing the ability of  the retail packaging of tobacco products to mislead 
consumers about the harmful effects of smoking or using tobacco products".2410 Another of 
Australia's experts, Dr  Samet, referencing several of these same studies, as well as certain other 
studies on the re cord of these proceedings, concludes that " it is reasonable to propose that 
reduction of exposure to brand imagery would reduce consumption of cigarettes to the benefit of 
public health", and that the anticipated benefits would come from the consequences o f plain 
packaging for "product appeal, salience of warnings, and preventing misleading use of the package 
by the tobacco industry ".2411 
7.898.   The complainants address  some of  these  empirical studies in the context of their critique of 
the TPP literature . As discuss ed above  the complainants have submitted individual critiques of 
specific studies and also argue that the TPP literature  as a whole suffers from serious 
methodological flaws and lacks the scientific rigour and objectivity required to form a reliable 
evidentiary base for a policy intervention of this kind.2412 Australia relies upon a number of  papers 
that were not part of either the Peer Review Project, the Kleijnen Systematic Review, and/or the 
                                                
2406 We note  that Cuba acknowledges that tobacco packaging  can, in principle, convey mislead ing 
information to  consumers about the harm , or relative harm, associated with the consum ption of tobacco 
products. Cuba's first written submission, para. 229.  
2407 Australia's first written submission, paras.  189-192. 
2408 Australia's first written submission, paras.  193-195. 
2409 Australia's first written submission, paras.  196-200. 
2410 Fong Report , (Exhibit AUS -14), para. 413. 
2411 Samet Report , (Exhibit AUS -7), para. 132. (emphasis added)  
2412 See Honduras's first written submission, paras.  455-517; Dominican  Republic 's first written 
submission, paras.  551-659; and Cuba's first written submission, paras.  169-185. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Klick TPP Literature Report  to support its assertion that the measures will prevent the ability of 
tobacco packaging to mislead consumers about the harmful effects of smoking .2413 
7.899.   Australia  specifically references the conclusions of the Stirling Review and the Stirling 
Review 2013 Update to support its arguments. Overall, 26 of the papers included in the Stirling 
Review or the Stirling Review 2013 Update and either the Peer Review Project, t he Kleijnen 
Systematic Review, and/or the Klick TPP Literature Report  relate to tobacco plain packaging and 
the ability of branded packages to mislead consumers regarding the harmful effects of smoking, as 
identified by the Stirling Review and/or the indep endent Chantler Report reviewers. Of these, 
Australia has directly relied upon 19 in the course of these proceedings, as reflected by their 
provision to the Panel as exhibits.2414  
7.900.   We also note that 23 of the 26 papers included in the Stirling Review or the S tirling Review 
2013 Update and either the Peer Review Project, the Kleijnen Systematic Review, and/or the Klick 
TPP Literature Report , relate to plain packaging and the ability of branded packages to mislead 
consumers regarding the harmful effects of smoki ng, as identified by the Stirling Review and/or 
Chantler Report, and are on the record of these proceedings.2415 Of these 23 papers, 16 were 
included in the original Stirling Review report and assigned quality ratings. One2416 was determined 
to be of "high" qual ity, and 152417 of "medium" quality.2418 Moreover, all 23 papers were assessed 
in the Chantler Re port; 142419 were given a score of between 5 and 6 (denoting high quality/low 
risk of bias), and the remaining nine2420 were given a score of between 3 and 4.5 (denoting 
moderate quality/moderate bias).2421  
7.901.   On the basis of its assessment, including its identification of all of the reviewed studies 
being of either high or medium quality, the Stirling Review concluded that:  
                                                
2413 See, inter alia , Mutti et al. 2011, (Exhibit AUS -217); Difranza et al. 2003, (Exhibit AUS -92); 
Wakefield et al. 2002, (Exhibit s AUS-93, CUB -28); Labrecque et al. 2013, (Exhibit AUS -218); Hammond and 
Parkinson 2009, (Exhibit AUS -165); Miller et a l. 2015, (Exhibits AUS -102, DOM -315); DeSantis and Morgan 
2003, (Exhibit AUS -220); Borland et al. 2009a (Exhibit AUS -210); Borland et al. 2009b, (Exhibit AUS -211); 
Hammond et al. 2007, (Exhibit AUS -212); Borland 1997, (Exhibit AUS -213); and Brose et al. 20 14, (Exhibits 
AUS-263, JE -24(11)).  
2414 See Table A: Papers Included in a Primary TPP Literature Review and/or Exhibit JE -24, at the end of 
these Report s. We have used the column heading assigned by both the Chantler Report and the Stirling 
Review, namely "Perceptions of Harm and Strength",  to identify papers that measure the impact of plain 
packaging on the ability of a pack to mislead consumers regarding the harmful effects of smoking.  We further 
note that the Stirling Review did not identify "perceptions  of harm and strength" as a "type of finding" with 
respect to one of the 26 studies, namely Van Hal et al. 2012, (Exhibits AUS -161, JE -24(60)). We have included 
this study in our count as the reviewers of the Chantler Report did consider "perceptions of ha rm and strength" 
to be one of the "main outcomes covered" by this study.  
2415 See fn 2414 above.  
2416 Moodie and Ford 2011, (Exhibits AUS -189, JE -24(42) ). 
2417 Hammond et al. 2009, (AUS -166, JE -24(29)); Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)); 
Hammond et al. 2013b, (Exhibits AUS -158, JE -24(31)); Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)); 
Doxey and Hammond 2011, (Exhibits AUS -156, JE -24(17)); Hammond et al. 2011, (Exhibits AUS -157, 
JE-24(30)); Germain et al. 2010, (Exhibits AUS -154, JE -24(25)); Moodie et al. 2012, (Exhibits AUS -174, 
JE-24(45)); Gallopel -Morvan et al. 2012, (Exhibits AUS -152, JE -24(23)); Gallopel -Morvan et al. 2013, 
(Exhibits  AUS-162, JE -24(24)); Bansal -Travers et al. 2011, (Exhibits AUS -150 , JE -24(3)), White 2011, 
(Exhibit AUS -173); Environics 2008a, (Exhiibts AUS -179, JE -24(19)); Environics 2008b, (Exhibit JE -24(18)); 
and Van  Hal et al. 2012, (Exhibits AUS -161, JE -24(60)).  
2418 See Stirling Review, (Exhibit AUS -140, HND -130, CUB -59), Table 4.1, p p. 25-37. 
2419 Hammond et al. 2009, (AUS -166, JE -24(29)); Hammond et al. 2013b, (Exhibits AUS -158, 
JE-24(31)); Wakefield et al. 2008, (Exhibits AUS -149, JE -24(62)); Doxey and Hamm ond 2011, 
(Exhibits  AUS-156, JE -24(17)); Hammond et al. 2011, (Exhibits AUS -157, JE -24(30)); Germain et al. 2010, 
(Exhibits AUS -154, JE -24(25)); Gallopel -Morvan et al. 2012, (Exhibits AUS -152, JE -24(23)); Moodie and Ford 
2011, (Exhibits AUS -189, JE -24(42)); Bansal -Travers et al. 2011, (Exhibits AUS -150, JE -24(3)); White 2011, 
(Exhibit AUS -173); Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)); Ford et al. 2013 a, 
(Exhibits  AUS-137, JE -24(20)); Wakefield et al. 2013, (Exhibits AUS -184, JE -24(64)); and Borland and 
Savvas  2013b (Exhibits AUS -175, JE -24(10)).  
2420 Moodie et al. 2011, (Exhibits AUS -155, JE -24(44)); Moodie et al. 2012, (Exhibits AUS -174, 
JE-24(45)); Gallopel -Morvan et al. 2013, (Exhibits AUS -162, JE -24(24)); Environics 2008a, (Exhiibts AUS -179, 
JE-24(19)); Environics 2008b, (Exhibit JE -24(18)); Ford et al. 2013b, (Exhibit JE -24(21)); McCool et al. 2012, 
(Exhibit JE -24(41)); Van Hal et al. 2012, (Exhibits AUS -161, JE -24(60)); and Scheffels and Saebo 2013, 
(Exhibit JE -24(56)).  
2421 Chantler Repor t, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, p p. 60-62. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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   Plain packaging can reduce misperceptions about the relative harmfulness of different 
brands.  
 Colours of packs affect perceptions of product harm and strength and, in general, plain 
packs are perceived as more harmful than branded packs if in a darker colour such as 
brown and, conversely, less harmful than branded packs if in lighter colours such as 
white.  
 Use of descriptors such as 'gold' or 'smooth' on plain packs have the potential to mislead 
consumers, as they do on branded packs.  
 In general, smokers are more likely to have misperceptions about the har mfulness of 
packs, both branded and plain, than non -smokers.2422 
7.902.   Furthermore, the Chantler Re port concluded, inter alia, that tobacco plain packaging will 
cause consumers to "be less deceived into thinking that some brands are healthier than others and 
that t herefore health warnings apply less to them".2423 We are not persuaded that these 
conclusions are voided in their entirety by the presence of enlarged GHWs enacted simultaneously 
with the TPP measures.2424 We note in this respect that Australia has present ed evi dence  that even 
small amounts of branding are capable of communicating information to consumers, including in 
the presence of large GHWs.2425 
7.903.   We further note Australia's observation that preventing the pack from mislead ing 
consumers about the harmful effects of smoking "is of particular relevance in the case of 
non-cigarette tobacco  products, which are still consistently viewed as less harmful and distinct 
from cigarettes".2426 This assertion concerning these products is consi stent with the observations 
contained in Parr et al. 2011b in respect of cigars and cigarillos2427; data from Australia, Canada, 
the U nited Kingdom , and the U nited States considered by O'Connor et al.2428; and the historical 
practice adopted by the industry, as documented  in Kostygina et al. 2014, of "imply[ing that] 
cigars are better for your health than are cigarettes and that you'll enjoy them more".2429 
7.904.   In light of the above , we are not persuaded that the complainants have demonstrated that 
the TPP measures , by their design, would not be capable of reducing the ability of tobacco 
packaging to mislead consumers about the harmful effects of smoking.  
Whether the TPP measures  have the capacity to reduce the ability of tobacco 
packaging to mislead consumers about the harmful effects of smoking, in 
light of the pre -existing capacity to do so under the ACL  
7.905.   As noted above, the complainants  argue that Australia's existing ACL is sufficient to 
address any misleading aspects of tobacco packaging, and that the  TPP measures  will therefore 
not add to this capacity. Honduras thus argues that " the use of any design elements of packaging 
(including tobacco packaging) that are likely to mislead or deceive consumers could, if proper 
evidence is presented, be effectively dealt with un der" the ACL.2430 The Dominican Republic 
similarly argues that the TPP measures  "have contributed nothing to [the] pre -existing capability 
to reduce any tobacco consumption that would result from … misleading packaging".2431 Cuba 
argues that t he "appropriate regulatory response" is "a requirement that the relevant 
manufacturers remove any … deceptive material from product packaging", and that "Australian law 
already contains such a requirement".2432 Indonesia argues that "if Australia considers that any 
specific typeface currently used in a registered trademark is 'misleading' to consumers, the [ACCC] 
                                                
2422 Stirling Review, (Exhibit AUS -140, HND -130, CUB -59), p. 58. 
2423 Chantler Report, (Exhibits AUS -81, CUB -61), p. 31. 
2424 See paras. 7.617 -7.620  and 7.660  above.  
2425 See para. 7.660  fn 1813 above.  
2426 Australia's first written submission, para. 198. 
2427 See footnote 2306. 
2428 See O'Connor et al. 2007, (Exhibit AUS -196).  
2429 Kostygina et al. 2014,  (Exhibit AUS -181), p.  2. 
2430 Honduras's first written submission, para. 520. 
2431 Dominican  Republic 's first written submis sion, para. 725. 
2432 Cuba's first written submission, para. 350. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  has existing authority to de -register such trademarks, but has taken no such action to date".2433 
The complainants rely on separate expert reports by Messrs Heydon and Shavin in this connection.  
7.906.   Australia submits that certain colours can convey impressions regarding the relative  
harmfulness of certain tobacco products, and in particular perpetuate an association between 
certain colours and descriptors such as "light" or "mild", which are no longer used in Australia by 
virtue of an undertaking between the tobacco industry and the ACCC in 2006.2434 Australia makes 
a similar observation in respect of pack shapes, with reference to " narrow 'perfume' type packs 
[that] are portray ed as a fashion accessory rather than a health risk;  small packs with 'super 
slims' [that] are portrayed to offer lower levels of addiction; and more masculine packs [that] are 
suggestive of being heavier or stronger".2435  
7.907.   We have concluded in earlier parts of our analysis that such elements of package design, 
among others, have the capacity to convey a range of perceptions about tobacco products , 
including in the presence of Australia's mandatory GHWs,  and influence the appeal  of tobacco 
products  and the eff ectiveness of GHWs (as measured by the attention paid to, cognitive 
processing of, perceptions of the seriousness and believability of, or recall of those warnings), such 
that their removal could be expected to reduce the use of , and exposure to , tobacco p roducts. The 
question before us in the present context is whether, to the extent that the TPP measures  can be 
expected to reduce the ability of tobacco packaging to mislead consumers about the harmful 
effects of smoking (which, as we have concluded, the complainants have not demonstrated cannot 
occur), they can be expected to do so to a greater extent than  was already possible under the 
ACL. 
7.908.   We take note of the discussion, through the expert reports of Mr Heydon for the 
complainants2436, and Messrs Finkelstein and Sims for Australia2437, of the extent to which the ACL 
may be used to address concerns relating eith er to the impact of tobacco packaging on the appeal 
of tobacco products or to the effectiveness of GHWs. The specific question before us however, is 
whether, through the TPP measures , Australia can expect to reduce further (i.e. beyond that which 
may be po ssible under the ACL) the extent to which tobacco packaging has the ability to address 
the concern reflected in the third mechanism  of the TPP Act, namely mislead consumers about the 
harmful effects of tobacco products.  
7.909.   In this connection, Mr Heydon, in hi s expert report, submits that Australia's Competition 
and Consumer Act 2010 (Cth) (CCA), and in particular the ACL , "has many provisions regulating 
the misleading and deceptive packaging of goods, including tobacco products", and that there "is 
no element of the allegedly misleading conduct precluded by the challenged regime which is 
incapable of remedy under the Act".2438 Honduras's and the Dominican Republic's expert, 
Mr Shavin, also concludes that "given the broad consumer protections provided by the ACL an d the 
ACCC 's enforcement of the relevant provisions", the Australian Government "already has at its 
disposal the power to prevent any ability of tobacco packaging 'to mislead consumers about the 
harmful effects of smoking or using tobacco products'".2439 Australia's expert, Mr Sims, considers 
that "at best, the misleading or deceptive conduct provisions in the ACL might be capable of being 
used only in relation to the third objective of the [ TPP Act], that is to reduce the ability of the retail 
packaging of to bacco products to mislead consumers about the harmful effects of smoking or using 
tobacco products".2440  
7.910.   Mr Sims' statement indicates that, to the extent that tobacco packaging would feature 
some element which amounts to conduct that misleads consumers about  the harmful effects of 
                                                
2433 Indonesia's second written submission, para. 183. 
2434 Australia's first written submission, paras.  190-192 (referring to, inter alia , Sims Report , (Exhibit 
AUS-22) (SCI), paras.  4.4-4.15).  
2435 Australia's first written submission, para. 194. (footnotes omitted)  
2436 See Heydon Report , (Exhibit UKR -11), p. 2 (relied upon by Cuba and Indonesia: see Cuba's 
communication to the Panel of 13 July 2015; and Indonesia's communication to the Panel of 8 Jul y 2015) . 
2437 See Finkelstein Report , (Exhibit AUS -21), paras.  67-72; Sims Report , (Exhibit AUS -22) (SCI), 
paras.  5.3-5.8. 
2438 Heydon Report , (Exhibit UKR -11), p. 3. 
2439 Shavin Report , (Exhibit DOM/HND -1), para. 103. 
2440 Sims Report , (Exhibit AUS -22) (SCI), para. 5.8. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  smoking, Australia's ACCC2441 takes the view that the ACL could be enforced in respect of those 
elements to through the ACCC's enforcement powers, or through the various provisions of the ACL 
concerning penalties and remedies. This is consistent with Australia's own acknowledgement that 
the ACL could  be used to address this mechanism, though, in its view, it "is not nearly as effective 
in achieving this objective as the tobacco plain packaging measure".2442 The ability of the ACCC to 
addre ss concerns relating to the misleading character of certain features of branding on tobacco 
products is also confirmed by the examples referred both by the complainants and by Australia 
relating to the use of terms such as "mild" or "light".2443 
7.911.   However, we a lso note the powers of the ACCC to enforce the ACL, as described in the 
ACL2444 and as elaborated by Messrs Shavin, Heydon, and Sims.2445 As Mr Sims explains, the ACCC 
has discretion in respect of which allegations of inconsistency with the ACL it pursues. Mr  Sims 
explains that the ACCC cannot pursue all the complaints it receives about the conduct of traders or 
businesses, and that it "exercises its discretion to direct resources to the investigation and 
resolution of matters that provide the greatest overall be nefit for competition and consumers".2446 
In outlining the factors that influence the ACCC's discretion in this regard, Mr Sims notes 
(inter alia) that the ACCC "will always prioritise the assessment of product safety issues which 
have the potential to cause serious harm to consumers".2447 In his discussion of the settlement 
reached between the ACCC and certain tobacco companies in relation to the "mild" and "light" 
descriptors, Mr Sims states that the "fact that settlement was reached without any admission of 
liability from the tobacco companies in question is unusual and indicative of the challenges facing 
the ACCC in this investigation".2448 Mr Sims notes the investment of "considerable resources" in 
this matter between 2001 and 20052449, and highlights the cost and uncertainty that would have 
been associated with the pursuit of the matter through litigation.2450 
7.912.   We do not wish to speculate about the costs or uncertainty that may or may not be 
associated with domestic litigation of this nature. However, we do observe tha t actions taken by 
the ACCC as enforcer of the ACL is a matter that is at its discretion, and that notwithstanding the 
priority it may give to the product safety issues that have the potential to cause serious harm to 
consumers2451, we note that the object of  the CCA, to which the ACL is a schedule, is stated, 
according to Mr Shavin in Section 2 of the CCA as "to enhance the welfare of Australians through 
                                                
2441 In his report, Mr Sims, who is the Chairman of the ACCC, points out that the report was "prepared 
by the ACCC at the reque st of the Australian Government  in relation to [these proceedings]". Sims Report , 
(Exhibit AUS-22) (SCI), para. 1.1. 
2442 Australia 's first written submission, para. 731. 
2443 Messrs Shavin, Heydon, Finkelstein and Sims, and all parties to these proceedings, refer to the 
ACCC's investigation of allegations that tobacco companies had engaged in contraventions of the Trade 
Practices Act 1974 (Cth) (the precursor to the ACL), including, in particular, misleading or deceptive conduct 
and false representations through the promotion of cigarette brands as "light", "ultra -light", "mild", 
"ultra -mild", or "low tar", and on t he basis of test results that were allegedly artificial and did not provide an 
accurate reflection of a smoker's actual exposure to tar when smoking these cigarettes. This investigation 
began in 2001, and was settled in 2005 when the ACCC accepted court en forceable undertakings from each of 
the three tobacco companies involved pursuant to Section 87B of the Trade Practices Act 1974  (Cth) (the 
precursor to Section 218 of the ACL). Sims Report , (Exhibit AUS-22) (SCI) , paras.  4.4, 4.13 -4.15. See also 
Heydon Re port, (Exhibit UKR -11), p p. 7-9; Finkelstein Report , (Exhibit AUS -21), paras.  117-118; Shavin 
Report , (Exhibit DOM/HND -1), para. 96; Honduras's first written submission, para. 527; Dominican  Republic 's 
first written submission, para. 733; Cuba's first writ ten submission, para. 82; Indonesia's first written 
submission, paras.  70-72; and Australia's first written submission, p ara. 190. 
2444 ACL, (Exhibit DOM -110), Chap.  5. 
2445 See, respectively, Shavin Report , (Exhibit DOM/HND -1), Part IV; Heydon Report , (Exhibit UKR-11), 
pp. 11-15; and Sims Report , (Exhibit AUS -22) (SCI), Part 3.  
2446 Sims Report, (Exhibit AUS -22) (SCI), para.  3.5. 
2447 Sims Report, (Exhibit AUS -22) (SCI), para.  3.9 
2448 Sims Report, (Exhibit AUS -22) (SCI), para.  4.13. 
2449 Sims Report , (Exhibit AUS -22) (SCI), para. 4.14. 
2450 Sims Report, (Exhibit AUS -22) (SCI), para.  4.15. In this respect, Mr Sims quotes the then Chairman 
of the ACCC, who stated:  
 
If we were to instate proceedings of this nature, it would require a substantial vote of our 
litigation budget towards these particular proceedings. That would then impact significantly on 
the ability of the ACCC to deal with other enforcement activities that are within the scope of its 
jurisdiction.  
 
2451 Sims Report , (Exhibit AUS -22) (SCI), para. 3.9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the promotion of competition and fair trading and provision for consumer protection".2452 We note 
that Sectio n 2 of the CCA itself has not been provided to us; however, there is no disagreement 
between the parties in this respect – indeed, Australia's expert, Mr Sims, submits that "the ACCC's 
main goals are to maintain and promote competition and remedy market fa ilure, and protect the 
interests and safety of consumers and support fair trading in markets".2453 While Mr Sims' 
description suggests that the protection of the interests and safety of consumers are among the 
goals of the ACCC, it is not clear to us that tob acco packaging that misle ads consumers in respect 
of the harmful effects of smoking would in all cases  be the subject of enforcement by the ACCC. 
Indeed, it seems inevitable that the ACCC, with such a broad mandate, would face competing 
priorities and as s uch cannot, in our view, be assumed to be practically capable of intervening in 
the market to systematically prevent tobacco packaging from misleading consumers regarding the 
harmful effects of tobacco products.  
7.913.   Relatedly, we also note that Section 232(2) of the ACL allows the ACCC, or any other 
person, to apply for an injunction in respect of conduct, or proposed conduct, that may contravene 
(inter alia) the provisions of the ACL concerning misleading or deceptive conduct.2454 Messrs 
Shavin and Heydon each ar gue that it is not necessary for a person to show a special connection 
with the subject matter of the proceeding or otherwise to satisfy rules as to "standing" before 
being entitled to apply for an injunction.2455 To this, Mr Heydon adds:  
It is quite common for the Australian Consumer Law to be enforced, not by public 
officials and not by persons directly injured by the impugned conduct, but by persons 
whom it does not directly affect. Any lobby group, for example, can apply for an 
injunction against any toba cco packaging which it considers contravenes the 
Australian Consumer Law. So can any concerned citizen. The Australian Consumer 
Law is thus in considerable measure self -enforcing: its enforcement does not depend 
only on the decisions of government official s.2456 
7.914.   Notwithstanding the breadth of the ability to apply for an injunction, the fact that the 
granting of such an injunction remains contingent on the exercise of discretion (in this context, of 
a lobby group or "concerned citizen") to seek one against an e ntity responsible for marketing 
allegedly misleading tobacco products, the exercise of such discretion cannot be assured, 
especially given that the applicant must undertake to pay any damages caused by the grant of the 
injunction in the event that no final  injunction is granted.2457 It therefore cannot be assumed, in 
our view, that individuals or interest groups would, as Mr Heydon suggests, intervene in the 
market to systematically prevent tobacco packaging from misleading consumers regarding the 
harmful effe cts of tobacco products.  
7.915.   Furthermore, the implication of the complainants' arguments in this respect is that tobacco 
product packaging that is alleged to give rise to misleading representations regarding the harmful 
effects of smoking would remain on the m arket and continue to represent such information to 
consumers, at least until such time as the ACCC (or any other applicant, in respect of an 
injunction2458) did actually seek and obtain an order or undertaking to have that product removed 
from the market, or  that the misleading conduct brought into conformity with the ACL.  
7.916.   Finally, we note Australia's explanation that the standardization of pack features through 
plain packaging, including the adoption of a single background colour for the 25% of the pack 
surface not covered by a GHW, prevents the possibility of differences in such pack features from 
having any impact on perceptions of relative  harmfulness of different tobacco products.2459 
7.917.   In light of the above, we are not persuaded that the removal of the eleme nts of tobacco 
packaging that are prohibited by the TPP measures  could not reduce the ability of tobacco 
                                                
2452 Shavi n Report , (Exhibit DOM/HND -1), para. 17. 
2453 Sims Report , (Exhibit AUS -22) (SCI), para. 3.3. 
2454 ACL, (Exhibit DOM -110), Section 232.  
2455 Shavin Report , (Exhibit DOM/HND -1), para. 78. 
2456 Heydon Report , (Exhibit UKR -11), p. 12. 
2457 Heydon Report , (Exhibit UKR -11), p. 13; and Finkelstein Report , (Exhibit AUS -21), para. 91. 
2458 It is noted that injunctions against misleading and deceptive conduct may be granted by a court on 
the basis of an application by the ACCC "or any other person". See ACL, (Exhibit DOM -110), Secti on 232(2).  
2459 Australia's first written submission, para. 187. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  packaging to mislead consumers to a greater extent than what was already possible under the ACL 
and its enforcement through the ACCC or, as the Dominic an Republic puts it, that the 
TPP measures  "have contributed nothing to [the] pre -existing capability to reduce any tobacco 
consumption that would result from … misleading packaging".2460 Rather, in our view, the 
TPP measures  address, in this respect, regulatory gaps that may arise by virtue of the practical 
limitations faced by the ACCC in enforcing the ACL.  
Whether the TPP measures , by reducing the ability of tobacco packaging to 
mislead consumers about the harmful effects o f smoking, would affect 
smoking behaviours  
7.918.   The complainants have argued , as discussed in section 7.2.5.3.5.1  above , that the 
evidence underlying the  design and operation of the TPP measures , which includes preventing 
tobacco packaging from misleading consumers about the harmful effects of smoking, fails to 
assess  the impact of plain packaging on smoking behaviours. Honduras argues, in the context of 
this mechanism, that there is "no real and practical connection between smoking behaviours and 
tobacco packaging".2461 Cuba specifically contends that none of the studies on the impact  of plain 
packaging on the ability of the pack to mislead consumers " address  the effect of any 
misperceptions as to risk on actual smoking behaviour".2462 Australia argues that "r educing of the 
ability of tobacco products to mislead consumers about the relative harmfulness of brands, or 
product types, means that tobacco plain packaging will contribute to discouraging initiation and 
encouraging cessation of tobacco use", and that, "[w]here consumers are fully informed of the real 
risks and serious consequences of tobacco use, they are more likely to engage in quitting 
behaviour" .2463 
7.919.   We also note that there is far less discussion among the parties' experts concerning the 
connection between the ability of the pack to mislead consumers regarding the harmful effects of 
smoking, and smoking behaviours. We note in particular the observat ion by Professor Fong that 
"[t]he direct evidence linking plain packaging to behaviour change through the mechanism of 
reducing misperceptions about tobacco products is not strong", a factor that he attributes to "the 
challenges of studying this linkage be fore the plain packaging measure had been 
implemented".2464 
7.920.   In respect of initiation, we recall our discussion in earlier parts of our analysis, and in 
particular the agreement between the complainants' expert, Professor Steinberg, and Australia's 
expert, Pro fessor Slovic, that "young people do not pay attention to risk information".2465 However, 
the evidence also suggests that there is a difference between adolescents not paying attention to 
risk information, and adolescents being positively led to believe that the use of one tobacco 
product over another changes the nature of the risk. Professor Fong describes this in the following 
terms:  
[T]he messages about lightness can also be used to target susceptible nonsmokers or 
experimental smokers that may have health  concerns about starting smoking. Some 
studies suggest that youth may initiate smoking light cigarettes or continue to smoke 
light cigarettes because they believe that light cigarettes are less harmful. In addition, 
youth believe that smoking light cigaret tes would make it easier for them to quit 
compared to regular cigarettes. Moreover, many youth believe that they would be less 
susceptible to the adverse health consequences of smoking by smoking lighter 
cigarettes. It is reasonable to conclude that these effects would have the potential to 
increase the likelihood that youth would take up smoking, and that smoking youth 
would be more likely to continue to smoke.2466 
                                                
2460 Dominican  Republic 's first written submission, para. 725. 
2461 Honduras's first written submission, para. 518. (emphasis original)  
2462 Cuba's first written submission, para. 350(b).  
2463 Australia's f irst written submission, para. 198. 
2464 Fong Report , (Exhibit AUS -14), para. 421. 
2465 Slovic Report , (Exhibit AUS -12), para. 110 (referring to Steinberg Report , (Exhibit DOM/HND -6)). 
2466 Fong Report, (Exhibit AUS -14), para. 379. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.921.   The US Surgeon General, the US National Cancer Institute, and Professor Fong refer to 
tobacco i ndustry documentation which indicates that this effect is known to and utilized by the 
tobacco industry.2467 
7.922.   In this respect, we note the argument by Professor Steinberg, that "despite knowing the 
risks of smoking … adolescents engage in [it] anyway because …  they privilege the short term 
reward over long term risk".2468 We see a difference betwee n the privileging of such short -term 
rewards over long -term risks and being led to perceive that in respect of  some tobacco products 
the long -term risk is diminished or non-existent.  Indeed, though Professor Steinberg (as well as, 
inter alia, Professor Viscusi) contend that young people have a high awareness of the risks of 
smoking, and notwithstanding our observation that there is a high, and in the case of some 
conditio ns, extremely high level of awareness of some specific health risks associated with tobacco 
use in Australia2469, the prospect that packaging elements can create a perception that certain 
risks are reduced when certain tobacco products are used would seem to catalyse the scenario 
described by Professor Slovic:  
Research shows that young smokers, as cumulative risk takers, believe they can get 
away with some amount of smoking before the risk takes hold. In short, many young 
smokers tend to believe that smoking the "very next cigarette" poses little or no risk 
to their health or that smoking for only a few years poses negligible risk. These young 
people expect to smoke occasionally for a short while and then quit before any real 
harm occurs to them. The problem i s nicotine addiction – another factor not 
adequately appreciated by the experiential mode of thinking. As noted above, the 
powerful visceral cravings characteristic of addiction are difficult, if not impossible, to 
appreciate unless you are in their grip. The "experience" of these cravings is 
impossible to predict or even to remember accurately. As a result, young smokers end 
up smoking more, over a longer time period, than they ever anticipated.2470 
7.923.   Indeed, the evidence before us suggests that young people's pre-disposition to not paying 
attention to risk information2471 is in fact more likely to drive behaviour in instances w here the 
perception of the long -term risk is diminished.  
7.924.   In respect of cessation, we noted in the context of the effectiveness of GHWs tha t the 
evidence before us indicates that tobacco cessation can be predicted by concerns regarding the 
health effects of tobacco products.2472 We have noted, above, evidence before us that indicates 
that tobacco plain packaging can reduce misperceptions among c onsumers about the relative 
harmfulness of different brands, the different perceptions of harm created by the use of different 
design elements (including colours), and also perceptions of the relative harmfulness of different 
tobacco products (including ci gars). Furthermore, there is evidence before us that smokers often 
use tobacco products that they perceive as being less harmful (including because of the perception 
created by the use of descriptors as well as packaging elements such as colours2473) as an 
alternative to, or substitute for, cessation2474, including as a result of the belief that they are easier 
to quit.2475 We are therefore not persuaded that the complainants have demonstrated that the 
TPP measures , by changing the ability of tobacco packaging to mi slead consumers about the 
harmful effects of smoking, would not have an effect on smoking cessation.  
7.925.   In respect of relapse, we note that there is no detailed discussion  before us concerning 
whether a reduction in the ability of tobacco packaging to mislead consumers about the harmful 
effects of tobacco use would prevent relapse behaviour. We recall, however, the study by McCaul 
et al. 2006, which suggested, in light of th e role of health concerns as a primary motivator for 
                                                
2467 US Surgeon General's Report 2012, (Exhibit AUS -76), p p. 531-532; N CI Tobacco Control Monograph 
No. 19, (Exhibit AUS -77), p. 78; and Fong Report, (Exhibit AUS -14), para. 369. 
2468 Steinberg Second Rebuttal Report, (Exhibit DOM/HND -15), para. 35. 
2469 See para. 7.840  above.  
2470 Slovic Report , (Exhibit AUS -12), para. 92 (in -text citations omitted).  
2471 Slovic Report , (Exhibit AUS -12), para. 110 (referring to Steinberg Report , (Exhibit DOM/HND -6)). 
2472 See para. 7.866  above.  
2473 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 531. 
2474 NCI Tobacco Control Monograph No. 19, (Exhibit AUS -77), p. 78. See also Fong Report, (Exhibit 
AUS-14), paras.  367-382. 
2475 Fong Report, (Exhibit AUS -14), para. 377. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  quitting, that motivation or cessation strategies include having smokers construct systems to 
remind themselves about the health consequences of smoking in order to, inter alia, assist in the 
maintenance  of a successful quit attempt and rejuvenate quit attempts among those who have 
relapsed.2476 Moreover, as we have noted, there is evidence before us that smokers often use 
tobacco products that they perceive as being less harmful (including because of the pe rception 
created by the use of descriptors as well as packaging elements such as colours2477) as an 
alternative to, or substitute for, cessation.2478  
7.926.   Indeed, to the extent that the removal of branding elements can prevent tobacco packages 
from conveying the not ion that some tobacco products are less harmful than others, we do not 
exclude that the TPP measures  could ensure that quitters were not misled into thinking that there 
is a less harmful use of tobacco products that would not compromise their health -relate d 
motivation to quit.  
Conclusion  
7.927.   On the basis of the above, we are not persuaded that the complainants have demonstrated 
that the TPP measures , by their design, would not be capable of reducing the ability of tobacco 
packaging to mislead consumers about t he harmful effects of smoking. Furthermore, we are not 
persuaded that any such contribution to reducing the ability of tobacco packaging to mislead 
consumers about the harmful effects of smoking could add nothing to what can be achieved under 
Australia's A CL. 
7.928.   In addition, we recall that we also have before us evidence relating to the actual 
application of the TPP measures since their entry into force, including empirical evidence  
specifically addressing the impact of plain packaging on the ability of the pa ck to mislead 
consumers about the harmful effects of smoking , which will be co nsidered in section 7.2.5.3.6  
below, and given appropriate weight. We therefore do no t seek to draw, at  this stage of our 
analysis, an  overall conclusion on the impact of the TPP measures on the ability of tobacco 
packaging to mislead consumers  about the health risks of smoking , and the extent to which this 
contributes to Australia's objec tive of improving public health by reducing the use of, and exposure 
to, tobacco products.  
7.2.5.3.5.5   Overall conclusion on evidence relating to the design, structure and 
operation of the TPP measures  
7.929.   Overall, our review of the evidence before us in relation to the d esign, structure and 
intended operation of the TPP measures  does not persuade us that, as the complainants argue, 
they would not be capable of contributing to Australia's objective of improving public health by 
reducing the use of, and exposure to, tobacco  products, through the operation of the mechanisms 
identified in the TPP Act, in combination with other relevant tobacco control measures applied by 
Australia.  
7.930.   Rather, our review of the relevant evidence suggests that it is recognized that various 
brandin g features are capa ble of being used on tobacco packaging in order to convey certain  
positive associations with the products, and that a body of research exists, that sought to 
investigate the impact of removing  this type of features through plain packaging of tobacco 
products, on the types of "proximal outcomes" now reflected in the TPP Act. While individual 
studies within this body of research may suffer from certain limitations, we are not persuaded that 
the complainants have demonstrated that these are such that it could not be considered reputable 
science and relied upon as relevant in relation to the anticipated impact of tobacco plain packaging 
on the measured outcomes, including a reduction in the appeal o f tobacco produ cts, an increased 
effectiveness of GHWs and reducing the ability of packaging to mislead consumers about the 
harmful effects of smoking.  
                                                
2476 See McCaul et al . 2006, (Exhibit AUS -205), p. 53. 
2477 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 531. 
2478 NCI Tobacco Control Monograph No. 19, (Exhibit AUS -77), p. 78. See also Fong Report, (Exhibit 
AUS-14), paras.  367-382. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.931.   We also take note of the body of research devoted to the study of the relationship between 
product perc eptions, intentions and behaviours discussed by the parties, including the recognition 
that this relationship is complex and may be influenced by a range of factors in a given context.  
We further note the evidence presented to us in relation to the drivers  of the smoking behaviours 
that the TPP measures  seek to influence, namely initiation, cessation and relapse. Overall, this 
evidence, while it makes clear the complexity and multiplicity of factors driving smoking 
behaviours, is consistent, in our view, wi th the proposition underlying the design and structure of 
TPP measures  that relevant behaviours may be influenced by a reduction in the appeal of tobacco 
products or an improved awareness and understanding of health risks of smoking, or both.  
7.2.5.3.6   Evidence relating to the application of the TPP measures  
7.932.   As described above, the evidence before us on the contribution of the TPP measures  to 
their objective includes empirical evidence relating to their application since their full entry into 
force in De cember 2012, which we consider in this section.  
7.933.   Overall, this evidence relates to the period between the entry into force of the measures in 
December 2012 and September 2015, with some variations in the exact period covered, 
depending on the data used. Th e empirical evidence available to us in relation to the actual 
operation of the TPP measures  therefore reflects between a few months and a maximum of three 
years of application of the measure s.  
7.934.   While all parties recognize that this evidence should play a role in our assessment of the 
contribution of the measures to their objective, they have different views on the weight to be 
given to it, and on the relative weight to be given, within the relevant post -implementation 
evidence, to evidence relating to "pro ximal" and more "distal" outcomes of the measures.  
7.935.   The Dominican Republic argues that, after two years of application, the time elapsed since 
the implementation of Australia 's plain packaging regime is sufficient to observe the effectiveness 
of that regime  in affecting smoking behaviours in Australia. It is reasonable to expect, the 
Dominican Republic argues, that, were the TPP measures  going to reduce smoking prevalence and 
tobacco consumption, those effects would be discernible by now.2479 In considering the se results, 
the Dominican Republic observes, it is worth highlighting that proponents of plain packaging 
predicted that the policy would reduce tobacco use within two years.2480 Honduras similarly argues 
that reliable and probative empirical evidence of the l ack of actual impact of the measure more 
than two and a half years after its introduction is available and must be given primacy in the 
analysis .2481 
7.936.   Australia considers however that because the measures have been in operation for a 
limited period of time, th e utility of shor t-term quantitative data is "limited".2482 It argues that the 
impact of tobacco plain packaging on smoking rates will be most pronounced in the long term, as a 
result of the addictive power of nicotine, and the consequential need for multiple  quit attempts 
before success. This also follows, Australia explains, from the likely impact of the measure on 
youth initiation, as any reductions in youth initiation are not likely to be picked up in national 
prevalence and consumption data for some time given that youth initiation makes up a small 
fraction of total smoking.2483 Second, Australia argues, with reference to Dr Biglan, that the 
important role that tobacco marketing plays in influencing youth initiation is partly a function of its 
ability to crea te positive social and peer attitudes to smoking. Accordingly, it will take time before 
the impact of the TPP measures  on the behaviour of a generation of children who have never been 
exposed to promotion through tobacco packaging is reflected in national surveys.2484  
7.937.   Australia thus considers that "the most appropriate approach to discerning the effects of 
the [TPP measures ] in the early stages of [their] introduction was to rely upon experiments and 
                                                
2479 See, e.g. Dominican  Republic 's first written submission, para. 428. 
2480 See, e.g. Dominican  Republic 's first written submission, para . 50. See Pechey et al. 2013, (Exhibit 
JE-24(51)), p. 5. 
2481 Honduras's second written submission, para. 50.  
2482 Australia's response to Panel question No. 71, para. 194. 
2483 See, e.g. Australia's first written submission, Annexure E, para. 12. 
2484 Australia's first written submission, Annexure E, para. 12. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  surveys which consider drivers of choice, attitudes and, ul timately, the elicitation of behavioural 
intentions"2485 and it is unreasonable for the complainants to draw definitive conclusions on the 
success of tobacco plain packaging solely on the basis of rates of smoking prevalence so soon after 
the measure's implem entation.2486  
7.938.   We are mindful that, while our task is to assess the actual contribution of the measures to 
their objective in light of the available evidence before us, we must take due account of the 
possibility that the effects of certain measures may manif est themselves over a longer period of 
time and into the future. We note in this respect the observation of the Appellate Body in US –
Gasoline , in the context of Article  XX(g) of the GATT 1994, that "in the field of conservation of 
exhaustible natural reso urces, a substantial period of time, perhaps years, may have to elapse 
before the effects attributable to implementation of a given measure may be observable".2487 
Similarly, certain measures to protect public health, including, as is the case here, certain 
measures based on behavioural responses to expected changes in beliefs and attitudes, may take 
some time to materialize fully or be perceptible in the relevant data.  
7.939.   We note in particular in this respect Australia's argument that the impact of the measures 
on smoking initiation can only manifest itself fully over a longer period of application, as it 
gradually affects future generations not exposed to any form of tobacco branding, on packaging or 
otherwise. We also note Australia's argument that smoking cess ation is known to require multiple 
attempts and that is made more difficult by addiction to nicotine, such that, even where plain 
packaging would be effective in achieving the intended proximal outcomes and thereby have an 
influence on quitting intentions,  carrying out the decision to quit may take up to several years and 
require repeated attempts.2488  
7.940.   We find these considerations persuasive and agree with Australia that, to the extent that 
the TPP measures  rely on evolutions in smoking behaviours that may no t be immediately 
perceptible or measurable, or may take time to materialize in actual behaviours, data and 
evidence relating to actual smoking behaviours in the early period of application of the measures 
may not provide a complete picture of the extent to  which the measures contribute, and can be 
expected to contribute into the future, to their objective. We also consider that, in this context, 
and in light of the nature of the design of the measures, as discussed in preceding sections, 
available empirical  evidence relating to the impact of the measures on "proximal" outcomes, as 
well as evidence relating to "distal outcomes" that may be precursors of actual smoking 
behaviours, may usefully inform our assessment of the actual contribution of the TPP measure s to 
their objective, together with evidence before us relating to actual smoking behaviours since the 
entry into force of the measures.  
7.941.   We further note the submission of the complainants that, even if the TPP measures  
produced short -term effects, these effects would rapidly "wear -out". The complainants refer in this 
context to the "wear -out" effect of advertising messages.  We note however that, as observed by 
Australia, the TPP measures  do not, in themselves, seek to transmit a specific message, the effe ct 
of which would "wear -out" over time, but rather seek to limit the ability of tobacco packaging to 
convey specific positive associations through branding features.2489 We are not persuaded, 
therefore, that the examples cited by the complainants in this resp ect should be assumed to be 
fully transposable to the effects of plain packaging on relevant behavioural outcomes. Where 
relevant, however, specific wear -out effects are discussed in the context of the analysis of the 
empirical evidence before us on the ap plication of the TPP measures .2490  
                                                
2485 Australia's first written submission, para. 147. 
2486 See, e.g. Australia's first written submission, Annexure E, para. 13. 
2487 Appellate Body Report, US – Gasoline , p. 21, DSR 199 6:I, 3, p.  20. See also Appellate Body Report, 
Brazil  – Retreaded Tyres , para. 153 fn 243. 
2488 See Australia's first written submission, para. 670; second written submission, para. 496; and 
response to Pa nel question No. 200, paras.  323-326. 
2489 We note however that to the extent that specific messages are intended to be communicated 
through the pack, these are contained in the GHWs that apply in conjunction with plain packaging.  We 
understand the rationale for "rotating" such messages to be precisely to avoid the type of "wear out" effect 
identified by the complainants.   
2490 See Appendices A and B.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.942.   We take note also of the parties' detailed exchanges concerning the precedential value of 
the Canadian experience with the introduction of GHWs and the assessment of its effectiveness 
over time.2491 We are not persuaded, howev er, that a detailed review of the evidence in respect of 
that measure would provide a conclusive response to the question before us here, which is limited 
to determining the extent to which the effects of the TPP measures  can be expected to be 
perceptible at the time of our assessment on the basis of the empirical evidence before us, and the 
implications of this consideration on the conclusions that we may reach on the contribution of the 
TPP measures  to their objective. Specifically, given the complexity o f intervening factors, we are 
not persuaded that the experience with GHWs in the Canadian context would necessarily be 
directly transposable to the Australian current context relating to the introduction of the 
TPP measures .2492 Nonetheless, bearing in mind t his discussion, we are mindful of the challenges 
inherent in identifying data and methodologies apt to reveal the effects of measures intended to 
affect population -wide behaviours in a complex setting, and the need to exercise caution in 
seeking to draw co nclusions on the effectiveness of this type of measures on the basis of relatively 
limited information.  
7.943.   In light of the above, we consider the evidence before us in relation to the application of 
the TPP measures  with awareness that the time -period for wh ich evidence of application of the 
measures is available may have an impact on the nature and extent of the conclusions that may 
be drawn from this evidence. In addition, we are mindful that the probative value of this evidence 
may also be affected by othe r factors, such as the quality and nature of the available data itself.  
7.944.   In light of the above, we consider in turn below:  
a. the evidence before us relating to "proximal outcomes", that is, the effect of the 
TPP measures  on the three parameters underlying th e three "mechanisms" reflected in 
the TPP Act (appeal of tobacco products, effectiveness of GHWs, and ability of the pack 
to mislead consumers about the harmful effects of tobacco products);  
b. the evidence before us in relation to quitting -related and other "distal" outcomes; and  
c. the evidence before us relating to smoking behaviours, based on consumption and sales 
volumes of tobacco products and smoking prevalence, since the entry into force of the 
TPP measures . 
7.2.5.3.6.1   Impact of the TPP measures  on "proximal" outcom es (appeal of tobacco 
products, effectiveness of GHWs and ability of the pack to mislead)  
7.945.   The parties submitted as exhibits a number of peer -reviewed studies investigating the 
post-implementation impact of the TPP measures  and enlarged GHWs on non -behaviou ral proximal 
outcomes, namely: (i)  reduction in the appeal of tobacco products; (ii)  increased effectiveness of 
GHWs; and (iii)  reduction in the ability of the pack to mislead consumers about smoking harms.2493 
Appendix A reviews and discusses this evidence, in light of the relevant expert reports submitted 
by the parties.  
7.946.   Australia submits that the available post -implementation empirical studies on 
non-behavioural outcomes confirm that TPP and enlarged GHWs have achieved the objectives of 
                                                
2491 See, e.g. Australia's first written submission, para. 16; Australia's response to Panel question 
No. 200, paras.  334-335; Chaloupka Public Health Report , paras.  89-96; IPE Updated Report , (Exhibit 
DOM-303), Section 6; and J. List, "A Further Consideration of the Empirical Evidence on the Effects of 
Australia's Tobacco Plain Packaging Legislation", 16 September  2015, ( List Rebuttal Report ), (Exhibit 
DOM/IDN -3), paras.  76-83. 
2492 Cf. Australia's first written submission, Annexure E, paras.  53-58; Australia's response to Panel 
question No. 11; and List Rebuttal Report , (Exhibit DOM/IDN -3), para. 80 (highlighting the  challenges 
associated with cross -jurisdictional comparisons).  
2493 Some of these papers also analyse more distant variables, such as beliefs, attitudes and intentions 
towards smoking and quitting, as well as quitting attempts. These papers are also discussed  in Appendix B to 
these Reports.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  (i) reducing appeal , (ii) increasing the effectiveness of GHWs, and (iii)  reducing the ability of 
packaging to mislead consumers about the harmful effects of tobacco products.2494  
7.947.   Based on the review of these peer -reviewed papers, and in some cases the re -analysis of 
the data used in these papers, the complainants argue that the TPP measures  have not had the 
expected effects on the antecedents of behaviour posited in Australia 's conceptual framework of 
the TPP measures .2495 In particular, they contend that beyond the obvious findi ngs that the pack is 
less visually appealing and people more often notice the larger GHWs first, empirical evidence 
shows little or no effects of the policies on the antecedents of behaviour. They further claim that 
the variables relating to beliefs, attit udes and intentions towards smoking were almost entirely 
unaffected by the TPP measures .2496 Cuba relies in full on a report submitted by the Dominican 
Republic as well as on a report submitted by Ukraine, as regards the post -implementation data, 
analysis, and the conclusions to be drawn from it.2497 Cuba also relies upon reports submitted by 
Honduras, and a report prepared in connection with the UK Consultation on the Introduction of 
Regulations for Standardised Packaging of Tobacco Products .2498 
7.948.   In addition, the  complainants' experts submit that some of the published empirical studies 
on Australia's TPP measures  provide an inaccurate picture of the empirical evidence. They state 
that some of these papers failed to report the results for more than half of all the variables 
available in the survey dataset, which were overwhelmingly not statistically significant, suggesting 
no impact by plain packaging on these variables. The complainants contend that the authors of 
some of these published studies also failed to expl ain that a number of the reported statistically 
significant effects had vanished by the end of the first year of Australia's implementation of the 
TPP measures  as a result of wear -out effects. The Dominican Republic and Indonesia further 
criticize these pa pers for failing to report the effects size of the statistically significant effects. 
According to their experts, most of the reported statistically significant effects are small, 
suggesting that the TPP measures  have little importance in shifting behaviou r.2499  
7.949.   Four peer -reviewed papers analysed empirically the impact of Australia's TPP measures  on 
the appeal of tobacco products .2500 Different survey data were used by several of these published 
papers. Most survey data cover adult smokers, with the exception of  a survey of students 
attending secondary schools.2501 Most of these peer -reviewed papers analyse only cigarette 
smokers, although some of these survey datasets also include information on cigar smokers. Only 
one peer -reviewed study analyses appeal -related ou tcomes in relation to cigar and cigarillo 
smokers.2502  
7.950.   Based on different datasets, five peer -reviewed papers have also empirically investigated 
the impact of Australia's TPP measures  on the effectiveness of GHWs .2503 An expert report 
                                                
2494 See Australia's first written submission, paras.  201-205; and comment on complainants' responses 
to Panel question No. 146, para. 7. 
2495 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2); Ajzen et al. Second Data Report , (Exhibit 
DOM/IDN -4); Ajzen et al. Data Rebuttal Report, (Exhibit DOM/IDN -6); Ajzen et al. Second Data Rebuttal 
Report , (Exhibit DOM/IDN -8); Klick Supplemental Rebuttal Report , (Exhibit HND -122); and Klick Second 
Supplemental Rebuttal Report , (Exhibit HND -165).  
2496 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  10-22. 
2497 Cuba's first written submission, para. 100. 
2498 See, e.g. Cuba's response to Panel question No. 146 ( referring to  Klick Supplemental Rebuttal 
Report , (Exhibit HND -122); Klick Second S upplemental Rebuttal Report , (Exhibit HND -165); and Gibson 
Report , (Exhibit DOM -92)). 
2499 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  23-27. 
2500 See Wakefield et al . 2015, (Exhibits  AUS-206, DOM -306); Dunlop et al. 2014, (Exhibits AUS -207, 
HND-132, DOM -199); White  et al. 2015a, (Exhibit s AUS-186, DOM -235); and Miller et al. 2015, (Exhibits 
AUS-102, DOM -315).  
2501 See White et al. 2015a , (Exhibit s AUS-186, DOM -235); and White et al. 2015b,  (Exhibits HND -135, 
DOM-236, DOM -288).  
2502 See Miller et al. 2015 , (Exhibits AUS -102, DOM -315).  
2503 See Wakefield et al . 2015, (Exhibits  AUS-206, DOM -306); Yong et al. 2015, (Exhibit DOM -382); 
Dunlop et al. 2014, (Exhibits AUS -207, HND -132, DOM -199); White et al. 2015b , (Exhibits HND -135, 
DOM-236, DOM -288); and Miller et al. 2015, (Exhibits AUS -102, DOM -315).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  prepared by Professor  Klick and submitted by Ukraine also contains an analysis of the impact of 
the TPP measures  on the effectiveness of GHWs.2504  
7.951.   Two peer -reviewed papers analyse empirically the impact of Australia's TPP measures  on 
the ability of the pack of tobacco products to mis lead consumers  among adult cigarette smokers 
and adolescents  respectively .2505  
7.952.   This evidence is reviewed and discussed in detail in Appendix A. Notably, the parties 
discuss various results based on data from the National Tobacco Plain Packaging Tracking Survey 
(NTPPTS ), a nationwide tracking survey funded by Australia and conducted by CCV, to track the 
effects of plain packaging.2506 In the context of these proceedings, the Dominican Republic sought, 
and obtained acc ess to, data from this survey.2507 The Dominican Republic and Indonesia jointly 
submitted an expert report by Professors Ajzen, Hortaçsu, List , and Shaikh (Ajzen et al.) 
re-estimating the NTPPTS dataset covering questions related to the plain packaging mechanisms, 
and reviewing the accuracy and completeness of various findings reported in the studies relied 
upon by Australia.2508  
7.953.   On the basis of their re -analysis of the NTPPS data, Ajzen et al . observe the following with 
respect to the impact of the TPP measures  on the appeal of tobacco packs and products:  
As we would expect, results regarding the first two measures relating to appeal of the 
pack showed that respondents rated plain packs with larger GHWs as significantly less 
appealing than previously marke ted branded packs with smaller GHWs. The size of 
these effects was, according to Cohen 's (1988) rule of thumb, moderate to large (r = 
.35 and .54).2509 These findings are little more than a "manipulation check, " i.e., a 
check to make sure that plain packs wer e, as intended, perceived to be less visually 
attractive than branded packs. After all, plain packaging was explicitly designed and 
pre-tested to make sure that the package was unattractive ; and the plain packaging 
was combined with enlarged, dominant, and  visually repulsive GHWs. Interestingly, 
                                                
2504 See Klick Report , (Exhibit UKR -5). See also section 1.6.6 above for a description of Ukraine's 
participation in these proceedings.  
2505 See Wakefield et al. 2015, (Exhibits  AUS-206, DOM -306); and White et al. 2015a, (E xhibit s 
AUS-186, DOM -235).  
2506 To track the effect of the plain packaging measure, Australia funded the National Tobacco Plain 
Packaging Tracking Survey (NTPPTS), a nationwide tracking survey conducted by CCV. The NTPPTS is a 
continuous cross -sectional base line survey of about 100 interviews per week of current smokers and recent 
quitters aged 18 to 69 years, conducted from 9 April 2012 to 30 March 2014. A follow -up survey of baseline 
participants then took place approximately four weeks after the initial su rvey, with the follow -up surveys 
conducted from 7  May 2012 to 4 May 2014. NTPPTS Technical Report, (Exhibits AUS -570, HND -124, 
DOM-307), p p. 7-8. According to Australia, the short time period between interviews limits the ability of the 
survey data to be u sed to examine the longer -term impacts expected of the measure. Australia's response to 
Panel question No. 196, paras.  230, 236; and response to Panel question No. 198, paras.  280-293. It considers 
that the survey data are most suited to assessing changes in the specific mechanisms of the measure. Results 
from the NTPPTS were used in six papers published in a supplement to the journal Tobacco Control  in 2015. 
Ajzen et al. Data Report , (Exhibit DOM/IDN -2), four of which are relied on by Australia in these pr oceedings. 
See, e.g. Australia's response to Panel question No. 198, para. 294 fn 407 ( referring to  Wakefield et al. 2015, 
(Exhibit s AUS-206, DOM -306); Brennan et al. 2015, (Exhibit s AUS-224, DOM -304); and Durkin et al. 2015, 
(Exhibits AUS -215 (revised), DOM-305)), and paras.  305-308 ( referring to  Scollo et al. 2015a, (Exhibits 
HND-133, DOM -237, DOM -311)). 
2507 See section 1.6.7.3.2 above.  
2508 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2); and Ajzen et al. Data Rebuttal Report, (Exhibit 
DOM/IDN -6). 
2509 (footn ote original) Whereas the first of the two pack appeal questions constitutes a direct measure 
of disliking for the pack, the second question asked respondents to rate the appeal of the current packaging 
"compared with a year ago. " This question must have a ppeared odd to the participants prior to the introduction 
of plain packaging as there had been no significant change in the appearance of their cigarette packs. Further, 
asking respondents to draw comparisons with a year ago is likely to produce demand eff ects, leading them to 
believe that the investigators expected them to see a difference. For these reasons, the first direct question is 
likely to provide a better indication of pack appeal, and it revealed a much smaller impact of plain packaging 
than did the second comparative question. See Paulhus, D. L. (1991). Measurement and control of response 
bias. In J.P. Robinson, P. R. Shaver & L. S. Wrightsman (Eds.), Measures of personality and social 
psychological attitudes (pp. 17-59). San Diego, CA: Academic Press.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the results also showed that, even before plain packaging and enlarged GHWs, the 
majority of smokers disliked the look of their pack.  
Turning to the appeal of tobacco products, the lowered visual appeal of the pack 
appears to have some bearing on the respondents ' evaluations of the quality, 
satisfaction, and value of their cigarettes "compared with a year ago ".2510 These 
indicators of appeal of tobacco products showed statistically significant effects of the 
introductio n of plain packaging and larger GHWs in the hypothesized direction. 
However, the magnitude of the effects was markedly lower (all small effects; r 's ≤ 
.30) for product appeal than pack appeal.2511 
7.954.   These conclusions suggest that Ajzen  et al., having reviewed t he data obtained from the 
NTPPTS for the Dominican Republic and Indonesia, accept that plain packs have been, "as 
intended", perceived to be less attractive, and that "the lowered visual appeal of the pack appears 
to have some bearing on the respondents' e valuation of the quality, satisfaction and value of their 
cigarettes" compared to the previous year. We note that these experts also conclude that "these 
indicators of appeal of tobacco products showed statistically significant effects of the introduction 
of plain packaging and larger GHWs in the hypothesized direction ".2512 The available empirical 
evidence relating to the application of the TPP measures  since their entry into force thus confirms, 
rather than discredits, the "hypothesized direction", i.e. the hypothesis reflected in the 
TPP literature  that plain packaging would reduce the appeal of tobacco products.  
7.955.   Ajzen et al. also discuss the results of the NTPPTS and other data in respect of the impact 
of the TPP measures  on GHW effectivenes s and conclude that they are mixed  and overall weak2513: 
they note inter alia  that although the evidence presented suggests that plain packaging and 
enlarged GHWs do not impact recall of specific smoking risks, the results also suggest that the 
TPP measures , in conjunction with enlarged GHWs, had a small but statistically significant positive 
impact on the ability to recall a disease featured on a current GHW.2514 Ajzen et al. also confirm 
the results reported in a study based on ITC Project data, providing insight on the magni tude of 
the impacts, which they describe as " intermediate " for attentional orientation and avoidance of 
GHWs and "small" for noticing GHWs and cognitive behaviours.2515 Ajzen et al. mention the 
possibility of wear -out effects but do not test this assumption.2516  
7.956.   As discussed in Appendix A2517, empirical evidence on the impact of the TPP measures  on 
appeal of cigars and cigarillos is found in a single peer -reviewed paper, in which a descriptive 
statistics analysis reports that occasional premium cigar and cigarillo smokers with higher TPP 
exposure, non-premium  cigarillo smokers, and online survey participants reported reduced 
perceived appeal since the implementation of the TPP measures  and enlarged GHWs .2518 We find 
these findings to be consistent with the findings pub lished in the peer -reviewed studies on adult 
cigarette smokers and adolescents reviewed in Appendix A . We further see no basis to reject  this 
evidence  in its entirety.2519  
7.957.   As regards the noticeability of GHWs, the same peer -reviewed study finds that 15 month s 
after the introduction of the TPP measures  cigar and cigarillo smokers exposed to plain packaging 
reported greater noticeability of the GHWs and in a few cases greater concerns about the health 
                                                
2510 (footnote original) It is worth noting again that questions comparing attributes of current packs, 
brands, or products with those of a year ago are problematic. Asking respondents to make such comparisons 
requires them to look for differences they  may not have mentioned spontaneously. It would have been better 
to simply ask participants to rate pack and product attributes on different occasions (before and after 
introduction of plain packaging) and examine any changes directly instead of asking par ticipants to report 
changes.  
2511 Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  90-91. (original emphasis omitted; em phasis 
added ) 
2512 Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  90-91. (emphasis added)  
2513 See Appendix A, para. 68.  
2514 Appendix A, para. 37. 
2515 Appendix A, para. 46. 
2516 Appendix A, para. 45. 
2517 Appendix A, para.  24. 
2518 Appendix A, para. 32. 
2519 Appendix A, para.  32. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  warnings and avoidance and concealment.2520 As explained in App endix A , we see no ground to 
reject the study in its entirety on the basis of relevant criticism.2521 Further, the overall findings on 
cigar and cigarillo smokers are to some extent in line with the results reported in the other 
peer-reviewed papers analysing  the impact of GHW effectiveness on adult cigarette smokers.2522  
7.958.   Overall, our review of the empirical evidence available to us regarding the impact of the 
TPP measures  since their entry into force on the proximal outcomes of inte rest, as detailed in 
Appendix  A2523, suggests that:  
a. The TPP measures  and enlarged GHWs have statistically significantly reduced the appeal 
of cigarettes among adult smokers.  
b. The TPP measures  and enlarged GHWs have statistically significantly increased GHWs ' 
effectiveness on the noticeab ility of health warnings, avoidance of graphic health labels 
and pack concealment among adult cigarette smoker s, albeit modestly for some 
outcomes, while the impact of the TPP measures  and enlarged GHWs on adult cigarette 
smokers' health beliefs is relativ ely more limited and nuanced.  
c. The TPP measures  and enlarged GHWs have had a more mixed and limited impact on 
the ability of the pack to mislead adult cigarette smokers about the harmful effects of 
smoking.  
d. While the TPP measures  (together with enlarged GH Ws) have contributed  statistically  
significantly in reducing the appeal of cigarettes among adolescents, the impact of the 
TPP measures  (with enlarged GHWs ) on adolescents' health beliefs and cognitive 
processing of warning information on cigarettes packs is much more limited. Similarly, 
the impact of the TPP measures  (and enlarged GHWs ) on the ability of the pack to 
mislead adolescents about the harmful effect s of smoking is more mixed and limited.  
e. There has been a decrease in perceived packaging appeal w hen cigar and cigarillo 
smokers were exposed to the TPP measures  (and en larged GHWs ). In addition, there has 
been an increase in the noticeability of health warnings and packs concealment among 
cigar and cigarillo smokers , but the evidence is mixed regardi ng health beliefs.  
7.2.5.3.6.2   Impact of the TPP measures  on quitting -related outcomes and other distal 
outcomes  
7.959.   The parties have submitted as exhibits and discussed several peer -reviewed studies 
investigating the post -implementation impact of the TPP measures  and enlarged GHWs on 
quitting -related cognitions, pack concealment and quit attempts.2524 
7.960.   Australia submits that these studies confirm that the TPP measures  have resulted in 
increased calls to Quitline and the number of quit attempts.2525 Australia further subm its that the 
features of certain survey data are most suited to detecting changes in proximal outcomes (i.e. the 
appeal of tobacco products, GHW effectiveness, and ability of tobacco packaging to mislead 
consumers about the harmful effects of smoking) than  in more distal variables, such as intentions 
and quitting -related behaviours.2526 
7.961.   The complainants submit that the TPP measures  have not had the expected effects on the 
antecedents of behaviour posited by Australia 's conceptual framework of the TPP measures .2527 In 
                                                
2520 Appendix A, para.  71. 
2521 Appendix A, para.  71. 
2522 Appendix A, para. 71. 
2523 Appendix A, overall conclusions, para. 86. 
2524 Some of these papers also analyse more proximal outcomes variables related to appeal, GHW 
effectiveness, and the ability of packs to mislead, which are reviewed in Appendix A to these Reports.  
2525 Australia's second written submission, para. 464. 
2526 Australia's comments on complainants responses to Panel question No. 197, paras.  371-375. 
2527 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2); Ajzen et al. Second Data Report , (Exhibit 
DOM/IDN -4); Ajzen et al. Data Rebuttal Report, (Exhibit DOM/IDN -6); Ajzen et al. Second Data Rebuttal 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  particular, the Dominican Republic and Indonesia's experts contend that beyond the obvious 
findings that the pack is less visually appealing and people more often notice the larger GHW first, 
empirical evidence shows little or no effects of the polici es on the antecedents of behaviour. The 
complainants further argue that empirical evidence shows that the TPP measures  have had no 
impact on variables relating to quitting and relapse.2528 The Dominican Republic and Indonesia 
submitted expert reports dedicate d to reviewing a series of peer -reviewed papers assessing the 
impact of the TPP measures  on quitting -related outcomes. In some cases, the complainants' 
experts also re -analysed the data used in the studies.2529  
7.962.   In addition, the experts of the Dominican Repub lic and Indonesia contend that some of the 
published empirical studies relied upon by Australia provide an inaccurate picture of the empirical 
evidence. According to them, some of these papers failed to report the results for more than half 
of all variable s available in the survey dataset, which were overwhelmingly not statistically 
significant, suggesting no impact of plain packaging on these variables. The complainants contend 
that the authors of some of these studies failed also to explain that a number of the reported 
statistically significant effects had "vanished" by the end of the first year of the TPP measures ' 
implementation as a result of wear -out effects. The Dominican Republic and Indonesia further 
criticize these papers for failing to report the  effects size of the statistically significant effects. 
According to their experts, most of the reported statistically significant effects are small, 
suggesting that they have little importance in shifting behaviour. The complainants also criticize 
the aut hors of one of the studies for having removed the effects of a non -existent daily trend in 
survey responses, which has distorted the analysis by finding wrongly statistically significant 
effects.2530  
7.963.   This evidence is reviewed in detail in Appendix B. Overall , our review of the empirical 
evidence available to us regarding quitting -related outcomes and other distal outcomes, suggests 
that: 
a. The impact of the TPP measures  and enlarged GHWs on adult cigarette smokers' quitting 
intentions and quitting -related cogni tion reactions is limited and mixed.  
b. The TPP measures  and enlarged GHWs have had a  statistically significant  positive impact 
on avoidant behaviours, such as pack concealment, among adult cigarette smokers, 
while their impact on stubbing out and stopping s moking is much more limited and 
mixed.  
c. Although the TPP measures  and enlarged GHWs have statistically significantly increased 
calls to Quitline, the observed impact on quit attempts is very limited and mixed.  
d. The empirical evidence of the impact of the TP P measures and enlarged GHWs on 
adolescents' quitting -related outcomes is limited. This evidence suggests that the impact 
of the TPP measures  and enlarged GHWs on adolescents' refraining from smoking 
cigarettes and thoughts about quitting  is statistically not significant . No empirical 
evidence has been submitted on pack concealment among adolescent smokers . 
e. The empirical evidence of the impact of the TPP measures and enlarged GHWs on cigar 
and cigarillo smokers' quitting -related outcomes is limited. This ev idence suggests that 
the shares of premium  cigar and cigarillo smokers and of non-premium  cigarillo smokers 
reporting having decanted the cigars and cigarillos from their boxes to a humidor or an 
unbranded tin or concealed their pack have increased and there has been an increase in 
the share of non-premium  cigarillo smokers contemplating quitt ing. 
                                                                                                                                                  
Report , (Exhibit DOM/IDN -8); Klick Supplemental Rebuttal Report , (Exhibit HND -122); and Klick Second 
Supplemental Rebuttal Report , (Exhibit HND -165).  
2528 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  10-22; and Klick S upplemental Rebuttal 
Report , (Exhibit HND -122), para. 100. 
2529 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2); Ajzen et al. Second Data Report , (Exhibit 
DOM/IDN -4); Ajzen et al. Data Rebuttal Report, (Exhibit DOM/IDN -6); Ajzen et al. Second Data Rebuttal 
Report , (Exhibit DOM/IDN -8); and Klick Report , (Exhibit UKR -5). 
2530 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  23-27. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.3.6.3   Impact of the TPP measures  on smoking behaviours  
7.964.   The complainants generally consider that prevalence and tobacco sales data enable an 
objective assessment of the actual behavioural effects of changing the appearance of tobacco 
products and their packaging.2531  
7.965.   The Dominican Republic and Indonesia argue that empirical evidence on the application of 
the TPP measures  since their entry into force suggests that people like plain packages less than 
branded packages, but that this does not carry through al l the variables assessing the appeal of 
tobacco products, as plain packaging fails to influence the appeal of smoking and has almost no 
effect on the appeal of the pack and of tobacco products among non -smoking adolescent.2532 Ajzen 
et al., in an exp ert repor t submitted by Honduras and the Dominican Republic, further argue that 
the TPP measures  have had no positive downstream impact on smokers' quit intentions and quit 
attempts, and led to no changes in smokers' actual smoking behaviour.2533  
7.966.   Australia considers that in the early stages of introduction  of the measures, its outcomes 
are best measured on the basis of experiments and studies which consider drivers of choice, 
attitudes and the elicitation of behavioural intentions . Nonetheless, it engaged in an econom etric 
analysis of data relating to smoking prevalence and consumption since the entry into force of the 
TPP measures . 
7.967.   We consider below the evidence before us on the evolution o f smoking prevalence and 
consumption of tobacco products in Australia since the  entry into force of the TPP measures .  
Impact of the TPP measures  on smoking prevalence  
7.968.   A number of expert reports submitted by the parties are dedicated in part or in whole to an 
assessment of the contribution of the TPP measures  to reducing smoking prev alence .2534 These 
expert reports rely on different databases, statistical analysis and econometric methods to 
determine whether TPP and enlarged GHWs have contributed to a reduction in smoking 
prevalence.  
7.969.   The complainants argue that the overall empirical sta tistical and econometric studies 
carried out by their experts conclude that the TPP measures  have failed to reduce cigarette and 
cigar smoking prevalence.2535 The complainants also initially suggested that the TPP measures  
"backfired" by increasing youth smok ing prevalence2536, although they did not pursue this 
argument in later stages of the proceedings . 
7.970.   Notwithstanding its position that in the early stages of introduction of the measures, the 
most appropriate way to discern their effects is to rely on experimen ts and surveys which consider 
                                                
2531 See, e.g. Dominican  Republic 's first written submission, paras.  48-50; Honduras's second written 
submission, para. 31; Cuba's second written submission, para. 40; and Indonesia's first written submission, 
paras.  112-117.  
2532 See Ajzen et al. Data Rebuttal Report, (Exhibit DOM/IDN -6), paras.  44-51. 
2533 See Ajzen et al. Data Report , (Exhibit DOM/IDN -2), paras.  167-173 and 2 21-224. 
2534 See Chipty Report, (Exhibit AUS -17); Chipty Supplementary Report , (Exhibit AUS -511); Chipty 
Rebuttal Report, (Exhibit AUS -535) (SCI) ; Chipty Surrebuttal Report, (Exhibit AUS -586); Chipty Second 
Rebuttal Report, (Exhibit AUS -591); Chipty Third Reb uttal Report, (Exhibit AUS -605); Chaloupka Rebuttal  
Report, (Exhibit AUS -582); Chaloupka Third Rebuttal Report, (Exhibit AUS -604); List Report, (Exhibit 
DOM/IDN -1); List Rebuttal Report ; (Exhibit DOM/IDN -3); List Second Supplemental Report, (Exhibit 
DOM/ID N-5); List Third Supplemental Report, (Exhibit DOM/IDN -7); List Summary Report, (Exhibit 
DOM/IDN -9); IPE Report , (Exhibit DOM -100); IPE Updated Report , (Exhibit DOM -303); IPE Second Updated 
Report , (Exhibit DOM -361); IPE Third Updated Report , (Exhibit DOM -375); IPE Summary Report , (Exhibit 
DOM-379); Klick Report , (Exhibit UKR -5); Klick Rebuttal Report, (Exhibit  HND-118); Klick Supplemental 
Rebuttal Report , (Exhibit HND -122); Klick  Second Supplemental Rebuttal R eport, (Exhibit HND -165); Klick 
Third Supplemen tal Rebuttal Report, (Exhibit HND -166); Klick Fourth Supplemental Rebuttal Report, (Exhibit 
HND-169).  
2535 See Honduras' s second written submission, paras.  56-60; Dominican  Republic 's comments on 
responses to Panel questions following the second substantive m eeting, paras.  681-682; Cuba's second written 
submission, paras.  276-277; and Indonesia's second written submission, para. 192. 
2536 See Honduras' s first written submission, para. 395; Dominican  Republic 's first written submission, 
para. 523; Cuba's first wri tten submission, para. 163; and Indonesia's first written submission, para. 412. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  drivers of choice, attitudes, and ultimately, the elicitation of behavioural intentions , Australia 
engaged in estimating econometrically the impact of the TPP measures  on smoking prevalence, in 
response to the complainants' submissions.2537 Australia argues that using the most appropriate 
dataset available and correcting for flaws in the econometric models put forward by the 
complainants' experts, the results show that the  TPP measures  have already contributed to 
reducing cigarette and cigar smoking prevalence.2538 
7.971.   The approaches proposed by the parties to analyse the trends in smoking prevalence 
evolved over the course of the proceedings. Overall, they address the following t hree main 
aspects, which are reviewed in detail in Appendix C:  
a. First, the parties have submitted economic figures and descriptive statistics analyses 
aimed at determining whether smoking prevalence has decreased following the 
implementation of the TPP meas ures; 
b. Second, Australia, the Dominican Republic, Honduras and Indonesia have submitted 
statistical analyses to determine whether there was a break in the trend in smoking 
prevalence following the implementation of the TPP measures , and in particular, wheth er 
the reduction of smoking prevalence has accelerated following the implementation of the 
TPP measures ; 
c. Finally, Australia, the Dominican Republic, Honduras and Indonesia hav e submitted 
econometric analyse s to determine whether the TPP measures  have contr ibuted to a 
reduction in smoking prevalence by isolating and quantifying the different factors that 
can explain the evolution of smoking prevalence.  
7.972.   Based on a review of the most recent data available and econometric evidence submitted 
by the parties, as d etailed in Appendix C, we find that:  
a. There is evidence that overall smoking prevalence in Australia continued to decrease 
following the introduction of the TPP measures . 
b. The downward trend in overall smoking prevalence in Australia appears to have 
acceler ated in the post -TPP period.  
c. Although it is not possible to distinguish between the impact of TPP and the impact of 
enlarged GHWs on the basis of the empirical evidence submitted, there is some 
econometric evidence suggesting that the TPP measures , togethe r with the enlarged 
GHWs implemented at the same time, contributed to the reduction in overall smoking 
prevalence, including cigar smoking prevalence, since their entry into force.  
Impact of the TPP measures  on consumption and sales volumes of tobacco 
prod ucts 
7.973.   A number of expert reports are dedicated in part or in whole to a discussion of evidence 
relating to the evolution of consumption of tobacco prod ucts since the entry into force of the 
TPP measures .2539 Differen t databases, statistical analyse s and econom etric methods have been 
                                                
2537 See Australia's first written submission, para. 670. Instead Australia claimed that the impact of plain 
packaging had to be investigated through its mechanism by looking at its impact on non -behavioural 
outcomes: (1)  reduction in the appeal of tobacco products, (2)  increased effectiveness of health warnings, and 
(3) reduction of the ability of the pack to mislead. Australia referred to the series of peer -reviewed studies 
published in the Tobacco Control  journal.  
2538 See Australia's comment s on complainants' response to Panel question No. 197, para. 214. 
2539 See Chipty Report, (Exhibit AUS -17); Chipty Supplementary Report , (Exhibit AUS -511); Chipty 
Rebuttal Report, (Exhibit AUS -535) (SCI) ; Chipty surrebuttal report, (Exhibit AUS -586); Chipty Second 
Rebuttal Report, (Exhibit AUS -591); Chipty Third Rebuttal Report, (Exhibit AUS -605); List Report, (Exhibit 
DOM/IDN -1); List Rebuttal Report , (Exhibit DOM/IDN -3); List Second Supplement al Report, (Exhibit 
DOM/IDN -5); List Third Supplemental Report, (Exhibit DOM/IDN -7); List summary report, (Exhibit 
DOM/IDN -9); IPE Report , (Exhibit DOM -100); IPE Updated Report , (Exhibit DOM -303); IPE Second Updated 
Report , (Exhibit DOM -361); IPE Third Upd ated Report , (Exhibit DOM -375); IPE Summary Report , (Exhibit 
DOM-379); Klick Report , (Exhibit UKR -5); Klick Rebuttal Report, (Exhibit  HND-118); Klick Supplemental 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  proposed to determine whether TPP and enlarged GHW have contributed to the reduction in 
cigarette consumption.  
7.974.   As in respect of the analysis of smoking prevalence, one of the only points of agreement 
among the parties is that the e mpirical econometric evidence on cigarette consumption submitted 
does not distinguish between the impact of TPP and the impact of enlarged GHWs on cigarette 
sales or consumption, because both measures were implemented at the exact same time.2540  
7.975.   The complain ants argue that all their experts' empirical statistical and econometric studies 
show that the TPP measures  failed to reduce cigarette sales volumes or consumption.2541 The 
complainants even suggested initially that TPP measures  "backfired" by increasing toba cco 
sales.2542 This argument was however not developed later in the proceedings.  
7.976.   Notwithstanding its contention that it was too early to investigate the impact of TPP on 
tobacco consumption, Australia submitted expert reports estimating the TPP measures ' impact on 
cigarette sales, in response to the complainants' submissions.2543 Australia contends that once the 
most appropriate dataset available (i.e. In -Market -Sales data) are used and the flaws of the 
econometric models put forward by the complainants' experts  are corrected, the econometric 
results show that TPP measures  have already contributed to their objectives by reducing cigarette 
sales volumes.2544 
7.977.   Similar to the discussion on smoking prevalence, the approaches presented by the parties 
to analyse cigarette sales volumes and consumption evolved over the course of the proceedings.  
Overall, these address three main aspects, which are reviewed in detail in Appendix  D: 
a. First, the parties have submitted economic figures and descriptive statistics analyses 
aimed at determining whether cigarette sales or consumption have decreased following 
the implementation of the TPP measures2545; 
b. Second, Australia, the Dominican Republic,  and Indonesia have submitted statistical 
analyses to determine whether there was a break in the trend in cigarette sales following 
the implementation of the TPP measures , and in particular, whether the reduction of 
cigarette sales volumes has accelerated i n the post -TPP period;  
c. Finally, Australia, the Dominican Republic, Honduras,  and Indonesia ha ve submitted 
econometric analyse s to determine whether the TPP measures  have contributed to a 
                                                                                                                                                  
Rebuttal Report , (Exhibit HND -122); Klick Second Supplemental Rebuttal Report , (Exhibit HND -165); Klick 
Third Supplemental Rebuttal Report, (Exhibit HND -166); Klick Fourth Supplemental Rebuttal Report, (Exhibit 
HND-169); Ajzen et al. Data Report , (Exhibit DOM/IDN -2); Ajzen et al. Second Data Report , (Exhibit 
DOM/IDN -4). 
2540 See Australia's first wri tten submission, para. 518; Dominican  Republic 's response to Panel question 
No. 8, para. 61; Honduras' s responses to Panel question No. 8; Indonesia's response to Panel question No. 8, 
para. 8. 
2541 See Dominican  Republic 's comments on responses to questions from the Panel following the second 
substantive meeting, paras.  681-682; Honduras' s second written submission, paras.  56-60; Indonesia's second 
written submission, para. 192; Cuba's second written submission, paras.  276-277.  
2542 See Indonesia's first written submission, para. 412; Cuba's first written submission, para. 163; 
Dominican  Republic 's first written submission, para. 523; Honduras' s first written submission, para. 395. 
2543 See Australia's first written submission,  para. 670. Instead Australia claimed that the impact of TPP 
had to be investigated through its mechanism by looking at its impact on non -behavioural outcomes: 
(1) reduction in the appeal of tobacco products, (2)  increased effectiveness of health warnings,  and 
(3) reduction of the ability of the pack to mislead. Australia referred to the series of peer -reviewed studies 
published in the Tobacco Control  journal.  
2544 See Australia's comments on responses to questions from the Panel following the second 
substanti ve meeting, para. 214. 
2545 We note that the parties also submitted data on the value and volume of Australian imports of 
tobacco, including cigar and cigarillo . See HoustonKemp Report, (Exhibit AUS -19) (SCI) ; Dominican  Republic 's 
response to Panel question No. 5; Honduras's response to Panel question No. 5; Cuba's response to Panel 
question No. 5 (annexed to its response to Panel question No. 138); and Indonesia's response to Panel 
question No. 5. These data are not reviewed here because they were not used in  any of the econometric 
reports submitted by the parties.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  reduction of cigarette sales or consumption by isolating and quantify ing the different 
factors that can explain the evolution of cigarette sales or consumption.  
7.978.   The parties also presented and discussed a graphical and descriptive analysis of cigar trade 
data.  
7.979.   Overall, based on a review of the most recent data available and  evidence submitted by 
the parties2546, as detailed in Appendix D, we find that:  
a. There is some evidence that cigarette sales in Australia continued to decrease following 
the introduction of the TPP measures ; 
b. The downward trend in cigarette sales in Australia  appears to have accelerated in the 
post-TPP period;  
c. Although it is impossible to distinguish between the impact of TPP and enlarged GHWs, 
there is some econometric evidence suggesting that the TPP measures , in combination 
with the enlarged GHWs implemente d at the same time, contributed to the reduction in 
wholesale cigarette sales, and therefore cigarette consumption, after their entry into 
force;  
d. The evidence before us on the evolution of consumption of cigars in the post -TPP period 
is more limited and d oes not allow us to draw clear conclusions on the effect of the 
TPP measures  on cigar consumption in Australia.  
                                                
2546 We take note of the theoretical analyses and simulations based on pre -implementation data in the 
expert reports submitted by Professor Neven and Professor Katz regarding the effect of the TPP measures  on 
consumption , among other outcome variables. See Neven Report, (Exhibit UKR -3) (SCI); Neven Rebuttal 
Report, (Exhibit HND -123); Katz Report, (Exhibit AUS -18); and Katz Surrebuttal Report, (Exhibit AUS -584).  
With regard to the theoretical ana lysis, we note that Professor Neven and Professor Katz come to different 
conclusions with regard to the effects of plain packaging on the price of cigarettes and on consumption. 
Professor Katz's view is that the prices will increase as manufacturers will r espond to plain packaging by 
"harvesting" captive smokers and consumption will fall. Professor Neven, on the contrary, argues that (1) the 
harvesting strategy is a very particular case and does not correspond to the reaction that is normally expected 
from producers; (2) in the Australian tobacco market with strong and weak brands, a harvesting strategy 
would reinforce downtrading by raising the price of premium cigarettes relative to that of value brands; (3) the 
increase in price associated with a harvesti ng strategy is likely to be transitory and in the long -term prices are 
likely to fall. His prediction is that plain packaging will lower the price of cigarettes and raise consumption.  
With regard to the simulations, Professor Neven assum es that plain pack aging has, on the one hand, a 
moderate effect on consumers' willingness to pay but, on the other hand, significantly reduces differentiation , 
generat ing a decrease in price which is sufficient to induce an overall increase in consumption. In his rebuttal 
report, Professor Katz observes that prices have increased and consumption fallen in the year following the 
implementation of plain packaging. He further shows that under a different set of assumptions, Professor 
Neven's model can generate the observed effe cts. Professor Neven responds that insufficient time has passed 
for the long -term effects of plain packaging to have materialized and that the simulation methodology should 
be seen as an alternative methodology which focuses on long -term effects and thereb y provides evidence 
which complements ex -post empirical analysis . Neven Rebuttal Report, (Exhibit HND -123), para. 6.  
We observe that depending on the assumptions selected, Professor Neven's model can either predict 
that plain packaging will increase the c onsumption of cigarettes, or decrease it. Professor Neven and Professor 
Katz disagree on how plain packaging affects consumers' willingness to pay, that is on the relative importance 
of the "market expansion" effect compared to the "business stealing" effe ct. They also disagree on how 
producers adjust their prices in response to plain packaging , which explains why they come to different 
predictions regarding the effects of plain packaging on consumption. They further disagree on how long -run 
effects should be weighed against short -run effects in the event that the two differ. In our view, neither the 
theoretical analysis nor the simulations provide conclusive evidence that contradicts the panel's findings based 
on the rest of the evidence submitted. We note that with regard to the weighing of short - and long -term 
results, Professor Neven does not explain why his model predicts the long term rather than the short term, 
where the long term is defined as what might happen after "at least a number of years" . Neven Report, 
(Exhibit UKR -3), fn 41. On this particular point, his view diverges from that of the complainants who typically 
argue that the effects of plain packaging should have become evident soon after implementation. Moreover, he 
does not explain how, to the extent plain packaging generates positive effects in the short term, these positive 
effects shou ld be weighed against his long -term effects.  See, e.g. paras.  7.1181  and 7.1215 . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.3.6.4   Overall conclusion on evidence relating to the application of the 
TPP measures  since their entry into force  
7.980.   All parties recognize the inherent difficulty, in assessing the impact of the TPP measures  
since their entry into force, of isolating their effect from that of other factors contributing to the 
outcomes of interest, both proximal and more distal. In particular, the simultaneous application of 
enlarged GHWs, which came into effect at the same time as the TPP measures , complicates an 
assessment of the actual effect of the TPP measures .  
7.981.   In this respect, the observations of the Appellate Body on the challenges of isolating the 
contribution of a  measure taken in the context of a comprehensive policy are especially pertinent:  
We recognize that certain complex public health or environmental problems may be 
tackled only with a comprehensive policy comprising a multiplicity of interacting 
measures. I n the short -term, it may prove difficult to isolate the contribution to public 
health or environmental objectives of one specific measure from those attributable to 
the other measures that are part of the same comprehensive policy. Moreover, the 
results ob tained from certain actions —for instance, measures adopted in order to 
attenuate global warming and climate change, or certain preventive actions to reduce 
the incidence of diseases that may manifest themselves only after a certain period of 
time—can only be eval uated with the benefit of time.2547 
7.982.   We also note the observations of the Appellate Body concerning the type of the evidence 
that may be pertinent, in such situations, to establish that the measure at issue contributes to the 
protection of public health  or environmental objectives pursued, including "evidence or data, 
pertaining to the past or the present", as well as "quantitative projections in the future, or 
qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient  
evidence".2548  
7.983.   As discussed above, the TPP measures  are intended, by design, to operate in conjunction 
with a range of other tobacco control measures, including effective GHWs. In this context, it 
appears to be inevitable that an assessment of actual outcomes would be made in the presence of 
such other mea sures, including GHWs, which could be expected to affect at least to some degree 
the capacity to isolate the effect of plain packaging, as applied in the presence of such GHWs.  
7.984.   Notwithstanding this con straint, we consider that the evidence before us usefu lly informs 
the contribution, as of the time of our assessment, of the TPP measures  to Australia's objective of 
improving public health by reducing the use of, and exposure to, tobacco products. As described 
above, a range of evidence has been presented in  these proceedings, and discussed, that seeks to 
identify the effects of the TPP measures  since their entry into force. As analyzed in detail in 
Appendices A to D, this evidence relates to each of the proximal outcomes of interest (appeal of 
tobacco produc ts, effectiveness of GHWs and ability o f the pack to mislead consumers about the 
harmful effects of tobacco products),  to certain smoking -related behavioural outcomes, and to 
actual smoking behaviours (sales and consumption of tobacco products and smoking prevalence).  
7.985.   We note that some of the reported results on proximal, or "non -behavioural", outcomes 
are mixed.  Nonetheless, the evidence before us, including a review by the complainants' own 
experts of data collected in a national tracking survey conducte d specifically to assess the impact 
of the TPP measures , is consistent with the view that, together with the enlarged GHWs, these 
measures have led in particular to a redu ction in the  appeal of tobacco products, as hypothesized 
in the TPP literature , and t o a greater noticeability of GHWs.   
7.986.   The fact that pre -existing downward trends in smoking prevalence and overall sales and 
consumption of tobacco products have not only continued but accelerated since the 
implementation of the TPP measures , and that the TPP measures  and enlarged GHWs had a 
negative and statistically significant impact on smoking prevalence and cigarette wholesale sales, 
is also consistent with the hypothesis that the measures have had an impact on actual smoking 
behaviours, notwithstanding the fact that some of the targeted behavioural outcomes could be 
                                                
2547 Appellate Body Report, Brazil  – Tyres , para. 151. (footnote omitted)  
2548 Appellate Body Report, Brazil  – Tyres , para. 151. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  expected to manifest themselves over a longer period of time. We note in this respect the limited 
evidence before us addressing the relationship between observed proximal outcomes and actual 
smoking behaviours, which suggests that further analysis will be required in this respect.  
7.2.5.3.7   Impact of the TPP measures  on illicit trade  
7.2.5.3.7.1   Main arguments of the parties  
7.987.   Honduras argues that "an increase in the consumption of illicit tobacco products also 
mean s an increase in Australia's general tobacco prevalence"2549, which directly undermines 
"Australia's objective pursued through the plain packaging measures, that is, the reduction of 
smoking prevalence".2550 Honduras submits that the TPP measures  have encouraged  illicit 
operators to continue selling  illicit branded packs and to introduce illicit plain packs imitating 
compliant packs2551 and create opportunities for illegal operators to supply products "in the same 
fully-branded format that was used before the adopti on of Australia's measures" .2552 Relying on 
the CMZ Report, Honduras adds that "[t]he need for familiar brands may also translate into a 
higher demand for counterfeit branded packs".2553 In Honduras' s view, deceiving smokers "can 
become increasingly easier in a plain packaging environment as smokers start to become less 
familiar with the appearance of fully branded products over time".2554 Further, Honduras argues 
that the TPP measures  have encouraged the supply of a category of products known as "illicit 
whites" bo th in a fully  branded format and in plain packs.2555 Honduras also argues that the 
TPP measures  encourage not only the supply of illicit products, but also consumer demand for such 
products due to price sensitivity and loss of brand loyalty.2556 
7.988.   The Dominican Re public  argues that the TPP measures  have likely increased illicit trade 
levels in Australia.2557 In support of this contention, the Dominican Republic relies on a report 
prepared by KPMG titled "Illicit Tobacco in Australia"  (KPMG Report)2558 indicating relative 
increases for certain categories of illicit tobacco products, as well as seizure data from the 
Australian Customs and Border Protection Services (ACBPS) indicating increased detection of illicit 
trade between the 2011/2012 period and t he 2012/2013 period.2559  
7.989.   The Dominican Republic further argues that the TPP measures  "promote the competitive 
opportunities of illegal producers at the expense of legal producers"2560 because "only the illicit 
market is able to provide branded product offerings  in a plain packaging environment".2561 With 
reference to an expert report by Professors Chaudhry, Murray, and Zimmerman (CMZ Report)2562, 
jointly submitted with Honduras, it argues that counterfeit illicit products have become easier to 
produce and harder to de tect2563 and that the cheaper price of illicit tobacco becomes more 
attractive to consumers under the TPP measures .2564 
                                                
2549 Honduras's first written submission, para. 564. 
2550 Honduras's first written submission, para. 564. 
2551 Honduras's first written submission, para. 551. 
2552 Honduras's first written submission, para. 552. Honduras argues that consumers seeking to 
purchase preferred brands in the same format as before the implementation of the TPP measures "may now 
decide to buy a contraband product even if that means entering the illicit market for the first time". Honduras's 
first written submission, para. 554. 
2553 Honduras's first written submission, para. 555. 
2554 Honduras's first written submission, para. 555. See also ibid. paras.  557-558. 
2555 Honduras's first written submission, paras.  556 and 559 -560. 
2556 Honduras's first written submission, para. 561. 
2557 Dominican  Republic 's first written submission, para. 534. 
2558 KPMG, "Illicit Tobacco in Australia: 2013 Full Year Report", (3 April 2014 ), (KPMG Report 2013 ), 
(Exhibits HND -67, DOM -98, IDN -41), p. 6. 
2559 Dominican  Republic 's first written submission, para. 541. 
2560 Dominican  Republic 's first written submission, para. 549. (emphasis original)  
2561 Dominican  Republic 's first written submission, para. 544. 
2562 P. Chaudhry, A. Murray, and A. Zimmerman, "The Impact of Plain Packaging on the Illicit Trade in 
Tobacco Prod ucts in Australia", 22 September 2014, ( CMZ Report ), (Exhibit DOM/HND -2). 
2563 Dominican  Republic 's first written submission, paras.  546-549. 
2564 Dominican  Republic 's first written submission, para. 545. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.990.   Cuba submits that the TPP measures  have not reduced smoking prevalence, and that illicit 
trade has substantially increased in Australia since the introduction of the TPP measures .2565 
7.991.   Indonesia  argues that the TPP measures  are contributing to "a shift in consumption from 
branded, more expensive tobacco products" to, inter alia, illicit products.2566 Referring to the KPMG 
report, it argues that the lev el of illegal tobacco consumption in Australia "reached record levels, 
growing from 11.8 percent in 2012 to 13.9 percent in 2013". It submits that the "key driver of this 
growth has been a 151 percent increase in the consumption of illegal, branded tobacco ", which 
"equates to loss of AUD  1.1 billion annually to the Australian treasury".2567 
7.992.   Australia  responds that, contrary to the complainants' assertions, "the evidence suggests 
that illicit tobacco is not a significant part of the Australian market, and that the tobacco plain 
packaging measure has not had and it is not likely to have any discernible effect on illicit tobacco 
consumption in Australia".2568 Australia relies on the expert report of Professor Chaloupka2569, 
pointing to the "serious methodological flaws"  and significant overstatement of "the size of the 
illicit tobacco market in Australia" as presented in the KPMG Report.2570 Australia further submits 
that the cost of supplying illicit tobacco in Australia is high, given its "tight control over the tobacco 
distribution chain, active enforcement of policies targeting the illicit tobacco trade, strong 
governance and low levels of corruption, and low demand for illicit tobacco among Australian 
smokers".2571 Australia contests the allegation that "the tobacco plain packaging measure makes it 
more difficult to detect illicit tobacco products" as "entirely speculative" and "directly contradicted 
by evidence suggesting an upward trend in the number of detections" by the ACBPS after the 
introduction of the TPP measures .2572  
7.2.5.3.7.2   Analysis by the Panel  
7.993.   In support of their contention that increased illicit trade in tobacco products undermines 
any contribution made by the TPP measures  to their objective, the complainants submit expert 
reports and evidence that include empirical esti mates of the size of the illicit tobacco market in 
Australia, as well as expert opinions as to whether the TPP measures  exacerbate certain 
contributing factors to illicit trade in tobacco products.  
7.994.   With regard to empirical estimates of the size of the illi cit tobacco market in Australia, the 
complainants primarily rely upon a report prepared by KPMG (the KPMG Report) commissioned by 
BATA, Imperial Tobacco Australia Limited  (ITA), and Philip Morris Limited  (PML) .2573 The specific 
purpose of the KPMG Report was "to provide an overview of the nature and dynamics of the legal 
and illicit tobacco markets in Australia", and "to provide an independent estimate of the size of the 
illicit tobacco market in Australia".2574  
                                                
2565 Cuba's second written submission, para. 153. 
2566 Indonesi a's first written submission, para. 117. 
2567 Indonesia's first written submission, para. 120. 
2568 Australia's first written submission, para. 653. 
2569 F. Chaloupka, "Expert Report on Australia's Tobacco Plain Packaging Legislation", 6 March 2015, 
(Chaloupka Illi cit Market Report ), (Exhibit AUS -8). 
2570 Australia's first written submission, para. 654. See also  Chaloupka Illicit Market Report , (Exhibit 
AUS-8), paras. 10(d) and 78 -79. 
2571 Australia's first written submission, para. 655. See also  Chaloupka Illicit Market Report , (Exhibit 
AUS-8), paras. 35 -66. 
2572 Australia's first written submission, para. 657. 
2573 Honduras, the Dominican  Republic , and Indonesia each submitted the 2013 full year report prepared 
by KPMG regarding the size of the illicit tobacco market in Austra lia, which forms part of a series of reports 
following the introduction of the TPP measures  prepared by KPMG. The estimates in this report were calculated 
based on the approach adopted in the 2013 half -year report, using all the available data captured in 2013. 
KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 6. Honduras additionally submitted the 2014 full 
year report in which the same methodology is used as in previous reports. KPMG, "Illicit Tobacco in Australia: 
2014 Full Year Report", (27 March 2015), (Exhibit HND -148), p. 6. The Panel relies in its analysis on the 2013 
full year version of the report, which was the primary basis of the complainants' arguments concerning 
empirical estimates of the size of the illicit tobacco market in Australia.  
2574 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 7. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.995.   The KPMG Report considers two main types of legal tobacco products in total tobacco 
consumption: (i) manufactured cigarettes  sold in packets, and (ii ) loose tobacco  sold in pouches 
and consumed using rolling papers or tubes.2575 
7.996.   With regard to illicit tobacco consumption, the KPMG Report refers to three dist inct 
categories of tobacco products2576:  
a. "Unbranded tobacco", which is sold as finely cut loose leaf tobacco that is most 
commonly smuggled from overseas countries, including what is referred to as "chop 
chop" (unbranded loose tobacco sold in bags) as well a s unbranded tobacco sold in 
pre-filled tubes.  
b. "Counterfeit" tobacco products, which are manufactured cigarettes that are smuggled 
into Australia and that carry branding without the consent of the trademark owner.  
c. "Contraband" tobacco products, which are mainly genuine cigarettes that are 
manufactured legally outside of Australia and smuggled into the Australian market. This 
category includes cigarettes that are purchased legally abroad but are imported in 
excess of the personal import allowance without pa ying duties.2577 This category also 
includes what are known as "illicit whites", which is a term for brands of manufactured 
cigarettes that are not legally available in the local market, although they may be legal 
at the point of manufacture, and that are oft en made exclusively for smuggling.  
7.997.   To estimate the size of the illicit tobacco market, the KPMG Report used different data 
sources and methodologies for these different categories of illicit tobacco consumption. For 
unbranded tobacco, the KPMG used a "cons umption model approach" based on results from a 
consumer survey.2578 The survey results were based on reports of purchases of illicit unbranded 
tobacco, the average frequency of purchases per year, and the average volume purchased per 
occasion.2579 
7.998.   For illicit m anufactured cigarettes (counterfeit and contraband), an empty pack survey 
(EPS) analysis was used based on the collection of discarded cigarette packs across Australia in 
2013.2580 The EPS approach involved the collection of 12,000 cigarette packs in 2013 acr oss 16 
different towns and cities in Australia.2581 Each collected pack was assessed to determine whether 
it was a domestic or non -domestic product, and whether it was a genuine or a counterfeit 
product.2582 As explained in the KPMG Report, the EPS "is used to e xtrapolate overall consumption 
in the market by projecting legal domestic sales", and "[t]he percentages of non -domestic and 
counterfeit packs are added to this total in order to establish the total consumption of 
                                                
2575 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 9. 
2576 See KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 9. 
2577 In this regard, the KPMG Report notes that a "small amount of tobac co is imported into Australia by 
consumers for their own personal consumption". Based on the "low allowance" of 50 cigarettes or 50 grams of 
loose tobacco that can be brought into Australia without paying excise duty, the KPMG Report states that "the 
non-domestic legal volume is likely to be a small proportion of consumption". KPMG Report 2013 , (Exhibits 
HND-67, DOM -98, IDN -41), p. 12. See also ibid. Appendix A2.4.  
2578 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 27. The consumer survey was carried  
out by Roy Morgan Research, an Australian Research Company, through Computer Assisted Web -based 
Interviewing with a sample of 2,116 adult respondents collected from 10,286 who responded to an initial 
contact sent to Roy Morgan Research's pool of responden ts. This sample of respondents was limited to those 
above 18 years of age who are "regular smokers", which was defined as a person who smokes tobacco 
products at least five days a week. See Ibid. p. 32. 
2579 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 33. See also Ibid. Appendix A1.1.  
2580 See KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p p. 25 and 27.  
2581 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 25. In particular, empty packs were 
collected "on a proportionate basis from several neighbourhoods … from streets and easy access public bins in 
areas on the sampling plan". These neighbourhoods were "selected to be representative of the city being 
sampled".  Packs were "collected irrespective of their brand and country of origin", and "[r ]esidences, offices 
and other locations such as stadiums have been excluded from the sampling plan". Ibid. p. 34.  
2582 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 25. As explained in the KPMG Report, 
packs collected in the EPS are examined by the  participating companies, which are able to identify packs which 
are counterfeit versions of their products. Ibid. Appendix A1.2.1.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  manufactured cigarettes in Australia".2583 The KPMG Report further explains that the "small 
proportion" of "non -domestic legal cigarettes", namely those brought into Australia legally by 
tourists or Australians travelling overseas, is estimated based on travel statistics from the 
Australian Bureau of  Statistics  (ABS) .2584 These "non -domestic legal cigarettes" are removed from 
the total "non -domestic" volume to leave the total illicit manufactured cigarette market, comprised 
of contraband and counterfeit cigarettes.2585 
7.999.   Based on these analyses, the KPMG Repo rt concludes that illicit tobacco consumption in 
Australia grew to 13.9% as a proportion of total consumption in 2013.2586 According to its 
estimates based on a number of sources, the KPMG Report presents this as an increase in the 
proportion of illicit tobac co consumption from 11.8% in 2012, with estimates for preceding years 
as 12.4% in 2011; 12.8% in 2010; 9.1% in 2009; and 8.3% in 2007.2587 
7.1000.   Within the illicit tobacco market, the KPMG Report finds that in 2013 contraband 
manufactured cigarettes constituted 52%  of total illicit consumption, while counterfeit 
manufactured cigarettes and unbranded loose tobacco comprised 6% and 42%, respectively, of 
the total share.2588 Based on its primary methodologies for each category, the KPMG Report 
further estimates that the i llicit manufactured cigarettes market increased by 151% from 2012 to 
2013 (comprised of a 148% increase in contraband2589 and a 187% increase in counterfeit 
cigarettes2590), while the volume of unbranded tobacco consumed declined by 31% during the 
same period.2591 The KPMG Report thus characterizes contraband products as "the predominant 
driver of the increase in illicit manufactured cigarette volumes between 2012 and 2013".2592 
                                                
2583 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 25. More specifically, "[t]he 9.8% 
non-domestic incidence is combi ned with estimates for legal domestic sales volumes from Euromonitor to 
create a volume estimate for illicit manufactured cigarettes", which "can then be broken down into volume 
estimates for non -domestic legal, counterfeit and contraband". Ibid. Appendix A1.2.2.  
2584 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 25. In the calculation of non -domestic 
legal cigarettes, KPMG uses travel trend data of outbound trips made by Australians and the propensity to 
purchase tobacco abroad, as well as inbound travel trends o f overseas visitors (both short -term visitors and 
settlers). The calculation also takes into account the change to inbound traveller allowances in September 2012 
that reduced the permissible amount. See KPMG, Appendix A2.4.  
2585 KPMG Report 201 3, (Exhibits HND -67, DOM -98, IDN -41), p. 25. The KPMG Report also provides 
alternative estimates based on other approaches to validate its estimates based on the approaches above. For 
unbranded tobacco, the KPMG Report inferred, based on a number of assump tions, the volume of loose 
tobacco smoked from the quantum of rolling papers sold. This was compared with the legal sales of loose 
tobacco to estimate a consumption gap between legal and illicit. Ibid. p p. 25 and 27. The KPMG Report also 
used data on seizu res by the Australian Customs and Border Protection Authorities on the volume and type of 
tobacco intercepted at ports and airports, as well as a "consumption gap analysis" based on the difference 
between legal domestic sales and estimates of total tobacco  consumption based on the number of smokers 
known to exist in Australia and historic consumption patterns. Ibid. p p. 26-27. 
2586 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 6. 
2587 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 6, Fig ure 1.1. 
2588 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 28. The KPMG Report further notes that 
this is part of a larger structural shift in recent years towards illicit manufactured cigarettes and away from 
illicit unbranded tobacco. In particular,  the KPMG Report finds that volumes of illicit unbranded tobacco have 
declined by 31% while volumes of illicit manufactured cigarettes have increased by 151% between 2012 and 
2013. Ibid.  
2589 Contraband manufactured cigarettes are calculated as the remainder of all "non -domestic 
manufactured cigarettes" that are not counterfeit or legally brought into Australia as part of travellers' inbound 
allowance. See KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), Appendix A1.2.1. The KPMG Report 
notes that "illicit  whites" (brands of manufactured cigarettes that are not legally available in the local market) 
have significantly increased in incidence between EPS results from 2012 to 2013, and the most recent EPS 
results for the KPMG Report showed that illicit whites made up approximately 30% of non -domestic 
manufactured cigarette consumption. See ibid. p. 40. 
2590 Specifically regarding counterfeit cigarettes, the KPMG Report states that "[a]lthough the share of 
counterfeit of total consumption remains relatively small, it is worth noting that this is the highest level of 
counterfeit incidence recorded in an empty pack survey in Australia". Further, the report states that "[a]nalysis 
of counterfeit packs has also highlighted that no plain packaged counterfeit packs were r eported in the Q4 
2013 empty pack survey". KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 38.  
2591 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 29. 
2592 See KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), Appendix A1.2.1. See also ibid.  pp. 6 
and 28.  With respect to the alternative approaches used for validation, the KPMG Report finds that seizures 
data indicate that the proportion of manufactured cigarettes smuggled into Australia "appears to be growing as 
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  7.1001.   Australia's expert Professor Chaloupka provides several criticisms of the conclusions 
reach ed and the methodologies used in KPMG's studies of the illicit tobacco market in Australia.2593 
In particular, Professor Chaloupka submits that "[i]llicit trade in tobacco products in Australia is 
relatively limited, likely to account for three to five per ce nt of the overall market for tobacco 
products in recent years".2594 Professor Chaloupka further submits that the methodology used in 
the KPMG Report "is flawed and almost certainly produces overestimates of the share of Australian 
tobacco consumption accounted for by illicit tobacco and distorts the trend in illicit tobac co 
consumption over time".2595 
7.1002.   Professor Chaloupka notes the inconsistency of the estimates in the KPMG Report with 
multiple other estimates from various sources regarding the size of the illicit tobacco market in 
Australia. Professor Chaloupka states that no ne of the estimates reviewed "provides a definitive 
estimate, but taken together, they do provide a good sense of the scope of the problem".2596 On 
the basis of his review, Professor Chaloupka concludes that most recent estimates of the size of 
the illicit to bacco market in Australia indicate that illicit tobacco accounts for a relatively small 
share of overall tobacco consumption, with the exception of "tobacco industry supported reports … 
that produce estimates that are two or more times higher than the othe rs".2597 
7.1003.   For example, Professor Chaloupka cites annual estimates by Euromonitor International as 
to the volume of licit and illicit cigarettes consumed in Australia "based on 'expert' opinions on the 
extent of the illicit trade problem".2598 Professor Chaloupka observes based on estimates from 
2000 to 2013 that illicit cigarette trade in Australia accounted "for between three and five per cent 
of consumption over time", without any clear trend over this period.2599  
7.1004.   Professor Chaloupka also refers to a number of sur veys as evidence on the use of illicit 
tobacco products in Australia. For example, Professor Chaloupka cites Australian NDSHS 
surveys2600 indicating a reduction in the awareness of unbranded tobacco and counterfeit 
cigarettes, with "relatively infrequent" pur chasing of potentially counterfeit cigarettes and 
purchasing "relatively small quantities" of products in 2013 without plain packaging and GHWs.2601 
Professor Chaloupka further cites the 2013 VSHS results of the 18 and older population in Victoria , 
                                                                                                                                                  
a percentage of total illicit tobacco, validating the growth of illicit manufactured cigarettes indicated by the 
primary approaches". As regards its consumption gap analysis, the KPMG Report further states that "the 
smoking population has declined at a slower pace than legal domestic s ales, indicating that there may be room 
for an increase in illicit tobacco consumption".  The KPMG Report additionally states that "[t]he consumption 
gap validates the overall estimate of the volume of illicit tobacco, indicating shifts in the mix of illici t tobacco 
between manufactured cigarettes and unbranded tobacco".  Ibid. p. 30. 
2593 Professor Chaloupka addresses his comments to the methodology and conclusions reached in a 
series of KPMG Reports that include the 2013 full year report relied upon by the com plainants. See Chaloupka 
Illicit Market Report , (Exhibit AUS -8), para. 79 fn 61. 
2594 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 10(a).  
2595 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 10(d).  
2596 Chaloupka Illicit Market Report , (Exhibit AUS-8), para. 17. 
2597 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 27. 
2598 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 18. 
2599 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 18. Specifically, the Euromonitor "Estimates 
of Illicit Trade Penetration in Australia" show estimates ranging from 2.8% in 2000 to 4.6% in 2013, falling 
slightly from 2007 through 2009, then rising by 1.5 percentage points by 2013, "in contrast to the 4.4 
percentage point increase in KPMG's estimates for the p eriod from 2009 through 2013". Ibid. Table A and 
para. 88. 
2600 Australia and the Dominican  Republic  each submitted the entirety of the 2010 NDSHS Report as an 
exhibit in these proceedings. See 2010 NDSHS Report, (Exhibits AUS -45, DOM -280). Australia also sub mitted 
extracts from the 2013 NDSHS Detailed Report. See 2013 NDSHS Report, (Exhibit AUS -48). 
2601 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 20. In particular, Professor Chaloupka notes 
a sharp reduction in smokers' awareness and use of unbrande d tobacco (including unbranded loose tobacco 
known as "chop chop") between 2007 and 2013. With respect to counterfeit cigarettes, Professor Chaloupka 
cites 2010 survey results indicating awareness of counterfeit cigarettes was lower than awareness of 
unbra nded tobacco, and states that purchasing of potentially counterfeit cigarettes was "relatively infrequent", 
with only 4.6% of smokers reporting p urchasing at least once a month . Further, Professor Chaloupka cites 
2013 survey results as to tobacco products that did not have plain packaging with GHWs, indicating that about 
one in eight respondents (12.5%) and fewer than one in five smokers (18.5%) reported seeing non -compliant 
tobacco products. Fewer than one in ten smokers (9.6%) reported purchasing non -comp liant products, most of 
whom reported purchasing "relatively small quantities": among the 9.6% of smokers reporting purchases of 
non-compliant products, 4.2% reported purchasing 5 or fewer packets, 1.2% reported purchasing 6 -14 
packets, and 4.4% reported p urchasing 15 or more packets. Ibid.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  which indicate that very low percentages of smokers reported us ing or purchas ing illicit tobacco or 
products in non -compliant packaging.2602 Similarly, a national cross -sectional survey of 8,679 
Australian smokers conducted from April 2012 through March 2014 found "lim ited illicit tobacco 
use" based on certain reported behaviours.2603 Finally, Professor Chaloupka discusses  survey 
results from the ITC Project on Australian smokers' purchase behaviours since 2002, showing very 
few reports of cross -border shopping, purchasing  from online or other direct vendors, or purchases 
from other sources that are most likely to reflect tax evasion.2604 
7.1005.   In addition, Professor Chaloupka cites a study based on purchases of tobacco products in 
stores suggesting that the availability of illicit tobacco in retail outlets is very low2605, and develops 
his own estimate based on Roy Morgan survey data indicating much lower measures of illicit 
tobacco use and prevalence.2606  
7.1006.   Professor Chaloupka also refers to much lower estimates by Quit Victoria of the si ze of 
the illicit tobacco market in Australia (between two and three per cent of the market) using data 
from the N DSHS  combined with information from Australian Customs authorities.2607 In an analysis 
of the estimates of the KPMG Report2608, Quit Victoria cites "fundamental concerns … about the 
representativeness of the two surveys which provide the foundation data for the study"2609, and 
raises the possibility that the EPS for manufactured cigarettes "over -represents the packs used by 
tourists and other overseas vi sitors and students".2610 Quit Victoria also states that "the very low 
estimate of legal consumption of foreign packs which is fundamental to the estimate of prevalence 
of contraband cigarettes is highly problematic".2611 
7.1007.   Professor Chaloupka raises similar criti cisms of the methodology and findings of the KPMG 
Report with respect to representativeness and possible over -estimation of contraband 
non-domestic cigarettes. In particular, Professor Chaloupka criticizes the screening of survey 
participants in a way that  excludes less regular smokers who are less likely to use illicit tobacco 
products2612; the apparently low survey response rate and insufficiency of information regarding 
                                                
2602 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 21 (referring to  Scollo et al. 2014, (Exhibits 
AUS-507, JE -24(57)).  Specifically, these results indicated that 4% of smokers reported using any unbranded 
illicit tobacco in the past year, with 1.9% reporting current use; 2.6% of smokers reported buying cigarettes in 
non-compliant packaging, two -thirds of whom purchased fewer than five packs in the three months prior to the 
survey and one in five purchasing more tha n 10 non -compliant packs. Further, 1.7% of smokers reported 
purchasing from an informal vendor in the year prior to the survey, "with very few of these reporting 
purchasing more than five packs from these sources in the past year". Ibid.  
2603 Chaloupka Illici t Market Report , (Exhibit AUS -8), para. 22 (referring to  Scollo et al. 2015, (Exhibit 
CUB-60), and identifying behaviours such as purchasing international brands at 20% or more below the 
recommended retail price, purchasing from an informal seller, or usin g unbranded tobacco).  
2604 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 23 (referring to  Guindon et al. 2014, (Exhibit 
HND-156)). 
2605 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 26. 
2606 Chaloupka Illicit Market Report , (Exhibit AUS -8), paras. 28-33 and Annex D. In particular, using the 
most recent twelve months of available survey data, Professor Chaloupka estimates that 5.7% of current 
tobacco users have used an illicit tobacco product in the past three months and that approximately 3.2% of  the 
tobacco smoked in Australia consists of illicit tobacco. Ibid. para. 33. 
2607 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 25. According to Professor Chaloupka, this 
approach aims to correct the flaws in methods used to produce tobacco industr y sponsored estimates, resulting 
in considerably lower estimates of the size of the illicit market. Ibid.  
2608 We note that Quit Victoria analysed the KPMG 2013 half -year report, which was supplemented by 
the full year report relied upon by the complainants. See CCV KPMG Report Analysis, (Exhibit DOM -99), p. 2. 
2609 CCV KPMG Report Analysis, (Exhibit DOM -99), p. 2. For example, Quit Victoria states that the 
sample for the internet survey on use of unbranded tobacco was "likely to be biased towards people more 
likely to use unbranded tobacco" because it included people in the researcher's database who have responded 
to previous surveys. Quit Victoria further notes that the KPMG Report does not describe characteristics of the 
sample that may be relevant to the likel ihood to use unbranded tobacco, and calculated averages in a manner 
to produce an inflated estimate "if those smokers of unbranded tobacco who purchase most frequently tend to 
be the same people who purchase substantially lower amounts". Ibid. p p. 5-7. 
2610 CCV KPMG Report Analysis, (Exhibit DOM -99), p. 7. 
2611 CCV KPMG Report Analysis, (Exhibit DOM -99), p. 2. For example, Quit Victoria cites a number of 
factors including: the possibly greater prevalence of smokers among travellers than the Australian population 
as a whole; the large number of visitors coming from countries from which foreign packs identified in the EPS 
most frequently came; and the increased number of overseas trips by Australians to, and increased number of 
visitor arrivals from, non -domestic so urce countries between 2012 and 2013. See ibid. p p. 9-12. 
2612 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 80. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the characteristics of the resulting sample2613; and failure to adequately distinguish in s urveys 
between alternative illicit tobacco products with a potential for inflated estimates due to double 
counting (e.g. between contraband and counterfeit cigarettes).2614 Professor Chaloupka states that 
the EPS used by KPMG "will almost certainly overstate the presence of illicit cigarettes given that it 
excludes smaller jurisdictions where illicit tobacco distribution networks are less likely to operate", 
noting that smaller jurisdictions excluded from the EPS account for roughly 25% of the Australian 
popul ation.2615 Professor Chaloupka also criticizes the EPS' focus on the largest cities on the 
grounds that it "will capture a disproportionate share of cigarettes consumed by tourists, other 
visitors, and foreign students who are more likely to visit these citie s and who are more likely to 
discard their packs in public places".2616 
7.1008.   In a study of early evidence about the "predicted unintended consequences" of 
standardized tobacco packaging in Australia, the authors note that the EPS discussed in  the KPMG 
Report presumed that almost all non -domestic packs found were contraband cigarettes.2617 The 
authors contend that the EPS methodology is problematic in tending to over -represent cigarette 
packs that end up in litter in public places, and that such studies "cannot di stinguish between 
foreign packs that are illegally smuggled into Australia and those brought in by residents and 
visitors who have purchased them overseas and brought them in either under personal import 
limits or with the required duty having been paid".2618 
7.1009.   In the PIR and cost -benefit analysis associated with the TPP measures , the Australian 
government took note of criticisms of estimates on illicit trade commissioned by tobacco 
companies. The Australian government also referred to peer -reviewed studies that  found no 
change in smokers' reported use of unbranded illicit tobacco, no evidence of increases in use of 
contraband cigarettes, low levels of use of cigarettes likely to be contraband, and no increase in 
purchases of tobacco from informal sellers.2619 Conse quently, the cost -benefit analysis associated 
with the TPP measures ' PIR "considered that it was most likely that the impact of the 
[TPP measures ] on changes in the illicit tobacco market in Australia has not been substantive, if 
there has been any impact at all".2620 
7.1010.   We accept that illicit trade could in principle, and is known to in certain instances, 
undermine tobacco control efforts .2621 We also note, as illustrated by the above, the inherent 
difficulty and limits of measuring illicit trade, given the quasi -legal or illegal nature of the activities 
involved.2622 As described above, the size of the illicit tobacco market in Australia is disputed, with 
estimates in the KPMG Report significantly greater than other estimates from various sources.  
                                                
2613 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 81. 
2614 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 82. 
2615 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 85. 
2616 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 85. In Professor Chaloupka's view, the 
likelihood that the EPS will over -represent packs from visitors while under -representing packs from Australia n 
smokers is increased by the fact that residences, offices, and other locations such as stadiums were excluded 
from the sampling plan. Professor Chaloupka also contrasts KPMG's findings as to the most prevalent brands of 
"illicit whites" with "the nationa lly representative ITC -Australia survey [in which] no smoker reports smoking 
any of these brands". Professor Chaloupka submits that the prevalence of such packs in the EPS, which are not 
similarly reported in a representative sample of Australian smokers, "suggests that the overseas visitors are 
likely to account for many of the discarded packs KPMG attributes to illicit trade". Ibid. paras.  85-86. 
2617 Scollo et al. 2014, (Exhibits AUS -507, JE -24(57)), p. 2.  
2618 Scollo et al. 2014, (Exhibits AUS -507, JE -24(57)), p. 2. 
2619 See Tobacco Plain Packaging PIR, (Exhibit  AUS-624), paras.  162-163. 
2620 Tobacco Plain Packaging PIR, (Exhibit  AUS-624), para. 163. 
2621 See, e.g. FCTC, (Exhibits AUS -44, JE -19), Article  15; and FCTC Illicit Trade Protocol, (Exhibit 
DOM-97), For eword, p. 1 ("Illicit trade increases the accessibility and affordability of tobacco products, thus 
fuelling the tobacco epidemic and undermining tobacco control policies.").  
2622 See, e.g. Chaloupka Illicit Market Report , (Exhibit AUS -8), Annex C, para. C1 (stating that "[n]o 
approach will entirely and accurately capture the extent of illicit trade and every approach has its limitations"); 
CMZ Report , (Exhibit DOM/HND -2), paras.  16 (noting with respect to illicit trade that "measuring its precise 
quantity is extremely difficult and … experts agree that there are no definitive statistics on the size of the 
global illicit tobacco trade problem"), 29 ("there is currently no universally accepted estimate on the scale of 
the global illicit tobacco trade"), and 30 ( "there are no generally -accepted figures on the level and composition 
of illicit tobacco trade in Australia"); 2011 IARC Handbook, (Exhibit DOM -117), p. 299; and "WHO Technical 
Manual on Tobacco Tax Administration" (2011), (WHO Tobacco Tax Manual, Full Text), (Exhibit CUB -62), p. 82. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1011.   We note that the re sults of the EPS analysis used in the KPMG Report for illicit 
manufactured cigarettes show a "large increase in non -domestic volumes in 2013" with a very 
small portion of this identified as counterfeit, and an even smaller share estimated to be 
non-domesti c legal cigarettes.2623 With respect to the empirical basis for the complainants' 
contention, critiques of the KPMG Report underline the possible underestimation of the legal share 
of "non -domestic incidence" identified in the EPS that may have been brought b y visitors to 
Australia or Australians returning from abroad within the duty -free allowance.2624 This element of 
the KPMG Report's analysis and conclusions is particularly significant given the large share of total 
illicit trade in 2013 ascribed to "contraban d cigarettes" as that category is defined in the KPMG 
Report.  
7.1012.   For the purposes of our analysis, we do not understand the KPMG Report to purport to 
establish a definitive conclusion as to the size of the Australian illicit tobacco market. On the 
contrary, w e note KPMG's warning at the beginning of its report that its work "was performed to 
meet specific terms of reference" agreed with the tobacco companies commissioning the Report, 
and that its Report "should not therefore be regarded as suitable to be used or relied on by any 
other person or for any other purpose" and "is issued to all parties on the basis that it is for 
information only". KPMG further explains that "there were particular features determined for the 
purposes of the engagement".2625 These featur es or the "terms of reference" agreed to with the 
companies commissioning the work are however not expressly identified in the report.  
7.1013.   The criticisms raised as to its methodologies, and the inconsistency of its estimates with 
those of other sources, raise  some doubt as to the accuracy of the estimate in the KPMG Report of 
the size of Australia's illicit tobacco market. On the basis of the empirical estimates and arguments 
before us, we are therefore not persuaded that the potential scale of illicit trade, and thus the 
extent to which illicit trade may undermine the contribution of the TPP measures , is of the 
magnitude estimated in the KPMG Report.  
7.1014.   The specific question before us here, however, is the extent to which the TPP measures  
have, as the complainan ts argue, led to an increase  in the illicit trade of tobacco products, such as 
to undermine its contribution to Australia's object ive of improving public health by reducing the 
use of, and exposure to, tobacco products. The complainants' contentions in thi s respect largely 
rest on qualitative arguments on the causal drivers of illicit tobacco trade in light of the 
requirements imposed under the TPP measures , as set out in a report prepared by experts in 
international business and customs matters (the CMZ  Report).  
7.1015.   The CMZ Report considers whether the TPP measures  risk exacerbating the illicit trade in 
tobacco products, particularly with regard to: (i) any potential opportunities developed for illicit 
traders; (ii) any challenges created for existing adult sm okers, retailers, and enforcement bodies; 
and (iii) the ways in which the TPP measures  could worsen the existing negative impacts of the 
illicit trade in tobacco.2626 The authors of the CMZ Report consider that "plain packaging in 
Australia gives illicit trad ers a unique 'competitive advantage' over legitimate tobacco 
manufacturers", given that illicit traders can use branding that brand owners are prevented from 
using.2627 Consequently, the authors explain that illicit traders will be able to sell contraband and  
counterfeit products in branded packs with which smokers are familiar, and that plain packages 
                                                
2623 See KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), Appendix A1.2.2 and Fig ure A1.2.2.  
2624 The difficulty of relying on observational data in this regard has been highlighted, as "[w]ithout tax 
stamps or other forms of overt markings, contraband or other contraband cigarette packs will be 
indistinguishable unless they fail to display Australian health warnings. Even discarded packs without Australian 
health warnings could be packs purchased overseas by tourists travellin g in Australia."  Tobacco in Australia 
2012, AUS excerpts , (Exhibit AUS-343), p. 79. 
2625 KPMG Report 2013 , (Exhibits HND -67, DOM -98, IDN -41), p. 1. 
2626 CMZ Report , (Exhibit DOM/HND -2), para. 14. As background, the CMZ Report describes various 
factors that contr ibute to the global illicit tobacco trade, including the aptitude of tobacco as a smuggled 
product, the profit incentives for illicit traders, complicit consumer behaviour towards purchasing illicit tobacco 
products, and globalization and lower trade barri ers. Ibid. paras.  35-49. 
2627 CMZ Report , (Exhibit DOM/HND -2), p. 1. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  will be easier to counterfeit with static and publicly known specifications as well as economies of 
scale in production.2628 
7.1016.   The authors of the CMZ Report express the view "that plain packaging of tobacco 
products will worsen the illicit trade in those products".2629 In support of this view, and noting the 
limitations to empirical estimations of illicit trade, the CMZ Report cites the increase of detections 
and seizure s of illicit tobacco products by the ACBPS in the period immediately before and after the 
introduction of the TPP measures .2630  
7.1017.   Australia's expert Professor Chaloupka takes issue with the CMZ Report's reliance on 
estimates by KPMG, which he characterizes as "misleading and biased estimates" that should not 
be used to draw conclusions about trends2631, and notes that the authors "do not appear to 
consider other data that are inconsistent with their allegation that illicit tobacco use in Australia 
has increased fo llowing the implementation of tobacco plain packaging".2632 Professor Chaloupka 
notes that consumption of counterfeit  cigarettes in Australia is very limited, and questions whether 
plain packaging would have any significant impact on the costs of producing or  supplying 
counterfeit products.2633  
7.1018.   In addition to criticizing specific aspects of the CMZ Report, Professor Chaloupka outlines 
a number of other "determinants or drivers" of illicit trade unrelated to plain packaging. Professor 
Chaloupka cites as "key fact ors" the level of tobacco taxes and prices (and differences between 
nearby jurisdictions)2634, and the costs of supplying illicit tobacco products to the market (including 
production and distribution costs).2635 Further, Professor Chaloupka cites a number of oth er factors 
including access to untaxed cigarettes (e.g. due to poor control of the distribution chain) and the 
presence of informal distribution networks.2636 Another "key driver" is the expected cost of 
engaging in illegal behaviours, which can be affected b y enforcement efforts and higher penalties, 
with increasing costs of supplying illicit tobacco due to strong governance, effective tax 
administration, and the absence of corruption.2637 
7.1019.   Examining the various factors that can affect the incentives to engage in  illicit trade, we 
note that there are a multiplicity of potential drivers and that Australia is relatively well -situated in 
several respects to mitigate the incidence of illicit trade in tobacco. Despite its relatively high price 
level compared to neighbo uring countries, Professor Chaloupka notes Australia's regulation and 
control of the tobacco distribution chain, its geographical character as an island and the effect of 
                                                
2628 CMZ Report , (Exhibit DOM/HND -2), pp. 1-2. With regard to illicit branded products, including 
contraband of genuine products and "illicit whites", the CMZ Report describes potentially incre ased 
opportunities under the TPP measures  due to consumers seeking familiar branded packs, lower prices of illicit 
products, and easier deception of consumers through counterfeiting. The CMZ Report also cites concurrence 
with findings by KPMG on the increa se of contraband products and "illicit whites". Ibid. paras.  66-78. With 
regard to illicit products in plain packaging, the CMZ Report describes the reduced complexity and cost of 
counterfeiting packs in plain packaging. Ibid. paras.  79-87. Additionally, t he CMZ Report sets out various ways 
in which the authentication of products and enforcement will be made more challenging for illicit tobacco 
products in plain packaging. Ibid. paras.  88-92. 
2629 CMZ Report , (Exhibit DOM/HND -2), para. 94. 
2630 CMZ Report , (Exhibit DOM/HND -2), para. 60 (noting that between 2012 and 2013 there were 76 
detections of 183 tonnes of tobacco and 200 million cigarettes, whereas between 2011 and 2012 there were 45 
detections of 177 tonnes of tobacco and 141 million cigarettes).  
2631 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 91. 
2632 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 94. Professor Chaloupka specifically 
references the Euromonitor data, NSDHS data, and ITC  Project  data discussed above in the context of 
Professor Chaloupka's criticisms of the KPMG estimates of illicit trade in Australia. Ibid.  
2633 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 96. Professor Chaloupka cites the opinions of 
various enforcement authorities and an officer of a tobacco com pany casting doubt on the impact of tobacco 
plain packaging on increased consumption of counterfeit products. Ibid. paras.  99-100. 
2634 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 36. See also  2011 IARC Handbook, (Exhibit 
DOM-117), p p. 301-303. 
2635 Chaloupka Illicit Market Report , (Exhibit AUS -8), para. 40. See also 2011 IARC Handbook, (Exhibit 
DOM-117), p p. 303-304. 
2636 Chaloupka Illicit Market Report, (Exhibit AUS -8), paras.  41-42. See also 2011 IARC Handbook, 
(Exhibit DOM -117), p p. 305-306. 
2637 Chaloupka Illicit Market Report, (Exhibit AUS -8), paras.  43-44. See also 2011 IARC Handboo k, 
(Exhibit DOM -117), p p. 306-307. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  this on the control of imports, and the lack of free trade and tax -free zones that ar e a source of 
illicit tobacco products in many countries.2638  
7.1020.   As part of Australia's broader tobacco control efforts, Australian authorities have 
recognized the importance of having a strong legislative and regulatory framework to control the 
illicit trade i n tobacco products.2639 Professor Chaloupka outlines Australia's legislative framework 
related to illicit tobacco trade and enforcement activities under this framework, which includes 
licensing and conditions for trade and movement of tobacco products, record keeping and reporting 
requirements imposed by Australian customs authorities, strong controls on tobacco growing, and 
regulations on the retail sale of tobacco products.2640 Moreover, Australia has in place enforcement 
mechanisms that include inspections by A ustralian customs authorities (prioritizing illicit tobacco 
enforcement efforts in 2014) as well as interagency coordination and information sharing at 
multiple levels of government.2641 Australia also imposes penalties on illicit tobacco growing, 
distributio n, or sale, which were strengthened in 2012 by making tobacco smuggling a specific 
criminal offense under the Australian Customs Act.2642  
7.1021.   As described above, the overall size of the illicit market is disputed. With respect to 
evidence of increased detections  and seizures of illicit tobacco following the introduction of plain 
packaging2643, we consider such evidence to be of limited probative value to the question at hand 
given that "the increase in detection of illicit tobacco may be, at least in part, due to an  increase in 
enforcement efforts".2644 Moreover, seizures may not be representative of the illicit market as a 
whole, and even making comparisons across countries on the basis of seizures may not be 
meaningful due to differing customs investigative techniques , reporting procedures, and law 
enforcement.2645 
7.1022.   As described above, various factors may affect the drivers of illicit trade that are 
unrelated to the packaging and branding of products. We also take note of Australia's active 
regulatory efforts and oversight  of tobacco distribution networks to address illicit trade. We als o 
note that certain characteristics of Australia's regime to combat illicit trade are in line with the 
FCTC Protocol to Eliminate Illicit Trade in Tobacco Products2646, namely maintaining suppl y chain 
control through licensing and control of distribution channels, imposing penalties for unlawful 
conduct, and enabling cooperation among relevant authorities and law enforcement agencies.2647 
Taken together, the evidence before us does not clearly esta blish, either through empirical 
evidence or descriptive argument based on the drivers of illicit trade, that the TPP measures  have 
given rise to an increase in Australia's illicit tobacco trade, or that such increase would be of such 
magnitude as to underm ine the cont ribution of the TPP measures  to Australia's public health 
objective.  
7.1023.   In light of the above, we are not persuaded that the complainants have demonstrated 
that the TPP measures  have led to increased trade or consumption of illicit tobacco in Australia, 
                                                
2638 Chaloupka Illicit Market Report, (Exhibit AUS -8), paras.  48-51. 
2639 See, e.g. Minister for Health and Ageing, "Taking Preventative  Action – A Response to Australia: The 
Healthiest Country by 2020 – The Report of the National Preventative Health Taskforce" (11 May 2010), 
(Exhibit JE -15), p. 63; and National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p p. 19-20. 
2640 Chaloupk a Illicit Market Report, (Exhibit AUS -8), paras.  52-56. 
2641 Chaloupka Illicit Market Report, (Exhibit AUS -8), paras.  57-60. 
2642 Chaloupka Illicit Market Report , (Exhibit AUS -8), para.  61; and National Tobacco Strategy 
2012-2018, (Exhibits AUS -129, DOM -131), p. 20. With respect to drivers of illicit trade, Professor Chaloupka 
notes Australia's high ranking in various international assessments of the absence of corruption and other 
indicators of strong governance, as well as data suggesting that there is not a la rge informal distribution 
network for tobacco products in Australia. Chaloupka Illicit Market Report , (Exhibit AUS -8), paras.  63-64. 
2643 See CMZ Report , (Exhibit DOM/HND -2), paras.  32 and 60.  
2644 CMZ Report , (Exhibit DOM/HND -2), para. 61. See also Chaloupka Illicit Market Report , (Exhibit 
AUS-8), para. 93 ("CMZ's use of ACBPS data fails to account for the increased attention Customs and other 
authorities have given to tobacco following sizeable tobacco tax increases and implementation of tobacco plain 
packagi ng"). 
2645 See WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 83. 
2646 See para. 2.99 above. The FCTC Protocol to Eliminate Illicit Trade in Tobacco Products was adopted 
by consensus at the fifth session of the FCTC COP on 12 November 2012. It "shall en ter into force on the 90th 
day following the deposit of the 40th instrument of ratification, acceptance, approval, formal confirmation or 
accession". FCTC Illicit Trade Protocol, (Exhibit DOM -97), Foreward, p p. 1-2. 
2647 See FCTC Illicit Trade Protocol, (Exhi bit DOM -97), Article  4 and Parts III -V.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  such as to undermine the TPP measures ' contribution to the objective of improving public health by 
reducing the use of, and exposure to, tobacco products.  
7.2.5.3.8   Overall conclusion on th e degree of contribution of the TPP measures  to 
Australia's objective  
7.1024.   We have considered above the evidence before us in relation to the contribution of the 
TPP measures  to their objective of improving public health by reducing the use of , and exposure 
to, tobacco products. We have considered the relevant evidence relating both to the design, 
structure and intended operation of the TPP measures , and the available evidence relating to their 
application since their entry into force in December 2012.  
7.1025.   Overall, we find that the complainants have not demonstrated that the TPP measures  are 
not apt to make a contribution to Australia's objective of improving public health by reducing the 
use of, and exposure to, tobacco products. Rather, we find that the evidence be fore us, taken in 
its totality, supports the view that the TPP measures , in combination with other tobacco -control 
measures maintained by Australia (including the enlarged GHWs introduced simultaneously with 
TPP), are apt to, and do in fact, contribute to Australia's objective of reducing the use of , and 
exposure to , tobacco products.  
7.1026.   As discussed in detail above, a number of studies, including studies published in a range 
of relevant journals, considered the potential impact of tobacco plain packaging, pri or to the 
implementation of the TPP measures  in Australia. In particular, many of these studies address the 
anticipated impact of plain packaging on the three "mechanisms" identified in the TPP Act as those 
through which the TPP measures  are intended to ha ve an impact on smoking behaviours, namely 
reducing the appeal of tobacco products, increasing the effectiveness of GHWs, and limiting the 
ability of the pack to mislead consumers about the harmful effects of smoking. This literature has 
been found largely  to converge towards a conclusion that plain packaging of tobacco products has 
the capacity to reduce the appeal of tobacco products, increase the effectiveness of GHWs, and 
reduce the ability of the pack to mislead consumers about the harmful effects of s moking.  
7.1027.   The complainants identified a number of limitations in this literature. The evidence before 
us in this respect suggests that it is possible, and acknowledged in reviews of this literature, that 
some of these studies have various limitations, some of which are inherent in the nature of the 
research at issue. However, we are not persuaded that the complainants have established that the 
largely convergent conclusions reflected in the body of studies at issue, and the overall conclusions 
drawn from the m, should be considered to be so fundamentally flawed as to provide no support for 
the proposition that the TPP measures  are capable of contributing to their objective through these 
mechanisms.  
7.1028.   We are comforted in this conclusion by the fact that this body of literature has been 
subject to various reviews conducted outside the context of these proceedings, which have 
concluded that the body of studies at issue supports the proposition that tobacc o plain packaging 
would be apt to reduce the appeal of tobacco products, enhance the effectiveness of GHWs and 
reduce the ability of tobacco packaging to mislead consumers about the risks of smoking. We note 
in particular the conclusions of the independent  review conducted on behalf of the UK 
Government2648, which considered both the quality of a previous systematic review of the evidence 
base relating to tobacco plain packaging and the quality of the underlying evidence itself, and 
concluded that the quantita tive studies reviewed were "conducted to a high standard", that "the 
conclusions that were drawn are a reasonable reflection of the evidence available"2649 and that the 
review of the qualitative studies at issue was "a high quality systematic review", which w as "clearly 
documented and follows recognised best practice for such reviews".2650 
                                                
2648 We attach particular weight to this assessment conducted by independent reviewers who are not 
among the frequently cited "plain packaging" authors and were commissioned for the purposes of making an 
independent as sessment of the relevant literature.  
2649 Chantler Report , (Exhibits AUS -81, CUB -61), Annex D, p. 49 (referring to the Stirling Review 
(Exhibits AUS -140, HND -130, CUB -59). 
2650 Chantler  Report , (Exhibits AUS -81, CUB -61), Annex E, p. 56 (referring to the Stirling  Review 
(Exhibits AUS -140, HND -130, CUB -59).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1029.   We also note that, to the extent that the disputed studies predate the implementation of 
tobacco plain packaging in Australia or elsewhere, and that the adoption of the TPP measures  was 
based on certain assumptions about behavioural responses to a policy intervention that had not 
yet been applied in any territory, the evidence at issue represents an anticipation of the potential 
effects, rather than a demonstration of the actual  effects, of such an intervention. This 
circumstance has an impact on the nature and extent of the evidence that could have been 
expected to be developed, at the time that such studies were being conducted, and how conclusive 
such evidence could be expecte d to be.2651  
7.1030.   As detailed above, to the extent that the contribution of the TPP measures  is expected to 
arise from the operation of a "causal chain" or "mediational model" underlying the design of the 
TPP Act, it is appropriate to consider not only the operat ion of the above mechanisms (leading to 
"proximal outcomes") but also their correlation to smoking behaviours. The complainants have 
argued that Australia's assumptions in this respect are unfounded, and that, even assuming that 
the above mechanisms would lead to the proximal outcomes identified by Australia in the TPP Act, 
these would not be capable of having an influence on subsequent smoking behaviours. We have 
therefore also considered the evidence before us on the extent to which a reduction in the app eal 
of tobacco products, an increase in the effectiveness of GHWs, and a reduction in the ability of 
tobacco packaging to mislead consumers regarding the harmful effects of smoking, may be 
expected to have an impact on subsequent smoking behaviours, includ ing smoking initiation, 
cessation and relapse.  
7.1031.   Overall, this evidence suggests that it is recognized that the relationship between 
perceptions, attitudes and behaviours is complex. In particular, the evidence before us suggests 
that while there is a corre lation between attitudes and behaviours, a number of intervening factors 
can influence the extent to which attitudes affect intentions and ultimately actual behaviours in a 
given context. The context in which the intervention takes place, including the spe cific factors that 
may influence behaviours in that context, must be taken into account. However, we do not 
understand Australia to argue that behaviours would systematically be altered as a result of 
tobacco plain packaging, such that each and every indiv idual would be similarly affected and 
modify their smoking behaviours. Rather, we understand Australia to rely on relevant research 
relating to the relationship between perceptions, attitudes and behaviours, as well as evidence of 
the factors that are unde rstood to influence smoking behaviours, to argue in essence that in the 
specific context of this intervention, it is reasonable to expect that reducing the appeal of tobacco 
products and enhancing clarity about their harmful effects  will influence at least  some  consumers 
in their smoking behaviours.  
7.1032.   In this respect, it is undisputed that the drivers of smoking behaviours are complex and 
that smoking initiation, cessation or relapse are influenced by a broad range of factors, other than 
product packaging. W e are not persuaded, however, that this implies, as the complainants argue, 
that tobacco packaging can have no influence on smoking behaviours, especially in a regulatory 
context where the retail package would be the only avenue for product promotion and f or 
conveying to the consumer any positive associations with the product. The evidence before us 
demonstrates, in this respect, the role played by branded packaging of tobacco products in 
conveying the image of tobacco products and making them appealing, es pecially in a "dark" 
market such as Australia. We are not persuaded that the effects of such branding are limited, as 
the complainants argue, to secondary demand for tobacco products, i.e. the choice to smoke one 
brand over another, to the exclusion of pri mary demand for such products, i.e. the decision to 
smoke or not smoke. In particular, we note the recognized importance, for the industry, of 
attracting new consumers, and therefore making their products appealing to  those most likely to 
initiate  tobacco use (i.e. youth), including through branded packaging.  
7.1033.   We are also not persuaded that the complainants have demonstrated that tobacco plain 
packaging would not also be capable of having some impact on smoking cessation and relapse, by 
reducing the ability of branding design features to act as a cue for smoking and by making more 
prominent the messages conveyed by GHWs.  
                                                
2651 As expressed in an early review of tobacco plain packaging literature, in which subjects were asked 
to theorize "What if" with respect to various packaging scenarios. Goldberg et al. 1995, (Exhibits AUS-221, 
JE-24(26)), Appendix C, Summary of Male Focus Groups in Toronto, III Grade 8 (Have not Smoked in Last 
Month).   WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1034.   Overall, on the basis of our examination of the evidence relating to the design, structure 
and intended operation of the TPP measures , we ar e not persuaded that the complainants have 
demonstrated that a reduction in the appeal of tobacco products, or an improved awareness of 
risks through tobacco plain packaging, or a reduction in the ability to mislead consumers on the 
harmful effects of toba cco products, through plain packaging of tobacco products as applied by 
Australia, would not be capable of influencing any of the relevant smoking behaviours. To the 
contrary, in a regulatory context where tobacco packaging would otherwise be the only 
opportunity to convey a positive perception of the product through branding, as is the case in 
Australia, it appears to us reasonable to hypothesize some correlation between the removal of 
such design features and the appeal of the product, and between such re duced product appeal and 
consumer behaviours. It also does not appear unreasonable, in such a context,  in light of the 
evidence before us, to anticipate that the removal of these features would also prevent them from 
creating a conflicting signal that woul d undermine other messages that seek to raise the 
awareness of consumers about the harmfulness of smoking that are part of Australia's tobacco 
control strategy, including those arising from GHWs.  
7.1035.   This evidence must be considered also in the light of avail able empirical evidence on the 
application of the measures. In this respect, it is not disputed that notwithstanding any "intuitive 
appeal", tobacco control policies "must be evaluated to provide concrete evidence of their 
effects"2652 and that "the optimal t est of plain packaging would be its implementation and 
evaluation in a population -based setting".2653 
7.1036.   The evidence before us on the application of the TPP measures  includes empirical 
evidence relating to their impact on the proximal outcomes reflecting the th ree mechanisms 
identified and anticipated in the TPP Act, since their entry into force. This evidence suggests that 
the introduction of tobacco plain packaging, in combination with enlarged GHWs, has in fact 
reduced the appeal of tobacco products, as antic ipated in a number of the pre -implementation 
studies criticized by the complainants. As discussed above, this is recognized by some of the 
complainants' own experts on the basis of a direct examination of data collected for the specific 
purpose of evaluati ng the effects of the TPP measures  and which was provided to the complainants 
for use in these proceedings. Empirical evidence relating to the proximal outcomes of the 
TPP measures  also suggests that plain packaging and enlarged GHWs have had some impact o n 
the effectiveness of the GHWs.  
7.1037.   Finally, we also considered the evidence before us on actual smoking behaviours in 
Australia since the entry into force of the measures, as reflected in data relating to the evolution of 
smoking prevalence and consumption.  As discussed, the extent to which the data available at the 
time of our assessment can inform an overall assessment of the actual and expected contribution 
of the measures to their objective is disputed. The data before us in these proceedings relates to a 
period of up to three years following the entry into force of the TPP measures . Overall, we find that 
this evidence is consistent with a finding that the TPP measures  contribute to a reduction in the 
use of tobacco products, to the extent that it suggest s that, together with the enlarged GHWs 
introduced at the same time, plain packaging has resulted in a reduction in smoking prevalence 
and in consumption of tobacco products.  
7.1038.   The evidence before us relating specifically to cigars is more limited.  While we  are mindful 
of the limitations of this body of evidence, it does not persuade us that our conclusion should be 
different in respect of cigars.  The evidence before us suggests that the importance of packaging in 
establishing brand associations and percepti ons also applies to cigar smokers, albeit with nuances. 
We also note the evidence before us suggesting a lower level of risk awareness in respect of cigar 
smoking than in respect of other tobacco products. The limited available pre -implementation 
evidence before us also suggests that plain packaging would have the capacity to act on at least 
some of the mechanisms through which the TPP measures  are designed to operate also in respect 
of cigars. Specifically, it suggests that plain packages would have the ab ility to minimise appeal 
and perceptions of quality with regard to cigarillos, little cigars, and to a lesser extent premium 
cigars, and could also affect perceptions of ease of quitting as regards cigarillos and – to a lesser 
extent – premium cigars.  
                                                
2652 Fong et al. 2006, (Exhibit AUS -132), p. 1. 
2653 Wakefield et al. 2012, (Exhibits AUS -557, JE -24(63)), p. 1166.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1039.   These conclusions are consistent with the limited empirical evidence before us regarding 
observed outcomes of the TPP measures , which suggests a decrease in perceived packaging 
appeal when cigar smokers were exposed to the TPP measures  and enlarged GHWs2654, and an 
increase in the noticeability of health warnings and pack concealment among cigar and cigarillo 
smokers, although the evidence is mixed regarding health beliefs .2655 The econometric evidence 
before us suggesting that the TPP measures  and enlarged GHWs cont ributed to a reduction in cigar 
smoking prevalence2656 is also consistent with a conclusion that the measures have an impact on 
relevant smoking behaviours in respect of cigars.  
7.1040.   The overall impact of the TPP measures  is difficult to quantify in terms of the m agnitude 
of changes in smoking behaviours attributable to the measures, on the basis of the evidence 
available to us. In particular, this impact, as described above, is difficult to isolate empirically, on 
the basis of the evidence before us, from other fa ctors that also affect the evolution of smoking 
behaviours, including other tobacco control measures applied simultaneously with the 
TPP measures .  
7.1041.   We note that this regulatory context has a direct bearing on the ability of the 
TPP measures  to contribute t o their objective through the mechanisms identified in the TPP Act. 
Specifically, the existence of a general ban on promotion and advertising ensures that the type of 
design features, the use of which is restricted on tobacco products and their retail pack aging as a 
result of the TPP measures , is not able to be used in other contexts in a manner that might 
undermine the functioning of the first mechanism under the TPP Act, namely reducing the appeal 
of tobacco products through branding. The operation of the  second mechanism under the TPP Act 
also assumes the existence of GHWs applied simultaneously, which Australia also does require.  
7.1042.   We also consider that the significance of the contribution that the TPP measures  make to 
the objective of reducing the use of , and exposure to, tobacco products, must be viewed against 
the fact that they also operate to support and complement the effectiveness of these other 
measures, by avoiding regulatory gaps (in respect of advertising and promotion) and ensuring that 
other t obacco control efforts aimed at raising awareness of the harmful effects of smoking 
(including GHWs and social media campaigns) are not undermined.  
7.1043.   Taken as a whole, therefore, we consider that the evidence before us supports the view 
that, as applied in combination with the comprehensive range of other tobacco control measures 
maintained by Australia and not challenged in these proceedings, including a prohibition on the use 
of other means through which branding could otherwise contribute to the appeal of  tobacco 
products and to misleading consumers about the harmful effects of smoking, the TPP measures  are 
apt to, and do, make a meaningful contribution to Australia's objective of reducing the use of, and 
exposure to, tobacco products.  
7.1044.   In making this dete rmination, we are also mindful that the impact of the TPP measures  
may evolve over time. Our determination is based on the evidence available to us at the time of 
our assessment and is not intended to prejudge the future evolution of the contribution of th e 
TPP measures  to the reduction of the use of, and exposure to, tobacco products. We note, 
                                                
2654 Appendix A, para. 25. 
2655 Appendix A, paras.  59 and 71 . There is also evidence before us showing an increase in the share of 
non-premium  cigarillo smokers contemplating quitting following the implementation of the TPP measures  and 
enlarged GHWs . See Appendix B, para. 31. 
2656 We note in this r egard, that according to Cuba, private consumers of LHM cigars may make 
occasional, high -value purchases of LHM cigars over the internet from foreign suppliers, thereby receiving 
them in fully branded packs and with fully branded cigar bands. Cuba argues t hat the TPP measures  are a 
"purely symbolic gesture" that will not reduce LHM cigar prevalence and consumption because they do not 
apply to products which are sold or purchased, including over the internet, for the purpose of p ersonal use in 
Australia. Cuba's first written submission, paras.  272 and 274.  While online purchases of non -plain packaged 
tobacco products appears to be a possibility under the TPP measures  (see Section 32(2) of the TPP Act, 
(Exhibits AUS -1, JE-1)), whic h exempt  an individual who purchase the tobacco product "for his or her personal 
use"), we are not persuaded that this exception would render the TPP measures  a "purely symbolic gesture" 
that will not have the capacity to reduce LHM cigar prevalence and consumptio n. Indeed, there is some 
econometric evidence suggesting that the TPP measures, together with the enlarged GHWs implemented at the 
same time, contributed to a reduction in cigar smoking prevalence observed after their entry into force . See 
Appendix C, para . 123. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  however, that we find reasonable Australia's suggestion that the measures may be expected to 
have an impact in particular on future generations of young people whose  exposure to tobacco 
advertising or promotion in Australia will have been gen erally limited, and that impacts  on smoking 
cessation for existing smokers will also take some time to produce their full effects.  
7.1045.   Finally, we understand the objective of reducin g "exposure" to tobacco products (which is 
expressed in Section 3(1)(a)(iv) of the TPP Act as "reducing people's exposure to smoke from 
tobacco products")2657 through the TPP measures  to be directly linked to, and consequential to the 
achievement of, the obje ctive of reducing "use" of tobacco products, in that a reduced use of 
tobacco products by those who consume them will lead to a reduction in the exposure to these 
products for non -users. Therefore, we conclude that to the extent that the TPP measures  
contribute to a reduction in the use of tobacco products, they will also have some impact on the 
reduction of exposure to such products.  
7.2.5.4   The trade -restrictiveness of the TPP measures  
7.1046.   As described above2658, one of the factors to be considered in the "relational an alysis" 
under Article  2.2 is the "trade -restrictiveness" of the challenged measures.2659 This will inform the 
assessment of whether the challenged measures are " more trade -restrictive than necessary" 
(emphasis added) within the meaning of Article  2.2: 
Article  2.2 does not prohibit measures that have any trade -restrictive effect. It refers 
to "unnecessary obstacles" to trade and thus allows for some trade -restrictiveness; 
more specifically, Article  2.2 stipulates that technical regulations shall not be "more 
trade -restrictive than necessary to fulfil a legitimate objective". Article  2.2 is thus 
concerned with restrictions on international trade that exceed what is necessary to 
achieve the degree of contribution that a technical regulation makes to the 
achievem ent of a legitimate objective.2660 
7.1047.   The parties have exchanged considerable argumentation concerning the standard that the 
Panel should apply in assessing the "trade -restrictiveness" of the TPP measures  within the 
meaning of Article  2.2. We therefore first consider this question, before turning to an assessment 
of the trade -restrictiveness of the TPP measures . 
7.2.5.4.1   Meaning of the term "trade -restrictive" in Article  2.2 
7.2.5.4.1.1   Main arguments of the parties  
7.1048.   Honduras  argues that the word "restriction", as used in Article  2.2 in conjunction with the 
word "trade ", means something having a limiting effect on trade.2661 Honduras states that the 
panel in US – COOL found that the challenged technical regulation was trade -restrictive because it 
affected negatively the competitive con ditions of imported products.2662 Honduras argues that past 
GATT and WTO jurisprudence on Article  XI of the GATT 1994 further indicates that trade 
restrictions are measures that place a limiting condition on importation, or have a limiting effect on 
importati on by negatively affecting the competitive opportunities available to imported products; 
measures that create uncertainties and affect investment plans; measures that have identifiable 
negative consequences on the importation of a product; and measures tha t make importation 
                                                
2657 TPP Act, (Exhibits JE -1, AUS -1), Section 3(1)(a)(iv).  
2658 See para. 7.31 above.  
2659 See, e.g. Appellate Body Reports, US – Tuna II (Mexico) , para. 319; and US – COOL , para. 375. The 
other two factors to be addressed in the "relational analysis" are the degree of contribution of the measure to 
its objective and the risks that non -fulfilment would create, which are addressed respectively in sectio n 7.2.5.3  
above, and section 7.2.5.5  below, respectively.  
2660 Appellate Body Report, US – Tuna II (Mexico) , para. 319. 
2661 Honduras's first written submission, para. 809 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 319).  
2662 Honduras's first written submission, para. 809 (referring to Panel Reports, US – COOL , 
paras.  7.574 -7.575).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 420 - 
  more onerous than if the condition did not exist and thus generate a disincentive to import.2663 In 
Honduras's view, an assessment of trade -restrictiveness does not require the demonstration of any 
actual trade effects, as the focus is whether the measure has a detrimental effect on the 
competitive opportunities available to imported products.2664 Honduras submits that 
trade -restrictiveness should be determined on a case -by-case basis, in light of the specific 
circumstances of each measure.  Whether a demonstration of actual trade effects is useful or 
necessary is something to be determined in light of each measure's characteristics and the 
available evidence. In this respect, Honduras adds that in certain cases, the evidence on trade 
flows m ay be unreliable, for the simple reason that the observed changes in trade flows may result 
from actions taken by private parties for reasons unrelated to the measure at issue.2665 Honduras 
refers to the TBT Committee's recommendation on the concept of "signi ficant effect on trade of 
other Members" in Article  2.9 of the TBT Agreement2666 (TBT Committee Recommendation) , which 
"is pertinent" for understanding the term "trade -restrictive" in Article  2.2. Honduras argues on this 
basis that the "value or other importa nce of imports" is a factor that may demonstrate the 
trade -restrictiveness of a technical regulation. In the present case, according to Honduras, "the 
ability to achieve product differentiation is an element of great 'value' and 'importance' to tobacco 
producers".2667 Furthermore, the reference in the TBT Committee Recommendation  to difficulties 
for producers in other Members to comply with the proposed technical regulations "lends further 
support to Honduras' s argument that compliance costs … is a factor that  demonstrates the 
trade -restrictiveness of the plain packaging measures".2668 
7.1049.   The Dominican Republic  argues that the word "restriction", as used in Article  2.2 means 
something having a limiting effect on trade2669, and that the legal standard of trade -restrictive 
involves a comparison with a benchmark situation; namely, a comparison between the treatment 
of imported goods under the contested measure with the treatment of the same imports in the 
absence of the contested measure.2670 Concerning the evidentia ry standard for 
trade -restrictiveness, the Dominican Republic argues that trade -restrictiveness does not require 
the demonstration of any actual trade effects, as the focus is whether the measure has a 
detrimental effect on the competitive opportunities av ailable to imported products2671, which is to 
be determined by reference to its design, architecture, revealing structure and operation.2672 
According to the Dominican Republic, such evidence suffices to prove a limitation on competitive 
opportunities without ha ving to prove actual trade effects. Evidence of actual trade effects may be 
required in situations in which a limitation on competitive opportunities cannot be reliably 
discerned from other evidence concerning design, structure and expected operation. The need for 
evidence of actual trade effects turns on what can be gleaned from the other evidence2673, and 
may also be used by a complainant to confirm that the challenged measure limits competitive 
opportunities.2674 The Dominican Republic adds that (i) a limitati on on competitive opportunities 
may stem from a market -wide regulation that adversely affects the situation of all goods, whether 
imported or domestic; (ii) a limitation on competitive opportunities may stem from a technical 
                                                
2663 Honduras's first written submission, para. 810 (referring to  Panel Reports, India – Autos, 
para. 7.270; Colombia  – Ports of Entry , paras.  7.240, 7.243, 7.256, 7.257, 7.274, and 7.275; India –
 Quantitative Restrictions , para. 7.269; and GATT Panel Report, Japan  – Leather (US II) , para. 55). 
2664 Honduras's response to Panel question No. 117; and Honduras's second written submission, 
para. 532. 
2665 Honduras's response to Panel question No. 117. 
2666 Committee on Technical Barriers to Trade, Secretariat Note, "Decisions and Recommendations 
Adopted by the WTO Committee on Technical Barriers to Trade Since 1 January 1995", WTO Document 
G/TBT/1/Rev.12  (21 January 2015 ), Section 4.3.1.1, p. 20 (entitled " Significant effect on trade of other 
Members").  
2667 Honduras's response to Panel question No. 118. 
2668 Honduras's response to Panel question No. 118. 
2669 Dominican  Republic 's first written submission, para. 963 (referring to Appellate Body Report, US –
 Tuna II ( Mexico) , para. 319).  
2670 Dominican  Republic 's response to Panel question No. 117 (referring to Appellate Body Reports, US –
 COOL , para. 477); Dominican  Republic 's second written submission, para. 929. 
2671 Dominican  Republic 's second written submission, para. 928 (referring to Appellate Body Reports,  
US – COOL , para. 477).  
2672 Dominican  Republic 's second written submission, para. 931 (referring to Appellate Body Reports, 
EC – Seal Products , para. 5.228; Thailand  – Cigarettes (Philippines) , para. 130; and Japan  – Alcoholic 
Beverages II , paras.  10.37 -10.40).  
2673 Dominican  Republic 's second written submission, para. 931. 
2674 Dominican  Republic 's second written submission, para. 929 (referring to Appellate Body Reports,  
US – COOL , para. 477).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 421 - 
  regulation that reduces the opp ortunities of imported products  in a particular market segment; (iii) 
limitation on competitive opportunities may be assessed in terms of the volume and/or the value 
of imports; (iv) a limitation on competitive opportunities should be assessed, taking acco unt of 
how the measure affects imports from countries  "'individually or collectively '"; (v) an assessment 
of trade -restrictiveness should take into account how the measure affects imports from countries 
"'individually or collectively '"; and (vi) trade -restrictiveness should be assessed in terms of its 
impact on the "'potential '" growth of such imports, and not on the actual impact of the 
measure.2675 With respect to points (ii) -(vi), above, the Dominican Republic relies on the TBT 
Committee Recommendation2676 which it describes as providing "useful context" for interpreting 
the term "trade -restrictive" in Article  2.2.2677 
7.1050.   Cuba argues that trade -restrictiveness is to be assessed by examining whether a 
measure has "a limiting effect on trade".2678 Cuba argues that it is sufficient for this standard for 
prejudicial effects on the position of exporters to be identified, such as restricted market access, 
uncertainties affecting investment and increased costs.2679 In Cuba's view, measures can be 
trade -restrictive even where t hey do not cause a reduction in import volumes, as it suffices that 
harmful effects on the position of exporters are identified2680, or the measure's impact on 
commercial opportunities for imported products2681, is demonst rated. Cuba argues that the 
TBT Committe e Recommendation2682 "provide[s] the Panel with guidance for the analysis of 
trade -restrictiveness under Article  2.2". Cuba points out that the R ecommendation  refers not only 
to the volume of imports but also to their value and growth potential which, in Cuba 's view, is 
particularly relevant in connection with its down -trading argument (discussed further below). Cuba 
adds that these "criteria" for the evaluation of a trade restriction go beyond an analysis of the 
"actual effects on trade", and support Cuba's a rguments concerning the relevance of competitive 
opportunities for determining whether a technical regulation is trade -restrictive.2683 
7.1051.   Indonesia  argues that trade -restrictiveness within the meaning of Article  2.2 means 
"something having a limiting effect on trade", and that trade -restrictive measures include those 
that deny competitive opportunities to imports.2684 Indonesia argues that the scope of the term 
"trade -restrictive" is broad and does not require the demonstration of any actual trade effects, as 
the focus is on the competitive opportunities available to imported products2685 or competitors in 
the market.2686 In this respect, Indonesia states that "for over 60 years the GATT and WTO have 
relied on the understanding that complainants do not need to show trade effects of a quantitative 
nature in order to show that a measure is inconsistent with the GATT or a WTO agreement", and 
that "the design, the structure and the architecture of a measure can be sufficient to indicate 
whether a measure is trade -restrictive".  Indonesia notes that there may be cases where a panel 's 
examination of the design, structure and expected operation of a measure leaves questions about 
whether there is a limiting effect on competitive opportunities and, where this is the case, a 
complain ant might have to go further and demonstrate  something more, such as trade effects of a 
quantitative value.2687 Indonesia argues that the TBT Committee Recommendation2688 provides 
important context for the Panel's interpretation of Article  2.2. In Indonesia's vi ew, it indicates that 
                                                
2675 Dominican  Republic 's respon se to Panel question No. 117 (referring to Appellate Body Reports,  US –
COOL , para. 477; and Committee on Technical Barriers to Trade, Note by the Secretariat, "Updating the 
Decisions and Recommendations Taken by the Tokyo Round Committee on Technical Barri ers to Trade 
Regarding Procedures for Notification and Information Exchange", G/TBT/W/2/Rev.1, 21 June 1995); and 
Dominican  Republic 's second written submission, para. 930. 
2676 See fn  2666 above.  
2677 Dominican  Republic 's response to Panel question Nos. 117 and 118.  
2678 Cuba's first written submission, para. 398. 
2679 Cuba's first written submission, para. 400 (referring to Panel Report, Colombia  – Ports of Entry , 
para. 7.240; GATT Panel Reports, EEC – Oilseeds I , para. 150; and US – Superfund , para. 5.2.2).  
2680 Cuba's response to Panel question No. 117. 
2681 Cuba's second written submission, para. 225. 
2682 See fn  2666 above.  
2683 Cuba's response to Panel question No. 118. 
2684 Indonesia's first written submission, para. 393 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 319; and Panel Report, US – Tuna II (Mexico) , para. 7.455). 
2685 Indonesia's first written submission, para. 393 (referring to Appellate Body Reports, US – COOL , 
para. 477).  
2686 Indonesia's response to Panel question No. 117. 
2687 Indonesia's response to Panel question No. 117. 
2688 See fn  2666 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 422 - 
  (i) a significant effect on trade can arise from an impact on a specific product, group of products or 
products in general; (ii) a measure that has a significant effect on trade includes measures that 
affect the value of imports, (inc luding the effect of downtrading on premium brands), but that 
"measures may also affect 'other importance of imports '", in respect of which Indonesia notes the 
importance of the tobacco sector highlighted by certain least -developed third parties; (iii) a 
"significant effect on trade" could be "from other Members individually or collectively"; and (iv) 
"difficulties for producers in other Members to comply with the proposed technical regulations" 
"could" support the argument that compliance costs could be in cluded in an assessment of 
trade -restrictiveness (notwithstanding the fact that Indonesia did not allege that compliance costs 
result in trade -restrictiveness).2689 
7.1052.   Australia  argues that the ordinary meaning of the term "restriction" is "something that 
restri cts someone or something, a limitation on action, a limiting condition or regulation", and 
that, when used in conjunction with the term "trade", the term "restriction" means something 
"having a limiting effect on trade".2690 In Australia's view, a technical regulation will have a 
"limiting effect on trade" when it creates an "obstacle" (which it equates with a "hindrance" or 
"impediment") to international trade.2691 
7.1053.   In Australia's view, a demonstration that a technical regulatio n creates an obstacle to 
international trade does not require evidence of "actual trade effects", but rather can be discerned 
from the design, structure and operation of the measure.2692 Australia notes that "one possible 
way" of demonstrating trade -restricti veness is to demonstrat e that the technical regulation  at 
issue modifies the conditions of competition in the marketplace to the detriment of imported 
products relative to domestic products.2693 However, in the absence of such a claim, Australia 
posits that i t is insufficient for the complainants to refer to changes in market conditions in the 
abstract without also demonstrating how such changes have a limiting effect on international 
trade.2694 Thus, Australia acknowledges "that raised barriers to entry, or incr eased compliance 
costs, are potentially relevant in determining whether a measure is trade -restrictive under 
Article  2.2", but "only if they resulted in a limiting effect on overall trade in tobacco products".2695 
For Australia, unless "the design, structure and operation of the technical regulation demonstrate 
that it will result in a limiting effect on international trade, evidence of actual trade effects will be 
required to establish that the measure is, in fact, trade -restrictive".2696 Australia argues that t he 
complainants "have merely asserted that the tobacco plain packaging measure has changed the 
conditions of competition in the Australian tobacco market", but have not demonstrated that such 
effects have arisen as a result of the TPP measures , or such cha nges have resulted in a limiting 
effect on overall trade in tobacco products.2697 Australia asserts that the complainants' claims of 
trade -restrictiveness are such that they are required to provide supporting evidence and 
argumentation of actual trade effects , which they have failed to adduce.2698 
7.1054.   In this context, Australia understands "effect on trade" to refer to "the effect on trade of 
all WTO Members in the products subject to the measure – in this case, tobacco products".2699 
Furthermore, Australia asserts that  "the scope of the analysis must necessarily encompass 
international trade more generally, rather than trade solely with respect to a single Member", 
because "a measure that restricts or limits trade for one Member … but that increases trade for all 
other Members, such that there is a net increase in trade, would not, without more, be 
trade -restrictive within the meaning of Article  2.2 of the TBT Agreement ", (even though such a 
                                                
2689 Indonesia's response to Panel question No. 118. 
2690 Australia's first written submission, para. 524. 
2691 Australia's first written submission, para. 525. 
2692 Australia's first written su bmission, para. 525; and Australia's response to Panel question No. 117. 
2693 Australia's first written submission, para. 526; and Australia's second written submission, para. 374. 
2694 Australia's first written submission, para. 527. 
2695 Australia's response to P anel question Nos. 68 and 117.  See also Australia's first written submission, 
para. 547.  
2696 Australia's response to Panel question No. 117. 
2697 Australia's response to Panel question No. 117. 
2698 Australia's response to Panel question No. 117. 
2699 Australia's response to Panel question Nos. 68, 117, and 151; and Australia's second written 
submission, para. 366. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 423 - 
  measure could constitute a breach of the most -favoured -nation (MFN) obligation i n Article  2.1).2700 
In this respect, Australia argues that the TBT Committee Recommendation2701 does not assist the 
Panel in determining whether a measure is "trade -restrictive" within the meaning of Article  2.2 of 
the TBT Agreement2702, as it is of no interpretati ve significance.2703  
7.2.5.4.1.2   Main arguments of the third parties  
7.1055.   Brazil  argues that Article  2 of the TBT Agreement  establishes different and cumulative 
conditions that should inform the adoption and application of technical regulations by WTO 
Members. Brazil quotes the Appellate Body statement that "ultimately, the task of a panel under 
Article  2.2 is to determine whe ther the technical regulation at issue restricts international trade 
beyond what is necessary for that technical regulation to achieve the degree of contribution that it 
makes to the achievement of a legitimate objective".2704 Supporting evidence and argument ation 
of actual trade effects may be used to demonstrate trade -restrictiveness in the sense of 
"unnecessary obstacles to trade". However, the evidence need not necessarily quantify the 
trade -restriction, but may be qualitatively assessed for its contributi ons to the legitimate goal.2705 
7.1056.   Canada  argues that a measure may be "trade -restrictive" where it has a limiting effect on 
trade, and that such an effect may be created by the modification of the conditions of competition 
for imported products, a reduction in individual Member or overall global trade volumes, an import 
prohibition, or increased compliance costs incurred by manufacturers. Ascertaining 
trade -restrictiveness exclusively and in all circumstances on a rigid quantitative basis is not 
consistent with the broad interpretation of the term given to it by previous panels and the 
Appellate Body.2706 While an analysis of the actual trade effects may be used to confirm that a 
measure has a certain degree of trade -restrictiveness, that analysis is not required in  all cases as a 
matter of evidentiary burden. Whether a measure is "trade -restrictive" should not be determined 
solely by conducting an empirical exercise; rather, the ordinary meaning of the words in their 
context suggests that the term captures a broad s et of circumstances.2707 
7.1057.   China  argues that the trade -restrictiveness of the measure at issue is a threshold issue 
and that measures which are not trade -restrictive cannot be inconsistent with Article  2.2. China 
argues, with reference to the Appellate Body in US – Tuna II (Mexico)  "trade -restrictive" would 
mean "having a limiting effect on international trade".2708 China states that the Panel may wish to 
consider whether a demonstration that a technical regulation at issue modifies the conditions of 
competition in the marketplace to the detriment of imported products relative to domestic 
products is the sole way of establishing a trade -restrictive effect. Such a view might, in China's 
view, imply that the analysis under Article  2.2 is to a large extent dependent on the outcome of 
the analysis under Article  2.1. China recalls that the panel in US – Clove Cigarettes  distinguished 
the nature of the analysis to be conducted under Article  2.2 from that to be conducted under 
Article  2.1.2709 
7.1058.   China also argues that the meaning of "restrictions" in Article  XI of the GATT 1994 could 
inform the interpretation of "trade -restrictive ness" in Article  2.2 of the TBT Agreement . The 
Appellate Body found that the limiting effect of restrictions "need not be demonstrated by 
quantifying the effects of the measure at issue", but "can be demonstrated through the design, 
architecture, and revea ling structure of the measure at issue considered in its relevant context". 
                                                
2700 Australia's response to Panel question Nos. 68 and 117; and Australia's second written submission, 
para. 366. 
2701 See fn  2666 above.  
2702 Australia's response to Panel question No. 118. 
2703 Australia's second written submission, para. 397 fn 380. 
2704 Brazil's third -party response to Panel question No. 4 (qu oting Appellate Body Reports,  US – Tuna II 
(Mexico) , para. 322; and US – COOL , para. 471).  
2705 Brazil's third -party response to Panel question No. 4. 
2706 Canada's third -party response to Panel question No. 4. (referring to Appellate Body Reports, US –
 Tuna II (Mexico) , para. 319; US – COOL , para. 375; and Panel Reports, EC – Seal Products , para. 7.426; and 
US – COOL , para. 7.569).  
2707 Canada's third -party response to Panel question No. 4. 
2708 China's third-party submission, para. 73; and China's third -party respons e to Panel question No. 4. 
2709 China's third-party submission, paras.  73-74. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 424 - 
  Thus, supporting evidence and argumentation of actual trade effects might help to assess 
"trade -restrictiveness", but would not necessarily be required.2710 
7.1059.   The European Union  argues that the phrase "obstacles to international trade" in the first 
sentence of Article  2.2 and the phrase "trade -restrictive" in the second sentence of Article  2.2, 
inform each other. The European Union notes that the trade -restrictiveness referred to in the 
second sentence is international, notwithstanding the absence of that term in that sentence, and 
Article  2.2 does not refer to restrictions of commerce occurring exclusively within a WTO Member. 
There might "potentially a ppear to be a slightly different shade of meaning between the term 
'obstacle', which might also imply something that could be overcome, and the term 'restriction', 
which might also imply a limiting effect".2711 However, one may also argue that something would  
only be an obstacle if overcoming it entailed a cost and that an additional regulatory cost could 
amount to a trade -restriction even if it could or would be absorbed or mitigated by firms. An 
examination of all the instances in which the terms obstacle an d restriction appear in the 
TBT Agreement  does not suggest that they are used other than interchangeably. The 
TBT Agreement  also refers to an effect on trade of other Members,2712 The European Union points 
to instances in which the Appellate Body has found th at different terms have meanings that are 
the same or very similar.2713  
7.1060.   For the European Union, the trade  restrictio n may be something that may be "observed"  
by comparing a difference between historical data (unaffected by the measure) and current data, 
and determining that the measure causes the trade  restriction. The trade  restriction may also be 
determined on the basis of a counterfactual or be in the future, but determined on the basis of the 
design and architecture of the measure, and all the surrounding  facts. Thus, it is possible that, 
after the adoption of the measure, international trade increases for other reasons, but that the 
measure is nevertheless trade -restrictive, because it is preventing a further increase that would 
otherwise occur. Furthermo re, the possibility that firms might take action in order to absorb or 
mitigate or overcome the obstacle does not necessarily mean that there is no trade  restriction. 
Thus, whether or not there is an obstacle to international trade or a trade  restriction o r an effect 
on trade needs to be assessed on the basis of all the relevant facts. Reliance on hypotheticals or 
counterfactuals, supported by sufficient evidence may be necessary, particularly in cases involving 
complex interactions between different measur es, which deploy their effects over time. However, 
an adjudicator needs to proceed with caution and prudence in dealing with a hypothetical or a 
counterfactual.2714 The European Union considers that it would not be possible to sustain a claim of 
violation of Article  2.2 based on an alleged obstacle to international trade or trade  restriction or 
effect on trade that would be excessively hypothetical or remote.2715 
7.1061.   The European Union adds that, although volume and price are closely related, and the 
benefit of a tra de flow would be measured in terms of both volume and price (or value), the 
parties in these proceedings appear to conceptualize the concept of trade -restriction particularly in 
terms of volume. The complainants appear to argue that a measure that increase s prices (or 
costs) will, all other things being equal, reduce volumes. In this respect, the European Union 
considers that, if a measure imposes increased costs on trade, whether in the short or long term, 
including increased barriers to entry, then, all o ther things being equal, it is susceptible to giving 
rise to a trade -restriction.2716 
7.1062.   The European Union notes that some parties equate the concept "of a detrimental impact 
on competitive conditions or opportunities used in the context of de facto  discriminat ion claims", 
with that of trade  restriction for the purposes of Article  2.2 of the TBT Agreement . However, for 
the European Union, Articles  2.1 and 2.2 are concerned with different issues – Article  2.1 is 
concerned with the question of discrimination, whil st Article  2.2 is concerned with the question of 
necessity. A measure might not be discriminatory but be highly trade -restrictive and unnecessary. 
Conversely, a measure might have a severely detrimental impact or be highly discriminatory, but 
                                                
2710 China's third -party response to Panel question No. 4. 
2711 European Union's third -party submission, para. 54. 
2712 European Union's third -party submission, para. 54. 
2713 European Union's third-party submission, para. 55. 
2714 European Union's third -party submission, para. 56. 
2715 European Union's third -party submission, para. 57. 
2716 European Union's third -party submission, para. 58. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 425 - 
  not be trade -restrictive and be entirely necessary. Consequently, the European Union does not 
agree that whether there is trade -restrictiveness must be assessed relative to domestic products. 
A measure could impact equally on domestic and imported products, but still be highly 
trade -restrictive.2717 
7.1063.   The European Union does not consider that the affected trade must necessarily be 
between the complaining Member and the defending Member. As Article  2.2 merely refers to an 
obstacle to international trade or a trade  restrictio n, and does not, unlike Article  2.1, require a 
comparison between domestic and imported goods, or between goods originating in two or more 
third countries, the trade  restriction in question could be with respect to the trade of any WTO 
Member.2718 A measure t hat restricts or limits trade for one Member but increases trade for all 
other Members, would not, without more, be trade -restrictive within the meaning of Article  2.2 of 
the TBT Agreement . The European Union sees the relative effect of a measure among dif ferent 
exporting Members, or between the exporting Member and the importing Member (issues such as 
the brand differentiation and down -trading alleged by the complainants in this case) as generally 
"more apt for treatment under Article  2.1 rather than Article 2.2".2719 With respect to origin neutral 
measures that do not involve any de facto  discrimination, the European Union does not think it 
sufficient to measure trade -restrictiveness by reference to one complainant, or several 
complainants. The complainants d o not appear to be arguing that the measure at issue affects 
them in any special way, different from the way that it affects other Members. The European Union 
therefore does not think that it would be enough for one complainant to demonstrate that its 
volume has decreased (the volume of some other complainant or complainants having 
increased).2720 
7.1064.   Finally, the European Union states that Article  20 of the TRIPS  Agreement  is context for 
the interpretation and application of Article  2.2 of the TBT Agreement . It states that it is possible 
that there could be a measure that encumbers the use of a trademark in the course of trade, 
within the meaning of Article  20, and that causes a trade  restriction within the meaning of 
Article  2.2; however, this is not automaticall y the case, and would have to be demonstrated by the 
complaining Members.2721 
7.1065.   Japan  argues that the examination of "trade -restrictiveness" under the second sentence 
of Article  2.2 shall be based on an examination of the measure 's design, architecture, structure 
and operation. This may involve an inquiry as to whether a modification of competitive 
opportunities which is detrimental to imports as a whole or in part could not have occurred absent 
the measures at issue. Evidence of actual trade effects may be referenced to confirm this 
examination, but the actual trade effect itself may not necessarily reveal trade -restrictiveness 
since various factors other than the measures at issue may be the cause for the actual trade 
effect. Japan argues that this is co nsistent with the Appellate Body's finding that "the 
demonstration of a limiting effect on competitive opportunities in qualitative terms might suffice in 
the particular circumstances of a given case".2722 
7.1066.   New Zealand  argues that the complainants' submissions  seek to expand the concept of 
"trade -restrictiveness " under Article  2.2 beyond its ordinary meaning, without any WTO 
jurisprudence to support their proposition. Trade -restrictiveness can be assessed by looking at the 
competitive opportunities available to  imported products, but, as Australia has argued, the focus 
should be on "whether the technical regulation at issue modifies the conditions of competition in 
the marketplace in a manner that has a limiting effect on trade for imported products subject to 
that regulation ".2723  
7.1067.   Referring to the Appellate Body 's comments in US – COOL ( Article  21.5 – Canada and 
Mexico) , New Zealand  submits  that these are useful for informing the Panel 's assessment of 
whether the TPP measures  are "trade -restrictive ". Specifically,  given "that Australia 's measures are 
                                                
2717 European Union's third -party submission, para. 59. 
2718 European  Union's third -party submission, para. 60. 
2719 European Union's third -party submission, para. 62. 
2720 European Union's  third-party response to Panel question No. 4. 
2721 European Union's third -party submission, para. 63. 
2722 Japan's third -party response to Panel qu estion No. 4. 
2723 New Zealand's third -party submission, para. 87 (quoting Australia 's first written submission, 
para. 525).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 426 - 
  non-discriminatory internal measures that address a legitimate objective, the complainants should 
be required to adduce supporting evidence and argumentation of actual trade effects and 
demonstrate the existence and ex tent of trade -restrictiveness in respect of Australia 's measures".  
7.1068.   Nicaragua  notes that Article  2.2 of the TBT Agreement  in no way references 
discrimination and that it is not relevant to consider any discriminatory impact to find that a 
technical regulation constitutes an "unnecessary obstacle to international trade". For Nicaragua, it 
is not inappropriate to consider evid ence of actual trade effects, but demonstrating actual trade 
effects is not a requirement as the WTO obligation protects competitive opportunities. Nicaragua 
refers to the Appellate Body's agreement in US – COOL  with the panel 's findings that there was no 
need to demonstrate actual trade effects in an examination of Article  2.2. The analysis of 
trade -restrictiveness is about the potential of a technical regulation to adversely affect conditions 
of competition and competitive opportunities and is thus focuse d on the "structure, architecture 
and design of the measure" rather than any actual trade effects. Footnote 643 of the Appellate 
Body's reports  in US – COOL ( Article  21.5 – Canada and Mexico) , supports the proposition that it is 
sufficient to demonstrate " a limiting effect on competitive opportunities in qualitative terms" to 
demonstrate a technical regulation 's trade -restrictiveness.2724 
7.1069.   Norway  submits that an assessment of whether a technical regulation is 
"trade -restrictive" requires establishing whether th e measure imposes restrictive conditions that 
limit international trade. Article  2.2 is thus concerned with a different issue than Article  2.1. For 
Norway, findings of inconsistency under Article  2.1 would however not be irrelevant for the 
assessment of Article 2.2. For example, if a measure discriminates against imported products as a 
whole, as compared to like domestic products, this could imply that the measure is also 
trade -restrictive under Article  2.2. On the other hand, a measure may be trade -restric tive even 
though it impacts equally on domestic and imported goods. This is presupposed in the Appellate 
Body's reference in US – COOL ( Article  21.5 – Canada and Mexico) , to "the existence and extent of 
trade -restrictiveness in respect of non -discriminatory internal measures". However, the Appellate 
Body underlined that demonstrating the existence and extent of trade -restrictiveness in respect of 
non-discriminatory internal measures may require "supporting evidence and argumentation of 
actual t rade effects", as opposed to de jure  discriminatory measures where a detrimental 
modification of competitive opportunities "may be self -evident". This seems to imply that the 
burden of the complainant to substantiate an allegation of trade -restrictiveness may be raised in 
such cases.2725 Norway shares the views of the European Union and Australia that when assessing 
whether, and to what extent, a measure limits international trade, the focal point should be trade 
more generally and not trade solely with respec t to a single member. Norway also agrees with the 
European Union that "issues about the relative effect of a measure among different exporting 
Members, or between the exporting Member and the importing Members (issues such as the brand 
differentiation and down -trading alleged by the complainants in this case) [are] generally more apt 
for treatment under Article  2.1 rather than Article  2.2".2726 Finally, Norway considers that the 
impact of a measure on access to the market or costs of compliance could be releva nt in 
determining whether it is trade -restrictive, insofar as it has had a limiting effect on international 
trade in tobacco products.2727 
7.1070.   Singapore  refers to t he Appellate Body 's statement in footnote 643 of US – COOL 
(Article  21.5 – Canada and Mexico)  sugge sting that it may be difficult for complainants to prove 
detrimental modification of competitive opportunities in respect of non -discriminatory internal 
measures. Trade -restrictiveness "should be seen as an absolute, rather than as a relative standard 
(in the sense of comparison with another 'like product')". For Singapore, the test of "modification 
of competitive opportunities" has its roots in the discrimination -based disciplines in Article  2.1 of 
the TBT Agreement  and Articles  I and III of GATT 1994. It invites the Panel to consider if importing 
such a relative standard is appropriate. Singapore submits that evidence of actual trade effects is 
not a requirement to demonstrate the existence and extent of trade -restrictiveness in respect of 
non-discriminato ry internal measures that address a legitimate objective and trade -restrictiveness 
                                                
2724 Nicaragua's third -party response to Panel question No. 4 (referring to Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada and Mexico) , para. 5.208).  
2725 Norway's third -party response to Panel question No. 4 (referring to Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada and Mexico) , para. 5.208 fn 643. 
2726 Norway's third -party response to Panel question No. 4. 
2727 Norway's third -party response to Panel question No. 4. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  can be discerned through "the characteristics of the technical regulation at issue as revealed by its 
design and structure".2728  
7.2.5.4.1.3   Analysis by the Panel  
7.1071.   As described above, at this stage of our analysis, what we seek to establish is the 
"trade -restrictiveness" of the TPP measures , as an element of the broader analysis of whether they 
are more trade -restrictive than necessary within the meaning of Article  2.2.  
7.1072.   The Appellate Body  has understood the word "restriction" as referring to "something that 
restricts someone or something, a limitation on action, a limiting condition or regulation". 
Accordingly, it found, in the context of Article  XI:2(a) of the GATT 1994, that the word "re striction" 
refers generally to something that has a limiting effect. It further determined that as used in 
Article  2.2 in conjunction with the word "trade", the term means "something having a limiting 
effect on trade".2729 Specifically, what is at stake in th is context is the limiting effect of the 
measure on international trade, as is made clear by the reference to "international trade" in the 
first sentence of Article  2.2. We therefore understand that a technical regulation is 
"trade -restrictive" within the meaning of Article  2.2 when it has a limiting effect on international 
trade.2730  
7.1073.   We note that past panels2731, and the Appellate Body2732, have assessed the 
trade -restrictiveness of specific technical regulations with reference to their limiting effect on the 
"competitive opportunities" available to imported products.2733 In those disputes, the 
trade -restrictiveness of the technical regulations in question was determined in the presence also 
of a separate assessment of whether the technical regulation accorded less fa vourable treatment 
to imported products under Article  2.1 of the TBT Agreement .2734 
7.1074.   The manner in which an assertion of trade -restrictiveness is substantiated may vary from 
case to case. The Appellate Body has thus found that an assertion that a technical regulation is 
trade -restrictive might be substantiated on the basis of whether the technical regulation has a 
limiting effect on competitive opportunities "in qualitative terms …  in the particular circumstances 
                                                
2728 Singapore's third -party response to Panel question No. 4 (referring to Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada and Mexico) , para. 5.208).  
2729 Appellate Body Report, US – Tuna II (Mexico) , para. 319 (footnotes omitted). See also Appellate 
Body Reports,  US – COOL , para. 375. 
2730 As expressed by the Appellate Body in US – Tuna II (Mexico) , para. 319, also quoted above, 
"Article  2.2 is thus concerned with restrictions on international trade". This is consi stent with the first sentence 
of Article  2.2, which uses the phrase "unnecessary obstacles to international trade", not just "unnecessary 
obstacles to trade". The term "trade" is qualified by "international" in other key provisions of the 
TBT Agreement , including "conduct of international trade" (preamble, 3rd recital) , "restriction to international 
trade" (preamble, 6th recital), "obstacles to international trade" (preamble, 5th recital; Article 2.5; 
Article  5.1.2; and Annex 3 .E). 
2731 Panel Reports, US – COOL (Article  21.5 – Canada and Mexico) , paras.  7.367 -7.370; and US – COOL , 
para. 7.572.  
2732 Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.208 and fn  643 
(referring to  Appellate Body Reports, US – COOL , para. 477).  
2733 See Appellate Body Report s, US – COOL , para. 477. As expressed by the Appellate Body, the panel 
in that case "considered the measure to have a considerable degree of trade -restrictiveness insofar as it has a 
limiting effect on the competitive opportunitie s for imported livestock as compared to the situation prior to the 
enactment of the COOL measure ". Ibid. (emphasis added). In EC – Seal Products , the Appellate Body noted  
the panel's finding under Article  2.2 of the TBT Agreement  that the EU Seal Regime "c onsidered in its entirety, 
is trade restrictive because it does 'hav[e] a limiting effect on trade' by prohibiting certain seal products, 
including those imported from Canada and Norway, from accessing the EU market". Ibid. para. 5.205. The 
Appellate Body also observed in that report that in referring to the prohibition on the import of seal products 
"including those imported from Canada and Norway", the panel may have been referring not only to the 
restrictive impact of the ban, but also to any restrictive  discriminatory impact caused by trade diversion 
between imports of seal products originating in different countries. Ibid. para. 5.205 fn 1269.  
2734 In the present proceedings, the parties have not pursued claims under Article  2.1 of the 
TBT Agreement . We no te that the complainants each identified Article  2.1 of the TBT Agreement  as a legal 
basis for their respective complaints, but did not present arguments in respect of these claims or request 
findings in respect of that provision.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 428 - 
  of a given case".2735 The Appellate Body has als o clarified that, in certain cases, "a detrimental 
modification of competitive opportunities may be self -evident in respect of certain de jure 
discriminatory measures, whereas supporting evidence and argumentation of actual trade effects 
might be required to demonstrate the existence and extent of trade -restrictiveness in respect of 
non-discriminatory internal measures that address a legitimate objective ."2736 This finding confirms 
that "non -discriminatory internal measures" may be found to be "trade -restricti ve" within the 
meaning of Article  2.2 of the TBT Agreement . This is consistent, in our view, with the fact that 
Article  2.1 and 2.2 establish distinct obligations in respect of technical regulations, concerning 
respectively the treatment of imported produc ts relative to each other and relative to domestic 
products, and trade -restrictiveness. While the existence of discrimination may contribute to the 
establishment of "trade -restrictiveness" within the meaning of Article  2.2, a determination of 
"trade -restrictiveness" is not dependent on the existence of discriminatory treatment of imported 
products.  
7.1075.   How the existence and extent of trade -restrictiveness is to be demonstrated in respect of 
technical regulations that are not alleged to be discriminatory will d epend, as is the case for other 
technical regulations, on the circumstances of a given case.2737 However, as highlighted by the 
Appellate Body, in the absence of any allegation of de jure  restriction on the opportunity for 
imports to compete on the market or of any alleged discrimination in this respect (between 
imports or between imported and domestic products), a sufficient demonstration will be required 
to establish the existence and extent of any "limiting effect" on international trade, resulting from 
the challenged technical regulation.  
7.1076.   As observed by the Appellate Body, it will not always be possible to quantify a particular 
factor analysed under Article  2.2, or to do so with precision, because of, inter alia, the nature of 
the objective pursued and the  level of protection sought, or the nature, quantity, and quality of 
evidence existing at the time of our analysis, or the characteristics of the technical regulation at 
issue as revealed by its design and structure.2738 Where different methodologies for the 
assessment of trade -restrictiveness are available based on the facts and arguments submitted by 
the parties, it is incumbent upon a panel to "adopt or develop a methodology that is suited to 
yielding a correct assessment" in respect of the technical regula tion at hand.2739 Depending on the 
circumstances of the case, such demonstration could be based on qualitative or quantitative 
arguments and evidence, or both, including evidence relating to the characteristics of the 
challenged measure as revealed by its des ign and operation.  
7.1077.   In these proceedings, the parties have expressed different views on the manner in which 
the Panel should assess the extent to which the challenged measures are trade -restrictive. In this 
respect, Australia submits that the effect of the TPP measures  on international trade should be 
assessed on the basis of their effect on trade with all WTO Members  taken as a whole, in the 
products that are the subject of the measures (i.e . "tobacc o products" as defined in the TP P 
Act).2740 As described abov e, the complainants consider that the TBT Committee 
Recommendation2741 on the meaning of the term "significant effect on the trade of other Members" 
in Article  2.9 of the TBT Agreement  provides guidance for the analysis of trade -restrictiveness 
                                                
2735 Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.208.  (footnote 
omitted)  
2736 Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.208 fn 643. 
2737 See Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.208. We also 
note that, in the context of its interpretation of the term "restriction" in Article  XI:1 of the GATT 1994 (which it 
has relied upon in the context of interpreting "trade -restrictiveness" in Article  2.2 of the TBT Agreement ), the 
Appellate B ody pointed out that limiting effects "need not be demonstrated by quantifying the effects of the 
measure at issue; rather such limiting effects can be demonstrated through the design, architecture and 
revealing structure of the measure at issue in its rel evant context". See, e.g. Appellate Body Reports, 
Argentina  – Import Measures , para. 5.217.  
2738 Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.208.  
2739 Appellate Body Reports,  US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.210. 
2740 See Australia's response to Panel question Nos. 68, 117, and 151; and Australia's second written 
submission, para. 366. 
2741 See fn  2666 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 429 - 
  under Article  2.2, and makes clear that Australia's interpretation is incorrect. Australia considers 
the TBT Committee Recommendation to be of no interpretative significance.2742  
7.1078.   We see no basis in the terms of Article  2.2 to assume, as Australia proposes, that the 
effects of a technical regulation on international trade, and specifically the existence and extent of 
a "trade -restrictive" effect, should be assessed only on the basis of the effect of the measure on 
trade of all WTO Members, in all products that are the  subject of the technical regulation. Indeed, 
we consider that the adoption of that interpretation would have the effect that a WTO Member 
could have no recourse to Article  2.2 of the TBT Agreement  in respect of a particular product in 
which its trade were  being restricted, in the event that the trade of (an)other Member(s) 
increased . Further, following Australia's logic,  in order to succeed in a claim under Article  2.2, a 
Member would in all cases need to establish the existence of a limiting effect not on ly in respect of 
its own exports, but in respect of the entirety of exports from all Members. This interpretation 
would, in our view, diminish the rights of Members under Article  2.2.  
7.1079.   We find useful guidance in this respect from the context of Article  2.2, in particular 
Article  2.9 of the TBT Agreement . The chapeau of Article  2.9 provides:  
Whenever a relevant international standard does not exist or the technical content of 
a proposed technical regulation is not in accordance with the technical content of 
relevant international standards, and if the technical regulation may have a significant 
effect on trade of other Members , Members shall … (emphasis added)  
7.1080.   The subparagraphs immediately following this chapeau  set out requirements for WTO 
Members with respe ct to, inter alia, the publication of the proposed introduction of the technical 
regulation, and the notification to other Members of the products to be covered by the technical 
regulation, together with a brief indication of its objective and rationale.  
7.1081.   We note that, as observed by the complainants, the TBT Committee adopted a 
recommendation with a view to "ensuring a consistent approach to the selection of proposed 
technical regulations … to be notified" under Article  2.9 of the TBT Agreement . The TBT Committee 
Recommendation provides that:  
i. for the purposes of Articles  2.9 and 5.6, the concept of "significant effect on 
trade of other Members" may refer to the effect on trade:  
 of one technical regulation or procedure for assessment of conformity only, or 
of various technical regulations or procedures for assessment of conformity in 
combination;  
 in a specific product, group of products or products in general; and  
 between two or more Members.  
ii. when assessing the significance of the effect on trade of technica l regulations, 
the Member concerned should take into consideration such elements as:  
 the value or other importance of imports in respect of the importing and/or 
exporting Members concerned, whether from other Members individually or 
collectively,  
 the pote ntial growth of such imports, and  
 difficulties for producers in other Members to comply with the proposed 
technical regulations.  
                                                
2742 Australia's response to Panel question No. 127; and Australia's second written submission, para. 397 
fn 380. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 430 - 
  iii. the concept of a significant effect on trade of other Members should include 
both import -enhancing and import -reducing effects on the trade of other 
Members, as long as such effects are significant.2743 
7.1082.   Pursuant to Article  3.2 of the DSU, panels and the Appellate Body are to clarify the 
provisions of the covered agreements "in accordance with customary rules of interpretation of 
public international law". In accordance with Article  31(3)(a) of the Vienna Convention  on the Law 
of Treaties2744 (Vienna Convention)2745, this includes taking into account, together with the 
context, any "subsequent agreement" between the parties. We therefore con sider the extent to 
which the TBT Committee Recommendation2746 may be considered to constitute a "subsequent 
agreement", for the purposes of interpreting the term "trade -restrictive" in Article  2.2 of the 
TBT Agreement . 
7.1083.   The TBT Committee Recommendation was adopted in 1995, subsequent to the conclusion 
of the TBT Agreement , by all WTO Members acting jointly through the TBT Committee, by 
consensus.2747 However, as the Appellate Body has noted, t he extent to which a decision by 
Members will info rm the interpretation and application of a term or provision in a specific case will 
depend on "the degree to which it 'bears specifically' on the interpretation and application of the 
respective term or provision".2748  
7.1084.   We first note that by its own terms, t he TBT Committee Recommendation2749 does not 
purport to interpret Article  2.2 of the TBT Agreement , or the notion of "trade -restrictiveness" in 
that provision. Rather, it identifies situations to which the concept of "significant effect on trade of 
other Memb ers" in Articles  2.9 and 5.6 may refer, and considerations that Members should take 
into account in assessing "the significance of the effect on trade of technical regulations" in the 
context of applying these provisions.  
7.1085.   Taking this into account , it is not clear to us that these aspects of the Recommendation 
have a function other than  to shed light on "the concept of 'significant effect on trade of other 
Members'"2750 for the purposes of applying Articles  2.9 and 5.6.2751 We do not consider, therefore,  
that the TBT Committee Recommendation2752 "bears specifically" upon the interpretation of the 
term "trade -restrictiveness" in Article  2.2 of the TBT Agreement . We do consider, however that it 
"bears specifically" upon the interpretation of the term "signific ant effect on trade of other 
Members" in Article  2.9 of the TBT Agreement . To the extent that Article  2.9 itself provides 
relevant context for the interpretation of Article  2.2, the guidance provided by the 
Recommendation, should therefore inform, as relev ant, our understanding of the relevant context 
provided by Article  2.9. 
7.1086.   The concept of "significant effect on trade of other Members", while not identical to the 
term "trade -restrictive" as used in Article  2.2, provides relevant context insofar as it sheds  light on 
                                                
2743 Committee on Technical Barriers to Trade, Secretariat Note, "Decisions and Recommendations 
Adopted by the WTO Committee on Technical Barriers to Trade Since 1 January 1995", WTO Document 
G/TBT/1/Rev.12  (21 January 2015 ), Section 4.3.1.1, p. 20 (entitled "S ignificant effect on trade of other 
Members") . 
2744 Vienna Convention on the Law of Treaties,  done at Vienna, 23 May 1969, UN Treaty Series, Vol. 
1155, p. 331.  
2745 See Appellate Body Report, US – Clove Cigarettes , para. 258 ("Pursuant to Article  3.2 of the DSU,  
panels and the Appellate Body are required to apply the customary rules of interpretation of public 
international law – including the rule embodied in Article  31(3)(a) of the Vienna Convention "). 
2746 See fn  2666 above.  
2747 See Appellate Body Report,  US – Tuna II (Mexico) , para. 371. 
2748 See Appellate Body Report,  US – Tuna II (Mexico) , para. 372 (referring to Appellate Body Report, 
US – Clove Cigarettes , para. 265, in turn quoting Appellate Body Reports, EC – Bananas III ( Article  21.5 –
 Ecuador II) / EC  – Bananas III ( Article  21.5 – US), para. 390).  
2749 See fn  2666 above.  
2750 Committee on Technical Barriers to Trade, Secretariat Note, "Decisions and Recommendations 
Adopted by the WTO Committee on Technical Barriers to Trade Since 1 January 1995", WTO Document 
G/TBT/1/Rev.12  (21 January 2015 ), Section 4.3.1.1, p. 20 (entitled "Significant effect on trade of other 
Members") . 
2751 See Appellate Body Report, US – Clove Cigarettes , para. 266. See also fn 1436 above.  
2752 See fn  2666 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  how the word "trade" is to be understood in the term "trade -restrictiveness" under Article  2.2.2753 
Specifically, as noted in the TBT Committee Recommendation2754, a technical regulation might 
have different "effects" on trade, including "import -enhancing and import -reducing" effects. One 
such effect may be to "restrict" trade.  
7.1087.   We also note the first sentence of Article  2.5 of the TBT Agreement , which requires a 
Member who prepares, adopts or applies a technical regulation that has a "significant  effect on 
trade of other Members", to explain, upon the request of another Member, "the justification for 
that technical regulation in terms of the provisions of paragraphs  2 to 4".2755 That a technical 
regulation that has a "significant effect on trade of o ther Members", and a technical regulation that 
is "trade -restrictive", might both need to be "justified" on the basis of whether they create a 
restriction on international trade that exceeds what is necessary to achieve the degree of 
contribution that they  make to the achievement of a legitimate objective2756, indicates to us that 
there is a least a significant overlap between the content of "significant effect on trade of other 
Members" and "trade -restrictiveness". For all these reasons, we do not accept Aust ralia's 
contention that the TBT Committee Recommendation2757 is of no interpretative significance.  
7.1088.   The TBT Committee Recommendation2758 suggests that the concept of "significant effect 
on trade of other Members", under Article  2.9, may be understood to refer to inter alia, the effect 
on trade in a specific product, group of products or products in general and the effect on trade 
between two or more Members . Furthermore, when assessing the significance of these effects on 
trade, Members are invited to consider the  value or other importance of imports in respect of the 
importing and/or exporting Members concerned, whether from other Members individually or 
collectively . We consider that this interpretation confirms our observation in paragraph 7.1078 
above , that the "trade -restrictiveness" of a technical regulation need not be assessed only on the 
basis of the effect of the measure on trade between all WTO Members, in all products  that are the 
subject of the technical regulation. We also consider that the TBT Committee Recommendation 
suggests that when considering the effects of a technical regulation (including whether the 
technical regulation has a limitin g effect on trade), consideration might be given to "the value or 
other importance of imports in respect of the importing and/or exporting Members concerned", as 
well as "both import -enhancing and import -reducing effects on the trade of other Members".2759  
7.1089.   Having clarified the meaning of "trade -restrictiveness" under Article  2.2 of the 
TBT Agreement  and how it should be assessed, we consider the extent to which the TPP measures  
are trade -restrictive.2760 
7.2.5.4.2   Application to the TPP measures  
7.2.5.4.2.1   Main arguments of the parties  
7.1090.   Honduras  argues that "[t]he trademark restrictions are trade -restrictive for two reasons: 
they affect the competitive opportunities of imported tobacco products in the Australian market, 
                                                
2753 We also note that Article  2.2, first sentence, requires that technic al regulations not be prepared or 
applied " with the effect of creating unnecessary obstacles to international trade". (emphasis added)  
2754 See fn  2666 above.  
2755 We understand "paragraphs 2 to 4" in this context to refer to paragraphs 2 to 4 of Article  2 of the 
TBT Agreement . See also Panel Report, US – Clove Cigarettes , para. 7.457.  
2756 Appell ate Body Report, US – Tuna II (Mexico) , para. 319. 
2757 See fn  2666 above.  
2758 See fn  2666 above.  
2759 We find further support for this conclusion in the notion that the n ullification or impairment caused 
by a WTO -inconsistent measure, in the context of arbitrations under Article  22.6 of the DSU, has been 
assessed on the basis of the total value of trade in the products affected by the measure. See, e.g. Decisions of 
the Ar bitrators, EC – Hormones (Canada) ( Article  22.6 – EC), para. 42; and EC – Hormones (US) 
(Article  22.6 – EC), para. 43. However, we note that in making this observation, we are not conflating our task 
of assessing the consistency of the TPP measures  with Au stralia's WTO obligations with that of an estimation of 
the level of any nullification or impairment that the TPP measures  may cause. See Decision of the Arbitrator, 
EC – Hormones (Canada) ( Article  22.6 – EC), para. 41. 
2760 We note also the comparable langua ge of the SPS Committee recommendation on how to assess 
"significant effect on trade" for the purposes of the notificaiton obligation in Annex B(5) of the SPS Agreement . 
Committee on Sanitary and Phytosanitary Measures, Recommended Procedures for Implement ing the 
Transparency Obligations of the SPS  Agreement (Article  7), G/SPS/7/Rev.3  (20 June 2008 ), paras.  9-10. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and they entail compliance costs for producers".2761 Honduras fu rther argues that the TPP 
measures are trade -restrictive because they affect competitive opportunities of imported tobacco 
products in various ways, "namely by removing product differentiation which acts as a competitive 
advantage, due to the impact on mar ket access that results from increased barriers to entry, and 
due to the compliance costs"2762 resulting from the measures.   
7.1091.   In Honduras's view, b y restricting the form in which trademarks may appear on the 
packaging of tobacco products and on the actual toba cco products, the trademark restrictions 
harm the competitive opportunities of imported tobacco products and, thus, are trade -restrictive. 
Honduras elaborates that, to understand the nature of this trade restriction it is necessary to first 
appreciate the crucial role that trademarks play in the market. Honduras argues that trademarks 
fulfil a number of important functions, namely identification of the source of product, signalling 
product quality, reducing transactions costs and purchasing risks, and stimu lating fair competition. 
Honduras focuses on this final element in respect of its trade -restrictiveness arguments. Honduras 
argues that a trademark's value is directly related to the concept of brand differentiation – in 
"order to compete effectively, a pr oducer must have the ability to differentiate its product from 
those offered by his competitors". Referring to Professor Steenkamp, Honduras states that 
"differentiation is at the heart of modern marketing; it gives companies the ability to create 
distinct ions between competing offerings in a given product market … so that consumers can 
establish those differences and act upon them". Consequently, companies go to great lengths to 
show consumers that their products are different from those of their competito rs.2763  
7.1092.   Honduras adds that one way to underscore differentiation is through the use of 
trademarks or "brands". Referring to Professor Winer, Honduras argues that brands can be defined 
as "the unique property of a specific owner [that] has been developed over  time so as to embrace 
a set of values and attributes (both tangible and intangible) which meaningfully and appropriately 
differentiate products which are otherwise very similar".2764 Trademarks also serve as a means for 
companies to signal product quality to  consumers2765; in this connection Honduras refers to 
Professor Winer, who describes brands "as the embodiment of a promise from the manufacturer to 
the consumer, a communication of quality, product origin, integrity and consistency that a 
consumer can count on when purchasing a product that is sold under the banner of the brand as 
signaled by the trademarked symbols".2766 Honduras submits that this is particularly important for 
"experience goods", such as tobacco products, "whose attributes and quality can only be discerned 
after purchase, once the consumer has actually used them and experienced them".2767 
7.1093.   Honduras argues that "[t]he ability to differentiate a product through branding is a source 
of competitive advantage", and that "[c]onsumers who prefer a certain brand become loyal to that 
brand and are willing to pay a price premium for it".2768 Honduras refers in this regard to Professor 
Winer's remarks that "[i]t is not unusual for a loyal buyer to pay 20 to 30 per cent more for a 
preferred brand" and that "loyal c onsumers are less likely to be swayed by the marketing activities 
of competitors".2769 A trademark's value can relate not only to the product's quality, but also to 
features like the origin and/or special nature of certain ingredients.2770 
7.1094.   Honduras argues that c ompanies rely on packaging as a channel to deliver the brand 
message to consumers, and that this requires that packaging "display the totality of the 
components that form a trademark". Honduras adds that trademarks consist not only of the brand 
name itself , but also colours, graphics, logos, typeface, size and shapes.2771 The benefits of 
                                                
2761 Honduras's first written submission, para. 857. 
2762 Honduras's second written submission, para. 539.  
2763 Honduras's first written submission, paras.  862-863. 
2764 Honduras's first written submission , para. 864 ( referring to  Winer Report , (Exhibit UKR -9), 
para. 14). 
2765 Honduras's first written submission, para. 865 ( referring to  Steenkamp Report , (Exhibit 
DOM/HND -5), para. 43). 
2766 Honduras's first wri tten submission, para. 865 (quoting Winer Report , (Exhibit UKR -9), para. 13). 
2767 Honduras's first written submission, para. 865. 
2768 Honduras's first written submission, para. 866 ( referring to  Steenkamp Report , (Exhibit 
DOM/HND -5), para. 43); and Honduras's second written submission, para. 544. 
2769 Honduras's first written submission, para. 866 (quoting Winer Report , (Exhibit UKR -9), para. 24). 
2770 Honduras's first written submission, para. 866. 
2771 Honduras's first written submission, para. 867. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  trademarks are lost when companies can no longer achieve product differentiation as, in such a 
market, there is "perceived quality convergence" whereby consumers, in the absen ce of the 
normal quality signals transmitted through brand packaging, perceive all products to be of the 
same quality.2772 Honduras argues that this "reduces consumers' loyalty towards a particular brand 
and their refusal to pay a price premium for a high -end brand when brand differentiation is 
affected "; the ultimate consequence of which is "realignment in the marketplace, with value 
brands gaining market share at the expense of premium brands and pressure on pricing".2773 
Honduras argues that post -implementatio n data confirms that the TPP measures "have resulted in 
an increased downtrading effect".2774 
7.1095.   Honduras adds that the reduction of product differentiation can lead to increased sales for 
the entire product category (i.e. for all brands as a whole), given that companies will start to 
compete on the basis of price to regain their market shares.2775 
7.1096.   Honduras argues that "the trademark restrictions are trade restrictive because they 
severely affect the competitive opportunities of imported products in the Australian m arket". This 
is because, "[b]efore the enactment of the trademark restrictions, foreign tobacco producers were 
able to compete in the Australian market by relying on the strength of their brands, whose value 
and reputation was developed throughout the year s", but the "trademark restrictions distort the 
way in which trademarks appear on the packaging of tobacco products and on the tobacco 
products themselves", such that companies are now prevented from obtaining the benefits of the 
brands' value. More specif ically, the reduced brand differentiation caused by the trademark 
restrictions cause consumers to shift away from premium brands in favour of low -end brands. This 
decline in product differentiation, in Honduras's view, leads consumers to down -trade, and "[ a]s 
consumers begin to down trade, demand for imported tobacco products is bound to decline". For 
Honduras, this amounts to a "limiting effect on trade" and a disincentive to export tobacco 
products to Australia.2776 
7.1097.   In response to questioning by the Panel, H onduras further submits that "[b] oth [the 
trademark and format] restrictions affect the conditions of competition for tobacco products", as 
they "(i) … affect the competitive opportunities of imported tobacco products by reducing brand 
differentiation and causing consumers to shift away from premium brands in favour of low -end 
brands; and (ii) because they entail compliance costs for producers given the need to modify 
tobacco products and their packaging so that trademarks appear in the form prescribed by 
Australia's legislation".2777 In relation to whether both sets of requirements are trade -restrictive, 
Honduras argues that "[a]n analysis of the design and structure of the plain packaging measures 
shows that the trademark restrictions and format restrictions operate in conjunction", in that both 
"types of restriction operate together so as to standardize the presentation of tobacco products 
and their packaging". Thus, the trade -restrictiveness of the challenged measure (in terms of 
reduced brand differentiatio n and compliance costs) is a result of both the trademark restrictions 
and the format restrictions.2778 
7.1098.   Honduras further argues that "t he plain packaging measures are also trade -restrictive 
because they restrict access to the Australian market and distort con ditions of competition". By 
imposing these barriers on market access, Honduras submits that the TPP measures affect 
competitive opportunities of tobacco products, have a limiting effect on trade, create a disincentive 
to import into Australia, and have ide ntifiable negative consequences on the importation of 
tobacco products.  
7.1099.   Honduras elaborates, with reference to the expert report by Professor Neven, that the 
TPP measures produce certain communication and price effects that make access to the Australian 
                                                
2772 Honduras's first written submission, para. 870 (referring to Steenkamp Report , (Exhibit 
DOM/HND -5), para. 64). 
2773 Honduras's first written submission, para. 870 (quoting Steenkamp Report , (Exhibit DOM/HND -5), 
para. 64). 
2774 Honduras's first written submis sion, para. 870; and second written submission , para. 546. 
2775 Honduras's first written submission , para. 871. 
2776 Honduras's first written submission, paras.  875-876; and response to Panel question No. 117. 
2777 Honduras's response to Panel question No. 63. 
2778 Honduras's response to Panel question No. 63. See also Honduras's response to Panel question 
No. 151. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  tobacco market almost impossible. Professor Neven states that "the profits that a manufacturer 
can expect to earn in a given market determine its willingness to engage in trade, enter new 
markets and compete with established brands".2779 Professor Neven explain s that plain packaging 
produces three different effects on competition and trade in the Australian market: (i) a 
contestability effect; (ii) a communication effect; and (iii) a competitive effect. Honduras argues 
that, when one considers the net result fro m the combined operation of all three effects, "it 
becomes clear that plain packaging yields overall negative effects for tobacco brands regardless of 
whether they are already in the Australian market, or may seek to enter the Australian 
market".2780  
7.1100.   Hondura s explains that the contestability effect is based on the premise that existing 
strong brands benefit from established brand loyalty, which is a factor that can constitute a barrier 
to potential entrants, such that plain packaging would, in principle, enha nce prospects of entry to 
the Australian market. Honduras argues, however, that this initial positive effect on entry is offset 
by the two negative effects produced by plain packaging.2781 Specifically, concerning the 
communication effect (which relates to th e ability of potential entrants to create brand awareness 
for their own new products), Honduras submits that, "without the possibility to create brand 
awareness, successful entry for potential entrants becomes significantly more difficult".2782 
Regarding the competitive effect, Honduras explains that this looks "at the concrete commercial 
impact of plain packaging", according to which reduced brand differentiation created by plain 
packaging affects consumers' willingness to pay and thus producer s' pricing power. As producers 
need to reduce prices to address consumers' reduced willingness to pay, their profit margins also 
decline, such that, for Honduras, "operators have lower willingness to engage in trade", which 
"also leads to a lower likelihoo d of entry".2783  
7.1101.   Honduras therefore submits that, taken together, the final balance of all three effects is 
that plain packaging significantly undermines the scope for entry into the Australian tobacco 
market. On this basis and with reference to Professor Ne ven, Honduras submits that plain 
packaging distorts competition and hinders international trade for potential entrants and 
incumbent brands in the following ways:  
a. Competition in the market is distorted by differentially harming producers of premium 
brands  and brands that cater to specific customer preferences relative to producers of 
low quality cigarettes that mainly compete on price. This undermines diversity, depletes 
producers' brand capital and generally restricts its non -price competition. This 
circumstance harms incumbent brands in the Australian market.  
b. Competition for the market is significantly restricted by imposing potentially severe 
barriers to entry for firms intending to introduce their products into the Australian 
market with new brands, whi ch is the case of a large number of internationally 
successful brands that have not yet penetrated the Australian market. Introducing and 
communicating the characteristics of such foreign brands in Australia will become all but 
impossible absent the abilit y to create brand awareness.2784 
7.1102.   Professor Neven thus concludes that "[p]lain packaging reduces product differentiation 
and thus lowers the prospect for profitable continued market presence and entry", and "also 
considerably hampers entry of new products on t he market given that new products need 
trademarks and product differentiation opportunities to communicate their presence on the market 
to potential customers".2785 
                                                
2779 Honduras's second written submission, para. 556 (quoting Neven Report , (Exhibit UKR -3) (SCI), 
para. 6.1). 
2780 Honduras's second written submission, para. 557. 
2781 Honduras's second written submission, para. 558. 
2782 Honduras's second written submission, para. 559. 
2783 Honduras's second written submission, para. 560. 
2784 Honduras's second written submission, para. 562 ( referring to  Neven Report , (Exhibit UKR -3) (SCI), 
para. 6.2). 
2785 Honduras's second written submission, para. 563; and response to Panel question No. 151. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1103.   Honduras adds that "the economic effects identified by Professor Neven not only affect 
potenti al new entrants (by reducing their willingness to export to the Australian market), but also 
affect incumbent brands (by gradually eroding the brand awareness previously created)".2786 
7.1104.   The Dominican Republic  argues that the trademark and format requirements under the 
TPP measures  are highly trade -restrictive. The Dominican Republic refers to its arguments 
concerning " how each and every special [plain packaging] requirement severely encumbers the 
use of trademarks", and argues that "[f] or similar reasons, each and every one of the trademark 
requirements … imposes a condition on the sale of tobacco products in Australia". In addition, 
"each and every one of the form requirements imposes conditions on the sale of tobacco products 
in Australia". Thus, cumulatively,  "these requirements impose restrictions on trade in tobacco 
products because, if a retailer or manufacturer fails to comply with them, it is prevented from 
selling them on the Australian market". Specifically, the requirements prohibit the sale of tobacco  
products that do not comply with the strict government -mandated conditions or restrictions 
regarding the retail packaging and appearance of tobacco products. In the Dominican Republic's 
view, this has the e ffect that premium products can no longer be sold  as premium products, but 
"must be sold as something entirely different – undifferentiated commodity products that appear 
to be virtually identical to any other tobacco product on the Australian market", which is "precisely 
the purpose of the [TPP] measure s" – i.e. they are "designed to make all tobacco products look 
like the 'lowest quality' products on the market".2787 
7.1105.   The Dominican Republic also states that, a part from the limiting effect arising from the 
requirement to comply with conditions on the sale of  tobacco products, "the [TPP] requirements 
are 'trade -restrictive' for another reason", namely that "trademarks and brands, in general, are the 
lifeblood of a competitive and dynamic marketplace".2788 For the Dominican Republic, it is 
"therefore inevitable th at the trademark requirements in the [TPP] measures affect the ability of all 
tobacco manufacturers to differentiate their offerings in the market". This interference with all 
trademarks constrains "their very ability to compete on the basis of brands, eli minating 
competitive opportunities". In addition, the TPP measures  "are likely to have a disproportionate 
(discriminatory) effect on the trade in premium tobacco products (such as cigars and higher end 
cigarettes) in Australia". The Dominican Republic, ref erring to Professor Steenkamp, submits that 
branding is particularly important for premium products, "since it allows manufacturers to develop 
and maintain loyal customers for their products, who are willing to pay higher prices for their 
preferred product ". The Dominican Republic elaborates that, according to Professor Steenkamp, 
consumers' perceptions of the quality of competing brands are based on a combination of (i) 
functional benefits ( e.g. taste, smell) and (ii) intangible benefits, that consumers de rive from each 
brand. Consumers perceive both greater functional and intangible benefits for premium brands 
than for value brands, although the differences in intangible benefits between premium and value 
brands are significantly greater than the differenc es in functional benefits. Packaging plays an 
important part in establishing and maintaining the high intangible benefits attributed to premium 
products, such that when packaging differences are eliminated, the intangible benefits for 
premium products drop significantly  more than the intangible benefits for value products. In turn, 
this disproportionate impact on the perceived intangible benefits of premium products translates 
into reduced loyalty and a reduced willingness to pay for the premium products. T he result is 
downtrading away from premium brands.2789 
7.1106.   Given that the TPP measures  "are designed and structured to limit the competitive 
opportunities for all tobacco products, and operate to do so", the Dominican Republic states that 
"it is not clear on what  basis Australia considers it necessary, even on its reading of the Appellate 
Body Reports in US – COOL ( Article  21.5 – Canada and Mexico) , for the Dominican Republic to 
demonstrate actual trade effects". In any case, the Dominican Republic also notes that "the 
                                                
2786 Honduras's second written submission, para. 565. 
2787 Dominican  Republic 's first written submission, para. 976. 
2788 Dominican  Republic 's first wri tten submission, para. 977. 
2789 Dominican  Republic 's second written submission, para. 936 (referring to Steenkamp Rebuttal 
Report , (Exhibit DOM/HND -14), para. 93). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 436 - 
  empirical evidence from the marketplace shows this distortion of trade, with significant 
'down -trading' from more expensive to cheaper tobacco products due to the [TPP] measures".2790 
7.1107.   The Dominican Republic argues that Australia promotes plain packaging as a measure 
designed and structured to standardize tobacco packaging and products by eliminating the ability 
to effectively differentiate tobacco products through trademarks and other distinguishing features 
of the packa ging and products, and to compete for price premiums based on that differentiation. 
The plain packaging requirements, comprising both trademark and form requirements, result in 
the standardization of the appearance of all tobacco products. In other words, by design and 
structure, the TPP measures  restrict or limit the competitive opportunities enabled by product 
differentiation. The Dominican Republic refers to the Appellate Body's reports in US – COOL 
(Article  21.5 – Canada and Mexico)  and argues that a pa nel can rely on qualitative evidence where 
the limiting effect of the technical regulation relates to the restriction on competitive opportunities. 
Though "there is no need to prove actual trade effects", the Dominican Republic argues that the 
measure has led to down -trading from higher -priced to lower -priced products. For these reasons, 
the Dominican Republic asserts that both the form and trademark requirements lead to the loss of 
differentiation that eliminates competitive opportunities.2791 Indeed, the "ab ility to differentiate one 
product from another is critical to an exporting producer 's opportunity to compete in an 
international market"; such competition in the marketplace "requires perceptible differences 
between competing products, which provide a bas is for consumers to choose one product over 
another".2792 By curtailing the ability to differentiate products, including imported products, the 
TPP measures  restrict competitive opportunities and impair the conditions of competition for 
imported tobacco produ cts.2793 
7.1108.   The Dominican Republic argues that i n these proceedings, a limitation on competitive 
opportunities is already evident in the design, structure, and expected operation of the measure, 
without any need to establish the consequences of that limitation in terms of actual trade effects. 
The Domin ican Republic repeats that the TPP measures  are designed, structured, and implemented 
to eliminate the opportunity for producers to differentiate their products using design features, 
such as trademarks and the pack shape, size, opening mechanism, and comp ositional material.2794 
These limitations apply to retail packaging for all tobacco products, and to all individual cigar and 
cigarette sticks. The "now -eliminated opportunity to differentiate a product from competing 
offerings in the market is the very essen ce of competition in the marketplace".2795 For the 
Dominican Republic , the differentiating features affected by the TPP measures  create competitive 
opportunities by conveying to the consumer differences in quality, reputation and other 
characteristics of prod ucts. Consumers link particular differentiating features with the 
characteristics of particular products and producers. This differentiation engenders consumer 
loyalty and, in turn, increases consumers ' willingness to pay.2796 The loss of differentiation 
resulting from the design, structure and operation of the TPP measures  "necessarily entails a 
significant limitation on competitive opportunities for all tobacco products, including imports".2797 
The Dominican Republic therefore submits that " the measures impose a large dose of 
commoditization on the entire market, stripping away the opportunity for brands to differentiate 
themselves", or to "employ the usual means of differentiating itself from competing brands". For 
the Dominican Republic, o ne of the predicted impacts of greater commodization of the market, 
through a loss of differentiation, is less consumer loyalty and lower willingness to pay, resulting in 
brand switching from higher - to lower -priced brands".2798 The Dominican Republic adds that 
"Australia does n ot contest that the [T]PP measures limit competitive opportunities for all tobacco 
                                                
2790 Dominican  Republic 's first written submission, para. 978; second written submission, para. 938; and 
comments on Australia's response to Panel question No. 151. 
2791 Dominican  Republic 's response to Panel question No. 63. 
2792 Dominican  Republic 's response to Panel question No. 151. 
2793 Dominican  Republic 's response to Panel question No. 151. 
2794 Dominican  Republic 's response to Panel question No. 117; and second written submission, 
para. 933. 
2795 Dominican  Republic 's response to Panel question No. 117; and second written submission, 
para. 934. 
2796 Dominican  Republic 's response to Panel question No. 117; and se cond written submission, 
para. 934. 
2797 Dominican  Republic 's response to Panel question No. 117; second written submission, para. 937; 
and response to Panel question No. 151. 
2798 Dominican  Republic 's response to Panel question No. 117; and second written submi ssion, 
para. 935. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 437 - 
  products", and "freely admits that the measure is designed, structured and implemented for the 
very purpose of eliminating the competitive opportunities that arise from the differentiation of 
tobacco products, including imported tobacco products". Australia "seeks to prevent tobacco 
producers from using design features to enhance competitive opportunities", and "not contested 
that product differentiation allows consumers to m ake associations between particular 
differentiating features and the characteristics of particular products, thereby enhancing consumer 
loyalty and willingness to pay". In the Dominican Republic's view, t here is no basis for Australia to 
deny that the TPP measures  have a limiting effect on competitive opportunities – "given the 
intentions behind the design and structure of the [TPP] measures, and the way the measures have 
been implemented, the Dominican Republic is surprised at Australia 's denial of what is  self-evident 
from the very design and structure of the measures: that they are intended to be highly 
trade -restrictive by significantly impairing competitive opportunities for all tobacco products, 
including imports from all WTO Members".2799 The Dominican R epublic also notes that " Australia 's 
own expert, Professor Dubé, accepts, 'the decrease in desirability of tobacco brands, including 
those in the discount segment, would likely reduce willingness to pay for tobacco brands'".2800 
7.1109.   As regards the consequences of  the limitation on competitive opportunities, the 
Dominican Republic states that the "complainants argue that, by reducing brand differentiation, 
the [TPP] measures have already led to switching from higher - to lower -priced cigarettes and, 
hence, to a redu ction in the value of the trade, without reducing smoking prevalence or 
consumption". The Dominican Republic adds that the  disagreement between the complainants and 
Australia concerning the actual trade effects resulting from the TPP measures  is not materi al to the 
Panel 's finding of trade -restrictiveness under Article  2.2, because it is evident from the design, 
structure, and expected o peration of the measures that they severely limit  competitive 
opportunities to differentiate tobacco products. Notwithstan ding this, the Dominican Republic has 
"provided evidence of one form of actual trade effects engendered by the [TPP] measures, as a 
means of confirming that the measures limit competitive opportunities". The Dominican Republic 's 
evidence of trade effects " shows that the predicted effect of reduced loyalty and willingness to pay, 
resulting in switching from higher - to lower -priced brands, actually materialized very quickly after 
implementation of the [TPP] measures", which the Dominican Republic argues it ha s demonstrated 
through its econometric analysis of "these 'downward substitution' or 'downtrading' effects".2801 
Downward substitution from higher - to low -priced brands means that some consumers buy a 
cheaper brand than the brand that they bought before the TPP measures  were introduced. This 
evidence demonstrates that the elimination of differentiating features has – as predicted – led to 
consumers being less loyal to their former brands and has lowered their willingness to pay for their 
former brand. Instead,  these consumers have switched to a cheaper brand.2802 
7.1110.   In relation to Australia's arguments concerning the assessment of trade -restrictiveness, 
the Dominican Republic submits that Australia has a "misguided preoccupation" with actual trade 
effects.2803 In respec t of Australia's argument that the TPP measures  are not trade -restrictive 
because imports of tobacco products into Australia have increased in volume since the introduction 
of the TPP measures , the increase in imports of tobacco products into Australia is attributable, not 
to the TPP measures , but to the movement of domestic production offshore as a response to 
fire-risk requirements in Australia applied to exports.2804 Moreover, Australia cannot simply rely on 
an absolute increase in the volume of imports to rebut the Dominican Republic 's showing that the 
TPP measures  are trade -restrictive; to maintain such an argument, Australia must demonstrate 
what trade volumes would have been absent the chall enged measure.2805 Furthermore, Australia 's 
"focus on one way in which a measure can have a limiting effect on trade – an impact on trade 
volumes – is unduly simplistic". In the Dominican Republic's view, Members are not concerned 
solely with competitive oppo rtunities as reflected in the number of units  of an exported product 
                                                
2799 Dominican  Republic 's response to Panel question No. 117; and second written submission, 
para. 945. 
2800 Dominican  Republic 's second written submission, para. 935 (quoting Dubé Report, (Exhibit AUS -11), 
para. 41). 
2801 Dominican  Republic 's response to Panel question No. 117. See also Dominican  Republic 's response 
to Panel question Nos. 125, 126 and 151.  
2802 Dominican  Republic 's response to Panel question Nos. 117, 125 -126 and 151.  
2803 Dominican  Republic 's second written submission, para. 947. 
2804 Dominican  Republic 's second written submission, para. 948 (referring to Dominican  Republic 's 
response to Panel question No. 5 and Australia's response to Panel question No. 117).  
2805 Dominican  Republic 's second written submission, para. 949. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  sold, but also with the competitive opportunities as reflected in the value of each unit sold .2806 The 
value of trade affects the wide range of direct and indirect economic gains that a coun try derives 
from its export trade; this is also borne out by the decision of the TBT Committee referenced 
above, which asks Members to consider the potential trade effects of a measure in terms of the 
"value" of the affected trade.2807 In response to Australi a's reference to data that it considers to 
demonstrate that the total value of the retail market increased, despite a reduction in total 
demand in the Australian market, the Dominican Republic argues that the correct analysis is what 
the situation – in val ue terms – would have been absent the measure , and not whether, in the 
abstract, the aggregate value of trade in tobacco products has increased in an absolute sense.2808 
7.1111.   In response to Australia's arguments that an assertion of trade -restrictiveness requires a 
demonstration of a limiting effect on "overall trade" (that is, "imports in the regulated category as 
a whole"), the Dominican Republic submits that this argument derives from Australia's 
misconception of the proper standard for demonstrating trade -restrictiveness, as Article  2.2 of the 
TBT Agreement  does not require a demonstration of actual trade effects, but instead requires 
demonstration that the challenged measure limits competitive opportunities, for which evidence of 
the design, structure and expec ted operation of the measures is sufficient. The Dominican Republic 
reiterates that, e ven if the Panel were to interpret Article  2.2 as requiring a showing that "overall 
trade" is limited by the challenged measure, the Dominican Republic has demonstrated t his, as the 
TPP measures  are designed, structured, and implemented to affect the competitive opportunities 
of all tobacco products (that is, all brands, of any provenance, are denied the competitive 
opportunity to differentiate themselves using the feature s prohibited under the TPP measures ). 
Therefore, the TPP measures  do affect "overall trade" in all  products.2809 Additionally, the 
Dominican Republic argues that, even if the Panel were to find that the TPP measures  limit 
competitive opportunities solely for premium tobacco products, this limitation would still constitute 
a trade restriction within the meaning of Article  2.2, as a measure is trade -restrictive even if it has 
a limiting effect with respect only to a su bset of imports, such as one segment. The Dominican 
Republic argues that in this respect it has demonstrated that the TPP measures  have a limiting 
effect in the form of downward substitution of higher -priced cigarettes with low -priced 
cigarettes.2810 
7.1112.   The Dominican Republic argues that Australia errs in arguing that a trade -restrictive 
effect of a challenged measure can be "offset " by a trade -promoting effect of that measure. 
Australia offers no interpretive rationale whatsoever for its argument. Moreover, wher e the 
concept of "offsetting " to which Australia alludes has been considered in the case law, it has been 
rejected as a basis for determining a measure 's overall WTO -consistency.2811 
7.1113.   In the context of its arguments concerning alternative measures, the Dominic an Republic 
submits that to the extent that the Panel finds that the TPP measures  contribute to the objective of 
reducing smoking behaviour (which the Dominican Republic contests), then, to the extent of that 
contribution, the TPP measures  will restrict tr ade in tobacco products by reducing the total volume 
of sales. In this event, the Dominican Republic posits that the Panel would have found that the 
TPP measures  entail a volume -based restriction.2812 In this context, the Dominican Republic also 
repeats that , by restricting the use of trademarks on tobacco packaging and products, and 
standardizing all aspects of tobacco packaging and products, the TPP measures  also restrict trade 
by eliminating the competitive opportunities flowing from differentiation, and ha ve a limiting effect 
on competition for all tobacco products. Thus, the TPP measures  involve a trade restriction 
                                                
2806 Dominican  Republic 's second written submission, para. 950. 
2807 Dominican  Republic 's second written submission, para. 950 (referring to G/TBT/W/2/Rev.1, 21 June 
1995, p. 7). 
2808 Dominican  Republic 's second written submission, paras.  950-951. 
2809 Dominican  Republic 's second written submission, para. 955. 
2810 Dominican  Republic 's second written submission, para. 956. 
2811 Dominican  Republic 's second written submission, paras.  957-959. 
2812 Dominican  Republic 's second written submission, para. 970; response to Panel question No. 151; 
and comments on Australia's response to Panel question No. 151. It is noted that, " for the purposes of the 
analysis of alternatives, the Dominican  Republic  proceeds on that assumption".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  resulting from the elimination of differentiation, which distorts competitive opportunities to the 
particular detriment of premium brands.2813 
7.1114.   Cuba argues that measures should be treated as trade -restrictive under Article  2.2 of the 
TBT Agreement  even where they do not cause a reduction in import volumes: it is sufficient if 
prejudicial effects on the position of exporters are identified. Accordingly, the fact that, in Cuba's 
case, the TPP measures  "will not result in a reduction in the overall vo lume of imports of tobacco 
products, does not prevent a finding that they are trade restrictive".2814 Cuba argues that the 
TPP measures  impose "limiting conditions"; namely, that Australia imposes numerous conditions 
relating to the appearance of the retail p ackaging of tobacco products and the appearance of 
tobacco products themselves. All of these conditions must be met before international trade in 
tobacco products can flow between Australia and third countries. For Cuba, these conditions limit 
the commerci al choices available to exporters, impose costs and make the process of distribution 
in Australia more burdensome than it would otherwise be.2815 Referring back to these comments, 
Cuba submits that the TPP measures  "substantially affect market entry for impor ted tobacco 
products by imposing ' limiting conditions'".2816 Cuba submits that the existence of these various 
conditions suffices, in and of itself, to establish that Australia's measures are trade -restrictive.2817 
7.1115.   Cuba argues that, in any event , the TPP measure s give rise to two further types of 
commercial burdens which also establish that the TPP measures are trade -restrictive. First, the 
TPP measures  constrain the ability of exporters to distinguish clearly their products from the 
products of their competitors . This is a significant source of commercial prejudice for exporters, 
which is especially severe for producers of higher quality products because they will suffer a 
significant reduction of their market share and significant downward pressure on the prices  that 
they can charge.2818 In this connection, Cuba submits that the TPP measures "will fundamentally 
erode the ability of Cuban producers to position their LHM cigar s as luxury premium products with 
a long tradition", and that "even if this does not occur im mediately, over time it will inevitably 
occur if the plain packaging measures continue to be applied".2819 In Cuba's view, Australia has not 
responded to the main argument of Cuba about the downtrading effect of plain packaging 
measures, i.e. that the measures " will have a negative impact on the overall volume of Cuba's 
trade,  because they will lead to downtrading from Cuba's premium LHM cigars to cheaper 
products, not originating in Cuba". Premium quality products cannot survive in a market 
environment  in which product differentiation is impossible, and Australia has explicitly stated that 
the TPP  measures are intended to make impossible the differentiation of quality and its 
importance.2820 
7.1116.   Second, Cuba submits that exporters have to tailor their products  to comply with the 
unique requirements imposed by the Australian government, which gives rise to compliance and 
adaptation costs (as no other jurisdiction currently imposes comparable requirements). The 
existence of these costs also establishes that Austr alia's measures are trade -restrictive.2821 Cuba 
adds that this includes " the risk of severe economic and criminal penalties".2822 For these reasons 
Cuba submits that the TPP measures  are trade -restrictive within the meaning of Article  2.2 of the 
TBT Agreement .2823 
7.1117.   Cuba considers that the TPP measures  is a trade restriction inasmuch as it limits 
competition and reduces trade opportunities, by eliminating the value of trademarks, which are the 
essence of competition. The TPP measures  give rise to serious prejudice to manufacturers, who are 
                                                
2813 Dominican  Republic 's second written submission, para. 971; resp onse to Panel question No. 151; 
and comments on Australia's response to Panel question No. 151. 
2814 Cuba's first written submission, paras.  400-401; and response to Panel question No. 117. 
2815 Cuba's first written submission, para. 401. 
2816 Cuba's second written  submission, para. 226. 
2817 Cuba's first written submission, para. 401. 
2818 Cuba's first written submission, para. 403; response to Panel question No. 117; and second written 
submission, para. 226. 
2819 Cuba's response to Panel question No. 151. 
2820 Cuba's comments  on Australia's response to Panel question No. 165. 
2821 Cuba's first written submission, para. 404; response to Panel question No. 117; and second written 
submission, para. 226. 
2822 Cuba's second written submission, para. 226. 
2823 Cuba's first written submission , para. 405. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  thus unable to distinguish their products from those of their competitors, by wiping out the 
prestige and reputation they have achieved through the quality of their products.2824 The 
trade -restrictiveness may also be seen in the costs t hat the measure imposes on producers in 
order to have access to the Australian market, by obliging them to modify the manner in which 
they manufacture their product (paper costs, packaging costs, manufacturing process 
modifications) or otherwise withdraw f rom the market.2825 
7.1118.   Cuba considers that while the Appellate Body in US – COOL ( Article  21.5 – Canada and 
Mexico)  recognizes that in some cases evidence of actual trade effects "might be necessary" to 
demonstrate the trade -restrictiveness of a measure, this approach is not necessary in the present 
dispute.2826 
7.1119.   In respect of its arguments concerning product differentiation and import value, Cuba 
repeats that the plain packaging measure will lead to a reduction in product differentiation and, 
therefore, an increas e in price competition, which will lead to a fall in prices and reduce the value 
of imported tobacco products. This commodification of tobacco products will distort competition 
and generate an additional disincentive to export to Australia. Cuba submits, i n response to 
Australia's argument that there is no limiting effect on trade because imports are increasing, that 
this argume nt is irrelevant because GATT/ WTO case law establishes comprehensively that an 
actual impact on trade is not necessary and that a m easure may restrict trade even when imports 
increase. Moreover, if, as Australia asserts, imports are increasing because former local producers 
have transferred their factories abroad, these producers will attempt to retain their market share, 
at least in the initial term. It is "therefore wrong to argue that "imports" are increasing when the 
products and producers in question are the same market leaders who have simply moved their 
production abroad owing to decisions that do not depend on the plain packagi ng measure".2827 
Furthermore, in relation to Australia's assertion that the complainants' arguments are "an attempt 
to use the TBT Agreement  to protect profits in the premium segment of the market rather than as 
a guarantee that technical regulations do not a ct as unnecessary barriers to trade", Cuba submits 
that this claim misrepresents the argument concerning trade reduction and market segment 
profits. Cuba refers to Professor Neven's argument that it is not prices alone that determine 
profitability, but rat her prices and sales volumes, such that "if regulation reduces profits, then this 
can either be because regulation diminishes output (as claimed by the proponents of regulation) or 
because regulation diminishes the margin firms earn for each sale".2828 Thus, Professor Neven 
concludes, in accordance with his models of branding, that profits will decline, either as a result of 
diminished output, or because of diminished margins firms earn if they increase output.2829 
Furthermore, in relation to Australia's argument s that down -trading is occurring elsewhere in the 
absence of plain packaging, Cuba submits that this argument misses the point. Cuba does not, it 
submits, argue that down -trading can only exist because of plain packaging, but instead that the 
complainants have "shown that down -trading is caused in Australia by the withdrawal of 
trademarks and other characteristics that increase producers' confidence in price competition, 
regardless of other measures or policies that may also influence down -trading, such as the price 
impact of tax increases". Cuba adds that a review of the design, structure and operation of the 
measure acting to reduce non -price competition and increase price competition indicates that the 
down -trading observed in the market is a consequence,  at least in part, of plain packaging.2830 
7.1120.   In respect of its arguments concerning compliance and adaptation costs associated with 
the TPP measures , Cuba elaborates that such costs include one -off costs of adaptation as well as 
continuous supervision costs owi ng to changes in production process. Cuba also states that, 
"[m]ore importantly, they also include the costs arising from the need to ensure strict compliance 
in view of the high fines and penalties for any failure to comply with the requirements under the  
measure". Cuba argues that Brazil  – Retreaded Tyres  is "highly relevant" in this context, because 
it "upholds the position that a penalty itself may operate as a restriction on international trade". 
                                                
2824 Cuba's response to Panel question No. 117. 
2825 Cuba's response to Panel question No. 117. 
2826 Cuba's response to Panel question No. 117. 
2827 Cuba's second written submission, paras.  246-247. 
2828 Cuba's second written submission, para. 249 (referring to Neven Report , (Exhibit UKR -3) (SCI), 
p. 37). 
2829 Cuba's second written submission, para. 249 (referring to Neven Report , (Exhibit UKR -3) (SCI), 
p. 37). 
2830 Cuba's second written submission, para. 250. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  The penalties in the present case, "which are again very  high and aim to impose punitive 
measures to ensure compliance with the prohibition on trade in packs of non -complying tobacco 
products", constitute "an independent and important basis for arguing that the measure is very 
trade -restrictive".2831 
7.1121.   Indonesia  argues that t he primary effect of the TPP measures  is to prevent tobacco 
companies from using trademarks to distinguish their tobacco products from those of competitors 
and in many cases demand premium pricing. By stripping away the most identifiable elem ents of 
branding (such as colors, shapes, typefaces, etc.), plain packaging "commoditizes" tobacco 
products and price becomes the primary form of competition.2832 By eliminating trademarks the 
TPP measures  "fundamentally restructured the competitive condition s of the Australian cigarette 
market".2833 Indonesia submits that the Australian cigarette market has always been one in which 
branded products compete for market share within different price segments. The use of identifiable 
trademarks associated with brands  allowed producers to respond to consumer preferences and 
enabled significant product differentiation. By requiring that all packages convey the same 
message that the products are the "lowest quality"2834, Indonesia submits that Australia sought to 
ensure tha t "manufacturers cannot compete on the basis of quality".2835 In this respect, Indonesia 
argues that "a stated goal of [plain packaging] was 'shattering the image of cigarettes as an 
ordinary consumer item'".2836 Indonesia argues that "[w]hat is essential is the  fact that the 
cumulative effect on trade from Australia 's plain packaging regime is to deny competitive 
opportunities for premium branded products by causing downtrading and eliminating the premium 
brands ' ability to compete based on any factor other than  prices".2837 
7.1122.   Indonesia submits that plain packaging strips design features and other distinguishing 
features from packaging, including trademarks. It is not contested amongst the parties that 
trademarks and other distinguishing features are the very essence of competitive opportunities in 
the sense that they make consumers more loyal and they make consumers more willing to pay for 
a particular product or brand, such that "[b]y removing trademarks and establishing stringent 
requirements for the elements of the  packaging and tobacco products themselves, Australia has 
created a market where consumers are more willing to switch to other brands and less willing to 
pay a premium for the branded product". For Indonesia, this is the very essence of limiting 
competitiv e opportunities, "which Australia limited intentionally" as it "wants to diminish 
competitive opportunities that they believe arise from the distinguishing features of packaging and 
elements of the tobacco products themselves, and prevent producers of toba cco products from 
benefitting from those competitive opportunities".2838 
7.1123.   Indonesia argues that restrictions on trademarks, such as those imposed by plain 
packaging, impose a disproportionate burden on premium brands. Referring to its arguments 
under Article  20 of the TRIPS  Agreement , Indonesia argues that downtrading occurs as consumers 
who were once loyal to premium brands migrate to cheaper brands.2839 Indonesia elaborates that 
the complainants also have demonstrated evidence of trade effects in the form of dow ntrading. 
When plain packaging interferes with competitive opportunities in a qualitative way with respect to 
market access (elaborated below), "consumers are more likely to switch brands and less willing to 
pay". As consumers shift from the more expensive  brands to the less expensive brands because 
they have a higher willingness to switch brands and a lower willingness to pay, downtrading 
occurs, and "reflects the distortion in the market of the conditions of competition and competitive 
opportunities avail able to mid -tier and premium products".2840 Indonesia argues that e vidence of 
increased downtrading in the Australian market from premium brands to low -price brands shows 
                                                
2831 Cuba's second written submission, para. 251. 
2832 Indonesia's first written submission, para. 395; and second written submission, para. 265. 
2833 Indonesia's first written submission, para. 395; and second written submission, para. 266. 
2834 Indonesia's first written submission, para. 396 (referring to Parr et al. 2011a, (Exhibits AUS -117, 
JE-24(49)), p p. 9-10). 
2835 Indonesia's first written submission, para. 396 (emphasis original) ; and second written submission, 
para. 266. 
2836 Indonesia's first written submission, para. 396 (referring to NPHT Technical Rep ort 2, (Exhibits 
AUS-52, JE -12), p. vi). 
2837 Indonesia's response to Panel question No. 63. 
2838 Indonesia's response to Panel question No. 117. 
2839 Indonesia's first written submission, paras.  397-399. 
2840 Indonesia's response to Panel question No. 117. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  that plain packaging is limiting competitive opportunities for producers of premium prod ucts. 
Indonesia adds that downtrading harms competitors in the mid -priced and premium segment of 
the market that have invested in developing higher quality products. For Indonesia, evidence of 
downtrading already exists in the Australian market post -plain packaging.2841  
7.1124.   Indonesia argues that a second mechanism through which plain packaging limits trade 
relates to the need for imported products to establish an identity with consumers who are already 
familiar with domestic brands. Indonesia refers to a consumer  research survey conducted for the 
Australian government in conjunction with the implementation of plain packaging which found that 
whether a brand was considered "foreign" or "local" affected consumer's attitudes towards 
cigarette brands, and specifically  that: 
In contrast, a number of brands were seen as distinctly "Australian", which overall 
was viewed as making the brand more appealing. Distinctly "Australian" cigarettes 
were primarily those which were seen to be in the market -place the longest  or were 
perceived to be smoked by particular types of individuals who "represented" clearly 
defined Australian stereotypes (for example tradies, football or cricket fans.).2842 
7.1125.   Indonesia argues that the impact of the requirements in the TPP measures  "also fa lls 
disproportionately on premium foreign brands, such as Indonesia's Djarum Super, who have 
invested extensively in their brand identity in their domestic market but are limited in their ability 
to capitalize on the investment by leveraging it to introduc e their product to the Australian 
market".2843 Indonesia draws a comparison with wine, where there are major variations in terms of 
quality and brands that are essential for consumers to identify premium products: "[a] Spanish 
Rioja or California Cabernet sol d in Australia might be of extremely low or extremely high quality", 
and "[a]bsent branding, geographical indications, and other registered marks on the label, a 
consumer in Australia would have a difficult time distinguishing which was the premium product ". 
However, for Australian Shiraz, it is much more likely that the names of top producers will be 
familiar to Australians who would be likely to choose the known premium Australian wine over an 
imported product of unknown quality. For Indonesia, plain pack aging prevents precisely the types 
of trademarks, symbols, and descriptors that would facilitate an Australian consumer's 
understanding of imported premium tobacco products. Indonesia argues that the inability of 
foreign tobacco product manufacturers to es tablish their brand identity in Australia in order to 
compete against domestic competitors makes it difficult to overcome the existing domestic brand 
bias. The TPP measures "are thus trade restrictive because they limit trade by imposing 
restrictions on th e right to use trademarks and other aspects of brand identity that are necessary 
to compete against domestic brands".2844 
7.1126.   Indonesia elaborates its trade -restrictiveness assertions by noting that t he fact that there 
is no domestic like product in the current c ase on which to base a discrimination claim is not to 
say, however, that the TPP  measures treat foreign and local brands equally. While all tobacco 
products that are sold in Australia now are imported, not all brands sold in Australia are viewed as 
"foreig n". For Indonesia, because "the domestic tobacco industry has moved offshore, cigarette 
brands that were previously identified as 'local' brands, such as Landshark , are now imported, but 
they still enjoy a large consumer following in Australia". In Indones ia's view, this measure is 
trade -restrictive because it affects the competitive opportunities in the market.2845 
7.1127.   Indonesia also argues that "[i] t is without question that there is a profound difference in 
the quality of tobacco products, and this is especiall y true in the case of cigars". The notion that 
plain packaging "could have no effect on premium brands cannot be reconciled with the fact that 
producers are unable to leverage their branding, intellectual property, or packaging to convey 
quality to consume rs to convince them to leave a familiar brand and try an unknown imported 
                                                
2841 Indonesia's first written submission, paras.  397-399; response to Panel question Nos. 117 and 165 ; 
and second written submission, para. 270. 
2842 Indonesia's first written submission, para. 400 (quoting Parr et al. 2011a, (Exhibits AUS -117, 
JE-24(49)), p. 56 (emphasis added  by Indonesia)).  
2843 Indonesia's first written submission, para. 401. See also Indonesia's second written submission, 
para. 270. 
2844 Indonesia's first written submission, paras.  402-403; response to Panel question No. 117; and 
second written su bmission, para. 271. 
2845 Indonesia's response to Panel question No. 117. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 443 - 
  brand". For Indonesia, c hanges to the conditions under which tobacco products can be sold in 
Australia as unprecedented and significant as those imposed by the TPP measures would log ically 
have some effect on competition in the marketplace. Indonesia adds that "[c]ertainly no one would 
argue that plain packaging is intended to increase trade, thus the reasonable conclusion is that the 
design, structure, and architecture of the plain p ackaging measures are intended to restrict 
trade".2846 Indonesia elaborates that, "[in]  Australia's own words, technical regulations that protect 
public health 'are unlikely to be trade -facilitating'", which, for Indonesia, indicates that "Australia 
admits wh at is intuitive about the [TPP] measures: that such a radical change in the marketplace 
is likely to have some effect on competitive opportunities" and that "[i]f … it is unlikely that the 
[TPP] measures are trade -facilitating, then the logical conclusion is that they are 
trade -restrictive".2847 
7.1128.   Indonesia notes that, while it has not specifically addressed compliance costs, it supports 
arguments made on this point by Honduras in its first written submission and at the first meeting 
with the Panel.2848  
7.1129.   Australia  argues that "none of the complainants have discharged [their] burden in 
relation to their four overarching claims of trade -restrictiveness", which Australia characterizes as 
being t hat the TPP measure s are  trade -restrictive becau se of their  alleged effects on brand 
differentiation and downtrading; that the TPP measures are  trade -restrictive because they raise  
barriers to entry for the Australian tobacco market; that the TPP measure s are  trade -restrictive 
because they result  in increased comp liance costs; and that the TPP measure s are trade -restrictive 
becau se the mandatory requirements they impose  operate as a condition for the importation of 
tobacco products into Australia; or that technical regulations, by their very nature, impose limits 
on trade.2849 
7.1130.   With respect to brand differentiation, Australia submits that "the complainants' qualitative 
argument is insufficient, as a matter of law, to establish that the tobacco plain packaging is 
trade -restrictive, because it does not demonstrate a limit ing effect on international trade in 
tobacco products". Australia argues that the complainants incorrectly equate the legal standard of 
trade -restrictiveness with one of "competitive freedom" of market participants, such that a 
limitation on any "competiti ve opportunity" in the marketplace would suffice to establish that a 
technical regulation is trade -restrictive, regardless of whether it results in any limiting effect on 
international trade in imported products.2850 This would, in Australia's view, convert 
"trade -restrictiveness" into a per se standard as "[v]irtually every technical regulation will impose, 
with respect to at least one market participant, a limiting condition that did not exist prior to its 
adoption". Australia submits that, even assuming tha t the TPP measure s limit  a producer's ability 
to distinguish its tobacco products from those of other prod ucers (which, Australia says, they do  
not), this is insufficient to demonstrate, without more, that it has a limiting effect on international 
trade in  tobacco products.2851 Australia adds that, in the absence of additional evidence and 
arguments demonstrating, for example, that the design, structure and operation of the 
TPP measure s will result in a decrease in overall demand for tobacco products in Austra lia, "it is 
not evident from a purely qualitative assessment that it is trade -restrictive in the sense that the 
Appellate Body found in US – COOL ".2852  
7.1131.   Australia submits that the complainants have failed to articulate any viable basis for their 
argument that any purported limitations on a tobacco producer's ability to distinguish its products 
from those of other producers would necessarily result in a lim iting effect on international trade in 
tobacco products. Australia notes the complainants' arguments that tobacco producers in the 
"premium" segment are "disproportionately" affected by the TPP measure s, and submits that this 
is insufficient by itself to e stablish trade -restrictiveness under a correct reading of Article  2.2. 
Australia adds that the complainants have not presented any argument or evidence explaining why 
the design, structure and operation of the TPP measure s and its alleged effects on brand 
                                                
2846 Indonesia's response to Panel question No. 117. 
2847 Indonesia's second written submission, para. 267. 
2848 Indonesia's response to Panel question No. 117. 
2849 Australia's first written submi ssion, para. 531. 
2850 Australia's second written submission, para. 403. 
2851 Australia's second written submission, paras.  404-405. 
2852 Australia's second written submission, para. 406. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 444 - 
  differentiation are likely to result in a reduction in overall imports of tobacco products from all 
Members ("bearing in mind the complainants' refusal to admit that the tobacco plain packaging 
measure will result in a decline in overall demand for tobacco  products").2853 Australia refers to the 
Appellate Body's statement s in US – COOL (Article 21.5 – Canada and Mexico)  that in respect of 
non-discriminatory internal measures that address a legitimate objective, a complainant may be 
required to provide " support ing evidence and argumentation of actual trade effects " to establish 
that such a measure nevertheless results in a limiting effect on overall trade for the purposes of 
Article 2.2. Australia submits that  the complainants' arguments fit this  description  of a claim that 
requires supporting evidence and argumentation of actual trade effect s but that they have failed to 
adduce evidence and arguments demonstrating that the TPP measures result in such a limiting 
effect on overall trade in tobacco products .2854  
7.1132.   With respect to brand differentiation and downtrading effects, Australia submits that the 
complainants' claim is insufficient to establish that a measure is trade -restrictive within the 
meaning of Article  2.2 of the TBT Agreement  because the complainants h ave failed to demonstrate 
that any such downtrading effects result in a limiting effect on international trade; and (i) that 
downtrading is likely to occur in the Australian market as a result of the design, structure and 
operation of the TPP measure s; or (ii) that any downtrading effects that have occurred in the 
Australian market are attributable to the TPP measure s.2855 
7.1133.   Australia submits that the "first and most fundamental problem with these allegations is 
that it simply does not follow that any such downt rading effects will result (or have resulted) in a 
limiting effect on trade in imported tobacco products in Australia". Australia asserts that the 
complainants have failed to adduce any evidence or argument demonstrating why the design, 
structure and opera tion of the TPP measure s, and their  theoretical effects on the ability to 
differentiate tobacco products on the basis of brands, or any resulting downtrading effects on 
imported tobacco products, will have a limiting effect on trade in the tobacco products  that are 
subject to the measure.2856 Further, Australia submits that the empirical evidence suggests that 
the TPP measure s have had no "limiting effect" on imports of tobacco products, as the proportion 
of imported products in the Australian market has conti nued to rise since the introduction of the 
TPP measure s, even as demand for tobacco products in Australia declines.2857  
7.1134.   Australia submits that even if downtrading effects were sufficient to establish that the 
TPP measure s are  trade -restrictive within the mea ning of Article  2.2 of the TBT Agreement , the 
complainants have failed to establish that downtrading is likely to occur in the Australian market 
as a result of the design, structure and operation of the TPP measure s.2858 Relying on its expert, 
Professor Dubé,  Australia argues that "[Professor] Steenkamp does not provide any evidence, 
theoretical or empirical, to support the conclusion that these measures will disproportionately 
affect premium brands"; Australia submits that such demonstration is a condition pr ecedent for 
their downtrading claims. Further, Australia argues that the complainants' own evidence suggests 
that the TPP measure s have  not put any downward pricing pressure on the premium segment of 
the market.2859  
7.1135.   Australia also contends that the complainants have failed to demonstrate that any 
downtrading effects that have occurred in the Australian market are attributable to the 
TPP measure s and not to other factors.2860 In this connection, the report by the complainants' 
experts from the Institute for Policy Evaluation ( IPE) "does not separate out the effects of the 
tobacco plain packaging measure from the other elements of Australia's comprehensive tobacco 
control polic y", and in particular, the fact that the measures' implementation coincided with the 
introduction of updated and enlarged GHWs.2861 Australia further argues that the complainants' 
assertion that any downtrading effects in Australia are attributable to the TPP measure s is contrary 
                                                
2853 Australia's second written submission, para. 407. 
2854 Australia's response to Panel question No. 117, paras. 117 -119. See also Australia's second written 
submission, para. 408. 
2855 Australia's first written submission, paras.  533 and 546 . 
2856 Australia's first written submission, paras.  534-535. 
2857 Australia's fir st written submission, para. 537 and Figure 17 . 
2858 Australia's first written submission, para. 540. 
2859 Australia's first written submission, para. 541. 
2860 Australia's first written submission, para. 542; and second written submission, para. 414. 
2861 Australia's  first written submission, para. 543; and second written submission, para. 414. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 445 - 
  to the views of tobacco manufacturers operating in Australia, who have instead attributed 
downtrading effects to increases in excise taxes.2862 The complainants "also ignore[] the reality 
that downtrading is occurring in a number of mark ets globally, and is not unique to Australia". 
Thus, given that Australia is the only country to have implemented tobacco plain packaging, 
downtrading effects in other markets cannot be attributed in any way to a "plain packaging 
effect".2863  
7.1136.   Australia adds that it "is undisputed that the 'downtrading' phenomenon to which the 
complainants refer predates the adoption of tobacco plain packaging, not only in Australia, but in 
numerous other markets around the world", such that, "[e]ven if the complainants had es tablished 
that these effects are attributable to the tobacco plain packaging measure … this would be legally 
insufficient to establish trade -restrictiveness in quantitative  terms, because it does not 
demonstrate a reduction in either the volume or the valu e of imported tobacco products".2864 In 
this connection, Australia submits that as the data submitted by the parties2865 "unequivocally 
establish, imports of tobacco products in Australia have increased in both volume and value terms 
since the introduction of th e tobacco plain packaging measure, despite consistent decline in 
demand for and consumption of tobacco products", and that "there has been no decrease in the 
volume or value of their own imports of tobacco products, which were a negligible share of total 
imports in the Australian market prior to the introduction of the tobacco plain packaging measure 
and have remained so thereafter". Given "the enormous increase in the volume of tobacco imports 
in the Australian market since the introduction of the tobacco plain packaging measure, and the 
critical importance to the complainants' case that the measure has not led to a decline in the rates 
of tobacco use in Australia, their claim of trade -restrictiveness can only be based on a decline in 
value", for which, Aus tralia submits, the complainants have offered no evidence.2866  
7.1137.   In the context of its arguments concerning the connection between downtrading and the 
TPP measures , Australia also points out that Professor List "expressly admitted that it was not 
possible to s eparate and distinguish the effects of tobacco plain packaging from the effects of the 
enlarged GHWs". Thus, Australia argues that the complainants "try artificially to address this issue 
by using much smaller GHWs introduced by Australia in 2006 as a prox y for the enlarged and 
updated GHWs adopted in 2012", and "essentially argue that, because the smaller GHWs 
introduced in 2006 did not have any downtrading effects, this Panel should presume that the 
enlarged and updated GHWs adopted in 2012 did not have a ny downtrading effects either". 
Australia submits that this is not an adequate response because of the deficiency of the evidence 
relied on, and because, in Australia's submission, the smaller GHWs introduced in 2006 are not an 
appropriate counterfactual, and cannot be presumed to have had the same effects as the enlarged 
and updated GHWs adopted in 2012.2867 
7.1138.   Australia also reiterates that downtrading is an industry trend that is occurring in a 
number of markets globally, and is attributable to factors such as  excise taxes or the industry's 
own marketing and pricing strategies" Australia refers to statements by tobacco industry 
executives and submits that they "confirm[] the link between increases in excise taxes and 
'widening gaps' in market prices, but also e xpressly concede[] that the alleged 'downtrading' effect 
occurring in the Australian market was 'caused by the industry … by launches in the low price 
segment'".2868 Australia argues that these are "unequivocal statements by tobacco industry 
executives recogn ising the link between excise taxes and the tobacco industry's pricing strategies 
on the one hand, and downtrading in Australia on the other".2869  
7.1139.   Australia further argues that, "[i]n theory, allegations of downtrading, impact on access 
to the market, or cos ts of compliance could, if accompanied by proper evidence of a consequential 
limiting effect on trade, form the basis of a finding of trade -restrictiveness within the meaning of 
                                                
2862 Australia's first written submission, para. 544. 
2863 Australia's first written submission, para. 545. 
2864 Australia's second written submission, paras.  409-410 and 418 . (emphasis  original)  
2865 Australia's second written submission, para. 411 (referring to the parties' responses to Panel 
question No. 5). 
2866 Australia's second written submission, para. 411. 
2867 Australia's second written submission, para. 417. 
2868 Australia's second written submission, paras.  418-419. 
2869 Australia's second written submission, para. 419. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 446 - 
  Article  2.2 of the TBT Agreement ".2870 Australia submits that the complainants have failed either to 
demonstrate that such effects have arisen as a result of the TPP measure s, or that such effects 
have resulted in a limiting effect on trade.  
7.1140.   Australia submits that the complainants' focus "on alleged impacts of the tobacco plain 
packaging measure on sales by certain companies, in certain market segments, and … in respect 
of certain WTO Members" is "plainly insufficient to establish that the tobacco plain packaging 
measure has a limiting effect on overall trade in tobacco products – i.e. that the measure has 
resulted in a limiting effect on imports of tobacco products, assessed collectively".2871 Australia 
states that it is " inherent in the complainants' arguments of downtrading … that sales of lowe r 
priced brands of tobacco products have increased  as a result of Australia's tobacco plain packagin g 
measure (to the detriment of 'premium'  brands)", such that "even if the complainants had 
demonstrated … that their own tobacco product imports have been n egatively affected by the 
measure, this would not, without more, establish a limiting effect on overall  trade in tobacco 
products because any such impact may be offset by increased trade by other Members, or by 
increased sales in other market segments".  
7.1141.   Furthermore, Australia continues, "[t]o the extent that the complainants have attempted 
to link downtrading to any actual limiting effect on overall trade, it has been by reference to the 
weighted average price for a ciga rette." Australia points out that th e Dominican Republic's expert, 
Professor  List, "confirmed that there has been a significant increase  in the real weighted price of a 
cigarette since the introduction of the tobacco plain packaging measure".2872 Australia also argues 
that "subsequent to the in troduction of the [ TPP measures ], overall trade in tobacco products has 
increased in both volume and value", which "can be explained in part by the movement of 
domestic production offshore"; however, "data provided by the complainants also clearly 
demonstr ates that the total value of the retail market increased in the period following the 
introduction of the [ TPP measures ], despite a reduction in total demand for tobacco products in the 
Australian market".2873 
7.1142.   With respect to raised barriers to entry to the Au stralian tobacco market, Australia 
submits that "there are three distinct problems" with the claims.2874 First, the conclusion that the 
TPP measures  increase barriers to entry "is directly contradicted by another of the complainants' 
experts, Professor Steenk amp", who "claims that brand differentiation 'creates barriers to entry 
that make it difficult for other firms to enter the market'; and the effect of plain packaging is to 
destroy such brand differentiation".2875 In Australia's view, the logical conclusion of Professor 
Steenkamp's claims is that the TPP measure s would enhance prospects of new entry. Second, 
Australia contends that "the complainants have not provided any evidence to support Professor 
Neven's conclu sion that plain packaging has, or will result in, reduced profit margins". Australia 
states that the complainants' evidence demonstrates a continued upward trend in prices following 
adoption of the tobacco plain packaging measure".2876 Finally, Australia subm its that "Professor 
Neven's claim that the tobacco plain packaging measure reduces the ability of new entrants to 
communicate with potential customers is made in the abstract, entirely divorced from the reality of 
Australia's dark market".  
7.1143.   Specifically, A ustralia submits that Professor Neven makes no attempt to analyse the 
extent to which the capacity of a new entrant to communicate with potential customers in Australia 
had already been reduced by measures that are not challenged in these proceedings – such as 
Australia's existing advertising and promotion restrictions, including point of sale and retail display 
bans.2877 Australia  refers to its experts, Houston Kemp, to argue that the Australian market for 
                                                
2870 Australia's response to Panel question No. 117(b), para.  121. (emphasis original)  
2871 Australia's response to Panel question No. 117. 
2872 Australia's response to Panel question No. 117 (referring to Dominican  Republic 's opening statement 
at the first meeting of the Panel, Appendix 2: Powerpoint Presentation by J. List, slide 58).  (emphasis original)  
2873 Australia's response to Panel question No. 117 (referring to Supplementary Graphs, Import 
Volumes, Value and Share of the Market, (Exhibit AUS -512), Fig ure 15); second written submission, para. 412; 
and responses to Panel question Nos. 151 and 165.  
2874 Australia's first written submission, para. 550. 
2875 Australia's first written submission, para. 551 (quoting Steenkamp Report , (Exhibit DOM/HND -5), 
paras.  9-10 and  43). 
2876 Australia's first written submission, para. 552. 
2877 Australia's first written submission, para. 553. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  tobacco products has been characterised by exceptional ly high barriers to entry for a very long 
period, and that the oligopolistic nature of the Australian tobacco market, and the advantages that 
incumbent firms enjoy as a result, has long made market entry virtually impossible, with the effect 
that there is no significant alteration to barriers to entry as a consequence of the TPP 
measure s.2878 Australia thus argues that, "while raised barriers to entry are potentially relevant in 
determining whether the [ TPP measures  have] a limiting effect on trade, the compla inants have 
failed to establish that barriers to entry are likely to be raised as a result of the design, structure 
and operation of the tobacco plain packaging measure; or that any increased barriers to entry in 
the Australian market are attributable to t he tobacco plain packaging measure and not to other 
factors".2879 
7.1144.   Australia also notes that some of the complainants argue that the TPP measures  are 
trade -restrictive because the mandatory requirements they impose  operate as a condition for the 
importation of  tobacco products into Australia2880; or, similarly, because "technical regulations, by 
their very nature, impose limits on trade".2881 Australia submits that "the fact that the 
[TPP measures  are] a technical regulation, or that compliance with the [ TPP measures ] operate[] 
as a condition on the sale of tobacco products in Australia is not sufficient to establish" that they 
are trade -restrictive within the meaning of Article  2.2 of the TBT Agreement .2882 Australia 
elaborates that, notwithstanding the fact that techni cal regulations are by their nature 
mandatory2883, "the Appellate Body in US – Tuna II (Mexico) and in US – COOL expressly 
recognized that there may be circumstances in which a technical regulation is not 
trade -restrictive"2884, such that there is "no basis for alleging that a technical regulation is 
trade -restrictive solely because compliance with its requirements is mandatory; or that technical 
regulations are per se trade -restrictive".2885 
7.1145.   Australia also submits that "t here is an obvious way in which the complain ants could have 
argued that the measure is trade -restrictive – they could admit that, over time, Australia's 
measure will reduce demand for tobacco products by reducing initiation and relapse, and 
increasing quitting. In the context of Australia's market, where domestic production is being 
phased out, this would necessarily result in a reduction in imports".2886 Australia elaborates that 
the TPP measures  will result in a limiting effect on overall trade in tobacco products in the future 
because "(i) the measur e will reduce the use of tobacco products (by discouraging uptake and 
relapse and encouraging quitting); and (ii) since imports will soon represent the entirety of 
Australia's tobacco product market, with domestic production being phased out, a reduction i n the 
use of tobacco products will necessarily limit overall trade in tobacco products".2887 Because of this 
latter impact, "the complainants' trade -restrictiveness arguments are put forward in a context 
where their position on contribution (that the measure is incapable of achieving any degree of 
contribution to its objective) relies on contesting the proposition that the measure will reduce 
overall trade in tobacco products".2888 In this connection, Australia argues that the TPP measure s 
restrict  trade only to the extent necessary to achieve its degree of contribution to its public health 
objectives.2889 
                                                
2878 Australia's first written su bmission, para. 554; and response to Panel question No. 117. 
2879 Australia's first written submission, para. 555; and  response to Panel question No. 117. 
2880 Australia's first written submission, para. 562 (referring to Dominican  Republic 's first written 
submission, para. 975, in turn ref erring to Appellate Body Report , US – COOL , paras.  375 and 976; and Cuba's 
first written submission, para. 401). (emphasis original)  
2881 Australia's first written submission, para. 562 (referring to Dominica n Republic 's first written 
submission, para. 973, in turn referring to  Appellate Body Reports, US – Tuna II (Mexico) , para. 322; and US –
 COOL , para. 376). See also Dominican  Republic 's first written submission, para. 960. 
2882 Australia's first written submi ssion, para. 562. 
2883 Australia's first written submission, para. 563. 
2884 Australia's first written submission, para. 564 (referring to Appellate Body Reports, US – Tuna II 
(Mexico) , para. 322 fn 647; and US – COOL , para. 376 fn 748).  
2885 Australia's first written submission, para. 564. 
2886 Australia's opening statement at the first meeting of the Panel, para. 93. 
2887 Australia's response to Panel question No. 119. 
2888 Australia's response to Panel question No. 119. 
2889 Australia's response to Pan el question No. 151; and response to Panel question No. 165. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.4.2.2   Main arguments by the third parties  
7.1146.   The European Union  is "not persuaded that the issue of downtrading … in itself, and 
without more, demonstrates a trade -restriction, at least insofar as it is simply limited to the 
observation that the market share of one complainant is increasing at the expense of another". 
Nor is it persuaded that such a phenomenon, which might involve a decrease in the prices of some 
products, demonstrates, without more, a trade -restriction. The European Union rather thinks that, 
as part of its overall analysis, the Panel would also have to look into the question of whether 
volumes and overall value had remained stable or even increased, including the effects that the 
measure is apt to cause, and taking into account any mitigating steps taken by the interested 
firms.2890 
7.1147.   The European Union sees "some connection between the discussion about whether or not 
the measure is trade -restrictive, on t he one hand, and the discussion about whether or not the 
measure makes a contribution to its objective, on the other hand". For the European Union, both 
of these discussions are about what the measure causes, or is apt to cause: on the one hand, 
trade -restriction, and on the other hand, a reduction in smoking prevalence. The European Union 
suggests that the Panel adopt a consistent approach to these issues, particularly as regards its 
treatment of the evidence – if the Panel is minded to find that the measu re has caused or is apt to 
cause a trade -restriction, it might also be minded to find that the measure has caused or is apt to 
cause some reduction in smoking prevalence. This would lead the Panel to make a full analysis 
under Article  2.2 of the TBT Agreem ent, that is, one including both a relational and a comparative 
analysis. For the European Union, this offers the most balanced and fruitful way of addressing the 
dispute.2891 
7.1148.   For New Zealand , the complainants have failed to demonstrate that any changes in 
marketplace conditions in Australia with respect to tobacco products limit the trade in imported 
products; rather the complainants ' allegations appear to be addressed towards protecting the 
expectations of tobacco companies to certain levels of profit or mar ket share. Thus, the 
complainants ' unsubstantiated allegations do not engage Australia 's obligations under Article  2.2 of 
the TBT Agreement . The complainants have failed to establish that the TPP measure s are  
trade -restrictive because of any alleged brand differentiation and downtrading effects.2892  
7.1149.   New Zealand does not consider that the types of impacts alleged by the complainants, 
such as downtrading, impact on access to the market or costs of compliance demonstrate 
"trade -restrictiveness " within the meanin g of Article  2.2 of the TBT Agreement . The complainants 
seek to expand the concept of "trade -restrictiveness " under Article  2.2 beyond its ordinary 
meaning and without any WTO jurisprudence to support the proposition. Trade -restrictiveness can 
be assessed by looking at the competitive opportunities available to imported products. As 
Australia argued, the focus should be on "whether the technical regulation at issue modifies the 
conditions of competition in the marketplace in a manner that has a limiting eff ect on trade for 
imported products subject to that regulation ".  
7.1150.   Nigeria  argues that the economic expert evidence submitted by the complainants 
"highlights the detrimental effect on access to the Australian market and the distortion of 
competitive opportunities that result from the mandated lack of opportunity to differentiate  
products through trademarks and packaging designs". Nigeria submits that the TPP measures  thus 
impose a very significant restriction on competition and trade.2893 
7.1151.   Norway  argues that the complainants must actually establish, and not merely assert, that 
the me asure has a limiting effect on trade in tobacco products and/or is likely to occur in the 
Australian market as a result of the design, structure and operation of the plain packaging 
                                                
2890 European Union's  third-party response to Panel question No. 4. 
2891 European Union's  third-party response to Panel question No. 4. 
2892 New Zealand's third -party submission, paras.  87-89; and third -party response to Panel question 
No. 4. 
2893 Nigeria's third -party submission, para. 30. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  measure. It would not be sufficient, in Norway's view, "to rely on an abst ract notion of market 
conditions".2894 
7.1152.   Singapore  urges the Panel to consider, in formulating a test of trade -restrictiveness and 
applying it to the types of impacts alleged by the complainants (such as downtrading), that at the 
heart of the Article  2.2 obliga tion lies the necessity test, and the threshold for 
"trade -restrictiveness " should not be unduly onerous. Singapore notes that while Australia rejects 
the proposition that downtrading will result in a limiting effect on trade in imported tobacco 
products i n Australia, it accepts that (1) an increase in compliance costs ; and  (2) raised barriers to 
entry in the Australian tobacco market are potentially relevant in determining whether the TPP 
measures are trade -restrictive.  
7.1153.   Singapore does not agree with Austr alia's proposition that in order to show that the 
TPP measures  are trade -restrictive within the meaning of Article  2.2, the complainants must 
demonstrate that they have a limiting effect on overall trade in tobacco products of all WTO 
Members. Instead, it is of the view that the affected trade can be between the complaining 
Member and the defending Member, and the enquiry should not be broadened such that trade 
restriction in question is with respect to the trade of any WTO Member. The term ""international 
trade "" in Article  2.2 of the TBT Agreement  is also found in Article  XX of GATT 1994, but this term 
has not been applied in such a manner.2895 
7.1154.   Nicaragua  submits that, " given the economic importance of trademarks and brands for 
market access and fair competition", the prohibition on the use of all distinguishing trademarks, 
design, logo, and color characteristics from the packaging of branded tobacco products, leaving 
only the brand name in a standard form, necessarily restricts competitive opportunities in the 
Australian market. Nicaragua adds that the TPP measures  provide a strong disincentive to export 
to Australia and will make it extremely difficult, if not impossible , for any manufacturer of tobacco 
products not currently present in the Australian market to enter that market. Nicaragua considers 
that the evidence presented by the complainants in respect of the trade -restrictive and 
competition -distorting nature of Aus tralia's plain packaging measure confirms this. For example, 
Professor Neven explains the different functions of a trademark and concludes that "plain 
packaging will have a significant negative effect on the prospects of entry into and expansion on 
the Aus tralian tobacco market " with the exception of the possibility of low -cost entry by 
non-branded, low -quality cigarettes that compete solely on the basis of price rather than product 
quality. Nicaragua adds that, at the time of notifying the plain packaging measure under 
Article  2.9.2 of the TBT Agreement , Australia itself acknowledged that plain packaging would have 
a significant effect on trade.2896 
7.1155.   Nicaragua considers that the arguments by the complainants concerning the 
trade -restrictiveness of the TPP measu res are sufficient to show that the measure is having a 
"limiting effect on competitive opportunities" in the Australian market. For example, Professor 
Neven "clearly and convincingly provides theoretical and empirical evidence demonstrating that 
the plain  packaging measures restricts market access, distorts competitive opportunities and 
provides a disincentive to export to Australia".2897 Nicaragua considers that these impacts of the 
plain packaging measure on conditions of competition, market access, value, price, and 
profitability clearly demonstrate its trade -restrictiveness within the meaning of Article  2.2 of the 
TBT Agreement .2898 
7.1156.   South Africa  submits that actual  evidence of trade -restrictiveness has not been presented 
and in the absence of such evidence th e Panel cannot make any finding in this respect. South 
Africa argues that Article  2.2 protects the expectations of WTO Members that technical regulations 
will not limit trade to a greater extent than is necessary to fulfil a legitimate objective. It would be 
incumbent on the complainants to prove that "downtrading" is directly related t o the introduction 
of plain packing measures. South Africa adds that "potentially such measures may impact on 
                                                
2894 Norway's third-party submission, para. 95. 
2895 Singapore's third -party response to Panel question No. 4. 
2896 Nicaragua's third -party submission, paras.  37-38. 
2897 Nicaragua's third -party response to Panel question No. 4 (referring to Neven Report , (Exhibit UKR -3) 
(SCI), p p. 38-41). 
2898 Nicaragua's third -party response to Panel question No. 4. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  market access or the cost of compliance; however, none of the complainants have positively 
established that plain packaging measures may have resu lted solely in such impacts". South Africa 
submits that "[o]ther factors such as excise taxes or even a general trend of 'downtrading' in other 
markets where no plain packaging measures are present were not considered to establish such an 
argument".2899 
7.1157.   Urugu ay argues that if " a complainant argues or suggests the Australian measure is 
trade -restrictive  this should be substantiated and show concrete and actual trade effects". For 
Uruguay, it "is not enough simply to allege that downtrading, impact on access to the market or 
costs of compliance [to] demonstrate trade -restrictive ness", especially "in a situation of 
non[ -]discrimination". Moreover, Uruguay submits that the fact that consumption diminishes and 
the market is reduced does not imply or prove trade -restrictiveness. Though there might be some 
adjustments in market share, Uruguay submits that "this is a natural consequence of the policy 
adopted and no one can expect market shares to remain completely static".  
7.1158.   Uruguay adds that it can also be alleged that i t is harder for imports to adjust to the new 
requirements "compared with local production" but this "is almost always true in most trade 
situations (and not only because of new regulations) and does not prove trade -restrictive ness".2900 
7.1159.   Zimbabwe  argues that, by prohibiting the use of trademarks on tobacco products and 
their packaging and imposing a standardized design, the TPP measures fundamentally alter the 
competitive conditions on the Australian market for imported products. Zimbabwe refers to 
Professor Ne ven's expert report, and submits that the plain packaging requirements significantly 
limit the access of imported products to the Australian market because of the combination of 
negative communication and price effects.2901 Referring to the reports by Victori a Par r and 
Professor Winer, Zimbabwe notes that they also conclude that the plain packaging requirements 
distort competition by greatly restricting the possibility to differentiate between products on the 
basis of quality.2902 This results in the "commoditiza tion" of these products and a downward 
pressure on prices. By preventing quality -based distinctions, the TPP measures will undoubtedly 
negatively impact trade of high -quality Virginia tobacco leaf such as that produced by Zimbabwe. 
Increased price competit ion will have a downward effect on prices of tobacco leaf as manufacturers 
of tobacco products will be attempting to safeguard their profit margins by sourcing cheaper raw 
materials. Zimbabwe further submits that a decline in prices of tobacco leaf would h ave 
devastating consequences for its economy as a whole because of the importance of tobacco as well 
as for small farmers and their families who are subsisting by growing tobacco. Zimbabwe cannot, it 
states, afford a decline in prices of tobacco leaf and h as no alternatives to continuing to grow 
tobacco.2903 
7.2.5.4.2.3   Analysis by the Panel  
7.1160.   As described above, the complainants present a number of arguments in support of their 
view that the TPP measures  are "trade -restrictive" within the meaning of Article  2.2.  
7.1161.   Overall,  these arguments can be described as relating to:  
a. the effects of the TPP measures  on the competitive environment in the Australian 
market;  
b. the effects of the TPP measures  on the level of trade in tobacco products; and  
c. the costs of complying with the regula tory requirements arising from the TPP measures .  
7.1162.   We consider these arguments in turn.  
                                                
2899 South Africa's third -party response to Panel question No. 4. 
2900 Uruguay's third -party response to Panel question No. 4. 
2901 Zimbabwe's third -party submission, para. 26 (referring to Neven Report , (Exhibit UKR -3) (SCI)).  
2902 Zimbabwe's third -party submission, para. 26 (referring to Parr et al. 2011a, (Exhibits AUS -117, 
JE-24(49) ; and Winer Report , (Exhibit UKR -9)). 
2903 Zimbabwe's third -party submission, para. 26. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Whether the TPP measures  are trade -restrictive because they alter the competitive 
environment of producers in the Australian market  
Whether the TPP measures  harm the co mpetitive opportunities of imported 
tobacco products by restricting producers' ability to differentiate their 
products  
7.1163.   As described above, the complainants generally argue that the TPP measures  restrict 
their competitive opportunities by affecting the abi lity of tobacco manufacturers to distinguish their 
products, and compete on the Australian market, on the basis of brands2904, thereby "eliminating 
competitive opportunities" and, in Indonesia's words, "fundamentally restructur[ing] the 
competitive conditions  of the Australian cigarette market".2905  
7.1164.   The Dominican Republic considers that the parties' disagreement on the actual trade 
effects resulting from the TPP measures  is not material to the Panel 's finding of 
trade -restrictiveness under Article  2.2, because " it is evident from the design, structure, and 
expected operation of the measures that it severely limits competitive opportunities to differentiate 
tobacco products".2906  
7.1165.   Australia submits that the complainants' "qualitative argument" with respect to brand 
differentiation is insufficient, as a matter of law, to establish that the tobacco plain packaging is 
trade -restrictive, because it does not demonstrate a limiting effect on international trade in 
tobacco products. Australia argues that the complainants inc orrectly equate the legal standard of 
trade -restrictiveness with one of "competitive freedom" of market participants, such that a 
limitation on any "competitive opportunity" in the marketplace would suffice to establish that a 
technical regulation is trade -restrictive, regardless of whether it results in any limiting effect on 
international trade in imported products.2907 This, in Australia's view, would convert 
"trade -restrictiveness" into a per se standard as "[v]irtually every technical regulation will impo se, 
with respect to at least one market participant, a limiting condition that did not exist prior to its 
adoption". Australia submits that, even assuming that the TPP measure s limit  a producer's ability 
to distinguish its tobacco products from those of ot her producers (which, Australia says, it does 
not), this is insufficient to demonstrate, without more, that it has a limiting effect on international 
trade in tobacco products.2908  
7.1166.   We agree with Australia that a demonstration that the challenged measures may  result in 
some alteration  of the overall competitive environment for suppliers on the market would not, in 
itself, demonstrate their "trade -restrictiveness" within the meaning of Article  2.2. Rather, as 
described above, what we must determine is the exten t to which the challenged measures have a 
limiting  effect  on international trade.2909 We do not consider, therefore, that a demonstration that 
the TPP measures  "restructured the competitive conditions of the Australian cigarette market"2910, 
or that they modify  the conditions under which all manufacturers will compete against each other 
on the market, would, in itself, be sufficient to demonstrate their trade -restrictiveness. In this 
respect, we do not understand the reference to the impact of a technical regula tion on 
"competitive opportunities", in past panel and Appellate Body reports, to imply that any 
modification of the terms on which all products compete on the market as a result of a technical 
regulation would demonstrate the "trade -restrictiveness" of su ch technical regulation. Rather, as 
                                                
2904 Dominican  Republic 's first written submission, para. 977. 
2905 Indonesia's first written submission, para. 395; and second written submission, para. 266. See also, 
for example, Honduras's first written submission, paras.  870-877; Dominican  Republic 's first written 
submission, paras.  977-978; and Cuba's first written submission, paras.  402-403. 
2906 Dominican  Republic 's response to Panel question No. 117, para. 233. 
2907 Australia's second written submission, para. 403. 
2908 Australia's second written submission, paras.  404-405. 
2909 See, in relation to Article  III:4 of the GATT 1994, Appellate Body Report, Korea  – Various Measures 
on Beef , para. 137 ("A formal diff erence in treatment between imported and like domestic products is thus 
neither necessary, nor sufficient, to show a violation of Article  III:4. Whether or not  imported products are 
treated 'less favourably'  than like domestic products should be assessed i nstead by examining whether a 
measure modifies the conditions of competition  in the relevant market to the detriment of imported products."  
(emphasis original) ). 
2910 Indonesia's first written submission, para. 395. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  described above, what must be considered is the extent to which the technical regulation at issue 
has a limiting  effect on international trade . 
7.1167.   Specifically, we agree with the complainants that, to the extent that they p revent the use 
of certain design features on tobacco products and their retail packaging, the TPP measures  limit 
the opportunity for producers to differentiate their products. We also agree that differentiation 
engenders consumer loyalty and increases cons umers' willingness to pay, and that, by restricting 
the opportunity for brands to differentiate themselves, the TPP measures  limit the opportunity for 
tobacco manufacturers to compete on the basis of such brand differentiation.2911 We are not 
persuaded, howev er that this modification of the competitive environment for all tobacco products 
on the entire market (which may in principle increase  competition on the market2912) constitutes, 
in itself, a restriction on "competitive opportunities" for imported tobacco pr oducts that must be 
assumed to have a "limiting effect" on international trade.  
7.1168.   Rather, as Australia expressed it, it needs to be shown how such effects on the conditions 
of competition on the market give rise to a limiting effect on international trade i n tobacco 
products.2913 As highlighted by the Appellate Body, appropriate evidence of such limiting effect will 
in particular be required in the case of a non -discriminatory internal measure. We do not consider, 
however, that this demonstration must be based on actual trade effects. Rather, it could in 
principle be based on a qualitative assessment, taking into account in particular the design and 
operation of the measures, or on a quantitative assessment of its actual trade effects, or both.2914  
7.1169.   The complainant s present a number of specific arguments detailing how, in their view, 
the reduced opportunity for manufacturers to compete on the basis of brand differentiation will 
lead to: (i) "downtrading" and a fall in the price of premium brands, and consequently a reduction 
in the value of imported products, in particular premium products; (ii) an increase in price 
competition and a fall in prices and, consequently, a decrease in the sales value of tobacco 
products and the total value of imports. Honduras and Indone sia also argue that, in addition to 
harming incumbents, the TPP measures  create barriers to entry on the Australian market.  
7.1170.   Australia responds that, "[i]n theory, allegations of downtrading, impact on access to the 
market, or costs of compliance could, if  accompanied by proper evidence of a consequential 
limiting effect on trade, form the basis of a finding of trade -restrictiveness within the meaning of 
Article  2.2 of the TBT Agreement ". Australia submits however that the complainants have failed 
either to  demonstrate that such effects have arisen as a result of the TPP measures , or that such 
effects have resulted in a limiting effect on trade.2915  
7.1171.   We consider first the specific arguments of the complainants in respect of the impact of 
the TPP measures  on bar riers to entry onto the Australian market, before turning to their 
arguments relating to their impact on levels of trade and, finally, compliance costs.  
Whether the TPP measures  raise barriers to entry onto the Australian market  
7.1172.   Honduras argues, with refe rence to the expert report by Professor Neven, that Australia's 
TPP measures produce certain communication and price effects that make access to the Australian 
tobacco market almost impossible.2916  
7.1173.   Professor Neven states that "the profits that a manufacturer  can expect to earn in a given 
market determine its willingness to engage in trade, enter new markets and compete with 
established brands".2917 Professor Neven explains that plain packaging produces three different 
                                                
2911 Dominican  Republic 's response to Panel qu estion No. 117. 
2912 Product differentiation is typically seen as relaxing the pressure on prices and as allowing firms to 
charge a premium over their marginal cost.  
2913 Australia's first written submission, para. 516. See also Appellate Body Report, US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.208 fn 643 (referring to Appellate Body Report, EC – Poultry , 
paras.  126-127).  
2914 See para.  7.1076  above.  
2915 See para.  7.1139  above.  
2916 Honduras's second written submission, para. 556. 
2917 Honduras's second written submission, para. 556 (quoting Neven Report , (Exhibit UKR -3) (SCI), 
para. 6.1, p. 36). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  effects on competition and trade in the Aust ralian market: (i) a contestability effect; (ii) a 
communication effect; and (iii) a competitive effect.2918 He explains that, as a result of the 
contestability effect, plain packaging would, in principle, lower barriers to entry and enhance 
prospects of entr y onto the Australian market. He argues, however, that this initial positive 
contestability effect on barriers to entry is offset by the other two effects produced by plain 
packaging. In his view, the communication effect of plain packaging raises barriers  to entry as 
successful entry for potential entrants becomes significantly more difficult without the possibility to 
create brand awareness. And the competitive effect also raises barriers to entry because producers 
need to reduce prices to address consume rs' reduced willingness to pay, which reduces their profit 
margins, such that "operators have lower willingness to engage in trade", which "also leads to a 
lower likelihood of entry".2919 Professor Neven thus concludes that "[p]lain packaging reduces 
product differentiation and lowers the prospect for profitable continued market presence and 
entry", and "also considerably hampers entry of new products on the market given that new 
products need trademarks and product differentiation opportunities to communicate  their presence 
on the market to potential customers".2920 
7.1174.   Honduras argues that, considering the net result from the combined operation of all three 
effects, "it becomes clear that plain packaging yields overall negative effects for tobacco brands 
regardless of whether they are already in the Australian market, or may seek to enter the 
Australian market".2921  
7.1175.   Indonesia similarly argues that plain packaging limits trade because it makes it more 
difficult for imported products to establish an identity with consumers who are already familiar 
with domestic brands. Indonesia refers to a consumer research survey conducted for the 
Australian government in conjunction with the implementation of plain packaging which found that 
whether a brand was considered "forei gn" or "local" affected consumer's attitudes towards 
cigarette brands, and specifically that, a number of brands were seen as distinctly "Australian", 
which overall was viewed as making the brand more appealing. Distinctly "Australian" cigarettes 
were prim arily those which were seen to be in the market -place the longest or were perceived to 
be smoked by particular types of individuals who "represented" clearly defined Australian 
stereotypes (for example "tradies" (i.e. tradesmen such as plumbers or electric ians), football or 
cricket fans).2922  
7.1176.   Australia identifies "three distinct problems" with the complainants' arguments on raised 
barriers to entry to the Australian tobacco market.2923 First, the conclusion that the TPP measures  
increase barriers to entry "is di rectly contradicted by another of the complainants' experts, 
Professor Steenkamp", who "claims that brand differentiation 'creates barriers to entry that make 
it difficult for other firms to enter the market'; and the effect of plain packaging is to destro y such 
brand differentiation".2924 In Australia's view, the logical conclusion of this analysis is that the 
TPP measure s would enhance prospects of new entry. Second, Australia contends that "the 
complainants have not provided any evidence to support Professo r Neven's conclusion that plain 
packaging has, or will result in, reduced profit margins". Australia states the complainants' 
evidence demonstrates a continued upward trend in prices following adoption of the tobacco plain 
packaging measure".2925 Finally, Aus tralia submits that "Professor Neven's claim that the tobacco 
plain packaging measure reduces the ability of new entrants to communicate with potential 
customers is made in the abstract, entirely divorced from the reality of Australia's dark market". 
                                                
2918 The "contestability effect " is based on the premise that existing strong brands benefit from 
established brand loyalty, which is a factor that can constitute a barrier to potential entrants. It relates to the 
effect of plain packaging on loyalty to incumbent brands. The "communicati on effect " relates to the effect of 
plain packaging on the ability of potential entrants to create brand awareness for their own new products. The 
"competitive effect " looks at the concrete commercial impact of plain packaging and its impact on the likelih ood 
that entry will be profitable. Neven report, (Exhibit UKR -3) (SCI) , p. 38. 
2919 Neven Report , (Exhibit UKR -3) (SCI) , pp. 39-41. 
2920 Honduras's second written submission, para. 563; and response to Panel question No. 151. 
2921 Honduras's second written submissi on, para. 557. 
2922 Indonesia's first written submission, para. 400 (quoting Parr et al. 2011a, (Exhibits AUS -117, 
JE-24(49)), p.  56 (emphasis added by Indonesia)).  
2923 Australia's first written submission, paras.  550-553. 
2924 Australia's first written submission, para. 551 (quoting Steenkamp Report , (Exhibit DOM/HND -5), 
paras.  9-10 and 43).  
2925 Australia's first written submission, para. 552. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Speci fically, Australia submits that Professor Neven makes no attempt to analyse the extent to 
which the capacity of a new entrant to communicate with potential customers in Australia had 
already been reduced by measures that are not challenged in these proceed ings – such as 
Australia's existing advertising and promotion restrictions, including point of sale and retail display 
bans.2926  
7.1177.   Australia refers to a report commissioned from HoustonKemp2927 to argue that the 
Australian market for tobacco products has been cha racterised by exceptionally high barriers to 
entry for a very long period, and that the oligopolistic nature of the Australian tobacco market and 
the advantages that incumbent firms enjoy as a result, have long made market entry virtually 
impossible, with the effect that there is no significant alteration to barriers to entry as a 
consequence of the TPP measure s.2928 Australia thus argues that, "while raised barriers to entry 
are potentially relevant in determining whether the [ TPP measures  have] a limiting ef fect on trade, 
the complainants have failed to establish that barriers to entry are likely to be raised as a result of 
the design, structure and operation of the tobacco plain packaging measure; or that any increased 
barriers to entry in the Australian mar ket are attributable to the tobacco plain packaging measure 
and not to other factors".2929  
7.1178.   Based on a consideration of this evidence, we are not persuaded that Honduras and 
Indonesia have demonstrated that the TPP measures  will, overall, make it more difficu lt for new 
brands to enter the market. Honduras's conclusions that barriers to entry are raised by the 
TPP measures  is based on Professor Neven's analysis of the effect of plain packaging on entry on 
the market. This consists of first identifying three "di stinct effects plain packaging has on entry", 
and then "weighing their importance".2930 We consider the analytical framework proposed by 
Professor Neven to be helpful in understanding the effects of plain packaging on entry into the 
Australian market. Specifi cally, we agree that plain packaging can be seen as producing three 
distinct effects on competition and trade in the Australian market: (i) a contestability effect; (ii) a 
communication effect; and (iii) a competitive effect.2931 We therefore consider further  whether the 
complainants have demonstrated that, through the operation of  these three effects taken together, 
the TPP measures  are likely to raise new barriers to entry, as Professor Neven suggests.  
7.1179.   First, we agree with Professor Neven's analysis that, a s a result of the TPP measures , 
brand loyalty to existing brands would likely be eroded which would operate to increase  the scope 
for entry into the Australian market ("contestability effect"). When a potential entrant 
contemplates selling into a new marke t, pre -existing brand -loyalty toward incumbent suppliers 
reduces the likelihood that entry will be commercially successful. To the extent that plain 
packaging reduces brand loyalty, as the complainants argue is the case, it can therefore be 
expected to hav e a positive  effect on the prospects of entry. Professor Neven expects, however, 
that the brand capital of current incumbents on the Australian market will not be completely 
depleted through the regulation, at least not initially, so that this effect will initially be weak and 
will only gradually decrease the brand capital of current incumbents on the Australian market. 
Professor Neven does not, however, explain the basis of this assumption or provide evidence to 
support it.2932 While this argument seems plaus ible, it says little about the strength of the 
contestability effect relative to the strength of the other effects.  
7.1180.   We also agree that the ability to create brand awareness ("communication effect") would 
tend instead to reduce the commercial scope for entr y into the Australian market to the extent 
that plain packaging reduces the ability to create brand awareness for a new product. In support of 
his assertion that the communication effect will make it virtually impossible to launch a new brand 
in Australia,  Professor Neven submits data regarding the level of brand awareness by brand in 
2012. These statistics show that even prior to plain packaging the hurdles to create brand 
awareness on the Australian market were significant. However, they provide only limi ted 
information on the strength of the communication effect of the TPP measures  in absolute terms or 
relative to the strength of the other two effects identified by Professor Neven. We agree with 
                                                
2926 Australia's first written submission, para. 553. 
2927 See HoustonKemp Report, (Exhibit AUS -19) (SCI).  
2928 Australia's first written submission, para. 554; and response to Panel question No. 117. 
2929 Australia's first written submission, para. 555. 
2930 Neven Report , (Exhibit UKR -3) (SCI), p. 38. 
2931 Neven Report , (Exhibit UKR -3) (SCI), p. 38. See also fn  2918 above.  
2932 See Neven Report , (Exhibit UKR -3) (SCI), fn 57. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Australia that Professor Neven has not attempted to analyse the extent to which the capacity of a 
new entrant to communicate with potential customers in Australia had already been significantly 
reduced by measures that are not challenged in these proceedings – such as Australia's existing 
advertising and promotion restrictions, including point of sale and retail display bans.2933 To the 
extent that the ability to create brand awareness was already very low prior to their 
introduction2934, the TPP measures  may have only a marginal effect on the ability to create brand 
awareness. In this respect, we note the observations in the report by HoustonKemp, submitted by 
Australia that:  
[I]t is unlikely that barriers to entry could be raised by "the communication effect". A 
new entrant must principally create awareness of its packaging at the point of sale 
because, for so long as it has a low level of sales, it has very few customers that could 
display the packaging elsewhere. However, irrespective of the TPP measure, 
Australian consumers have very limited exposure to tobacco p ackaging in retail stores, 
because of the separate restrictions on the display of tobacco products that apply at 
the point of sale. It follows that the TPP measure has virtually no effect on what 
customers see when they are choosing what to purchase in a r etailer or on the extent 
to which customers may view the packaging of a new entrant's product.2935 
7.1181.   Finally, we agree with Professor Neven that changes in profit margins ("competitive 
effect"), could in principle also be expected to lead to a lower  likelihood of entry, to the extent that 
reduced product differentiation resulting from plain packaging would imply that the overall margins 
of all producers would be appreciably reduced over time. In the presence of substantial fixed costs 
of entry and operation, red uced margins would materially diminish the likelihood that entry could 
be commercially profitable. Professor Neven assumes that profitability will fall and that margins 
will get slimmer as a result of the TPP measures , because of reduced product differenti ation. This 
assumption is mostly supported by abstract economic reasoning.2936 As discussed below in more 
detail, however, the empirical evidence available to us suggests that, since the entry into force of 
the TPP measures , prices have increased, while quant ities sold have decreased. This means that, 
even if, arguendo , the prices have decreased as a result of the TPP measures , this reduction has 
been offset by the effect of other factors. Without clear information about costs, this does not 
allow us to conclude that average profit margins have decreased as a result of the TPP measures . 
In fact, the [[ ***]]2937 [[***]] This does n ot mean that, in the longer run, the measures may not 
lead to a fall in prices and profit margins, as suggested by Professor Neven.  
7.1182.   In weighing the impact of the three effects, Professor Neven concludes that the overall 
impact of plain packaging will be t o significantly undermine the scope for entry into the Australian 
cigarettes market, for two reasons. First, the inability to create any form of brand awareness 
(taking account of the pre -existing prohibition of advertising) will make it all but impossible  to 
successfully launch a new brand in Australia. Second, while existing brand strength may constitute 
a barrier to entry that plain packaging may lower, the brand capital of current incumbents on the 
Australian market will not be completely depleted throu gh the regulation, at least not in the 
beginning. This effect, in his view, is further amplified by the generally reduced profitability into 
markets with low product differentiation and correspondingly slim margins. In other words, he 
argues that the conte stability effect will be relatively weak initially while the communication effect, 
amplified by the competitive effect, will be relatively strong.  
7.1183.   However, as discussed above, it is not clear to us that the "contestability effect" of the 
measures would be  as weak as Professor Neven assumes in increasing  the scope for entry, or that 
the communication and competitive effect of the measures would be as strong as Professor Neven 
assumes, in reducing  the opportunity for entry on the market. There is therefore s ignificant 
uncertainty about the strength and the relative weight of each of the three effects on entry 
identified in Professor Neven's report, and therefore, regarding the overall effects of the 
TPP measures  on entry into the market on the basis of the co mbined operation of these three 
effects. This uncertainty applies both to the short and the long term. While the 
                                                
2933 Australia's first written submission, para. 553. 
2934 HoustonKe mp Report , (Exhibit AUS -19) (SCI) , p. 30. 
2935 HoustonKemp Report , (Exhibit AUS -19) (SCI) , p. 30. 
2936 Neven Report , (Exhibit UKR -3) (SCI), p p. 36-37. 
2937 [[***]]  HoustonKemp Report , (Exhibit AUS -19) (SCI), p p. 19-23. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  post-implementation evidence suggests that all three effects may have been very weak, it seems 
plausible that in the longer run both the contes tability and the competitivity effects may reinforce. 
The analysis presented in Professor Neven's report therefore does not persuade us that the 
TPP measures  have raised or will significantly raise the barriers to entry into the Australian market 
for tobac co products beyond their pre -existing level.  
7.1184.   [[***]]2938 [[***]]2939 [[***]]2940 [[***]]2941 [[***]]2942 [[*** ]]2943  
7.1185.   [[***]]2944 [[***]]2945 [[***]]2946 [[***]]2947 
7.1186.   [[***]]2948 
7.1187.   As a result, while we do not exclude that a technical regulation that would raise additional 
barriers to entry  on the market may have a "limiting effect" on international trade, and thereby be 
"trade -restrictive" within the meaning of Article  2.2, we do not consider that the complainants 
have demonstrated that the TPP measures  are trade -restrictive, in that their description of the 
effects of the TPP measures  does not demonstrate that they would have an adverse impact on the 
opportunity for imported products to gain access to and compete on the Australian market for 
tobacco products, be they imported or of domestic  origin.  
Whether the TPP measures  have a limiting effect on the volume and value of trade 
in tobacco products  
7.1188.   In this section, we consider the parties' arguments in relation to the extent to which the 
TPP measures  cause consumers, as the complainants argu e, to "downtrade" from premium to 
non-premium  products and the impact of this on the volume and value of trade, as well as other 
arguments in relation to the measures' impact on the volume and value of trade.  
7.1189.   Honduras argues that the requirement that tobac co products be presented in a 
standardized appearance result s in a loss of brand differentiation and the benefits attached 
thereto, including the ability to convey to consumers a product's quality and reputation and charge 
a price premium related to brand strength.2949 Honduras argues that the post -implementation data 
analysed by the Dominican Republic's expert s at the  IPE show that the TPP measures  have caused 
a downward substitution effect, whereby "consumers purchase relatively fewer higher -quality and 
higher-priced products, and instead purchase relatively more lower -quality and lower -priced 
products".2950 Honduras argues that "[a]s consumers begin to down trade, demand for imported 
tobacco products is bound to decline" which "amounts to a 'limiting effect on trade' and a 
disincentive to export tobacco products to Australia".2951 
                                                
2938 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 2. 
2939 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. 
2940 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exhibit 
AUS-19) (SCI), p. 35. 
2941 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exh ibit 
AUS-19) (SCI), p. 36. 
2942 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exhibit 
AUS-19) (SCI), p. 38. 
2943 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exhibit 
AUS-19) (SCI), p. 37. [[***]]  HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 36. 
2944 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exhibit 
AUS-19) (SCI), p. 38. 
2945 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 38. [[***]]  HoustonKemp Report , (Exh ibit 
AUS-19) (SCI), p p. 38-39. 
2946 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 51. 
2947 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 52. 
2948 HoustonKemp Report , (Exhibit AUS -19) (SCI), p. 37. 
2949 Honduras's first written submission, paras. 862 -873; and second written submission, paras. 
542-554.  
2950 Honduras's first written submission, paras.  372-379. 
2951 Honduras's first written submission, paras.  876-877. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1190.   The Dominican Republic argues that "the empirical evidence from the marketplace shows 
distortion of trade, with significant 'down -trading' from more expensive to cheaper tobacco 
products due to the [TPP] measures".2952 The Dominican Republic explains that it has "provided 
evidence of one form of actual trade effects engendered by the [TPP] measures (i.e. downtrading), 
as a means of confirming that the measures limit competitive opportunities".2953 
7.1191.   Cuba also submits that the TPP measures  "will have a negative impact on the overall 
volume of Cu ba's trade , because they will lead to downtrading from Cuba's premium LHM cigars to 
cheaper products, not originating in Cuba". Premium quality products cannot survive in a market 
environment in which product differentiation is impossible, and Australia ha s explicitly stated that 
the TPP measures "are intended to make impossible the differentiation of quality and its 
importance ".2954  
7.1192.   Indonesia argues that the complainants have demonstrated evidence of trade effects in 
the form of down -trading. As consumers sh ift from the more expensive brands to the less 
expensive brands because they have a higher willingness to switch brands and a lower willingness 
to pay, down -trading occurs, and "reflects the distortion in the market of the conditions of 
competition and com petitive opportunities available to mid -tier and premium products".2955 
Indonesia argues that evidence of increased down -trading in the Australian market from premium 
brands to low -price brands shows that plain packaging is limiting competitive opportunities for 
producers of premium products, harming competitors in the mid -priced and premium segment of 
the market that have invested in developing higher quality products. For Indonesia, evidence of 
down -trading already exists in the Australian market post -plain packaging.2956 
7.1193.   Australia submits that the complainants have failed to demonstrate that "down -trading" is 
likely to occur in the Australian market as a result of the design, structure and operation of the 
TPP measures  or that any down -trading effects that have  occurred in the Australian market are 
attributable to these measures.2957 It observes that the report by the complainants' experts at the 
IPE "does not separate out the effects of the tobacco plain packaging measure from the other 
elements of Australia's com prehensive tobacco control policy", and in particular, the fact that the 
measures' implementation coincided with the introduction of updated and enlarged GHWs.2958  
7.1194.   Australia further argues that the complainants' assertion that any down -trading effects in 
Australia are attributable to the TPP measure s is contrary to the views of tobacco manufacturers 
operating in Australia, who have instead attributed down -trading effects to increases in excise 
taxes.2959 Australia refers to statements by tobacco industry executi ves, which it submits recognise 
the link between excise taxes and the tobacco industry's pricing strategies on the one hand, and 
down -trading in Australia on the other.2960 Australia considers that the complainants also ignore 
the reality that down -trading is  occurring in a number of markets globally, which cannot be 
attributed in any way to a "plain packaging effect".2961 Australia adds that it "is undisputed that the 
'down -trading' phenomenon to which the complainants refer predates the adoption of tobacco 
plain packaging, not only in Australia, but in numerous other markets around the world", such 
that, "[e]ven if the complainants had established that these effects are attributable to the tobacco 
plain packaging measure … this would be legally insufficient to e stablish trade -restrictiveness in 
quantitative terms, because it does not demonstrate a reduction in either the volume or the value 
of imported tobacco products".2962 
                                                
2952 Dominican  Republic 's first written submission, para. 978; second written submission , para. 938; 
comments on Australia's response to Panel question No. 151. 
2953 Dominican  Republic 's response to Panel question No. 117. See also Dominican  Republic 's response 
to Panel question Nos. 125, 126 and 151.  
2954 Cuba's comments on Australia's response to Panel question No. 165, para.  26. (emphasis original)  
2955 Indonesia's response to Panel question No. 117, para.  61. 
2956 Indonesia's first written submission, paras.  397-399; response to Panel qu estion Nos. 117 and 165; 
and second written submission, para. 270. 
2957 Australia's first written submission, para. 533. 
2958 Australia's first written submission, para. 543; and second written submission, para. 414. 
2959 Australia's first written submission, para. 544. 
2960 Australia's second written submission, para. 419. 
2961 Australia's first written submission, para. 545. 
2962 Australia's second written submission, paras.  409-410 and 418.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1195.   Australia also points out that Professor List "expressly admitted that it was not possible t o 
separate and distinguish the effects of tobacco plain packaging from the effects of the enlarged 
GHWs". Thus, in connection with Australia's own argument that the complainants'  experts at the 
IPE failed to take into account the fact that the implementation of the TPP measures  coincided with 
the implementation of larger GHWs2963, Australia argues that the complainants "try artificially to 
address this issue by using much smaller GHWs introduced by Australia in 2006 as a proxy for the 
enlarged and updated GHWs adopted in 2012". Australia submits that the smaller GHWs 
introduced in 2006 are not an appropriate counterfactual, and cannot be presumed to have had 
the same effects as the enlarged and updat ed GHWs adopted in 2012.2964  
7.1196.    The complainants have, in our view, demonstrated that the TPP measures  have 
contributed to a reduction of the volume of imports of premium tobacco products both in relative 
and in absolute terms. Specifically, as explained in mo re detail in Appendix E, a detailed analysis 
of the econometric results submitted by the complainants has led us to conclude that there is 
some evidence, albeit limited, that together with the enlarged GHWs introduced on the same date, 
the TPP measures  appear to have had a negative impact on the ratio of higher - to low -priced 
cigarette wholesale sales.2965 To the extent that there are reasons to expect the TPP measures , 
and in particular the removal of branding features on tobacco products and their retail pac kaging, 
to have a stronger impact on the appeal of tobacco products for premium products, it is 
reasonable to expect that the reduction in the ratio of higher - to low -priced cigarette wholesale 
sales observed since the entry into force of the TPP measures  results at least in part from the 
intended operation of the TPP measures  and their effect on the consumption of tobacco products 
more generally.2966 This could be the case in particular where an important part of the value of 
premium products relies on the co ntribution of branding in building and maintaining positive and 
unique associations as a means to differentiate them from competing products. At the same time, 
we recall that we have also determined, on the basis of the evidence before us, that overall 
consumption of tobacco products has diminished since the entry into force of the TPP measures , 
and that this is at least partly attributable to the operation of the TPP measures  as the evidence 
before us suggests that the TPP measures  are apt to, and do in fa ct, reduce the appeal of tobacco 
products to the consumer, and that this may in turn have an impact on smoking behaviours. This 
means that the consumption of premium tobacco products has also decreased in absolute terms, 
which may be expected to lead, in t urn, to a reduction in imports of premium products (because 
the domestic market is supplied entirely through imported products).  
7.1197.   We are not persuaded, however, that this decrease in the consumption and imports of 
premium tobacco products is exclusively the  result of "downtrading" as the complainants describe 
it, i.e. a transfer of consumption/imports from premium to non-premium  products. First, given that 
the overall consumption of tobacco products has decreased, at least some part of the decrease in 
the co nsumption of premium tobacco products has not been substituted with the consumption of 
non-premium  products. Second, and more generally, as discussed in Appendix E, it appears that 
the higher - and lower -priced segments of the market have evolved on the bas is of distinct trends, 
in the higher - and lower -priced segments of the cigarette wholesale sales market even before the 
implementation of the TPP measures . 
7.1198.   As regards cigar downtrading, w e have no specific information on changes in the 
proportion of LHM ci gar imports or sales in Australia relative to Australia cigar imports or sales 
overall. However, we have some information on the evolution of LHM cigar sales in Australia. 
According to Cuba, there does not appear to have been any decrease in monthly sales of 
LHM cigars after December 2012 when the TPP measures  were introduced, not  least when the 
post-implementation sales volumes are compared to monthly sales in the two years immediately 
prior to the introduction of the TPP measures ;2967 moreover, sales of Cuban LHM cigar s in Australia 
have marginally increased since December  2012.2968 According to the Dominican Republic, 
                                                
2963 Australia's first written submission, para. 543. 
2964 Australia's second written submission, para. 417. 
2965 See Appendix E. This conclusion is based in particular on some specifications of the modified trend 
analysis conducted by IPE based on the In-Market -Sales/Exchange of Sales ( IMS/EOS ) data, which controll ed 
for the effect of excise taxes and prices , among others. This analysis is based on data relating to factory -made 
cigarette s and fine -cut tobacco (converted to cigarette equivalent).  
2966 See para. 7.1206  below . 
2967 Cuba's first written submission, para. 160. 
2968 Cuba's first written submission, para. 160. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  data from the Dominican Republic's cigar industry for sales of Dominican Republic cigars in 
Australia between [[*** ]] and [[ ***]] shows that following the implementation of the 
TPP measures , there has been a decline in sales of Dominican Republic cigars, which are 
predominantly premium hand -rolled products.2969 We also note that overall imports of cigars and 
cigarillos have experienced a downward trend in recent years.2970 In light of this limited data, we 
conclude that the complainants have not shown cigar downtrading, or the causal link between any 
cigar downtrading and the TPP measures . 
7.1199.    Honduras further argues that "[a]s consumers begin to down -trade, demand for 
imported tobacco products is bound to decline". For Honduras, this amounts to a "limiting effect on 
trade" and a disincentive to export tobacco products to Australia.2971 
7.1200.   We agree that the TPP measures  may indeed reduce the demand for tobacco products. In 
our analysis of the contribution of the TPP measures  to their objective we have previously 
determined, based on a consideration of the entirety of the evidence before us, that the 
TPP measures  can contribute to reducing the demand for tobacco products. In that context, we 
found that there is credible evidence before us that the TPP measures  may affect primary demand 
for tobacco products.2972 This is because we are not persuaded that the impact of branding, and 
the positive associations that it may  generate, is necessarily limited, as the complainants argue, to 
secondary demand, to the exclusion of primary demand. Branding restrictions may thus reduce 
primary demand at the same time as they reduce secondary demand for premium brands.  
7.1201.   In our view, ho wever, a distinction needs to be made between demand for tobacco 
products and consumption (or sales) of tobacco products, where the former captures the 
inclination of consumers to purchase a product while the latter results from the interaction 
between dem and and supply. We agree with Professor Neven, the complainants' expert, that when 
considering the effect of branding or, for that matter, of restrictions on branding on consumption, 
it is important to consider both supply and demand.2973 As he explains, this  is because prohibitions 
of branding may not lead to a reduction of consumption because such restrictions affect not only 
the demand for a product but also its supply. Measures that reduce product differentiation between 
brands tend to force firms to compe te more intensely in the market, which may lead to an increase 
in sales. In our view, in order to demonstrate that TPP measures  are trade -restrictive, a 
demonstration of alleged effects of the TPP measures  on demand would not be sufficient. Instead, 
a demo nstration of alleged effects of the TPP measures  on consumption would be needed. We 
discussed the effects of the TPP meas ures on consumption/sales  in section 7.2.5.3.6.3 above . 
7.1202.   In its arguments concerning the availability of alternative measures, the Dominican 
Republic submits that, to the extent that the Panel finds that the TPP measures  contribute to the 
objective of reducing smoking behaviour (which the Dominic an Republic contests), then, to the 
extent of that contribution, the TPP measures  will restrict trade in tobacco products by reducing 
the total volume of sales. In this event, the Dominican Republic posits that the Panel would have 
found that the TPP measu res entail a volume -based restriction.2974  
7.1203.   Australia also submits that "there is an obvious way in which the complainants could have 
argued that the measure is trade -restrictive – they could admit that, over time, Australia's 
measure will reduce demand for tobacco products by reducing initiation and relapse, and 
increasing quitting. In the context of Australia's market, where domestic production is being 
phased out, this would necessarily result in a reduction in imports".2975 Australia considers that the 
                                                
2969 Dominican  Republic 's response to Panel question No. 194 ( referring to  "Dominican cigar sal es" and 
"Dominican cigar brands  variants ", (Exhibit DOM -378) (SCI)).  
2970 See para. 7.1219  below . 
2971 Honduras's first written submission, paras.  875-876; and response to Panel question No. 117. 
2972 See paras.  7.737  et seq. above. In marketing terminology, primary demand is the demand for a 
group of products (e.g. running shoes, or cigarettes) while secondary demand is the demand for a particular 
brand inside that product group ( e.g. Nike shoes, or premium brands). See para. 7.738  above.  
2973 Neven Report , (Exhibit UKR -3) (SCI), p. 20. 
2974 Dominican  Republic 's second written submission, para. 970; response to Panel question No. 151; 
comments on Australia's response to Panel question No. 151. It is noted that, " for the purposes of the analysis 
of alternatives, the Dominican  Republic  proceeds on that assumption".  Dominican  Republic's second written 
submission, para.  970. 
2975 Australia's opening statement at the first meeting of the Panel, para. 93. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TPP measures  will result in a limiting effect on overall trade in tobacco products because "(i) the 
measure will reduce the use of tobacco products (by discouraging uptake and relapse and 
encouraging quitting); and (ii) since imports will soon represent the ent irety of Australia's tobacco 
product market, with domestic production being phased out, a reduction in the use of tobacco 
products will necessarily limit overall trade in tobacco products".2976  
7.1204.   As described above2977, the very objective of the TPP measures  is to reduce the use of, 
and exposure to, tobacco products. By design, they are intended inter alia to reduce the appeal of 
tobacco products and thereby contribute to a reduction in their use. Therefore, to the extent that 
Australia's main underlying premise f or the adoption of the TPP measures , i.e. that they are apt to 
reduce the use of tobacco products, is accurate, it follows that, by design, these measures would 
reduce the consumption of tobacco products to the same extent that they contribute to this 
objective.  
7.1205.   The complainants generally consider that the measures are not apt to lead to such 
outcomes2978, and that they have not in fact contributed to a reduction in the use of tobacco 
products on the Australian market. We note however that, on the basis of th e evidence before us, 
including evidence relating to the actual operation of the measures since their entry into force, we 
have determined that there is some econometric evidence suggesting that the TPP measures, 
together with the enlarged GHWs enacted at the same time, contributed to the reduction of 
cigarette consumption .2979 
7.1206.   We note Australia's argument that, in order to establish the trade -restrictiveness of the 
TPP measures , the complainants would need to show that any relevant impact is caused by the 
TPP measures  and not by other aspects of Australia's tobacco control regime, including the 
enhanced GHWs implemented at the same time as the challenged TPP measures . As discussed in 
Appendix E, all parties acknowledge the inherent difficulty associated with d istinguishing the 
effects of the TPP measures  from the effects of the enhanced GHWs.2980 In our analysis of the 
contribution of the TPP measures  to their objective, however, we have previously determined, 
based on a consideration of the entirety of the eviden ce before us, that the TPP measures  can, and 
do in fact, contribute to their objective of reducing the use of tobacco products. In particular, one 
of the reasons for which we found that the reduction in the use of tobacco products observed since 
the entry into force of the TPP measures  results at least in part from the operation of the 
TPP measures  is that the evidence before us suggests that the TPP measures  are apt to, and do in 
fact, reduce the appeal of tobacco products to the consumer, and that this ma y in turn have an 
impact on smoking behaviours.  
7.1207.   As described by Australia, such reduction in overall consumption of tobacco products 
arising from the TPP measures  may be expected to lead to a reduction in imports, to the extent 
that the domestic market is supplied by imports. We note in this respect that it is undisputed that 
the Australian market is in fact supplied entirely through imported tobacco products.2981  
7.1208.   In light of the above, we find that the TPP measures  are trade -restrictive, insofar as, by 
reducing the use of tobacco products, they reduce the volume of imported tobacco products on the 
Australian market, and thereby have a "limiting effect" on trade.  
7.1209.   The complainants finally argue that the reduction in brand differentiation possibilities 
caused by the TPP measures  will lead to an increase in price competition and a fall in prices, and 
consequently to a decrease in the sales value of tobacco products and t he total value of imports.  
7.1210.   Cuba argues that "the TPP measures  reduce product differentiation and lower the value of 
imported products (particularly in the case of high -quality products)".2982 The reduction in product 
                                                
2976 Australia's response to Panel question No. 119, para.  132. 
2977 See para.  7.232  above.  
2978 But see Honduras's first written submission, paras.  875-876; and response to Panel question 
No. 117. 
2979 See Appendix D, paras.  117 and 137.  
2980 See Appendix E, para.  2. Cf. para.  7.974  above.  
2981 Dominican  Republic 's response to Panel question No. 5. 
2982 Cuba's second written submission, para. 226. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  differentiation will lead to an increase i n price competition, which will lead to a fall in prices and 
reduce the value of imported tobacco products. This commodification of tobacco products will 
distort competition and generate an additional disincentive to export to Australia.2983 The 
Dominican Rep ublic similarly states that the "complainants argue that, by reducing brand 
differentiation, the [TPP] measures have already led to switching from higher - to lower -priced 
cigarettes and, hence, to a reduction in the value of the trade, without reducing smo king 
prevalence or consumption". In the Dominican Republic's view, "Members are not concerned solely 
with competitive opportunities as reflected in the number of units  of an exported product sold, but 
also with the competitive opportunities as reflected in  the value of each unit sold . The value of 
trade affects the wide range of direct and indirect economic gains that a country derives from its 
export trade; this is also borne out by the decision of the TBT Committee referenced above, which 
asks Members to consider the potential trade effects of a measure in terms of the "value" of the 
affected trade".2984  
7.1211.   Australia responds that "[t]o the extent that the complainants have attempted to link 
downtrading to any actual limiting effect on overall trade, it has been by reference to the weighted 
average price for a cigarette ." Australia points out that the Dominican Republic's expert, Professor 
List, "confirmed that there has bee n a significant increase  in the real weighted price of a cigarette 
since the introduction of the tobacco plain packaging measure". Australia also argues that 
"subsequent to the introduction of the [TPP measures ], overall trade in tobacco products has 
increased in both volume and value", which "can be explained in part by the movement of 
domestic production offshore"; however, "data provided by the complainants also clearly 
demonstrates that the total value of the retail market increased in the period follow ing the 
introduction of the [TPP measures ], despite a reduction in total demand for tobacco products in the 
Australian market".2985 
7.1212.   Australia argues that , as the data submitted by the parties2986 "unequivocally establish, 
imports of tobacco products in Australia  have increased in both volume and value terms since the 
introduction of the tobacco plain packaging measure, despite consistent decline in demand for and 
consumption of tobacco products", and that "there has been no decrease in the volume or value of 
their own imports of tobacco products, which were a negligible share of total imports in the 
Australian market prior to the introduction of the tobacco plain packaging measure and have 
remained so thereafter". Given "the enormous increase in the volume of toba cco imports in the 
Australian market since the introduction of the tobacco plain packaging measure, and the critical 
importance to the complainants' case that the measure has not led to a decline in the rates of 
tobacco use in Australia, their claim of tra de-restrictiveness can only be based on a decline in 
value", in respect of which, Australia submits, the complainants have offered no evidence.2987 
7.1213.   In response to Australia's reference to data on the total value of the retail market, the 
Dominican Republic ar gues that the correct analysis is what the situation – in value terms – would 
have been absent the TPP measures , and not whether, in the abstract, the aggregate value of 
trade in tobacco products has increased in an absolute sense.2988 
7.1214.    As described above, we  agree that, to the extent that they restrict the use of branding 
features on tobacco products and their retail packaging, the TPP measures  reduce opportunities for 
producers to differentiate their products on the basis of these features. We therefore cons ider 
whether the complainants have demonstrated that such reduced opportunity for brand 
differentiation has led to an increase in price competition and a fall in prices and consequently to a 
decrease in the sales value of tobacco products and the total val ue of imports.  
                                                
2983 Cuba's second written submis sion, para. 245. 
2984 Dominican  Republic 's response to Panel question No. 117, para. 219. (emphasis original)  
2985 Australia's response to Panel question No. 117, paras.  124-125 (emphasis original; footnote 
omitted ) (referring to Supplementary Graphs, Import Volumes, Value and Share of the Market , (Exhibit 
AUS-512), Fig ure 15). See also Australia's second written submission, para. 412; and Australia's response to 
Panel question Nos. 151 and 165.  
2986 Australia's second written submission, para. 411 (referring to parties' responses to Panel question 
No. 5). 
2987 Australia's second written submission, para. 411. (footnotes omitted)  
2988 Dominican  Republic 's second written submission, paras.  950-951. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1215.   First, the empirical evidence before us, submitted by both Australia and the complainants, 
shows that the net of taxes price of tobacco products has increased since the introduction of the 
TPP measures , over the period for which data is ava ilable to us.2989 The expert report of Professor 
Neven includes evidence showing that "even net of tax average prices have followed an upward 
trend over the period Q1 2009 to Q4 2013, except for the most expensive cigarettes for which the 
net prices has decre ased in the last quarter of 2013".2990 Australia also submits a report by 
Professor Katz containing (a) evidence that the prices of cigarettes rose both gross and net of 
taxes; (b) evidence that the pace of cigarette price increases did not decelerate followi ng the 
implementation of plain packaging and, if anything, accelerated2991; (c) references to Professor 
Klick's statement that "plain packaging  … appears to have a statistically significant positive effect 
on price of about 5 percent".2992 The Dominican Republic 's expert Professor  List also confirmed 
that there has been a significant increase  in the real weighted price of a cigarette since the 
introduction of the TPP measures .2993 Moreover, evidence before us also suggests that brands in 
the higher priced segments g enerally maintained or increased their pricing premiums over brands 
in the lower -priced segments in the first year following the implementation of plain packaging, and 
have not exhibited a marked drop.2994 
7.1216.   Evidence submitted to the Panel, including data provi ded by the complainants, also 
clearly demonstrates that the total value of the retail market increased, rather than decreased, 
over the period Q4 2009 to Q3 2013, despite the overall reduction in consumption of tobacco 
products in the Australian market ove r the same period.2995 Consistent with the higher prices, the 
complainants' data suggest that the total retail value of the Australian cigarette market (excluding 
taxes) increased by approximately 200 million Australian dollars in the 12 months following the 
introduction of the TPP measure s, notwithstanding a decline in the total volume of cigarettes sold 
over the same period.2996 
7.1217.   The empirical evidence submitted to the Panel also shows that both the volume and the 
value of cigarette imports  have increased since the introduction of the TPP measures.2997 We agree 
with Australia and the complainants, however, that the increase in imports  of tobacco products 
into Australia is mostly attributable to the movement of production out of Australia as a r esponse 
to Australian government reduced -fire-risk requirements introduced in 2010 on all locally 
manufactured cigarettes that do not match consumers' preferences in other markets in the 
region.2998 We also agree with the parties that this factor makes it dif ficult to use the submitted 
import data to estimate whether, controlling for the effect of the fire -risk requirements, total trade 
value has increased or decreased as a result of the TPP measures . As explained by Australia, an 
additional complication arise s from the fact that the import values represented in various figures 
provided to the Panel are "customs values", which, when the buyer and the seller are not 
independent of each other, may only be approximations of the prices actually paid or payable to 
the supplier (transaction value).2999  
                                                
2989 The time period covered by each data set provided to the Panel varies b y source. The largest data 
set of relevance to this topic covers the period from January 2000 to September 2015. See Appendix E, 
para. 12 fn 14 and Figure E.5. 
2990 Neven Report , (Exhibit UKR -3) (SCI), p. 10. 
2991 Katz Report , (Exhibit AUS -18), paras.  63-72. 
2992 Klick Supplemental Rebuttal Report , (Exhibit HND –122), fn 71. 
2993 Dominican  Republic 's opening statement at the first meeting of the Panel, Appendix 2: Powerpoint 
Presentation by J. List, slide 58.  
2994 Katz Report , (Exhibit AUS -18), para. 66. 
2995 Australia's res ponse to Panel question No. 117 (referring to Supplementary Graphs, Import 
Volumes, Value and Share of the Market , (Exhibit AUS -512), Fig ure 15); second written submission, para. 412; 
and response to Panel question Nos. 151 and 165.  
2996 Supplementary Graphs,  Import Volumes, Value and Share of the Market,  (Exhibit AUS -512), Fig ure 
15 (identifying "Nielsen and excise data as provided in Neven Report backup production" as the data source).  
2997 Supplementary Graphs, Import Volumes, Value and Share of the Market , (Exhibit AUS -512), Figs. 
1-6. 
2998 Dominican  Republic 's second written submission, para. 948; Dominican  Republic 's response to Panel 
question No. 5, paras.  36-39; Australia's response to Panel question No. 117, para. 125; HoustonKemp Report , 
(Exhibit AUS -19) (SCI) , pp. 27 and 50.  
2999 Australia's response to Panel question No. 5, paras.  31-32. 
  
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- 463 - 
  7.1218.   Overall, therefore, the empirical evidence before us relating to cigarette prices, to the 
total value of the retail market and to the total value and volume of cigarette imports does not 
validate the complainants' argumen t that the TPP measures  will lead to an increase in price 
competition and a fall in prices, and consequently to a decrease in the sales value of tobacco 
products and the total value of imports. This evidence suggests that the measures have led to an 
increa se in the price of cigarettes which has more than offset the decrease in the quantity of 
cigarette consumed and has thereby contributed to an increase in the value of the market. We 
agree with the Dominican Republic that the correct analysis is what the si tuation – in value terms 
– would have been absent the TPP measures , and not whether, in the abstract, the aggregate 
value of trade in tobacco products has increased in an absolute sense. However, we observe that 
the complainants, including the Dominican Re public, have nowhere suggested that the effect of the 
measure could be to mitigate an increase in the price of cigarettes caused by other factors. We 
also observe that, if, arguendo , the TPP measures  since their entry into force had, by the end of 
2013, le d to an increase in price competition and a fall in prices, this effect must have been 
relatively weak as it was offset by an increase in price caused by some other factor(s). The 
complainants do not rebut this evidence but they argue that it does not cont radict their claims.  
7.1219.   As discussed in Appendix D, empirical evidence before us regarding cigars and cigarillos is 
somewhat less clear. Despite fluctuations, overall imports of cigars and cigarillos have experienced 
a downward trend in recent years. However , none of the parties provided econometric evidence 
assessing the impact of the TPP measures  on cigar imports. Likewise, as noted, data on cigar 
imports per complainant is limited and indirect, in that it does not address the role of the 
TPP measures . We r ecall however our conclusion that, as detailed in Appendix C, there is some 
econometric evidence suggesting that the TPP measures  contributed to the reduction in cigar 
smoking prevalence in Australia, which supports a conclusion that the TPP measures  are 
trade-restrictive also vis-à-vis cigars.  
7.1220.    Cuba argues that the observed increase in the price of cigarettes and in the total value of 
the market for cigarettes do not contradict their claim that the TPP measures  are trade -restrictive 
because they reduce pro duct differentiation and lower the value of imported products.3000 Cuba 
argues that Professor Neven posits a fall in prices net of tax for certain premium brands and, in 
accordance with his models of branding, he finds that profits will decline, either as a r esult of 
diminished output, or because of diminished margins firms earn if they increase output.3001 
7.1221.   In the Dominican Republic's view, the complainants argument is that, by reducing brand 
differentiation, the TPP measures  have already led to switching from higher - to lower -priced 
cigarettes and, hence, to a reduction in the value of the trade, without reducing smoking 
prevalence or consumption. However, at the same time the Dominican Republic adds that "[t]his 
disagreement  on the actual trade effects resulting from the [TPP] measures is not material to the 
Panel's finding of trade -restrictiveness under Article  2.2, because it is evident from the design, 
structure, and expected operation of the measures that it severely limi ts competitive opportunities 
to differentiate tobacco products".3002 The Dominican Republic's argument is based on the 
assumption that the TPP measures  would either keep the price of cigarettes constant or reduce it. 
However, evidence shows that brands in the  higher priced segments generally maintained or 
increased their pricing premiums over brands in the lower -priced segments in the first year 
following the implementation of plain packaging, and have not exhibited a marked drop, in line 
with the observation that the average price of cigarettes had increased sufficiently to offset the 
                                                                                                                                                  
Imports in Australian international trade statistics are primarily recorded at the customs value. 
The starting point for establishing the customs value is the price actu ally paid or payable to the 
supplier (transaction value), provided a number of conditions are met. The most important of 
these is that the buyer and seller must be independent of each other (i.e. it is an arm's length 
transaction). If the conditions are no t met, practical rules are used to determine a substitute 
price to be used as the customs value. The substitute price is intended to be as close an 
approximation as possible of the transaction price that would have been struck had the 
prescribed conditions  been met.  
 
Ibid. (quoting Australian Bureau of Statistics, "Balance of Payments and International Investment Position, 
Australia, Concepts, Sources and Methods, 1998 ", Cat. No. 5331.0 (1998), (Exhibit AUS -513)).  
3000 Cuba's second written submission, para. 227. 
3001 Cuba's second written submission, paras.  249-250. 
3002 Dominican  Republic's response to Panel question No. 117, para.  233. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  decrease in consumption.3003 In other words, the facts before us do not support the Dominican 
Republic's argument.  
7.1222.   Honduras, with reference to the expert reports by Professor Neven , argues that prices will 
ultimately decline.3004 Indeed, the parties' experts have submitted predictions regarding the effect 
of the TPP measures  on competition and prices over time based on economic models. Professor 
Katz for Australia and Professor Neven f or Honduras, have diverging views regarding the strategies 
that firms will adopt in reaction to the introduction of the TPP measures  and the reduction in 
differentiation. Professor Neven argues that "plain packaging is likely to erode the value of 
establis hed cigarette brands, thereby reducing brand loyalty among consumers and thus 
intensifying competition between producers", and that, "[a]s a result, prices are likely to decline 
over time, since the value of incumbent brands deteriorates, […]".3005 Professor Katz, on the 
contrary, submits  that: 
Economic theory yields ambiguous predictions regarding whether a reduction in the 
perceived attractiveness of cigarettes induces tobacco companies to raise or lower 
cigarette prices.  In choosing its prices, a supplier c ompares the profits from pursuing 
a mass -market strategy ( i.e., a low -price strategy that attracts a large number of 
customers) with those of pursuing a premium, or targeted, strategy ( i.e., one 
appealing to a smaller base of loyal customers who are less p rice sensitive and willing 
to pay a higher price). … However, economic theory clearly identifies situations in 
which reducing the perceived attractiveness of a product induces a supplier to shift 
from charging a relatively low price aimed at appealing to a  wide range of consumers 
to charging a relatively high price and selling only to those consumers who are willing 
to pay the most for its products. It is notable that actual market experience —including 
experience with Australian cigarettes —demonstrates that  downward shifts in demand 
can lead to higher prices.3006 
7.1223.   In his rebuttal expert report, Professor Neven responds to Professor Katz's argument that 
the TPP measures  may induce tobacco producers to adopt the so -called "harvesting strategy", 
which consists in a ppealing to a smaller base of loyal customers who are less price -sensitive and 
are willing to pay a higher price. Professor Neven argues that the harvesting strategy does not 
correspond to the reaction that is normally expected from producers, and that the  increase in price 
associated with a harvesting strategy is likely t o be transitory and in the long -term prices are likely 
to fall.3007 In response, with respect to the existence of "harvesting", Professor Katz notes that 
Professor Neven reviews studies of wh ether harvesting occurs in other countries in other 
industries, which are subject to very different marketplace dynamics, rather than recognizing the 
evidence suggesting that harvesting is, in fact, occurring in the Australian cigarette industry.3008 
Professo r Katz further notes that "there is nothing in the structure of Professor Neven's simulation 
model that differentiates between the long run and the short run"; that the "model's predictions 
are driven by the values of the parameters it receives as inputs",  and thus that "there is no reason 
to expect his model should perform better in the long run than it does in the short run".3009 Finally, 
he notes that Professor Neven 's position regarding the time path of policy effects is contrary to 
that of several of the complainants' other experts who assert that, if plain packaging is ever going 
                                                
3003 Katz Report , (Exhibit AUS -18), para. 66. 
3004 Honduras's second written submission, paras.  571-572. 
3005 Neven Report , (Exhibit UKR -3) (SCI) , p. 2. 
3006 Katz Report , (Exhibit AUS -18), p. 4. (emphasis original)  
3007 Neven Rebuttal Report , (Exhibit HND -123), para. 42. Note that Professor Neven also argues that 
Professor Katz's harvesting theory also misses important characteristics of the Australian market, in particular 
the diversity of brands with different strengths. This argument, however, does not contradict Pr ofessor Katz's 
argument that the TPP measures  may induce producers to adopt a harvesting strategy, but rather serves to 
explain that: "The theoretical possibility of a harvesting strategy by strong brands therefore does not 
undermine our conclusion that pl ain packaging is unlikely to decrease smoking as more price -sensitive 
consumers are likely to gravitate towards weaker brands with lower prices." Neven Rebuttal Report , (Exhibit 
HND-123), para. 5. 
3008 Katz Surrebuttal Report, (Exhibit AUS -584), para. 12. 
3009 Katz Surrebuttal Report, (Exhibit AUS -584), para. 31. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  to have its intended effects, then those effects should have become clearly evident soon after the 
implementation of plain packaging.3010 
7.1224.   Predicting the evolution of competitive int eractions is notoriously difficult. We agree with 
Professor Katz that economic theory yields ambiguous predictions regarding whether a reduction in 
the perceived attractiveness of cigarettes will induce tobacco companies to raise or lower cigarette 
prices.  In this context, the empirical evidence before us shows that cigarette prices, excluding 
taxes, have increased since the introduction of the TPP measures , and brands in the higher priced 
segments generally maintained or increased their pricing premiums ov er brands in the 
lower -priced segments in the first year following the implementation of plain packaging, and have 
not exhibited a marked drop.3011 This suggests that at least in the period of observation covered, 
price competition has not increased. These observations are consistent with the predictions of 
Professor Katz's model, which Professor Neven rejects without offering an alternative explanat ion 
that w ould be consistent with a short -term increase in prices followed by a decrease in the longer 
run. The evidence, however, does not allow us to exclude the possibility that the TPP measures  
may have reinforced price competition, which does not seem  unreasonable, nor, if this hasn't 
happened yet, that they may reinforce it in the future. It may well be that, as argued by Professor 
Neven, prices will eventually start decreasing, even if the evidence presented to us does not, in 
our view, persuasively demonstrate, that this will be the case.  
7.1225.   In light of the above, and considering our earlier findings relating to the effect of the 
TPP measures  on consumption, and the possibility that, to the extent that the measures would 
continue to contribute to their  objective, these effects may increase with time, we find that while 
the complainants have not demonstrated that the TPP measures  have reduced the value of 
imported tobacco products on the Australian market, it cannot be excluded that this may happen 
in the future, either as a result of the effect of the measure s on consumption only or as a result of 
this effect combined with a fall in prices.  
Whether the TPP measures  are trade -restrictive because they impose conditions 
on the sale of tobacco products that  entail compliance costs  
7.1226.   We agree with Australia that, as expressly recognized by the Appellate Body in US –
Tuna II (Mexico) and in US – COOL , there may be circumstances in which a technical regulation is 
not trade -restrictive , such that there is "no basis  for alleging that a technical regulation is 
trade -restrictive solely because compliance with its requirements is mandatory; or that technical 
regulations are per se trade -restrictive".3012 As explained above, we consider that a demonstration 
that a particula r technical regulation is trade -restrictive requires a demonstration that it gives rise 
to a limiting effect on international trade in the relevant products. In the present case, a 
demonstration that the TPP measures  are trade -restrictive requires a demons tration that they give 
rise to a limiting effect on international trade in tobacco products. We are not persuaded that the 
complainants have demonstrated that the TPP measures  are trade -restrictive simply b ecause they 
set out mandatory requirements for the  packaging of tobacco products.  
7.1227.   We therefore consider whether, as argued by Honduras, Cuba,  and Indonesia, the 
existence these requirements give rise to a trade -restrictive effect because of the costs face d by 
producers associated with compliance with the measures, or by reason of the penalties that they 
provide for in the event of non -compliance.  
7.1228.   Honduras , Cuba and Indonesia  argue that the TPP measures  are trade -restrictive because 
they entail compliance costs. In particular, these complainants assert that there are compliance 
costs associated with ensuring that the appearance of trademarks is consistent with the 
TPP measures3013, that the format of packaging3014 and in dividual tobacco products3015 is 
                                                
3010 Katz Surrebuttal Report, (Exhibit AUS -584), para. 34. 
3011 Katz Report , (Exhibit AUS -18), para. 66. 
3012 Australia's first written submission, para. 564. See para. 7.1144  above.  
3013 Honduras's first written submission, para. 878; Honduras's response to Panel question No. 117; 
Cuba's first written submission, para. 404; Cuba's response to Panel question No. 117; Cuba's s econd written 
submission, paras.  251-253; and Indonesia's response to Panel question No. 117. 
3014 Honduras's first written submission, para. 879; Honduras's response to Panel question No. 117; 
Cuba's first written submission, para. 404; Cuba's response to Panel question No. 117; Cuba's second written 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 466 - 
  consistent with the TPP measures , and because retailers would have been required to replace 
non-plain packaged stock with plain -packaged stock upon the introduction of the 
TPP measures .3016 
7.1229.   Australia  responds that the complainant s' arguments are not sufficient to establish the 
trade -restrictiveness of the TPP measures  (though such costs are potentially relevant in 
determining whether the TPP measures  have a limiting effect on trade3017). Australia notes that 
producers wishing to part icipate in the Australian market were already required to meet Australia's 
bespoke product and packaging requirements, such that this market condition has not changed 
(though there has been a change to the content of the requirements).3018 Moreover, Australia  
argues that the complainants have not identified the incremental cost of compliance or adaptation 
attributable to the TPP measures3019, nor why such costs increase for legitimate producers but 
decrease for counterfeiters (as the complainants have argued in t he context of the effect of the 
TPP measures  on the market for illicit tobacco products in Australia).3020 In short, Australia argues 
that the Panel has no evidence before it that it is less expensive for a company to change its 
processes to produce a branded  cigarette, cigar, or package that complies with Australian law, 
than it is to produce a plain cigarette, cigar, or package that complies with Australian law.3021 
7.1230.   We recall that an assessment of the trade -restrictiveness of a technical regulation 
involves an assessment of whether it has a limiting effect on trade.  In this respect, we consider 
that the standard applied when determining whether a measure amounts to a "restriction" on 
importation within the meaning of Article  XI of the GATT 19943022 may provide usef ul guidance. 
We thus note that the panel in US – COOL informed its understanding of "trade -restrictiveness" 
with reference to the interpretation given by previous panels to the term "restriction" in Article  XI 
of the GATT.3023  
7.1231.   With this in mind, we note that  past panels have found that measures may amount, or 
have amounted, to "restrictions" under Article  XI of GATT 1994 on the basis that they negatively 
affected importers' investment plans and increased transaction costs.3024 In support of their 
contention that  the TPP measures  are trade -restrictive because they impose compliance costs, 
Honduras, Cuba,  and Indonesia have referred to such past panel reports – namely, the GATT panel 
in Japan  – Leather (US II) and the panel in Colombia  – Ports of Entry . Before determining whether 
we agree with the assertion that such costs may also be "trade -restrictive" within the meaning of 
Article  2.2 of the TBT Agreement , we find it pertinent to consider in more detail the manner in 
which increased costs were addressed by th ese panels in the context of their assessments under 
Article  XI of the GATT  1994. The GATT panel in Japan  – Leather (US II) stated that:  
[T]he existence of a quantitative restriction should be presumed to cause nullification 
or impairment not only because of any effect it had had on the volume of trade but 
also for other reasons e.g. it would lead to increased transaction costs and would 
create uncertainties which could affect investment plans.3025 
                                                                                                                                                  
submission, paras.  251-253; Indonesia's response to Panel question No. 117; and Indonesia's second written 
submission, para. 272. 
3015 Honduras's first written submission, para. 881; Hondur as's second written submission , para.  579; 
Honduras's response to Panel question No. 117; Cuba's first written submission, para. 404; Cuba's response to 
Panel question No. 117; Cuba's second written submission, paras.  251-253; and Indonesia's response to P anel 
question No. 117. 
3016 Honduras's first written submission, para. 885; Honduras's response to Panel question No. 117; 
Cuba's first written submission, para. 404; Cuba's response to Panel question No. 117; Cuba's second written 
submission, paras.  251-253; and Indonesia's response to Panel question No. 117. 
3017 Australia's first written submission, para. 561; and Australia's response to Panel question No. 117. 
3018 Australia's first written submission, para. 557; and Australia's response to Panel question Nos. 117 
and 125.  
3019 Australia's first written submission, para. 560. 
3020 Australia's first written submission, para. 559 (referring to Janeczko Report, (Exhibit UKR -10)). 
3021 Australia's response to Panel question No. 155. 
3022 Panel Reports, US – COOL , paras.  7.569 -7.572.  
3023 Panel Reports, US – COOL , paras.  7.569 -7.572.  
3024 GATT Panel Report, Japan  – Leather (US II) , para. 55. See also Panel Reports, Colombia  – Ports of 
Entry , para. 7.236; and Argentina  – Import Measures , paras.  6.261 and 6.473.  
3025 GATT Panel Report, Japan – Leather (US II) , para. 55. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1232.   In Colombia  – Ports of Entry , the panel assessed, inter alia, the additional costs 
associated with restrictions on the ports of entry available to certain textiles, apparel and 
footwear. In the context of that analysis, the panel endorsed the statements made by the GATT 
panel in Japan  – Leather (US II)3026, before consi dering Panama's argument that the imposition of 
the challenged measure had limited competitive opportunities by forcing importers to incur higher 
shipping costs in order for products to reach certain markets in Colombia.3027 The panel proceeded 
to consider a number of quotes and estimates adduced by the parties associated with the costs of 
transportation of products to different ports in Colombia. The panel identified a number of 
deficiencies with this evidence and thus declined to draw conclusions from it.3028 
7.1233.   We note that additional costs arising from compliance with a measure were also 
addressed by the panel in Argentina  – Import Measures . In that dispute, the panel stated that 
"[e]xtra costs as a general matter will discourage importation and, thus, will have an additional 
limiting effect on imports".3029 The panel then observed that the measures at issue – which 
required, inter alia, that certain importers and other economic operators offset the value of their 
imports with at least an equivalent value of exports,  and refrain from repatriating profits from 
Argentina3030 – may "result in costs unrelated to the business activity of the particular 
operator".3031 The panel concluded that these export activities and limitations on repatriation of 
profits "did not come about a s a result of business decisions", but "in response to requirements 
imposed by Argentina".3032 
7.1234.   On the basis of these analyses, we understand that the focus of previous disputes 
concerning whether costs amount to "restrictions" has mostly been on whether the m easure in 
question would create costs for economic actors with respect to their ongoing participation  in the 
relevant market.3033 We can envisage that, under certain circumstances, the adoption of a 
                                                
3026 Panel Report, Colombia  – Ports of Entry , para. 7.241.  
3027 Panel Report, Colombia  – Ports of Entry , para. 7.258.  
3028 Panel Report, Colombia  – Ports of Entry , paras.  7.259 -7.270.  
3029 Panel Reports, Argentina  – Import Measures , para. 6.261.  
3030 Panel Reports, Argentina  – Import Measures , para. 6.155. These costs were later described as 
follows:  
 
Evidence shows that, to comply with the requirement to export, companies have engaged in 
activities unrelated to their respective business activity. For instance, companies from the 
automotive sector have exported peanuts, water, wine, soy products and biodiesel; companies 
from the motorcycle sector exported grape juice and wine; tyre producers exported honey and 
clothing brands have exported  wool. Other companies have engaged in export activities within 
their sector to even out their trade balance. For example, bible importers exported children 
books and multinational toy companies exported domestic toys produced by unrelated 
companies. In ad dition, at the behest of the Argentine Government, operators have made 
investments and refrained from repatriating profits, both of which result in additional costs for 
economic operators.  
 
Panel Reports, Argentina  – Import Measures , para. 6.262 (footnotes omitted). See also ibid. 
paras.  6.167 -6.168.  
3031 Panel Reports, Argentina  – Import Measures , para. 6.261. The Panel also noted that:  
 
While the circumstances in the present case are different, the fact that a measure may constitute 
a restric tion on importation within the meaning of Article  XI:1 of the GATT 1994 when it acts to 
discourage importation by penalizing it and making it prohibitively expensive, was analysed by 
the panel in Brazil  – Retreaded Tyres . We agree with the panel's analytic  approach in that case.  
 
Ibid. (footnote omitted). We note that the panel in Brazil  – Retreaded Tyres  considered this question with 
respect to whether fines associated with a prohibition on the importation of used and retreaded tyres 
amounted to restrictio ns for the purpose of Article  XI:1 of the GATT  1994. See Panel Report, Brazil  – Retreaded 
Tyres , paras.  7.368 -7.374. We note Cuba has argued that the TPP measures  are trade -restrictive on the basis 
of the applicable penalties for non -compliance. We will co nsider this in " Whether the penalties under the TPP 
measure s are trade -restrictive " within section 7.2.5.4.2. 3 below.  
3032 Panel Reports, Argentina  – Import Measures , para. 6.263.  
3033 We also note, for completeness, that the relationship between compliance costs and 
trade -restrictiveness was before the panel in US – COOL ( Article  21.5 – Canada and Mexico) in the context of 
the claims under Article  2.2 of the TBT Agreement . This question arose in the context of the cost for industry of 
compliance with the third and fourth al ternative measures proposed by the complainants, and whether this was 
probative of the trade -restrictiveness of those alternatives. However, in relation to the third alternative 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  technical regulation may impose costs that are not, or not e xclusively, ongoing in nature. We do 
not exclude that such costs may be of such a magnitude or nature as to limit the "competitive 
opportunities" available to imported products and thereby have a limiting effect on trade.3034  
7.1235.   However, we are not persuaded th at the existence of any level of costs associated with 
initial compliance with a technical regulation will be sufficient, in and of itself, to demonstrate that 
a technical regulation is trade -restrictive. Honduras submits that in relation to " labelling and  
packaging or other product -related requirements covered by the disciplines of the TBT Agreement , 
it is clear that every technical regulation will require some adaptation and forms a barrier to 
trade". We note that, as recognized in the TBT Committee Recommendation  discussed above, a 
technical regulation may have import -enhancing as well as import -reducing effects.3035 With 
respect specifically to costs, a technical regulation may create costs of such a magnitude or nature 
as to have a limiting effect on trade. However, it may also create a regulatory environment in 
which operating costs are reduced , thereby enhancing  competitive opportunities and facilitating  
trade.3036 For these reasons, we are not satisfied that the existence of some initial adaptation cos ts 
would in all cases be sufficient, in and of itself, to indicate that a technical regulation has a limiting 
effect on trade. The extent to which such costs may be trade -restrictive must, in our view, be 
assessed on a case -by-case basis.  
7.1236.   We note that the parties do not disagree insofar as they consider that the adoption of the 
TPP measures  (and of the enhanced GHWs  implemented at the same time) required the 
manufacturing of tobacco products and their packaging to be modified. However, Australia argues 
that the complainants have not discharged their burden of proof because (i) they have not 
provided evidence to substantiate the increase in costs, and in any case have not isolated the cost 
of complying with the TPP measures  from the costs of modifications to the size of the GHWs; and 
(ii) if there were any additional costs attributable to the TPP measures , there is no evidence 
concerning whether those costs were significant enough to have a limiting effect on trade.3037 
7.1237.   Turning to the evidence adduced by the part ies, we first observe that Australia itself 
seems to have envisaged that, at least in the period immediately before the entry into force of the 
TPP measures , the industry would face certain costs associated with their introduction. For 
example, Honduras ha s presented a "Best Practice Regulation Preliminary Assessment" by the 
Australian Government, dated 7 April 2010, completed by the DHA with respect to plain packaging 
of tobacco products. Under the heading "Business compliance costs", the DHA answered "yes " to 
the following questions: "Will business es incur extra costs in keeping abreast of regulatory 
requirements?"; "will businesses need to purchase materials, equipment of external services?"; 
"will businesses incur costs when cooperating with audits or in spections?"; "will businesses incur 
costs from other changes in their procedures and practices?"; and "are there other compliance 
costs?"3038, 3039 Honduras has also submitted a Regulat ion Impact Statement (RIS) by the DHA, 
                                                                                                                                                  
measure, the panel was critical of the complainants' elucidation of the expect ed operation of that proposal , and 
therefore concluded that the complainants had not demonstrated that the alternative would be less 
trade -restrictive than the measure at issue. In relation to the fourth alternative, the Panel concluded that the 
complainan ts had not provided an adequate explanation of how it would be implemented. In light of its 
evidentiary concerns, the panel did not draw conclusions surrounding the relationship between costs and 
trade -restrictiveness for the purpose of Article  2.2 of the TBT Agreement . See Panel Reports, US – COOL 
(Article  21.5 – Canada and Mexico) , paras.  7.509, 7.558 -7.560 and 7.603 -7.610.  
3034 We note in this respect the comment by the panel in Argentina  – Import Measures , quoted above, 
that "[e]xtra costs as a general mat ter will discourage importation and, thus, will have an additional limiting 
effect on imports". See Panel Reports, Argentina  – Import Measures , para. 6.261.  
3035 See Committee on Technical Barriers to Trade, Secretariat Note, "Decisions and Recommendations 
Adopted by the WTO Committee on Technical Barriers to Trade Since 1 January 1995", G/TBT/1/Rev.12, 21 
January 2015, Section 4.3.1.1, p. 20 (entitled "Significant effect on trade of other Members").  See also 
paras.  7.1081 , 7.1086 , and 7.1088  above.  
3036 We also note that the Appellate Body envisages circumstances in which a technical regulation will 
not be trade -restrictive. As the Appellate Body has observed, a comparison of a chal lenged measure and 
possible alternative measures may not be required "when the measure is not trade restrictive at all". Appellate 
Body Reports, US – COOL , para. 376 fn 748. See also Appellate Body Report, US – Tuna II (Mexico) , para. 322 
fn 647. 
3037 Austral ia's response to Panel question No. 155. 
3038 Such costs relate to "indirect costs or impacts on intermediaries" relating to accountants, lawyers, 
banks or financial advisers.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  dated April 2010, in which the DHA sta tes that the requirement to ensure packaging meets 
specified design characteristics "will involve some upfront costs to adjust manufacturing processes 
for the Australian market and there may be some ongoing costs to maintain separate packaging 
requirements  for the Australian market if the manufacturer sells into other markets".3040 This 
document also indicates that it would not be possible to quantify the cost to manufacturers until 
the design of the packages had been determined.3041  
7.1238.   Moreover, in the PIR of the TPP measures , the Australian government reported that one 
of the major manufacturers of tobacco products in Australia submitted an estimate of its costs 
associated with the transition to plain packaging.3042 These costs were estimated at AUD$73.87 
million, of  which manufacturers, importers and wholesalers faced AUD$11.42 million costs 
associated with plants and machinery, and AUD$57.73 million associated with "packaging 
compliance costs".3043 No ongoing costs were reported.3044 The PIR also reports that "[t]obacco 
plain packaging is likely to give rise to an on -going saving to manufacturers as the printing of plain 
as opposed to branded tobacco packaging could be undertaken at a lower cost".3045 
7.1239.   Honduras argues that the costs identified in the PIR confirm the arguments it has made 
throughout these proceedings, and are "significant under any metric". Honduras adds that 
Australia's calculation of the compliance costs does not require complex economic analysis, and 
the estimates were derived using industry -submitted costs, "with adjustments made where 
relevant and consistent with the … [regulatory burden measurement ] methodology ". According to 
Honduras, this enhances the credibility of Australia's estimates.3046 
7.1240.   We note however that the PIR identifies a number of limitations as sociated with these 
figures. For example, it notes that "it was not possible to determine precisely which costs 
submitted were actually attributable to compliance with tobacco plain packaging, and which costs 
were likely to have been incurred by the manufa cturers as part of business as usual including due 
to other compliance activities".3047 Furthermore, the PIR asserts that the one submission with 
respect to costs mentioned above "was at a very high level of generality and difficult to 
disaggregate, with litt le information given regarding the underlying activities said to give rise to 
the costs claimed", and was accompanied by an explanation suggesting "that some of the costs 
incurred resulted from activities voluntarily engaged in that went outside the scope of the 
minimum compliance requirements of the measure and that were not incurred by other industry 
members".3048  
7.1241.   The Panel shares Australia's view that Honduras, Cuba,  and Indonesia have done little to 
elaborate on, or substantiate, their general assertions concerning the costs faced by the tobacco 
industry in complying with the TPP measures . It could have been expected, in light of the intricate 
analyses provided by all parties concerning other factual matters in these proceedings, that more 
precise informat ion would be provided.3049 Nonetheless, the evidence described above from the 
manufacturer of tobacco products in Australia does establish that at least one manufacturer faced 
costs associated with the transition to the TPP measures .3050 
7.1242.   The question we must con sider, therefore, is whether the potential and actual costs 
identified are sufficient to demonstrate that the TPP measures  have a limiting effect on 
international trade. In addressing this question, we recall our view that the existence of some  
                                                                                                                                                  
3039 Australian Government, Department of Health and Ageing, "Best Practice Regulation  Preliminary 
Assessment", 7 April 2010, (Best Practice Regulation Preliminary Assessment), (Exhibit HND -13). 
3040 Australian Government, Department of Health and Ageing, "Regulat ion Impact Statement: Plain 
Packaging of Tobacco Products", 27 April 2010, (RIS 2 010), (Exhibit HND -15), p. 10. 
3041 RIS 2010, (Exhibit HND -15), p. 10. 
3042 Australia identifies t hese as BATA , Philip Morris (Australia) and Imperial Tobacco Australia. Tobacco 
Plain Packaging PIR, (Exhibit  AUS-624), paras.  144 and 150 . 
3043 Tobacco Plain Packagin g PIR, (Exhibit  AUS-624), para. 153. 
3044 Tobacco Plain Packaging PIR, (Exhibit  AUS-624), para. 154. 
3045 Tobacco Plain Packaging PIR, (Exhibit  AUS-624), para. 156. 
3046 Honduras's comments on Australia's Post -Implementation Review, paras.  9 and 97 -101. 
3047 Tobacco Plain Packaging PIR, (Exhibit  AUS-624), para. 147. 
3048 Tobacco Plain Packaging PIR, (Exhibit  AUS-624), para. 150. 
3049 Australia's response to Panel question No. 155. 
3050 See para. 7.1238  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 470 - 
  initial com pliance costs may not be sufficient, in and of itself, to indicate that a technical regulation 
is trade -restrictive. We also note that the complainants, though having had the opportunity to 
comment on the PIR, have not addressed the criticisms identified t herein in relation to the 
information provided by one of the major manufacturers of tobacco products in Australia in respect 
of its costs associated with the transition to plain packaging. These elements lead us to conclude 
that the complainants have not s ufficiently identified how compliance costs associated with the 
TPP measures  would may have had, or have, are of such nature or magnitude as to have a limiting 
effect on trade .3051  
7.1243.   We also note the evidence on the record concerning counterfeit tobacco produc ts, that 
the TPP measures  will lower barriers to market entry for counterfeit producers, as the 
requirements in the TPP measures  will simplify3052, and possibly even cheapen3053, the production 
of packaging that satisfies the requirements in the TPP measures . This evidence has been 
submitted to the Panel in the context of the complainants' arguments concerning the market for 
illicit tobacco products in Australia, and the impact of the TPP measures  on that market. Though 
we do not conclude that predictions about t he behaviour of economic actors in the illicit market are 
automatically transposable to the licit market, the assertions contained in this evidence in relation 
to the costs faced by economic operators, and their responses thereto, are indicative of the nat ure 
and extent of the costs caused by changes in regulation.  
7.1244.   In light of the above, we are not persuaded that the complainants have demonstrated 
that the TPP measures  are trade -restrictive on the basis that they have generated costs associated 
with compli ance with their requirements, that would have a limiting effect on international trade. It 
is also unclear to us that the implementation of the TPP measures  has generated additional 
compliance costs, compared to what would have been required to ensure comp liance with the 
requirements for enhanced GHWs that entered into force at the same time as the TPP measures , 
which are not challenged in these proceedings and would also inevitably have led to adaptations in 
the appearance of the packaging of tobacco produ cts for the Australian market.  
7.1245.   We further note that the complainants have not adduced specific evidence concerning 
compliance costs in relation to cigars. However, a ccording to the HoustonKemp report presented 
by Australia, the costs of plain packaging fo r packets of cigars and cigarillos made in large 
quantities would be very similar to those for packets of cigarettes, and the on -going costs for 
producing simpler packaging with less colours will be either low or result in lower costs to produce 
the packaging.3054 HoustonKemp adds that the TPP measures  were adapted to reduce the cost of 
compliance for cigar suppliers selling individual cigars.  According to HoustonKemp, the legislation 
was changed to allow cigars to be imported non -compliant and then repa cked in Australia. Further, 
                                                
3051 See Appellate Body Report, EC – Poultry , paras.  126-127. 
3052 Specifically, we note that the expert report of Professors Chaudry, Murray and Zimmerman, 
submitted by the Dominican  Republ ic and Honduras, asserts that manufacturers of illicit tobacco packaging will 
face a reduced level of complexity and cost in making counterfeit plain packaged packs. They note in particular 
that the "'industry standard' basic flip -top pack imposed in Austr alia by plain packaging is far simpler to 
replicate" and therefore "lowers a counterfeiter 's cost of production". CMZ Report , (Exhibit DOM/HND -2), 
paras.  79-80. This view is supported by Amcor, and the Janeczko expert report. See Amcor Submission on TPP 
Bill, (Exhibit AUS-258), pp . 13-14; and Janeczko Report, (Exhibit UKR-10), paras.  42-48 (relied upon by 
Indonesia: see Indonesia's communication to the Panel of 8 July 2015) . 
3053 We note the evidence on the record from Amcor (in its own word s, "the global leader in consumer 
packaging") to the effect that compliant packaging requires less sophisticated machinery to be produced, and 
that this will lead to lower upfront investment costs and barriers to entry for counterfeiters. Specifically, Amc or 
points out that the Gravure machine, which produces most tobacco packaging products today, "costs around 
A[UD]$9-11 million". The other technology used to print tobacco packaging – offset lithography – does not 
achieve as high quality finishes as the us e of Gravure technology, and cannot achieve specific finishes, such as 
metallic inks and certain structural varnishes. Amcor states:  
 
Reduced technical requirements would mean that market entry becomes even more attractive, 
less specialised and less secure , especially if second -hand equipment is purchased, and where 
the requirements for installation space are much smaller. For instance, a second -hand offset 
machine would typically cost around A [UD]$65,000 – A[UD]$135,000 and could easily be 
installed in a d omestic setting e.g. a garage.[] In addition, converting equipment is readily 
available and the lead times for acquisition are relatively short - around nine months on average.  
 
See Amcor Submission on TPP Bill, (Exhibit AUS-258), p. 14. 
3054 HoustonKemp Rep ort, (Exhibit AUS -19) (SCI), p. 38. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 471 - 
  the cigar bands can be covered with a compliant adhesive band as an alternative to removal, so 
that alphanumeric codes and marks are permitted on cigar bands for anti -counterfeiting purposes. 
Also, the costs of repacking individ ual cigars imported from overseas does not appear to be very 
significant because the TPP measures  have not had a substantial impact on the rate at which cigar 
and cigarillo prices have been rising, and the volume of cigar and cigarillo imports has been fal ling. 
Finally, the influence of cigar brands has been reduced because they are no longer shown on 
packets, which will either reduce barriers to entry or have no significant effect.3055 On the basis of 
this evidence, we therefore also find that the TPP measure s have not been demonstrated to be 
trade -restrictive on the basis of the compliance costs associated with their implementation for 
cigars.  
7.1246.   Finally, we note that Honduras has not presented evidence in relation to its assertions 
relating to the need to repla ce non -plain packaged stock with plain -packaged stock upon the 
introduction of the TPP measures3056, other than an assertion to this effect by the Australian 
Retailers' Association in the context of the Chantler Re port.3057 We consider that the decision on 
how t o manage inventory in preparation for the implementation of a regulatory change is in the 
first instance a business decision based on an assessment of how compliance could be optimally 
achieved. We are not persuaded that Honduras's assertion in this respec t is sufficient to 
demonstrate the trade -restrictiveness of the TPP measures . 
Whether the penalties under the TPP measure s are trade -restrictive  
7.1247.   Cuba argues that the measures also involve costs arising from the need to ensure strict 
compliance in view of the high fines and penalties for any failure to comply with the requirements 
under the measure.3058 Cuba argues that a penalty itself may operate as a restriction on 
international trade, and that the penalties in the present case constitute an independent and  
important basis for arguing that the measure is very trade -restrictive.3059 Cuba considers that the 
penalties imposed under the TPP measures  are, in themselves, trade -restrictive and constitute an 
independent basis for a finding that the TPP measures  are tra de-restrictive. In support of its claim, 
Cuba refers to the analysis under Article  XI of GATT 1994 by the panel in Brazil  – Retreaded Tyres .  
7.1248.   As we have noted above, we consider that prior rulings in respect of the meaning of the 
term "restrictions" within the meaning of Article  XI of the GATT 1994 may inform our 
understanding of the term "trade -restrictive" in Article  2.2.3060 We do not exclude th at a technical 
regulation imposing costly penalties on importation may, in the circumstances of a given case, 
have a limiting effect on trade and, as a result, be "trade -restrictive" within the meaning of 
Article  2.2 of the TBT Agreement .3061 
7.1249.   In the dispute r eferred to by Cuba, Brazil  – Retreaded Tyres , the European Communities 
challenged a ban on the importation of retreaded tyres and the imposition of fines on the 
importation of such tyres, as measures "that complement and reinforce" the import ban, with the  
effect that both the ban and the fines were found to be inconsistent with Article  XI:1 of the 
GATT  1994.3062 The parties in that case did not dispute that the fines were an enforcement 
measure, applied in addition to and in support of a prohibition on import ation.3063 The panel 
observed that "the fines as a whole … have the effect of penalizing the act of 'importing' retreaded 
tyres by subjecting retreaded tyres already imported and existing in the Brazilian internal market 
to the prohibitively expensive rate of  fines".3064  
                                                
3055 HoustonKemp Report , (Exhibit AUS -19) (SCI), p p. 38-39. 
3056 Honduras's first written submission, para. 885. 
3057 Chantler Notes 14 March 2014, (Exhibit HND -104).  
3058 Cuba's second written submission, para. 251. 
3059 Cuba's second written submission, paras.  150, 251 (referring to Panel Report, Brazil  – Retreaded 
Tyres , para. 7.372).  
3060 Panel Reports, US – COOL , paras.  7.569 -7.572.  
3061 Panel Reports, US – COOL , paras.  7.569 -7.572. See also Panel Report, US – Tuna II , (Mexico), 
para. 7.455.  
3062 Panel Report, Brazil  – Retreaded Tyres , paras.  7.360 -7.361.  
3063 Panel Report, Brazil  – Retreaded Tyres , paras.  7.365 and 7.370.  
3064 Panel Report, Brazil  – Retreaded Tyres , para. 7.372.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 472 - 
  7.1250.   There are significant differences, in our view, between the situation addressed by the 
panel in Brazil  – Retreaded Tyres  and the situation before us in these proceedings. As we 
understand the panel's analysis in Brazil  – Retreaded Tyres , it was directed at whether the 
imposition of a penalty in support of an import prohibition  was a restriction on importation. That 
the fines supported and enforced a prohibition on the act of importing retreaded tyres, itself 
inconsistent with Article  XI:1 of the GATT  1994, and thereby acted as a disincentive on 
importation , constituted the basis for the finding that the fines were also restrictions on the 
importation of retreaded tyres, inconsistent with Article  XI:1 of the GATT  1994.3065  
7.1251.   In the case before us, Chap ter 3 of the TPP Act, entitled "Offences and civil penalty 
provisions", identifies various acts that attract either civil or criminal penalties. These are 
described as follows in Section 30 of the TPP Act (entitled "Simplified outline"):  
A person must not:  
(a) supply or purchase tobacco products in retail packaging that does not comply 
with the requirements of this Act; nor  
(b) be involved in the packaging of tobacco products for retail sale if the 
packaging does not comply with those requirements; nor  
(c) supply, pur chase or manufacture tobacco products that do not comply with 
those requirements; nor  
(d) supply tobacco products that are not packaged for retail sale without certain 
contractual prohibitions.  
7.1252.   Chapter 3 of the TPP Act also sets out the penalties for contraventions to these 
prohibitions.3066 These penalties are also applicable for failure to comply with the 
TPP Regulations .3067 
7.1253.   The terms of the penalty provisions contained in Chapter 3 of the TPP Act make clear that 
they are in support of, and enforce compliance with, the requirements of the TPP measures  
relating to the appearance of retail packaging for tobacco products. By extension, therefore, they 
would only be trade -restrictive to the extent that  they are in support of, and enforce compliance 
with, any trade -restrictiveness otherwise caused by the TPP measures  themselves.  
7.1254.   We note Cuba's argument that the penalties in the present case are very high and aim to 
impose punitive measures to ensure com pliance with "the prohibition on trade in packs of 
non-complying tobacco products", with the effect that the penalties are "very trade -restrictive".3068 
We do not consider, however, that the imposition of penalties to ensure compliance with the 
requirements o f the TPP measures  results, in itself, in an "additional" limiting effect on imports 
beyond what would be induced by full compliance with the TPP requirements themselves, which is 
what the penalties seek to ensure. We are not persuaded, therefore, that the  existence of these 
penalties, or their level, lead to a greater degree of trade -restrictiveness than that arising from 
compliance with the relevant requirements of the TPP measures  (which we have concluded, above, 
have not been demonstrated to be trade -restrictive).  
Overall conclusion on the trade -restrictiveness of the TPP measures  
7.1255.   On the basis of the foregoing, we conclude that the TPP measures  are trade -restrictive, 
insofar as, by reducing the use of tobacco products, they reduce the volume of imported tobacco 
products on the Australian market, and thereby have a "limiting effect" on trade. We also conclude 
that, while it is plausible that the measures may also, over time, affect the overall value of tobacco 
imports, the evidence before us does not show this to have been the case to date. We are also not 
                                                
3065 Cuba's second written submission, para. 251. 
3066 TPP Act, (Exhibits AUS -1, JE-1), Chap.  3. 
3067 TPP Act, (Exhibits AUS -1, JE-1), Chap.  3 and Section 4 (definition of "tobacco product 
requirement").  
3068 Cuba's second written submission, para. 251. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 473 - 
  persuaded that the complainants have demonstrated that the TPP measures  impose conditions on 
the sale of tobacco products in Australia or compliance costs of such magnitude that they would 
amount to a lim iting effect on trade.   
7.2.5.5   The nature and gravity of the "risks of non -fulfilment"  
7.1256.   As described above3069, "the nature of the risks at issue and the gravity of consequences 
that would arise from non -fulfilment of the objective(s) pursued by the Member through th e 
measure" constitute a third factor to be assessed in the "relational analysis"3070, in the context of 
our assessment of whether a technical regulation is "more trade -restrictive than necessary" under 
Article  2.2 of the TBT Agreement . This reflects the fact that Article  2.2 of the TBT Agreement  
provides that "technical regulations shall not be more trade -restrictive than necessary to fulfil a 
legitimate objective, taking account of the risks non -fulfilment would create " (emphasis added).  
7.1257.   According to the Appe llate Body, "[t]his suggests a further element of weighing and 
balancing in the determination of whether the trade -restrictiveness of a technical regulation is 
'necessary' or, alternatively, whether a possible alternative measure, which is less trade 
restrictive, would make an equivalent contribution to the relevant legitimate objective, taking 
account of the risks non -fulfilment would create , and would be reasonably available".3071 In this 
context, there is "a margin of appreciation in assessing the equivalen ce of the respective degrees 
of contribution" of a measure and a proposed alternative, which "may be affected by the nature of 
the risks and the gravity of the consequences arising from the non -fulfilment of the technical 
regulation's objective".3072  
7.1258.   In the words of the Appellate Body, "the  obligation to consider 'the risks non -fulfilment 
would create' suggests that the comparison of the challenged measure with a possible alternative 
measure should be made in the light of the nature of the risks at issue and the gravity of the 
consequences that would arise from non -fulfilment of the legitimate objective".3073  
7.1259.   As described by the Appellate Body, "in  order to engage in this assessment and ensure 
that this factor is 'tak[en] account of', the nature of the risks and  the gravity of the consequences 
that would arise from non -fulfilment would themselves, in the first place , need to be identified".3074 
As we understand it, therefore, the " identif[ication] "3075 of "the risks non -fulfilment would create" 
is distinct from the sub sequent step of " taking account of " such risks in the context of the 
comparative analysis that is in most cases required to complete the necessity analysis .3076 
7.1260.   At this stage of our analysis, we therefore seek to identify, "in the first place", the nature 
of the risks at issue and the gravity of the consequences that would arise from "non -fulfilment". 
The "risks" to be "tak[en] account of" are those that would be created by the "non -fulfilment" of 
                                                
3069 See para. 7.184  above.  
3070 Appellate Body Report, US – Tuna II (Mexico) , paras.  318 and 322 . 
3071 Appellate Body Report, US – Tuna II (Mexico) , para. 321. (emphasis added ; footnote omitted ) 
3072 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.254. See also ibid. 
para. 5.269.  
3073 Appellate Body Report, US – Tuna II (Mexico) , para. 321. (emphasis added)  
3074 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.217 (emphasis 
added). As the Appellate Body held in US – COOL , the comparative analysis of the challenged measure and the 
proposed alternatives is distinct from the establishment of the risk non -fulfilment would create:  
 
[T]he contribution  that the challenged measure makes to the achievement of its objective must 
be determined objectively, and then evaluated along with the other factors mentioned in 
Article  2.2, that is: (i) the trade restrictiveness of the measure; and (ii) the nature of t he risks at 
issue and the gravity of the consequences that would arise from non -fulfilment of the 
objective(s) pursued by the Member through the measure. In most cases, a comparison of the 
challenged measure and possible alternative measures will then also need to be undertaken.  
 
Appellate  Body Reports, US – COOL , para. 461. (emphasis added ; footnote omitted )  
3075 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.217. (emphasis 
added)  
3076 Appellate Body Report, US – Tuna II (Mexico) , para. 322 (emphasis added). See also Appellate Body 
Reports, US – COOL , paras.  471 and 481.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the "legitimate objective" of the technical regulation at issue .3077 This determination is therefore 
directly related to the objective pursued by the challenged measure.3078 In assessing such risks, as 
provided by Article  2.2, relevant elements of consideration are " inter alia: available scientific and 
technical information , related processing technology or intended end -uses of products".3079 
7.1261.   With these general considerations in mind, we consider below the nature of the risks at 
issue and the gravity of the consequences that would arise from non -fulfilment of the legitimate 
objective of the TPP measures , in order to identify, in the first place, the "risks that non -fulfilment 
would create". We will consider separately, at a later stage of our analysis, how these risks should 
be "taken into account" in determining whether the TPP measures  are more trade -restrictive than 
necessary within the meaning of Article  2.2.  
7.2.5.5.1   Main arguments of the parties  
7.1262.   The parties agree that "the risks non -fulfilment would create" is a key element of the 
necessity analysis under Article  2.2 of the TBT Agreement .3080 All parties recall3081 that, in the 
words of the Appellate  Body, this element refers to two main factors, namely: "the nature of the 
risks at issue and the gravity of the consequences that would arise from non -fulfilment of the 
legitimate objective".3082 The complainants and Australia disagree, however, as to whether "taking 
account of the risk non -fulfilment would create" involves a comparison of the likelihood of the 
challenged and the proposed alternative measures' contribution to the TPP measures ' objective.  
7.1263.   Specifically, Honduras  argues that the nature of the risks at issue relates to "the serious 
health risks that arise from tobacco smoking":3083 "tobacco smoking gives rise to serious health 
risks regardless of whether an individual smokes cigarettes, cigars, or other tobacco products".3084 
Honduras  maintains that assessing the nature of the risks at issue requires a consideration of 
                                                
3077 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.217 and 5.277. 
Indeed, through the use of the words "fulfil" (as in "necessary to fulfil a legitimate objective")/"réaliser" (as in 
"nécessaire pour réaliser un objectif légitime")/"ancanzar" (as in "necesario para alcanzar un objetivo 
legítimo") and "non -fulfilment" (as in "taking account of the risks non -fulfilment would 
create")/"non -réalisation" (as in "compte tenu des risques que la non -réalisation entraînerait")/"no alcanzarlo" 
(as in "teniendo en cuenta los riesgos que crearía no alcanzarlo"), respectively, the second sentence of 
Article  2.2 links risks of non -fulfilment to the ob jective of the challenged measure in all three authentic 
language versions of the TBT Agreement . This  linkage is made explicit in the Spanish version of the second 
sentence of Article  2.2, where the suffix "lo" for the word "alcanzar lo" - in the phrase "te niendo en cuenta los 
riesgos que crearía no alcanzarlo" - is a masculine direct -object pronoun indicating the intention to specifically 
refer back to the masculine "un objetivo legítimo" in the preceding phrase of the same sentence.  
3078 We recall in this reg ard the emphasis placed on "identifying with sufficient clarity and consistency 
the objective or objectives pursued by a Member through a technical regulation." Appellate Body Reports, US –
 COOL , para. 387. 
3079 See Appellate Body Report, US – Tuna II (Mexico ), para. 321. The exact terms of Article  2.2 of the 
TBT Agreement  are as follows:  
 
Members shall ensure that technical regulations are not prepared, adopted or applied with a view 
to or with the effect of creating unnecessary obstacles to international tr ade. For this purpose, 
technical regulations shall not be more trade -restrictive than necessary to fulfil a legitimate 
objective, taking account of the risks non -fulfilment would create . Such legitimate objectives are, 
inter alia:  national security require ments; the prevention of deceptive practices; protection of 
human health or safety, animal or plant life or health, or the environment. In assessing such 
risks, relevant elements of consideration are, inter alia : available scientific and technical 
information, related processing technology or intended end -uses of products . (emphasis added)  
 
3080 Honduras's first written submission, para. 890; Dominican  Republic 's first written submission, 
para. 1025; Dominican  Republic 's second written submission, para. 991; Cuba's first written submission, 
paras.  410-411; Indonesia's second written submission, para. 277; and Australia's first written submission, 
para. 683. 
3081 Honduras's first written submission, para. 890; Dominican  Republic 's first written submission, 
para. 1025; Dominican  Republic 's response to Panel question Nos. 65 and 157; Dominican  Republic 's second 
written submission, para. 992; Cuba's response to Panel question No. 65 (annexed to its response to Panel 
question No. 138); Indonesia's response to Pa nel question No. 89; Australia's comments on the complainants' 
responses to Panel question No. 157. 
3082 Appellate Body Reports, US – Tuna II (Mexico) , para. 321; and US – COOL , para. 377. 
3083 Honduras's first written submission, para. 892. 
3084 Honduras's respons e to Panel question No. 65. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "the general importance and the type of risk that the WTO Member seeks to address through the 
challenged measure".3085  
7.1264.   Accordi ngly, Honduras maintains  that the factor relating to the gravity of the 
consequences should focus on "how serious would the consequences be if the measure at issue 
does not achieve the government's objective".3086 Honduras contends that "although the risks at  
issue are of a serious nature, the consequences of not fulfilling Australia's objective through the 
plain packaging measures are not grave".3087 As smoking rates in Australia have been in decline 
for years as a result of numerous anti -tobacco measures, Hondu ras states, Australia was in a 
position to achieve its desired reduction of tobacco prevalence without the introduction of the TPP 
measure.3088 As a result, according to the Honduras, the failure of the TPP measures  to fulfil 
Australia's objective would not l ead to serious consequences, since smoking rates would simply 
continue to fall as they have done so for decades.3089  
7.1265.   The Dominican Republic  argues that the dictionary definition of "risk" incorporates "two 
inter-linked elements: (1) the 'possibility' or like lihood of (2) a negative event occurring".3090 For 
the Dominican Republic, in the context of this case, the "negative event" is "the failure to achieve, 
wholly or partly, the desired objective"3091; in other words, "there will be an additional number of 
people w ho smoke (i.e. there will be higher smoking rates)".3092 According to the Dominican 
Republic, Australia mistakenly focuses on the nature of the health risks of smoking:3093 the risk of 
harm caused by smoking is not the relevant enquiry in these proceedings becau se neither the 
TPP measures  nor any of the proposed alternatives have as their objective a reduction in the 
considerable health risks that result from smoking.3094 Rather, the Dominican Republic maintains, 
all of these measures aim to reduce the number of peo ple that engage in smoking behaviour; 
consequently, the risk of non -fulfilment is "the risk of a larger number of smokers".3095 
7.1266.   In turn, the Dominican Republic contends, the likelihood of this "negative event" 
occurring is a question that can be only answered  with "reliable and credible evidence".3096 For 
the Dominican  Republic, this means that a proper consideration of the nature of the risk in this 
case should involve an  assessment of the "relative risk (likelihood)" of a larger number of smokers 
under the TPP measures  as compared with the alternatives: in short, "what is the risk (likelihood) 
that the alternatives would reduce smoking behaviour by less than the [T]PP measures?"3097 
According to the Dominican Republic, the evidence shows that whereas the TPP measur es involve 
"at worst, actual non fulfilment and, at best a considerable risk of non -fulfilment of the objective of 
reducing smoking", the proposed alternatives involve " no risk of non -fulfilment " but a " certainty  
that they would immediately reduce smoking behaviour in the population in general, and among 
young people in particular".3098 The Dominican Republic further argues that, whereas the 
TPP measures  are supposed to reduce smoking in the future, which is not substantiated by 
evidence3099, the proposed alterna tives involve the "certainty" that they would reduce smoking 
                                                
3085 Honduras's first written submission, para. 815. 
3086 Honduras's first written submission, para. 893. 
3087 Honduras's first written submission, para. 894. 
3088 Honduras's first written submission, para. 894. See also ibid. paras.  895-905. 
3089 Honduras's first written submission, para. 894. See also ibid. para. 906. 
3090 Dominican  Republic 's first written submission, para. 1027 ( referring to  Oxford English Dictionary, 
online, definition of "risk", < http://www.oed.com/view/Entry/166306?rskey=fgWvbI&result=1&print >, 
accessed 10  May 2014, ( Exhibit DOM -160)); response to Panel question No. 65; and second written 
submission, para. 992. 
3091 Dominican  Republic 's first written submission, para. 1027.  
3092 Dominican  Republic 's response to Panel Question No. 65; and Dominican  Republic 's second written 
submission, paras.  995 and 997.  
3093 Dominican  Republic 's second written submission, para. 1009.  
3094 Dominican  Republic 's second written submission, para. 1009.  
3095 Dominican  Republic 's second written submission, para. 1008.  
3096 Dominican  Republic 's first written submission, para. 1027.  
3097 Dominican  Republic 's second written submission, para. 996. 
3098 Dominican  Republic 's response to Panel question No. 65 (emphasis original). See also 
Dominican  Republic 's first written submission, paras.  1030 and 2018; and second written submission, 
paras.  997-998. 
3099 Dominican  Republic 's second written submission, para. 999. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 476 - 
  behaviour in the population in general, and among young people in particular, both in the short 
and the long  term.3100 
7.1267.   The Dominican Republic contends that in calling on panels to take account of th e risks of 
non-fulfilment in assessing the equivalence of the respective contributions, "the Appellate Body 
has recognized that the nature of the risks of non -fulfilment may well differ as between the 
challenged and alternative measures".3101 As one measure may give rise to a much higher risk of 
non-fulfilment than another, because it is much less likely to contribute to the objective3102, 
"the Appellate Body has confirmed that this factor must be addressed in the assessment of the 
equivalence of  contribution, and that a panel enjoys a margin of appreciation in doing so".3103 
7.1268.   The Dominican Republic adds that the nature of the risks should be separately considered 
for cigarettes and cigars as none of the evidence shows "any impact of the [T]PP measure s on 
reducing smoking prevalence or consumption for tobacco products overall, or for cigars".3104 
Accordingly, the Dominican Republic maintains, the likelihood that, without the TPP measures , 
smoking prevalence and consumption would have been higher for cigar s is zero.3105  
7.1269.   As regards the gravity of the consequences , the Dominican Republic equates this factor to 
"the seriousness of the consequences that flow from the negative event materializing".3106 For the 
Dominican Republic, in these proceedings "the consequence  of the failure to fulfill the objective … 
would be serious and grave" because, "[i]f tobacco use does not decrease to a greater extent than 
would otherwise be the case in the absence of [the T]PP [measures], then more Australian citizens 
would suffer from  the adverse health impacts of smoking".3107 The Dominican Republic adds that 
the "serious and grave"3108 consequences "are the same as between the [T]PP measure and the 
alternative measures".3109 According to the Dominican  Republic, in assessing the equivalence of  
the contributions, the objective pursued remains constant for the challenged and alternative 
measures; consequently, the gravity of the consequences that would arise from non -fulfilment of 
that objective also remains constant.3110 For the Dominican Republic,  when the objective is to 
reduce smoking, "Australia and the Dominican Republic agree that the consequences of 
non-fulfilment of that objective are that 'more Australian citizens would suffer from the adverse 
health impacts of smoking'"3111, and these "grave consequences of non -fulfilment are identical for 
the challenged and the alternative measures, as  they would be for all tobacco control 
measures".3112 
7.1270.   Cuba maintains that, while there is a "material risk" that the TPP measures  will not 
achieve their goal of re ducing smoking prevalence, such a risk is "much lower (or non -existent)" 
for all of the less trade -restrictive alternatives that Cuba has identified.3113 According to Cuba, in 
this case, the risk that non -fulfilment would create concerns, more specifically, t he risk that people 
will, in the absence of the TPP measures : (i) begin to smoke; (ii) continue smoking; or (iii) not quit 
smoking.3114 According to Cuba, given the TPP measures ' lack of contribution, the situation from 
the standpoint of smoking prevalence wo uld not be different without plain packaging.3115 Cuba 
                                                
3100 Dominican  Republic 's second written submission, para. 1000. See also Dominican  Republic 's second 
written submission, paras.  1001-1005.  
3101 Dominican  Republic 's response to Panel question No. 157 ( referring to  Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada an d Mexico) , paras.  5.218, 5.284 and 5.295).  
3102 Dominican  Republic 's response to Panel question No. 157 ( referring to  Dominican  Republic 's second 
written submission, para. 992; and Dominican  Republic' s first written submission, para. 1027).  
3103 Dominican  Republ ic's response to Panel question No. 157. 
3104 Dominican  Republic 's response to Panel question No. 65. 
3105 Dominican  Republic 's response to Panel question No. 65. 
3106 Dominican  Republic 's first written submission, para. 1029; and second written submission, 
para. 992. 
3107 Dominican  Republic 's first written submission, para. 1029.  
3108 Dominican  Republic 's second written submission, para. 1010.  
3109 Dominican  Republic 's second written submission, para. 1006.  
3110 Dominican  Republic 's response to Panel question No. 157. 
3111 Domin ican Republic 's response to Panel question No. 157 ( referring to  Australia's second written 
submission, para. 543, in turn referring to  the Dominican  Republic 's first written submission, para. 1029).  
3112 Dominican  Republic 's response to Panel question No. 157. 
3113 Cuba's first written submission, para. 416. 
3114 Cuba's response to Panel question No. 65 (annexed to its response to Panel question No. 138).  
3115 Cuba's response to Panel question No. 65 (annexed to its response to Panel question No. 138).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 477 - 
  contends that Australia has at its disposal equally or more effective alternative measures that do 
not present a greater risk than the risk that non -fulfilment of the health objective would create.3116 
On th e contrary, Cuba argues, it has been shown that these alternatives are effective and do not 
raise the risk of undesirable consequences that would impair any possible effects of the 
TPP measures .3117 Cuba adds that the harmfulness of smoking is not at issue in  these proceedings: 
smoking is harmful for all consumers.3118 Accordingly, Cuba does not consider that there is any 
need to analyse the nature of the risks involved, in particular with respect to individual products or 
groups of consumers.3119 
7.1271.   Indonesia  quotes3120 the panel in US – Tuna II (Mexico) , according to which the 
consideration of the  risks of non -fulfilment requires an assessment of the "likelihood and the 
gravity of potential risks".3121 Indonesia considers that the nature of the risks at issue in these 
proceedings is "the risk to public health from those elements of packaging that Australia has 
prohibited or regulated through its plain packaging measures".3122 According to Indonesia, like t he 
panel in US – Tuna II (Mexico) , the Panel should evaluate the "likelihood and the gravity" of 
potential risks to all consumers, and it would be useful to assess the likelihood of risk to adults and 
youth separately, in light of Australia's particular em phasis on the expectation that plain packaging 
will be particularly effective with youth. Indonesia further argues that it  may be useful – if data is 
available – to consider the impact on Australia's Aboriginal and Torres Strait Islander population, 
since those population groups were expressly targeted by the Council of Australian Governments' 
smoking prevalence reduction goals.3123  
7.1272.   Indonesia also finds support for its arguments in Section 15 of the TPP Act3124, for which 
it submits the following interpretation:  "if an Australian court were to find that [the TPP measures ] 
resulted in an unjust acquisition of property, the government could simply cancel the PP 
requirements and would not owe compensation".3125 For Indonesia, "[b]ecause Australia is willing 
to walk awa y from [ TPP measures ], rather than pay compensation, it is clear that Australia 
believes there is little risk to public health from not allowing [the TPP measures ] to fulfill [their] 
public health objective (i.e. the risk of non -fulfillment is negligible)" .3126 Further, according to 
Indonesia, prevalence was already falling before the introduction of the TPP measures , and there is 
no evidence that reductions in prevalence were likely to slow".3127 Even if prevalence only 
continued to fall by the historic trend, A ustralia would, in any event, reach its 10 % prevalence 
target whether the TPP measures  were implemented or not.3128 Indonesia further contends that, if 
Australia accepts that the TPP measures  are "likely to make little contribution toward the 
legitimate objec tive of reducing smoking prevalence for an extended period of time (if ever), 
Australia must not perceive a significant near -term risk of [the TPP measures ] failing to make a 
contribution toward its objective".3129 Indonesia adds that, if the TPP measures  are "generational" 
measures as Australia argues3130, it follows that, for the generation until the TPP measures  achieve 
a reduction in prevalence, "non -fulfilment of the objective" under the TPP measures  is "almost 
certain".3131 
                                                
3116 Cuba's respon se to Panel question No. 65 (annexed to its response to Panel question No. 138).  
3117 Cuba's response to Panel question No. 65 (annexed to its response to Panel question No. 138).  
3118 Cuba's response to Panel question No. 65 (annexed to its response to Panel question No. 138).  
3119 Cuba's response to Panel question No. 65 (annexed to its response to Panel question No. 138).  
3120 Indonesia's first written submission, para. 422. See also Indonesia's response to Panel question 
No. 65. 
3121 Panel Report, US – Tuna II (Mexico) , para. 7.467.  
3122 Indonesia's response to Panel question No. 65. 
3123 Indonesia's response to Panel question No. 65. 
3124 The Simplified Outline of Chapter 1 of the TPP Act summarizes Section 15 of the same Act as 
follows:  "This Act does not apply to the extent that its operation would infringe certain constitutional 
protections (such as by acquiring property otherwise than on just terms)." TPP Act, (Exhibits AUS -1, JE-1), 
Section 13.  
3125 Indonesia's first written submission,  para. 425. 
3126 Indonesia's first written submission, para. 425. 
3127 Indonesia's first written submission, para. 426. 
3128 Indonesia's first written submission, para. 426; and second written submission, para. 279. 
3129 Indonesia's first written submission, para. 427. 
3130 Indonesia's second written submission, para. 281 ( referring to  Australia's response to Panel 
question No. 126).  
3131 Indonesia's second written submission, para. 281. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 478 - 
  7.1273.   Indonesia also argues that in assess ing "the risks non -fulfilment would create" a panel 
must consider the "risks that both the measures and the alternative(s) pose".3132 For Indonesia, 
the relative contribution of the measure and the alternative(s) are part of the analysis of "the 
risks non-fulfilment would create", and the nature of the risks includes both the "possibility" and 
"likelihood" of a negative event arising.3133 According to Indonesia, contrary to Australia's overly 
dramatic description of the risks non -fulfilment would create, it is ac tually the TPP measures  that 
create the greatest risk of non -fulfilment of the objective of reducing smoking prevalence.3134 
Indonesia adds that it is proposing alternative measures that have "an immediate and direct 
impact on smoking prevalence, which means the risk of non -fulfillment is low".3135 
7.1274.   Australia  recalls that panels and the Appellate Body have recognised that the interests 
and values at stake in  relation to measures to reduce the harm caused by the use of tobacco 
products are "both vital and important  in the highest degree".3136 It then follows, argues Australia, 
that the nature of the risks at issue in these proceedings is "both vital and important in the highest 
degree".3137 According to Australia, the magnitude of the global tobacco epidemic and the serio us 
harms caused by tobacco use, including in Australia, are  well-established:3138 all tobacco products 
are highly addictive, there is no safe level of tobacco use or safe level of exposure to second -hand 
or environmental tobacco smoke, and tobacco use harms n early every organ in the body.3139  
7.1275.   As regards the nature of the risks  at issue, Australia agrees with the Dominican Republic 
that Article  2.2 suggests an objective enquiry of the relevant risks.3140 Australia adds that scientific 
evidence establishes that tobac co use is the world's leading cause of preventable morbidity and 
mortality, harms nearly every organ in the body, and is responsible for the deaths of nearly 6 
million people annually.3141 
7.1276.   Australia contends that the complainants "conflate 'contribution' and 'risks non -fulfilment 
would create' as elements of the relational analysis under Article  2.2".3142 According to Australia, 
these are "separate analyses" under Article  2.2 of the TBT Agreement .3143 Australia adds that the 
complainants misconstrue this element of the weighing and balancing analysis in an attempt to 
persuade the Panel of the counterintuitive proposition that notwithstanding the vital importance of 
Australia's public health objectives and the serious public health risks posed by the use of an d 
exposu re to tobacco products, the risks that would arise from the non -fulfilment of the objectives 
of the TPP measures  are insignificant.3144 According to Australia, the text of Article  2.2 of the 
TBT Agreement  makes it clear that "the risks non -fulfilment would cr eate" are the risks that would 
arise assuming the technical regulation's objective would not be fulfilled, and that the risks to be 
assessed are those that would be created by the non -fulfilment of "a legitimate objective", i.e. 
"those risks that relate to  the objective that the technical regulation pursues, rather than the 
technical regulation itself".3145 Accordingly, Australia argues, the proper assessment of "the risks 
non-fulfilment would create" involves the consideration of the nature of the risks at is sue and the 
gravity of the consequences that would arise from the non -fulfilment "of the objectives of 
                                                
3132 Indonesia's second written submission, para. 277. (emphasis added)  
3133 Indonesia's second written submission, para. 279. 
3134 Indonesia's second written submission, para. 279. 
3135 Indonesia's first written submission, para. 427. 
3136 Australia's response to Panel question No. 65 (referring to  Panel Report, US – Clove Cigarettes , 
para. 7.347; and GATT Panel Report, Thailand  – Cigarettes , para. 73). 
3137 Australia's first written submission, para. 684. See also Australia's response to Panel question 
No. 65; and second written submission, para. 539. 
3138 Australia's response to Panel question  No. 65 (referring to  Australia's first written submission, Part 
II). 
3139 Australia's response to Panel question No. 65 (referring to  Australia's first written submission, Part 
II). 
3140 Australia's second written submission, para. 537 ( referring to  Dominican  Republic 's response to 
Panel question No. 65). 
3141 Australia's second written submission, para. 538. 
3142 Australia's first written submission, para. 688. 
3143 Australia's second written submission, para. 526. 
3144 Australia's second written submission, para. 527. 
3145 Australia's second written submission, paras.  532-533. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 479 - 
  improving public health by discouraging uptake of tobacco products, encouraging cessation, 
discouraging relapse, and reducing people's exposure to smoke" .3146 
7.1277.   Australia also rejects the proposition by the Dominican Republic and Indonesia that the 
likelihood  of the "negative event" occurring should be taken into account. Australia considers that 
taking this element into account would lead to a misconstrued ass essment of the nature of the 
risks non -fulfilment would create.3147 According to Australia, the Dominican Republic and Indonesia 
attempt to use this misinterpretation "to rerun their arguments relating to the contribution the 
measure makes to its objectives".3148 However, Australia contends, this is contrary to the text of 
Article  2.2 and finds no support in previous Appellate Body reports.3149  
7.1278.   According to Australia, the  plain text of Article  2.2, as confirmed by the Appellate Body, 
makes it clear that the "risks"  to be assessed under this element of the relational analysis are 
those that would arise assuming non -fulfilment of the objectives of the challenged measure; not, 
as the Dominican Republic continues to erroneously contend, the risk or likelihood of 
non-fulfilment.3150 According to Australia, "[s]ince the relevant risks to be assessed are those 
arising from non-fulfilment of the objectives  of the challenged measure; and since 'the objective 
pursued remains constant  for the challenged and alternative measures'; 'the nature of the risks' 
arising from non -fulfilment of the objectives also remains constant under either the relational or 
comparative analysis.3151 
7.1279.   Australia agrees with Honduras that assessing the "nature of the risks at issue" requires a 
consideration of  "the general importance and the type of risk that the WTO Member seeks to 
address through the challenged measure".3152 According to Australia, the Appellate Body clarified 
in US – COOL ( Article  21.5 – Canada and Mexico)  that it is "the importance of the obje ctive to the 
Member implementing the technical regulation (rather than the relative importance of the 
objective against other potential objectives)" that informs the analysis under Article  2.2.3153 For 
Australia, "[t]he adoption of tobacco plain packaging, as  recommended in the FCTC Guidelines, 
was a logical extension of Australia's existing restrictions on the advertising and promotion of 
tobacco products, as part of Australia's comprehensive suite of tobacco control measures".3154 
Australia's long history of im plementing tobacco control measures, and the importance it places on 
a comprehensive approach to tobacco control, illustrate the importance of the objective to 
Australia and the grave consequences that would arise from non -fulfilment of the objective.3155 
The results of not fulfilling the TPP measures ' public health objectives would be "more tobacco 
related premature death and serious disease in Australia than would otherwise be the case".3156  
7.1280.   Australia also considers that the nature of the risks should be consi dered in relation to all 
tobacco products and all consumers , as indicated by the legitimate objectives of the 
TPP measures .3157 According to Australia, it is clear from the public health and marketing evidence, 
including expert opinion, that the nature of the  risks addressed by the TPP measures  are similar 
for all tobacco products and for all consumers of tobacco products, and impact non -smokers 
through exposure to second -hand smoke from tobacco products.3158  
7.1281.   Australia responds that Indonesia "entirely mischarac terizes" the text of Section  15 of the 
TPP Act.3159 According to Australia, is a "savings provision"3160 concerned with "potential invalidity, 
                                                
3146 Australia's second written submission, para. 536. 
3147 Australia's second written submission, para. 541. 
3148 Australia's second written submission, para. 541. 
3149 Australia's second written submission, para. 542. 
3150 Australia's comments on the complainants' responses to Panel question No. 157. 
3151 Australia's comments on the complainants' responses to Panel question No. 157. (emphasis added; 
footnotes omitted).  
3152 Australia's response to Panel question No. 65 (referring to  Honduras's first written submission, 
para. 81). See also Australia's second written submission, para. 537. 
3153 Australia's response to Panel question No. 65 (referring to  Appellate Body Reports, US — COOL 
(Article  21.5), para. 5.279).  
3154 Austr alia's first written submission, para. 690. 
3155 Australia's response to Panel question No. 65. 
3156 Australia's first written submission, para. 691. 
3157 Australia's response to Panel question No. 65. 
3158 Australia's response to Panel question No. 65. 
3159 Australia's first written submission, para. 693. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 480 - 
  not potential liability"3161, introduced out of "an abundance of caution".3162 Australia explains that 
Section 15 is a provision "specifically intended to preserve  the requirements of the TPP Act with 
respect to the retail packaging of tobacco products and the appearance of tobacco products to the 
greatest  extent possible , in the un likely event that it was found to be inconsistent with the 
Australian Constitution".3163 Australia adds that the High Court of Australia upheld the 
constitutionality of the TPP measures .3164 
7.1282.   As regards the gravity of the consequences , Australia agrees with the D ominican Republic 
that assessing this factor "relates to the seriousness of the consequences that would flow from 
non-fulfilment"3165 and that the consequences of non -fulfilment of the TPP measures ' objectives 
"would be serious and grave" because "more Austra lian citizens would suffer from the adverse 
health impacts of smoking".3166 At the same time, Australia considers that Honduras misconstrues 
the consideration of the gravity of the consequences that would arise from non -fulfilment by 
arguing that smoking rate s have been and would continue to be in decline as a result of 
anti-tobacco measures other than plain packaging.3167 Australia contends that Honduras's 
approach would lead to the absurd result that the risks arising from the non -fulfilment of a 
technical regu lation's objective will never be meaningful where the technical regulation at issue is 
adopted as part of a comprehensive policy that already contributes to a legitimate objective. 
According to Australia, in light of the Appellate Body report in Brazil  – Retreaded Tyres , Members 
"should not be prevented from adopting technical regulations that complement the effects of other 
elements of a comprehensive policy, even in situations where those other elements already make 
a contribution to the same overarching objective".3168 Australia emphasises that the consequences 
that would arise from non -fulfilment of the legitimate objectives of the TPP measures  are "grave" 
given the enormous harm caused by tobacco use3169 in the form of increased tobacco -related 
deaths and dis ease in Australia.3170 Therefore, Australia contends, the risks that non -fulfilment 
would create are "great".3171 
7.2.5.5.2   Analysis by the Panel  
7.1283.   Article  2.2 does not prescribe a particular methodology for assessing "the  risks 
non-fulfilment would create"3172, other than indicating that, in assessing such risks, "relevant 
elements for consideration are ' inter alia: available scientific and technical information, related 
processing technology or intended end -uses of products'".3173  
7.1284.   However, as described above, an identificati on of the "the risks non -fulfilment would 
create" involves a consideration of both " the nature of the risks" and the "gravity of the 
consequences that would arise from non -fulfilment". According to the Appellate Body :  
[I]n some contexts, it might be possi ble and appropriate to seek to determine 
separately the nature of the risks, on the one hand, and to quantify the gravity of the 
consequences that would arise from non -fulfilment, on the other hand. In other 
contexts, however, it might be difficult, in pra ctice, to determine or quantify those 
elements separately with precision. In such contexts, it may be more appropriate to 
conduct a conjunctive analysis of both the nature of the risks and the gravity of the 
consequences of non -fulfilment, in which "the ri sks non -fulfilment would create" are 
                                                                                                                                                  
3160 Australia's first written submission, para. 693. 
3161 Australia's first written submission, para. 693 fn 911. 
3162 Australia's first written submission, para. 693 fn 911. 
3163 Australia's first written submission, para. 693. (emphasis original)  
3164 Australia's first written submission, para. 693. 
3165 Australia's second written submission, para. 543 ( referring to  Dominican  Republic 's first written 
submission, para. 1029).  
3166 Australia's second written submission, para. 544 ( referrin g to Dominican  Republic 's first written 
submission, para. 1029).  
3167 Australia's second written submission, para. 545. 
3168 Australia's second written submission, para. 547 ( referring to  Appellate Body Report, Brazil  –
 Retreaded Tyres , para. 151).  
3169 Australia's  first written submission, para. 684; and response to Panel question No. 65. 
3170 Australia's second written submission, para. 526. 
3171 Australia's first written submission, para. 684; and second written submission, para. 526. 
3172 Appellate Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para. 5.218.  
3173 Appellate Body Report, US – Tuna II (Mexico) , para. 321. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  assessed in qualitative terms. In any case, difficulties or imprecision that arise in 
assessing "the risks non -fulfilment would create" – due to the nature of the relevant 
risks or the gravity of the consequences of non -fulfilment at issue – should not, in and 
of themselves, relieve a panel from its duty to assess this factor.3174 
7.1285.   We shall attempt to determine these two aspects as precisely as possible separately, 
before drawing conclusions on the identification of the risk s non -fulfilment would create. S hould a 
separate and precise quantification of these two factors be difficult, we shall, as suggested by the 
Appellate Body, conduct a "conjunctive analysis" of both aspects, in which "the risks non -fulfilment 
would create" are assessed in qualitative terms.3175  
7.2.5.5.2.1   Nature of the risks  
7.1286.   As explained, the identification of "the risks that non -fulfilment would create" is directly 
related to "the objective(s) pursued by the Member through the measure" at issue3176, and 
"the 'risks' to be  'tak[en] account of' under Article  2.2 are those that would be created by the 
'non-fulfilment' of the 'legitimate objective' of the technical regulation at  issue".3177  
7.1287.   We have found above that the objective of the measures challenged in these proceedings, 
the TPP measures , is "to improve public health by reducing the use of, and exposure to, tobacco 
products".3178 Accordingly, we find that the nature of the risk of not fulfilling the TPP measures ' 
legitimate objective is that public health would not be improved , as the use of, and exposure to, 
tobacco products would not be reduced.  
7.1288.    The Dominican  Republic quotes the dictionary definition of "risk" to argue that the 
likelihood of "risk" should be taken into account in determining the risks non -fulfilment would 
create, in  particular the nature of such risks.3179 Specifically, the  Dominican  Republic contends that 
a proper consideration of the nature of the risk in this case involves an  assessment of the "relative 
risk (likelihood)" of there being a larger number of sm okers under the TPP measures  as compared 
with the alternatives: in short, "what is the risk (likelihood) that the alternatives would reduce 
smoking behaviour by less than the [T]PP  measures?"3180  
7.1289.   Indonesia similarly refers to3181 the panel's ruling in US – Tuna II (Mexico)  in respect of 
"the likelihood  and the gravity of potential risks (and  any associated adverse consequences) that 
might arise in the event that the legitimate objective being pursued would not be fulfilled".3182 In 
that panel's view,  this passage " impl[ies] that an alternative means of achieving the objective that 
would entail greater 'risks of non -fulfilment' would not be a valid alternative, even if it were less 
trade -restrictive".3183  
7.1290.   We note that both complainants' references to the "likelihood" o f risks serve to underpin 
a comparison between the likelihoods of a contribution by the challenged and alternative measures 
to the objective in question, taking into account the risks non -fulfilment would entail. We are not 
persuaded, however, that the identification  of the nature of the "risks non -fulfilment would create" 
entails such a comparison of the challenged measures and possible alternative measures, or 
consideration of their degrees of contribution to the objective.  
7.1291.   As described above, the questi ons that we must consider at this stage of our analysis are: 
the nature of the risks  that non -fulfilment of the relevant objective would create, and the gravity 
                                                
3174 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.218. (footnotes 
omitted)  
3175 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.218.  
3176 Appellate Body Report, US – Tuna II (Mexico) , para. 322. 
3177 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.277.  
3178 See para. 7.232  above.  
3179 Dominican  Republic 's first written submission, para. 1027.  
3180 Dominican  Republic 's second written submission, para. 996. 
3181 Indonesia's first written submission, para. 422. See also Indonesia's response to Panel question 
No. 65. 
3182 Panel Report, US – Tuna II (Mexico) , para. 7.467. (emphasis added)  
3183 Panel Report, US – Tuna II (Mexico) , para.  7.467.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  of the consequences  of non -fulfilment of this objective. Indonesia refers to3184 the panel's rulin g in 
US – Tuna II (Mexico)  in support of its view that this includes "the  likelihood  and the gravity of 
potential risks (and any associated adverse consequences) that might arise in the event that the 
legitimate objective being pursued would not be fulfill ed".3185 However, on appeal the 
Appellate  Body did not reference the "the likelihood and the gravity" of the risk in summarizing the 
proper legal test under Article  2.2. Instead, as described above, the  Appellate  Body referred to the 
"nature" of the risks at issue and the gravity of the consequences of non -fulfilment of the 
objectives. This choice of terms reflects, in our view, that this part of the analysis should focus, 
first, on the identification of the specific risks that would arise from the non -fulfilm ent of the 
objective being pursued, i.e. the "nature" of such risks.3186 
7.1292.   As explained by the Appellate Body, the  "risks" that are being assessed are "those that 
would be created by the 'non -fulfilment' of the 'legitimate objective' of the technical regulation  at 
issue".3187 This assessment is therefore related to the essential nature and character of the risks at 
issue and the consequences that would arise, should the objective of the measure not be fulfilled. 
This question is not, as such, dependent on the exten t to which the challenged measure (or any 
proposed alternative measure) fulfils the objective. Rather, as Australia expresses it, to the extent 
that the objective is a constant, the nature  of the risks associated with its non-fulfilment will also 
be consta nt, independently of the choice of instrument to address these risks.  
7.1293.   Indeed, from an analytical perspective, it would amount to circular logic to assess 
whether any of the alternatives would make an equivalent contribution to the objective, "taking 
accou nt of the risks non -fulfilment would create", and to identify those "risks" in the first place 
with reference to the comparison of their degrees of contribution to the objective. As Australia 
points out3188, such an approach would deprive the "taking account of the risks non -fulfilment 
would create" from being a distinct, "further  element"3189 of the analysis. For the same reasons, 
identifying the risks non -fulfilment would create also does not, in our view, entail an assessment of 
the "likelihood" of the challen ged measure not fulfilling its objective or how likely it is that the 
challenged measure will not achieve its objective as compared with the complainants' proposed 
alternative measures.  
7.1294.   At this point, we make no determination in respect of the extent of th e "likelihood" of the 
objective pursued not being fulfilled, under either the challenged measures or any proposed 
alternative measure. That said, we do not exclude the possibility that this may be a relevant 
consideration in other parts of our analysis und er Article  2.2, including in the context of a 
comparative analysis of the challenged and alternative measures' respective degrees of 
contribution to the objective and whether the proposed alternative measures "would make an 
equivalent contribution to the r elevant legitimate objective, taking account of the risks 
non-fulfilment would create".3190 
7.1295.   We further note that the nature of the risks at issue is recognized to be in essence the 
same in relation to different types of tobacco products. As Honduras points ou t, tobacco smoking 
gives rise to health risks "regardless of whether an individual smokes cigarettes, cigars, or other 
                                                
3184 Indonesia's first written submission, para. 422. See also Indonesia's re sponse to Panel question 
No. 65. 
3185 Panel Report, US – Tuna II (Mexico) , para. 7.467. (emphasis added)  
3186 We also note that no Appellate Body report to date addressing "the risks non -fulfilment would 
create" under Article  2.2 of the TBT Agreement  assessed, i n its consideration of the "nature of the risks" at 
issue, the probability or likelihood of risks, or identified a requirement for panels to do so. See Appellate Body 
Reports, US – Tuna II (Mexico) ; US – COOL ; and US – COOL ( Article  21.5 – Canada and Mexico).  
3187 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.277. Article  2.2 
refers to "the risks non -fulfilment would create"/"des risques que la non -réalisation entraînerait"/"los riesgos 
que crearía no alcanzarlo" – instead of "the risks of non -fulfilment "/"des risques de la non -réalisation "/"los 
riesgos de no alcanzarlo ", respectively.  
3188 Australia's second written submission, para. 542. 
3189 Appellate Body Report, US – Tuna II (Mexico) , para. 321. 
3190 Appellate  Body Report, US – Tuna II (Mexico) , para. 322.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  tobacco products".3191 We note that this conclusion is echoed by the US National Cancer Institute, 
which notes that "[t]here is no safe leve l of exposure to tobacco smoke".3192 
7.1296.   We note the Dominican Republic's argument that the risk of harm caused by smoking is 
not the relevant enquiry in these proceedings3193 and that, rather, the risk of non -fulfilment should 
be "the risk of a larger number of smokers"3194 in light of the objective of reducing the number of 
smokers. The Dominican Republic links this argument to the objective of the TPP measures , which 
it defines in terms of reducing smoking prevalence.3195 As noted, we have determined above that 
the o bjective pursued by Australia is not limited to reduced smoking prevalence but extends more 
broadly to a reduction in "the use of, and exposure to, tobacco products".3196 In addition, we note 
that even assuming that the objective were limited to a reduction i n smoking prevalence, this 
would not imply that the nature of the risk of non -fulfilment of this objective would involve  only a 
situation in which there would be "larger number" of smokers – indeed, it would involve also a 
situation in which there would be  no reduction in this number, i.e. a situation where the number of 
smokers would remain unchanged. Accordingly, we do not agree with the Dominican Republic that 
the nature of the risks of non -fulfilment is limited to the risk of there being a "larger numbe r of 
smokers".  
7.2.5.5.2.2   The gravity of the consequences of non -fulfilment  
7.1297.   We have found that the nature of the risks of non -fulfilment of the TPP measures ' 
objective is that public health would not be improved as the use of, and exposure to, tobacco 
products would  not be reduced. The consequences of non -fulfilment of this objective, therefore, 
entail a public health problem as a result of the lack of reduction in the use of, and exposure to, 
tobacco products. This public health problem is linked to the consequences  of the use of, and 
exposure to, tobacco products in general, and more specifically within Australia, given that the 
challenged measures apply and aim to achieve their objective in Australia.  
7.1298.   As regards the consequences of the use of, and exposure to, tobacco products in general, 
Australia points out that tobacco is "a unique, highly addictive, and deadly product", and "the only 
legal consumer product that kills half of its long -term users when used exactly as intended by the 
manufacturer".3197 
7.1299.   Australia r efers to various WHO documents and recommendations, as well as US Surgeon 
General reports, documenting the public health consequences of tobacco use:  
Tobacco use is the world's leading cause of preventable morbidity and mortality, and 
has been classified as a global epidemic under the FCTC. Tobacco use is responsible 
for the deaths of nearly 6,000,000 people annually, including 600,000 non -smokers 
exposed to second -hand smoke. There is no safe level of tobacco use or safe level of 
exposure to second -hand o r environmental tobacco smoke. Tobacco use harms nearly 
every organ in the body.3198 
7.1300.   In relation to the specific consequences of tobacco use, Australia notes:  
Authoritative scientific opinion has concluded that smoking causes many forms of 
cancer (lung, laryn x, lip, tongue, mouth, pharynx, oesophagus, pancreas, bladder, 
kidney, cervix, stomach and acute myeloid leukaemia, liver cancer, and urinary tract 
                                                
3191 Honduras's response to Panel question No. 65. 
3192 National Cancer Institute, "Fact Sheet: Cigar Smoking and Cancer", 27 October 2010, 
<http://www.cancer.gov/cancertopics/factsheet/Tobacco/cigars/ >, accessed  25 February 2015, ( Exhibit 
AUS-40). 
3193 Dominican  Republic 's second written submission, para. 1009.  
3194 Dominican  Republic 's second written submission, para. 1008.  
3195 Dominican  Republic 's second written submission, para. 1009.  
3196 See section 7.2.5.1.1.2  above with respect to the objective of the measures.  
3197 Australia's first written su bmission, paras.  1 and 28 -30. 
3198 Australia's first written submission, para. 23 (referring to WHO Tobacco Fact Sheet, 
(Exhibit  AUS-28); WHO Second -Hand Smoke Policy Recommendations, (Exhibit AUS -24), p. 2; and US 
Surgeon General's Report 2004, (Exhibit AUS -25), p. 25). See also Australia's response to Panel question No. 
148. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  cancer), stroke, peripheral vascular disease, chronic obstructive pulmonary disease, 
several serious cardiov ascular diseases, many kinds of respiratory diseases and 
impairments and other types of disease.3199 
7.1301.   As regards the specific consequences of exposure  to tobacco, Australia refers in particular 
to a report by the US Surgeon General, and concludes that "[t]here  is … authoritative scientific 
opinion that involuntary inhalation of tobacco ('passive  smoking') 'causes premature death and 
disease in children and in adu lts who do not smoke' including lung cancer, coronary heart disease  
and Sudden Infant Death Syndrome  (SIDS) ."3200 
7.1302.   Australia adds that "[a]ll tobacco products are highly addictive"3201: 
Nicotine is the chemical in tobacco that causes addiction. Reviews by the WHO and 
bodies of high international standing such as the Royal College of Physicians of 
London, have c oncluded that the pharmacologic and behavioural processes that 
determine tobacco addiction are similar to those that determine addiction to other 
drugs, such as heroin and cocaine.3202 
7.1303.   Australia points out that "all tobacco products contain substantial amount s of 
nicotine".3203 Further, Australia states, "the addictive properties of nicotine are critical in the 
transition of smokers from experimentation to sustained smoking and to the maintenance of 
smoking for the majority of smokers who wish to quit".3204 Accordin g to Australia, "statistics 
indicate that 95% of all quit attempts are unsuccessful, such is the grip of nicotine addiction".3205 
7.1304.   Thus, Australia argues, there is a "'global tobacco epidemic' affect[ing] all 
WTO Members". Australia points out that "[t]he WHO estimates that if current trends continue, the 
annual death toll worldwide from tobacco use could rise to more than 8,000,000 by 2030".3206 
Australia adds that according to the WHO and the FCTC Secretariat3207 there are "extensive health, 
social, environmental, and economic consequences of tobacco consumption and exposure".3208 
Further, according to the Union for International Cancer Control and Cancer Council Australia, 
"[t]obacco use is the only common risk factor across all four major non -communicable diseases 
(cardiovascular diseases, cancers, chronic respiratory diseases and diabetes)".3209 
7.1305.   As regards tobacco use specifically in Australia, Australia explains that:  
Tobacco use remains one of the leading causes of preventable disease and premature 
death in Australia.  Estimates of the annual mortality attributable to smoking in 
Australia since 2000 have "ranged from about 15,000 deaths to about 20,000 with the 
                                                
3199 Australia's first written submission, para. 28 (referring to  US Surgeon General's Report 2004, 
(Exhibit AUS -25), p. 4, Table 1.1; and US Surgeon General's Report 2014, (Exhibits AUS -37, DOM -104, 
CUB-35), p. 113).  
3200 Australia's first written submission, para. 29 (referring to  US Surgeon General's Report 2006, 
(Exhibit AUS -39), p. 7). 
3201 Australia's first written submission, heading II.A.1 (emphasis omitted). See ibid. paras.  24-29. 
3202 Australia's first written submission, para. 24 (referring to  US Surgeon General's Report 1988, 
(Exhibit AUS -29), p. 9; Nomenclature and Classification of Drug - and Alcohol -Related Problems: A WHO 
Memorandum,  (Exhibit AUS -30); and Royal College of Physicians Re port 2000, (Exhibit AUS -31), p. xiv). 
3203 Australia's first written submission, para. 25 (referring to  US Surgeon General's Report 1988, 
(Exhibit AUS -29), p. 9). 
3204 Australia's first written submission, para. 27 (referring to  US Surgeon General's Report 2014, 
(Exhibits AUS -37, DOM -104, CUB -35), p. 113; and Samet Report , (Exhibit AUS -7), para. 48). 
3205 Australia's first written submission, para. 27 (referring to  Samet Report , (Exhibit AUS -7), para. 50). 
3206 Australia's first writte n submission, para. 31 (referring to  FCTC, (Exhibits AUS -44, JE -19), p. 33; 
and WHO Report on the Global Tobacco Epidemic  2011, ( Exhibits AUS -43, HND -142), p. 8). 
3207 WHO/FCTC amici curiae  brief, (Exhibit AUS -42 (revised)), para. 5. 
3208 Australia's first written submission, para. 32. 
3209 Australia's first written submission, para. 32 (referring to UICC and CCA  amici curiae brief, (Exhibit 
AUS-38), para. 4.2. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  differences reflecting methodology". As many as two in three Australian smokers will 
die prematurely from smok ing-related diseases.3210 
7.1306.   Australia adds that "the social and economic costs of tobacco consumption in Australia, 
estimated at AUD 31.5 billion in 2004, are expected to continue to rise, as the disease and health 
effects caused by tobacco consumption can take  many years to manifest".3211 
7.1307.   The complainants do not contest the harmful consequences of tobacco in general, or the 
above specific evidence and arguments advanced by Australia in that regard – whether in general 
or specifically within Australia. Cuba "fully accepts that tobacco consumption has serious 
consequences for public health and it acknowledges that scientific evidence has unequivocally 
established that tobacco consumption, and exposure to tobacco smoke, cause death, disease and 
disability".3212 Honduras was also clear in stating, at the outset of these proceedings, that: "[t]he 
dispute is not about whether smoking is dangerous or whether it affects the health of many people 
in Australia and around the world – it is and it does".3213 Likewise, Indonesia noted , at the outset, 
that "the issue before the Panel is not whether tobacco is harmful"3214, adding that:  
[n]o one, and certainly not Indonesia, believes tobacco use is healthy. Most  countries, 
including Indonesia, recognize that tobacco use in various forms can  lead to disease 
and in some cases premature death.3215 
7.1308.   Similarly, the Dominican Republic references, without criticism, various statements by 
Australia as to the harmful consequences of tobacco:  
In meetings of the WTO Dispute Settlement Body, Australia has s poken of the scale of 
the global tobacco epidemic. Citing the WHO's Report on the Global Tobacco Epidemic 
2011, Australia points out that:  
Tobacco use continues to be the leading global cause of preventable 
death. It kills approximately six million people and causes hundreds of 
billions of dollars of economic damage worldwide each year … if current 
trends continue, by 2030 tobacco will kill more than eight million people 
worldwide each year, with 80 percent of these living in low - and 
middle -income countrie s. 
Australia has also highlighted the specific risks posed by, and the costs incurred from, 
tobacco smoking in Australia. In the [T] PP Bill Explanatory Memorandum,  the 
Australian Government noted that:  
Tobacco smoking remains one of the leading causes of p reventable death 
and disease among Australians, killing over 15,000 Australians every 
year. 3216 
7.1309.   The particular gravity of the consequences of not reducing the use of, and exposure to, 
tobacco products has also been recognized in the FCTC which states in its preamble that "scientific 
evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke 
                                                
3210 Australia's first written submission, para. 34 (referring to  Samet Report , (Exhi bit AUS -7), para. 100; 
and Banks et al. 2015, (Exhibit AUS -27), p. 38). 
3211 Australia's first written submission, para. 35 (referring to  D.J. Collins and H.M. Lapsley, The Costs of 
Tobacco, Alcohol and Illicit Drug Abuse to Australian Society in 2004/05: A R eport for the Commonwealth of 
Australia, 2008, (Collins and Lapsley 2008), (Exhibit AUS -47), p. xi; and Samet Report , (Exhibit AUS -7), 
para. 94 (noting that: "The four -stage model of the evolution of the tobacco epidemic and its consequences 
developed by L opez and colleagues (Lopez, Collishaw et al. 1994) , reflects the experience gained across the 
last century in witness ing the rise and fall of tobacco use and the parallel but lagged rise and fall of major 
tobacco -caused diseases.") ). 
3212 Cuba's first written submission, para. 3. 
3213 Honduras's first written submission, para. 1. 
3214 Indonesia's first written submission, para. 8. 
3215 Indonesia's first written submission, para. 7. 
3216 Dominican  Republic 's first written submission, paras.  140-141. (original footnotes omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  cause death, disease and disability" and that "the spread of the tobacco epidemic is a global 
problem with serious consequences for publ ic health".3217 
7.1310.   In light of the above, we find that it is widely recognized, and undisputed in these 
proceedings, that the public health consequences of the use of, and exposure to, tobacco, 
including in Australia, are particularly grave.  
7.1311.   We further note in t his respect the determination of the  Appellate Body in EC – Asbestos  
that the preservation of human life and health through the elimination, or reduction, of the 
well-known, and life -threatening, health risks posed by asbestos fibres was a "value … is both  vital 
and important in the highest degree".3218 Similarly, in Brazil  – Retreaded Tyres , the Appellate Body 
agreed with the panel that "few  interests are more 'vital' and 'important' than protecting human 
beings from health risks".3219 We also note that the "ser ious risk to human health" from smoking 
has previously been recognized in GATT and WTO dispute settlement proceedings.3220  
7.1312.   As noted, some complainants argue that we should assess the nature of the risks and the 
gravity of the consequences specifically for di fferent tobacco products, or according to certain age 
and social groups. In particular, the Dominican Republic argues that risks should be separately 
considered for cigarettes and cigars, as, it argues, none of the evidence shows "any impact of the 
[T]PP m easures on reducing smoking prevalence or consumption for tobacco products overall, or 
for cigars".3221  
7.1313.   As described earlier, the TPP measures  apply to a broad range of tobacco products, as 
defined in the TPP Act, including cigarettes and cigars, and it is n ot disputed that the nature  of the 
risks associated with the use of different tobacco products, including cigarettes and cigars, is 
essentially the same.3222 As regards the distinction between cigarettes and cigars, we note 
Australia's assertions, made with r eference to various scientific publications, that cigars can deliver 
nicotine concentrations comparable to cigarettes:  
All tobacco products contain substantial amounts of nicotine; cigarettes are 
particularly effective in delivering nicotine. Likewise, cig ars can deliver nicotine in 
concentrations comparable to cigarettes and smokeless tobacco - a single large cigar 
can contain as much tobacco as an entire packet of cigarettes and can take between 
one to two hours to smoke.3223 
7.1314.   Australia also explains, with re ference to relevant sources, including the US National 
Cancer Institute and CCV, that cigars contain higher quantities of harmful substances than 
cigarettes. "Smoke from cigars, like the smoke from cigarettes, contains toxic and cancer causing 
chemicals ha rmful to both smokers and non -smokers. However, the amounts of these substances 
found in cigar smoke are much higher. Cigar smoking is causally linked to cancer, cardiovascular 
disease and chronic lung disease …".3224 The WHO and FCTC Secretariat have also st ated that 
                                                
3217 See FCTC, (Exhibits AUS-44, JE -19), preamble, fifth and second recitals, respectively. See also ibid. 
Articles 3 and 8(1). See also WHO/FCTC amici curiae  brief, ( Exhibit AUS -42 (revised)), section 1.1.  
3218 Appellate Body Report, EC – Asbestos , para. 172. 
3219 Appellate Body Report, Brazil  – Retreaded Tyres , para. 144. See also Panel Report, US – Clove 
Cigarettes , para. 7.347.  
3220 See, e.g. GATT Panel Report,  Thailand  – Cigarettes , para. 73 ("In agreement with the parties to the 
dispute and the expert from the WHO, the Panel accepted that smoking constituted a serious risk to human 
health and that consequently measures de signed to reduce the consumption of cigarettes fell within the scope 
of Article  XX(b)."); and Panel Report, US – Clove Cigarettes , para. 7.1 ("Cigarettes are inherently harmful to 
human health, as recognized by the WHO, the scientific community and both pa rties to this dispute.").  
3221 Dominican  Republic 's response to Panel question No. 65. 
3222 See para. 7.1295  above.  
3223 Australia's first written submission, para. 25 (referring to  US Surgeon General's Report 1988, 
(Exhibit AUS -29), p. 9; Samet Report , (Exhibit AUS -7), para. 40; NCI Tobacco Control Monograph  No. 9 , 
(Exhibits AUS -33, DOM -149), p. 11; and Cigars: Facts and F igures, (Exhibit AUS -34)). 
3224 Australia's first written submission, para. 30 (referring to  NCI Cigar Fact Sheet, ( Exhibit AUS -40); 
Cancer Council of Victoria, Quit Victoria, Heart Foundation, and VicHealth, Submission on Tobacco Plain 
Packaging: Proposed Ap proach to Non -Cigarette Tobacco Products,  28 October 2011, (Exhibit AUS -41), 
pp. 2-3; and Samet Report , (Exhibit AUS -7), paras.  75-77). See also NCI Tobacco Control Monograph  No. 9 , 
(Exhibits AUS -33, DOM -149), p. 19, "Overall conclusions":   
 
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- 487 - 
  "smoke from cigars contains the same toxic constituents as smoke from cigarettes, and cigar 
smoking causes many of the same diseases caused by cigarette smoking".3225  
7.1315.   The complainants do not contest these factual assertions by Australia or the evid ence 
upon which it relies in this respect, suggesting that the gravity of the consequences arising from 
smoking cigars is comparable to that arising from cigarettes.  
7.1316.   Turning to specific age groups, we note that the complainants do not contest Australia's 
arguments on the particular public health impact of youth and adolescents using, and being 
exposed to, tobacco, or the relevance of these arguments in the Australian context:  
As the United States Centers for Disease Control and Prevention  underscores in it s 
report, Best Practices for Comprehensive Tobacco Control Programs 2014 , tobacco 
control strategies must target all smoking behaviour. The report notes that a 
comprehensive tobacco control regime should target: initiation among youth and 
young adults; qui tting among youth and adults; exposure to second -hand smoke; and 
tobacco -related disparities among population groups. In particular, a focus on 
preventing youth initiation is important, as youth and adolescence is the key period in 
which the initiation of tobacco products is likely to occur. Moreover, evidence shows 
that people who begin smoking early are more likely to continue smoking.3226  
7.1317.   Therefore, we conclude that from a public health perspective, the consequences of not 
fulfilling the objective of reduc ing the use of, and exposure to, tobacco products, are especially 
grave for youth. We also note that both the Appellate Body and the panel in US – Clove Cigarettes 
recognized the particular importance of reducing youth smoking.3227 
7.1318.   We further note that the co mplainants also do not contest Australia's assertions that 
Aboriginal and Torres Strait Islander peoples are disproportionately affected by tobacco use than 
the rest of the Australian population:  
The harmful consequences of tobacco use are disproportionate ly felt by disadvantaged 
communities, and smokers in Australia are twice as likely as non -smokers to have 
been diagnosed or treated for a mental illness. Smoking is responsible for 12.1% of 
the total burden of disease and 20% of deaths among Aboriginal and  Torres Strait 
Islander peoples.  
… 
Aboriginal and Torres Strait Islander peoples have a much higher rate of tobacco use 
than non -Indigenous Australians, with 41.6% of Aboriginal and Torres Strait Islander 
peoples above the age of 15 smoking on a daily bas is. In 2012 -13 current daily 
smoking was more prevalent among Aboriginal and Torres Strait Islander peoples than 
non-Indigenous people in every age group.3228 
                                                                                                                                                  
1. Cigar smoking can cause oral, esophageal, laryngeal and lung cancers. Regular cigar 
smokers who inhale, particularly those who smoke several cigars per day, have an increased 
risk of coronary heart disease and chronic obstructive pulmonary disease.  
2. Regular cigar smokers  have risks of oral and esophageal cancers similar to those of cigarette 
smokers, but they have lower risks of lung and laryngeal cancer, coronary heart disease and 
chronic obstructive pulmonary disease.  
 
3225 WHO/FCTC amici curiae brief, (Exhibit AUS -42 (rev ised)), para. 3. 
3226 Australia's first written submission, para. 43 (referring to USCDC Best Practices for Comprehensive 
Tobacco Control Programs, (Exhibit AUS -50), p. 19; and 2013 NDSHS Report, (Exhibit AUS -48), p. 22).  
3227 Appellate Body Report, US – Clove Cigarettes , para. 236; and Panel Report, US – Clove Cigarettes , 
para. 7.347.  
3228 Australia's first written submission, paras.  34 and 37 ( referring to  Samet Report , (Exhibit AUS -7), 
para. 103; 2010 NDSHS Report, (Exhibits AUS -45, DOM -280), p.  22; Vos et al. 2 007, (Exhibit AUS -46), p.  55; 
and Australian Bureau of Statistics, Australian Aboriginal and Torres Strait Islander Health Survey, Updated 
Results, 2012 -2013, Cat. No. 4727.0.55.006 (2014), (Exhibit AUS -49)). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 488 - 
  7.1319.   Finally, we  are mindful of the point made by Australia, undisputed by the complainants, 
that "there is no safe level of tobacco use or safe level of exposure to second -hand or 
environmental tobacco smoke".3229 We read this as underscoring the particular gravity of the 
consequences of not fulfilling the objective of improving public health by reducing the us e of, and 
exposure to, tobacco products. We also recall in this respect that the gravity of the consequences 
arising from the non -fulfilment of the technical regulation's legitimate objective would normally be 
expected "to correlate, at least to some exten t, to the importance of the objective to the Member 
concerned".3230 Australia has emphasised the importance to it of the public health objective 
pursued by the TPP Act; in particular, it stated that "the interests at stake are of the utmost 
importance"3231 and h ighlighted "the fundamental importance of a comprehensive approach to 
tobacco control".3232  
7.1320.   Our conclusions are not modified by the existence of Section 15 of the TPP Act, which 
provides that the TPP  Act does not apply to the extent that its operation would infringe cert ain 
constitutional protections, such as by acquiring property otherwise than on just terms .3233 
Indonesia argues that "[b]ecause Australia is willing to walk away from [the TPP measures ], rather 
than pay compensation, it is clear that Australia b elieves there is little risk to public health from 
not allowing [the TPP measures ] to fulfill [their] public health objective (i.e. the risk of 
non-fulfillment is negligible)".3234 We are not persuaded, however, as Indonesia argues, that the 
existence of this  provision in the TPP Act, and the fact that it envisages the possibility of the 
requirements of the TPP Act not applying, if it were found to result in unjust acquisition of property 
under Australia's Constitution,  provides evidence that  the public health  objective of the TPP Act, in 
relation to the reduction of the use of and exposure to tobacco products , or the potential of the 
TPP measures  to contribute to this objective , are not important to Australia .3235 
7.2.5.5.2.3   Conclusion on the nature of the risks that non -fulfilment would create and 
gravity of their consequences  
7.1321.   We have determined above that a Panel's assessment of "the risks non -fulfilment would 
create" entails, in the first place, identifying  the nature and gravity of the "risks non -fulfilment 
would creat e", and that this does not entail a comparison of the challenged measures and possible 
alternative measures, or a consideration of their respective degrees of contribution to the 
objective. Rather, such identification involves assessing the following two k ey aspects: the nature 
of the risks and the gravity of the consequences of non -fulfilment of the objective of the 
challenged measures.  
7.1322.   With the for egoing interpretation in mind, in light of the objective of the TPP measures  
and taking into account in part icular the available scientific and technical evidence, we have found 
                                                
3229 Australia's first written submission, para. 23 (referring to  WHO Second -Hand Smoke Policy 
Recommendations ( Exhibit AUS -24), p. 2). See also Australia's second written submission, para. 538. 
3230 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.279. In stating this, 
the Appe llate Body held that "[h]owever, this does not mean that the relative  importance of an objective, as 
determined against other potential objectives that a Member might pursue, is a factor directly pertinent to 
'taking account of the risks non -fulfilment wou ld create' under Article  2.2". Ibid. (emphasis original). For  the 
Appellate Body, the terms of Article  2.2 "do not connote the kinds of judgements that would be necessary to 
determine whether one objective is, in  comparative terms, more or less important t han other objectives". Ibid. 
para. 5.278.  
3231 Australia's first written submission, para. 697. 
3232 Australia's first written submission, para. 38. 
3233 TPP Act, Simplif ied Outline of Chapter 1,  Section 15, (Exhibits AUS -1, JE-1), Section 13.  
3234 Indonesia's first written submission, para. 425. 
3235 We also note that Section 15 of the TPP Act serves to ensure that the same Act "does not apply to 
the extent that its operation would infringe certain constitutional protections (such as by acquiring prop erty 
otherwise than on just terms)." TPP Act, (Exhibits AUS -1, JE-1), Section 13, Simplified Outline of Chapter 1. As 
Australia explains, the High Court of Australia upheld the constitutionality of the TPP measures  in regard to the 
specific point addressed by Article  15. Australia's first written submission, para. 693. In fact, the High Court 
responded "No" to the first and main substantive question before it, which was as follows: "Apart from s 15 of 
the Tobacco Pl ain Packaging Act 2011 (Cth), would all or some of the provisions of the Tobacco Plain Packaging 
Act 2011 (Cth) result in an acquisition of any, and if so what, property of the plaintiffs or any of them 
otherwise than on just terms, of a kind to which s 51 (xxxi) of the Constitution applies?" JTI  v. Commonwealth , 
(Exhibits AUS -500, CUB -50), p. 2. The Panel notes that Honduras and Indonesia also submitted excerpts of 
this High Court decision as exhibits. See Exhibits HND -53 and IDN -86. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 489 - 
  that the nature of the risks non -fulfilment of the objective would create is that public health would 
not be improved as the use of, and exposure to, tobacco products would not be reduce d. We have 
also found that the public health consequences of not fulfilling this objective are particularly grave.  
7.1323.   Having identified the risks of non -fulfilment, as explained we shall take account of these 
risks in subsequent parts of our overall analysis  under Article  2.2 of the TBT Agreement . 
 
7.2.5.6   Whether less trade -restrictive alternative measures are reasonably available to 
Australia  
7.1324.   As observed above, whether a technical regulation is " more trade -restrictive than 
necessary" within the meaning of the secon d sentence of Article  2.2 of the TBT Agreement , and 
thereby creates an "unnecessary obstacle[] to international trade" within the meaning of the first 
sentence, may be established on the basis of a " comparative analysis"3236 of the challenged 
measure and poss ible alternative measures that may be reasonably available and less 
trade -restrictive than the challenged measure, taking account of the risks non -fulfilment would 
create.3237 
7.1325.   Having determined above that the TPP measures  contribute to their objective and are  
also trade -restrictive, we now consider whether, as the complainants argue, certain less 
trade -restrictive alternative measures would be reasonably available to Australia to achieve an 
equivalent contribution to its objective, taking account of the risks that non -fulfilment of the 
objective would create.  
7.1326.   The parties have discussed in detail the manner in which this comparative analysis should 
be approached. We therefore first clarify our overall approach, before turning to a consideration of 
each of the al ternative measures proposed by the complainants.  
7.2.5.6.1   Approach of the Panel  
7.2.5.6.1.1   Main arguments of the parties  
7.1327.   Honduras  argues that the comparison under the second part of a "necessity" assessment 
under Article  2.2 should consider "whether the proposed alternative i s less trade restrictive, 
whether it would make an equivalent contribution to the relevant legitimate objective, taking 
account of the risks non -fulfilment would create, and whether it is reasonably available".3238 
7.1328.   Honduras argues that the Panel should assess  the contribution of the TPP measures  and 
the alternative identified by the complainants against Australia's objective of improving public 
health by reducing smoking prevalence.3239 Honduras further argues that , for the purposes of 
comparing the degree of con tribution, the panel must have previously determined clearly and 
precisely the degree of contribution that the challenged measure makes to the achievement of the 
legitimate objective.3240 Honduras further submits that t he proposed alternative measure may 
achieve an equivalent degree of contribution in ways different from the technical regulation at 
issue  and the panel has a margin of appreciation  in this assessment.3241 In Honduras's view, this 
may have an impact on the nature of the evidence available and the qu alitative or quantitative 
                                                
3236 Appellate Body Report s, US – Tuna II (Mexico) , para. 320; US – COOL , para. 376; and US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.212.  
3237 Appellate Body Reports, US – Tuna II (Mexico) , paras.  320-323; US – COOL , para. 379; and US –
 COOL ( Article  21.5 – Canada and Mexico ), para. 5.213. A s observed by the Appellate Body, there may be 
circumstances where a comparative analysis of this nature may be unnecessary, for example if the challenged 
measure is not trade -restrictive  or makes no contribution to the achievement of the legitimate objective 
pursued. Appellate Body Reports, US – Tuna II (Mexico) , para. 322 fn 647; and US – COOL , para. 376 fn 748.  
3238 Honduras's first written submission, para. 807 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 322). 
3239 Honduras's response to Panel question No. 64 (referring to Panel Reports, US – COOL , paras.  7.597 
– 7.599). See also Honduras's response to Panel question No. 69 (quoting European Union's third -party 
submission, para. 68). 
3240 Honduras's first written submission, paras.  822 and 934.  
3241 Honduras's response to Panel question No. 157. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 490 - 
  assessment that is made of its contribution.3242 Honduras adds that the "quantitative evidence 
undeniably shows that plain packaging has not led to a reduction in smoking in the first three 
years of application, and quantitative proj ections as well as qualitative analysis of the drivers of 
smoking confirm that it is not capable of doing so, let alone in any meaningful manner". In 
contrast, Honduras argues that "the quantitative and qualitative support for increased taxes or 
increasing  the [minimum legal purchasing age (MLPA)] is overwhelming", and that "[t]he 
pre-vetting mechanism focuses on the same mechanisms but is simply more targeted".3243 
7.1329.   Honduras notes that the Appellate Body refers simply to an alternative measure that is 
"less" t rade -restrictive.3244 For Honduras, the starting point is the challenged measure and its 
trade -restrictive nature and degree, which means that in the context of these proceedings, the 
Panel should analyse whether and to what degree both the TPP measures  and t he proposed 
alternatives impact the conditions of competition in the market place in Australia.3245  
7.1330.   Honduras further argues that the determination under "risks of non -fulfilment" will affect 
both the relational and comparative analysis, in equal measure. For  example, if a measure entails 
inconsequential risks of non -fulfilment, that determination will affect the conclusions under the 
relational and comparative analysis, in equal measure, and will also affect the overall conclusion of 
the "necessity" assessmen t under Article  2.2 of the TBT Agreement .3246 
7.1331.   Honduras also submits that t he Panel's comparative analysis may consider only 
alternative measures that would be reasonably available to the importing WTO Member3247 and 
this includes measures which consist of an increase in magnitude or an improvement of an existing 
measure.3248 In Honduras's view, the relevant question for the comparison is whether the overall 
contribution is equivalent and, as such, the starting point  is the overall degree of contribution that 
the technical regulation makes to the smoking reduction objective pursued.3249 
7.1332.   Honduras submits that Australia's reliance on the rulings in Brazil  – Retreaded Tyres  is 
misleading and taken out of context, such that its analogy between the facts in Brazil  – Retreaded 
Tyres  and these proceedings is inaccurate.3250 In any case, Honduras submits that the 
TPP measures  are not a key element of Australia's tobacco control regu latory regime, and that it 
would be incorrect to assert that Australia's many other tobacco -control measures would risk being 
undermined if plain packaging were not in force.3251 
7.1333.   The Dominican Republic  argues that "in performing the relational analysis of whe ther a 
measure is 'more trade restrictive than necessary to fulfil' its objective, a panel generally relies on 
the 'conceptual tool' of less trade -restrictive alternatives".3252 In assessing each less 
trade -restrictive alternative put forward by a complainant , a panel must "consider, in particular, 
whether the proposed alternative is less trade -restrictive than the challenged measure, whether it 
would make an equivalent contribution to the relevant legitimate objective (taking account of the 
risks non -fulfilme nt would create), and whether it is reasonably available".3253  
                                                
3242 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.254 -5.255.  
3243 Honduras's response to Panel question No. 157. 
3244 Honduras's response to Panel question No. 151 (referring to Appellate Body Reports, US – COOL , 
para. 471).  
3245 Honduras's response to Panel question No. 151. 
3246 Honduras's first written submission, para. 822. 
3247 Honduras's first written submission, para. 823 (referring to  Appellate Body Report, US – Tuna II 
(Mexico) , paras.  320, 321 and 322).  
3248 Honduras's first written submission, para. 823 ( referring to  Panel Reports, China  – Rare Earths , 
para. 7.186).  
3249 Honduras's response to Panel question No. 157 ( referring to  Appellate Body Reports, US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.2). 
3250 Honduras's second written submission, paras.  687-688. See also Honduras's second written 
submission, para. 689 (referring to Appellate Body Report, Brazil  – Retreaded Tyres , para. 91; Panel Reports, 
China  – Rare Earths , paras.  7.186, 7.568 -7.590; and Panel Reports, China  – Raw Materials , para. 7.568); 
response to Panel question No. 161; and comment s on Australia's response to Panel question No. 158. 
3251 Honduras's  response to Panel question No. 161; and comment s on Australia's response to Panel 
question Nos. 157 and 158.  
3252 Dominican  Republic 's first written submission, para. 970. 
3253 Dominican  Republic 's first written submission, para. 971. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 491 - 
  7.1334.   The Dominican Republic submits that the stated means for achieving an objective cannot 
also be objectives themselves, because any alternative would have to contribute by the same 
means (i.e. Aust ralia's "specific objectives") as plain packaging, "even if the alternative contributed 
more to the ultimate objective of reducing smoking". Thus, the Panel's assessment of the 
TPP measures  and that of the alternatives must be conducted against the TPP Act's "object of 
reducing smoking behaviour".3254 
7.1335.   Moreover, the Dominican Republic argues that a proposed measure is an alternative if it 
is different in its substantive effects from an existing measure, including in terms of the extent of 
the contribution to th e relevant objective.3255 Thus, "if an existing measure can be modified, 
expanded, or improved so as to make at least an equivalent contribution to the objective of the 
challenged measure, that improved measure can constitute an 'alternative'".3256 The Dominican  
Republic submits that the panel and the Appellate Body in Brazil  – Retreaded Tyres  did not find 
that strengthening a measure that has already been implemented "in part" cannot be an 
alternative, or that a more stringent "variation" of an existing measure is not an alternative.3257 
Provided that an alternative measure "involves some new regulatory feature that makes a 
contribution equivalent to any made by a challenged measure, replacing the challenged measure 
with the alternative measure would not lessen the contribution made to the public health objective 
– even if the measures work in different ways, at different times, and with different synergies".3258 
7.1336.   The Dominican Republic submits that a panel need only establish that the alternative 
measures ar e less trade -restrictive than the challenged measure, "which does not necessarily 
require a determination of the absolute levels of restriction of each measure".3259 In making the 
comparison of trade -restrictiveness, the Dominican Republic submits that a pane l must bear in 
mind that a challenged technical regulation and proposed alternative measures may use different 
regulatory means that may entail a loss of different competitive opportunities. For the Dominican 
Republic, the "relative restrictiveness of the measures cannot … be compared through a simple 
comparison of the lost competitive opportunities, because this is an apples -to-oranges 
comparison".3260 The Dominican Republic posits that "one method of engaging in an 
apples -to-apples" comparison would be to co mpare the trade effects of the challenged technical 
regulation and the alternative measures, such that a panel could first identify the number, nature 
and extent of the different trade effects resulting from the challenged technical regulation, and 
then as sess whether the alternative measures entail lesser adverse trade effects in light of all of 
the elements.3261  
7.1337.   The Dominican Republic also submits that where a challenged technical regulation and 
alternative measures "deploy different regulatory means, an im portant factor to bear in mind is 
that some types of regulatory means are not disciplined as trade restrictive measures under the 
covered agreements".3262 Thus, if an alternative measure is not trade -restrictive under the covered 
agreements, and a challenged technical regulation is, the Dominican Republic considers that this 
                                                
3254 Dominican  Republic 's response to Panel question No. 64. 
3255 Dominican  Republic 's second written submission, para. 631; and response to Panel question 
No. 153. 
3256 Dominican  Republic 's second written submission, para. 689; and response to Panel question 
No. 153. See also Dominic an Republic 's second written submission, paras.  631 and 659 (referring to Panel 
Reports, China  – Rare Earths , para. 7.186).  
3257 Dominican  Republic 's comment s on Australia's response to Panel question No. 148 (referring to 
Australia's response to Panel Questi on No. 157, para. 70); and comment s on Australia's response to Panel 
question No. 157. See also Dominican  Republic 's comment s on Australia's response to Panel question Nos. 148 
(referring to Panel Report, Brazil  – Retreaded Tyres , paras.  7.167 -169; and App ellate Body Report, Brazil  –
 Retreaded Tyres , para. 158),  151, and 158.  
3258 Dominican  Republic 's comment s on Australia's response to Panel question No. 158. 
(emphasis  original)  
3259 Dominican  Republic 's response to Panel question No. 151. 
3260 Dominican  Republic 's response to Panel question No. 151. 
3261 Dominican  Republic 's response to Panel question No. 151. 
3262 Dominican  Republic 's response to Panel question No. 151; and comment s on Australia's response to 
Panel question No. 151. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 492 - 
  "is a strong, even decisive, indication" that the alternative is less trade -restrictive under those 
agreements.3263  
7.1338.   The Dominican Republic argues that the Panel can only address alternative measures if it 
finds that the TPP measures  contribute to the objective of reducing smoking behaviour. The 
Dominican Republic argues that "[i]n comparing the trade restrictiveness of the [TPP]  measures 
and the alternatives, the Panel must take fully into ac count both dimensions of the trade 
restrictiveness of the [TPP]  measures".3264 Assuming that the alternatives make an equivalent 
contribution to the objective of reducing smoking behaviour, in the Dominican Republic's view, 
(and on the basis of its assumption s concerning the contribution of the TPP measures ), in terms of 
restrictions on the volume of tobacco products, each of the alternatives is similarly 
trade -restrictive because they each make a similar contribution to reducing smoking; however, 
"they do not  restrict competitive opportunities, as the [TPP]  measures do, by curtailing 
differentiation and distorting competitive opportunities".3265 
7.1339.   The Dominican Republic sees no basis in the arguments or evidence before the Panel for 
a separate assessment of the tra de-restrictiveness and contribution of the alternative measures as 
they apply to cigars and cigarettes.3266 
7.1340.   The Dominican Republic argues that a panel has a duty to assess all of the evidence 
before it, both quantitative and qualitative, such that if the Pane l opts to assess the contribution of 
the TPP measures  qualitatively, it cannot elect not to examine the quantitative evidence. If the 
Panel reaches a finding that the TPP measures  have made, or are apt to make, a contribution to 
reducing smoking, it must e stablish the degree or extent of that contribution, expressed in 
quantitative or qualitative terms, and this will then serve as the basis for the comparison with 
alternatives, which "is facilitated by a clear and precise statement of the degree of 
contribu tion".3267 Different policy mechanisms will inevitably make different degrees of 
contributions, and the issue is not the number of mechanisms at work but the degree of the 
contribution that results.3268  
7.1341.   The Dominican Republic also argues that a panel must asses s equivalence based on the 
overall contribution of the challenged and alternative measures to the objective, and not the 
contribution made through particular aspects of the measure. For the Dominican Republic this 
means that, in these proceedings, the comp arison must be made by comparing the impact of the 
respective measures on the objective of reducing smoking3269 and should take into account (1) the 
degree or extent of the contribution; (2) where the contribution is expected in the future, the 
likelihood or probability of the contribution materializing; and (3) where the contribution is 
expected in the future, the timeframe within which the contribution is expected to materialize.3270 
The Dominican Republic stresses that such considerations are important in thes e proceedings, 
because "it is highly uncertain whether the challenged [TPP]  measures will ever contribute to 
reducing smoking, whereas it is almost certain that the proposed alternatives would do so".3271 
7.1342.   The Dominican Republic adds that a panel enjoys a "mar gin of appreciation" in assessing 
equivalence3272 which allows it to weigh the relevant factors, such as the degree, likelihood, and 
timing of the respective contributions to reach an overall conclusion on equivalence.3273 This 
                                                
3263 Dominican  Republic 's response to Panel question No. 151; and comment s on Australia's response to 
Panel question No. 151. 
3264 Dominican  Republic 's second written submission, paras.  970-972. 
3265 Dominican  Republic 's second written submission, paras.  973-978; and comment s on Australia's 
response  to Panel question No. 151. 
3266 Dominican  Republic 's response to Panel question No. 152. 
3267 Dominican  Republic 's response to Panel question No. 157 (referring to Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada and Mexico ), paras.  5.215 -5.216); and comment s on Australia's response to 
Panel question No. 148. 
3268 Dominican  Republic 's comments on Australia's response to Panel question No. 148. 
3269 Dominican  Republic 's response to Panel question No. 157. 
3270 Dominican  Republic 's response to Panel question No. 157; and comment s on Australia's response to 
Panel question No. 156. 
3271 Dominican  Republic 's response to Panel question No. 157. 
3272 Dominican  Republic 's response to Panel question No. 157 ( referring to  Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada  and Mexico ), para. 5.215).  
3273 Dominican  Republic 's response to Panel question No. 157. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 493 - 
  margin of appreciation may be info rmed by the risks that non -fulfilment of the objective would 
create.3274 One measure may give rise to a much higher risk of non -fulfilment than another, 
because it is much less likely to contribute to the objective.3275 
7.1343.   Cuba argues, if the Panel finds that the TPP measures  do have the effect of reducing 
levels of tobacco use in Australia, that the TPP measures  are "disproportionate". Cuba submits that 
whatever modest degree of contribution that the TPP measures  make to reducing levels of tobacco 
use in Australia could be replicated by less restrictive alternative measures.3276 Cuba submits that 
the "assessment of whether Australia's measures are disproportionate must take into account the 
actual  positive contribution that the Panel deems to have resulted from the TPP measures  and 
determine whether the alternatives proposed by Cuba are reasonably available and would match 
that contribution".3277 Moreover, to the extent that there are uncertainties about whether the 
measure under challenge or alternative measures will b e effective, Cuba submits that those 
uncertainties should also be factored into the analysis.3278 
7.1344.   Cuba submits that the Panel is not obliged to carry out a quantitative analysis of the 
relative degrees of trade -restrictiveness of the measures at issue and eac h of the proposed 
alternatives, and that doing so would imply speculating to such an extent that it could not be 
qualified as a " quantitative analysis by the empirical or experimental laboratory methods 
commonly associated with the physical sciences".3279 Cuba elaborates that the Panel can assess 
the relative degree of trade -restrictiveness of the TPP measures  by considering whether the 
proposed alternative measures "would have the same devastating impact on Cuban LHM cigar s as 
plain packaging". Cuba submits t hat the TPP measures  "will fundamentally erode the ability of 
Cuban producers to position their LHM cigar s as luxury premium products with a long tradition". 
Cuba considers that "even if this does not occur immediately, over time it will inevitably occur",  
and that none of the proposed alternative measures would have this effect.3280 
7.1345.   Cuba submits that t he Panel should assess whether, in the light of all the evidence 
presented, the less trade -restrictive measures would make a smaller contribution to Australia's  
health objectives than the TPP measures . It states that there is no need for the Panel to base its 
assessment exclusively on qualitative evidence, and that the Panel has data that enable it to make 
a quantitative assessment. It adds that the distinction b etween a qualitative and a quantitative 
assessment is not a strict one, and that the Panel should take account of the totality of the 
evidence and the quality and importance of such evidence.3281 
7.1346.   Cuba submits that Australia's claim that the alternatives propo sed by the complainants 
cannot be considered "alternatives" because they are complementary elements of a 
"comprehensive suite of measures" is incorrect from a legal and factual point of view.3282 Cuba 
argues that Australia's argument that the TPP measures  are part of a package of measures that 
"work together synergistically" is "a clear attempt to shield [them] against all kinds of scrutiny". 
Cuba quotes Australia's Office of Best Practice Regulation 's (OBPR ) comments that it was "having 
trouble determining what the problem is and how significant it is"; that "there has been a decline 
in tobacco consumption over the past 15 years among young people and over the past 30 years 
for the population as a whole"; and that "it appears than the current programs are ac hieving their 
objectives and that there are no clear reasons for extra initiatives".3283 
7.1347.   Indonesia  argues that, while Australia has argued that it is implementing a 
"comprehensive tobacco control policy" that relies on both the TPP measures  and several of the  
measures put forward by the complainants as alternatives, it has not put forward arguments and 
                                                
3274 Dominican  Republic 's response to Panel question No. 157 ( referring to  Appellate Body Reports, US –
 COOL ( Article  21.5 – Canada and Mexico ), para. 5.215).  
3275 Dominican  Republic 's response to Panel question No. 157. 
3276 Cuba's first written submission, paras.  408-410. 
3277 Cuba's first written submission, para. 411. (emphasis original)  
3278 Cuba's first written submission, para. 411. 
3279 Cuba's response to Panel question No. 151 ( referring to  Appellate Body Report, EC – Hormones , 
para. 187).  
3280 Cuba's response to Panel question No. 151. 
3281 Cuba's response to Panel question No. 157. 
3282 Cuba's comment s on Australia's response to Panel question Nos. 157 and 158.  
3283 Cuba's comment s on Australia's response to Panel question Nos. 157 and 158.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 494 - 
  evidence (and "certainly nothing comparable to the evidence developed by Brazil" in Brazil  –
 Retreaded Tyres3284) showing that the complainants' alternatives would  be less effective in the 
absence of the TPP measures . 
7.1348.   Indonesia also clarifies that the complainants are not arguing that existing tobacco 
control measures – like taxation, social marketing campaigns, or the MLPA – would serve as 
alternatives in their pre sent form but have proposed modifications of those policies such that they 
would become "a new measure not currently in effect in Australia". In Indonesia's view, the Panel 
should conclude based on the facts of this case that "alternatives" within the mean ing of Article  2.2 
can include increasing, improving, or updating other tobacco control policies that have been 
proven to be more effective at reducing smoking than the TPP measures  and are less 
trade -restrictive.3285 
7.1349.   Indonesia also refers to the European Uni on's third -party submission that even a 
measure that might go so far as to eliminate smoking in Australia would not qualify as an 
alternative under Australia's proposed standard if it did not have an effect on the appeal of the 
package. Indonesia also refe rs to the Appellate Body's comment in US – COOL ( Article  21.5 –
 Canada and Mexico)  that, "[t]he proposed alternative may achieve equivalence in ways that are 
different from the measure at issue".3286 
7.1350.   Indonesia submits that the Panel must first determine the c ontribution to the objective of 
the measure(s), which Indonesia identifies as to cut Australia's smoking prevalence rate to 10% by 
2018 and reduce the number of smokers among the Aboriginal and Torres Straight Islanders 
population by 50%. A measure that re duces both prevalence and consumption could be viewed 
more favourably than a measure that reduces prevalence alone, and a measure that reduced only 
consumption with no impact on prevalence should not be found to have made a contribution to 
Australia's obje ctive of reducing smoking prevalence. Where a challenged measure's contribution 
can only be assessed qualitatively, Indonesia argues that a panel must attempt to assess whether 
the challenged measure makes (or is apt to make) a contribution that is greater  than that of the 
proposed alternatives.3287 
7.1351.   Indonesia argues that which measure is "less trade restrictive" should be assessed by 
comparing the challenged measure with proposed alternatives and selecting the measure that 
interferes the least with "competitiv e" opportunities available among products in the market 
place.3288 
7.1352.   Moreover, Indonesia argues that Australia has not provided any evidence that synergies 
exist or even explained exactly what the nature of the "synergy" is between plain packaging and 
other ele ments of Australia's tobacco control strategy.3289  
7.1353.   Australia  argues that the complainants' approach to the comparison of alternatives in 
these proceedings represents "a radical departure from the applicable jurisprudence as the 
'alternative' measures propose d, with one exception, are already being implemented as part of 
Australia's comprehensive tobacco control policy". Australia refers to Brazil  – Retreaded Tyres , in 
which "both the panel and the Appellate Body concluded that measures which were already 
elements of a comprehensive strategy to address health problems were not valid 
'alternatives'".3290 Australia adds that the Appellate Body "agreed with this analysis" and added 
that "[s]ubstituting one element of this comprehensive policy for another would weaken  the policy 
by reducing the synergies between its components, as well as its total effect".3291 
                                                
3284 Indonesia's second written submission, paras.  286-287 (referring to Panel Report, Brazil  –
 Retreaded Tyres , paras.  7.142, 7.160 and 7.169).  
3285 Indonesia's second written submission, para. 290. 
3286 Indonesia's second written submission, para. 291. 
3287 Indonesia's response to Panel question No. 165. 
3288 Indonesia's response to Panel question No. 165. 
3289 Indonesia's comment s on Australia's response to Panel question No. 157. 
3290 Australia's first written submission , para. 704 (referring to Panel Report, Brazil  – Retreaded Tyres , 
paras.  7.169, 7.171 -7.172); and second written submission, para. 551. 
3291 Australia's first written submission, para. 704 (quoting Appellate Body Report, Brazil – Retreaded 
Tyres , para. 172); second written submission, para. 551; and response to Panel question No. 165. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1354.   While noting that it is possible for an alternative measure to achieve an equivalent degree 
of contribution in ways different from the technical regulation at issu e3292, Australia argues that 
where a proposed alternative measure contributes to the public health objective by means 
different from the technical regulation at issue, but in the same way as existing elements within 
the comprehensive strategy, it will not mak e an equivalent degree of contribution.3293 Australia 
further states that the panel's reasoning in China  – Rare Earths  "does not apply to the present 
dispute because Australia has explained why the complainants' proposed variations to existing 
elements of Australia's tobacco control strategy could not be effective alternatives to the 
[TPP measures ], given the synergies an d complementarities between tobacco plain packaging and 
these elements".3294  
7.1355.   Australia considers that apart from the proposed "pre -vetting scheme", the alternatives 
proposed by the complainants "are either precise replicas of, or in the case of the proposed 
increase in the [MLPA], slight variations on, measures that Australia has already implemented". 
Australia submits that a comprehensive and dynamic approach to tobacco control is required, such 
that each proposed "alternative" cannot substitute for the cont ribution of the TPP measures  to its 
objectives, because that measure plays a distinct and complementary role within Australia's suite 
of tobacco control measures.3295 Australia argues that the synergies between measures can 
amplify the overall effect of tobac co control strategies more than any individual measure alone. 
For example, tobacco plain packaging, by decreasing the appeal of tobacco products, also 
increases the effectiveness of GHWs. It is logical therefore that enlarged GHWs, combined with 
tobacco pl ain packaging, would lead to a stronger effect than either measure alone.3296 
7.1356.   Australia argues that the increasing heterogeneity of tobacco use reinforces the need for 
a comprehensive approach to tobacco control and that tobacco control strategies must target  all 
smoking behaviour3297 and apply to all tobacco products to avoid a regulatory gap which, if left 
unaddressed, could be exploited by the tobacco industry or allow consumers to avoid measures 
associated with particular tobacco products.3298 Australia submits that comprehensive approaches 
to tobacco control are consistent with the FCTC and reflected in Article  5 of the FCTC.3299  
7.1357.   Australia argues that Honduras's contention that the Appellate Body's reasoning in 
Brazil  – Retreaded Tyres  does not apply in the circum stances of this case because tobacco plain 
packaging works in isolation rather than in synergy with the proposed alternative measures 
represents a "fundamental misunderstanding of the operation of the [ TPP measures ], Australia's 
National Tobacco Strategy, and best practice in tobacco control".3300 
7.1358.   Australia submits that the Panel "must also take into account the specific mechanisms or 
causal pathway of the measure when assessing whether the alternatives identified by the 
complainants will make an equivalent co ntribution to the [ TPP measures '] general objectives of 
reducing the use of and exposure to tobacco products". In this respect, Australia submits that to 
qualify as alternatives, any measures proposed must "preserve for the responding Member its 
                                                
3292 Australia's second written submission, para. 553 (referring to Appellate Body Reports, US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.269); and response to Panel question No. 165. 
3293 Australia's second written submission, para. 553 (referring to Appellate Body Report, Brazil  –
 Retreaded Tyres , para. 172); and response to Panel question No. 165. 
3294 Australia's comment s on the complainants' responses to Panel question No. 156. 
3295 Australia's first written submission, para. 706; and response to Panel question No. 165. 
3296 Australia's first written submission, paras.  40-41 (referring to  US Surgeon General's Report 2000, 
(Exhibit AUS-53), p. 6). See also Australia's first written submission, paras.  706 and 38.  
3297 Australia's first written submission,  paras.  42-43 (referring to USCDC Best Practices for 
Comprehensive Tobacco Control Programs , (Exhibit AUS -50), p. 19). 
3298 Australia' s first written submission, paras.  44-45. 
3299 Australia's first written submission,  para. 47 (referring to  Article  5 of the FCTC, which reads: "Each 
Party shall develop, implement, periodically update and review comprehensive multisectoral national tobacco 
control strategies, plans and programmes in accordance with this Convention and the protocols to which it is a 
Party.") See also ibid. para. 46 (referring to WHO and WHO/FCTC amici curiae  brief, (Exhibit AUS -42 
(revised)), para. 72, which reads: "[T]obacco control relies upon implementation of comprehensive 
multi-sectoral measures that work together as cumulative interventions in a complementary regulatory 
scheme.")  
3300 Australia's comment s on the complainants' responses to Panel question No. 163. See also Aus tralia's 
comment s on the complainants' responses to Panel question No. 161. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 496 - 
  right to a chieve its desired level of protection with respect to the objective pursued".3301 
Accordingly, in Australia's view, any alternative measures proposed must make an equivalent 
contribution to Australia's general objective of improving public health, taking int o account the fact 
that these measures are part of Australia's comprehensive range of tobacco control measures. 
Australia submits that the TPP measure s are  one element "within a comprehensive suite of 
measures which together aim to improve public health", and that "the specific mechanisms by 
which the tobacco plain packaging measure operates are a central feature of the measure's design 
and structure and inform the extent to which a proposed alternative, which narrows the range of 
mechanisms deployed in Aus tralia's tobacco control strategy, is able to achieve an equivalent 
contribution to the objectives in subsection 3(1) of the TPP Act".3302 For Australia, the more limited 
the set of "specific mechanisms" deployed in Australia's tobacco control strategy, the m ore difficult 
it is to influence the behaviour of the broadest range of consumers possible, and the more limited 
the set of measures in place, the greater potential for regulatory loopholes.3303 
7.1359.   In addition, Australia argues that the "expected timing" of a me asure's contribution is 
irrelevant to a panel's assessment of equivalence of contribution.3304 Australia also states that the 
Appellate Body in Brazil  – Retreaded Tyres  "considered it sufficient to demonstrate that a technical 
regulation is apt to contribute to its objectives 'at some point in time'" and nothing in the Appellate 
Body's analysis in that dispute, nor any other, suggests that the "expected timing" of a measure's 
contribution has any relevant bearing on determining the equivalence of contribution as between a 
challenged measure and a proposed alternative.3305 
7.1360.   Australia submits that the TPP measures  restrict trade "only to the extent necessary to 
achieve its degree of contribution to its public health objectives", such that any alternative 
measure that  is less trade -restrictive, "by reducing the volume of imports of tobacco products to a 
lesser extent, would make a lesser contribution to the public health objectives of the measure". 
Moreover, Australia submits that "any proposed alternative measure that  is more effective than 
tobacco plain packaging would reduce the volume of imports to a greater extent and would thus be 
more trade -restrictive"3306 and "any proposed alternative measure that makes an equivalent 
contribution to the objectives of the tobacco p lain packaging measure would need to reduce the 
volume of imports of tobacco products to the same extent, and would therefore be equally (rather 
than less) trade -restrictive as the challenged measure".3307  
7.1361.   For Australia, a comparison of relative reductions in the value of trade caused by the 
challenged measure and the proposed alternatives is not relevant in the circumstances of these 
proceedings, because "there is no evidence before the Panel to support the conclusion that the 
[TPP measures  are] trade -restrictive on the basis that [they have] reduced the value of overall 
trade in tobacco products in the Australian market".3308 Australia notes that "the fact that excise 
increases are the principal cause of downtrading is accepted by all parties to the dispute, b y public 
health experts, and indeed, by the tobacco industry".3309 Consequently, if "downtrading is in and of 
itself evidence of trade -restrictiveness, an excise increase would be far more trade -restrictive than 
tobacco plain packaging".3310 Moreover, Australia notes, with reference to the complainants' 
arguments on the limitation of "competitive opportunities" and "freedoms", that an increase in the 
MLPA would "by its design, structure and intended operation, completely eliminate[] a 'competitive 
oppor tunity' or 'freedom' currently available to the tobacco industry in the Australian market, 
namely the opportunity to compete legally for sales of tobacco products to consumers between the 
                                                
3301 Australia's response to Panel question No. 64 (quoting Appellate Body Report, Brazil  – Retreaded 
Tyres , para. 156).  
3302 Australia's response to Panel question Nos. 64 and 69. See a lso Australia's response to Panel 
question No. 64 (quoting Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico), 
para. 5.254).  
3303 Australia's response to Panel question No. 64. See also Australia's response to Panel question 
No. 69; and comm ent on the complainants' responses to Panel question No. 157. 
3304 Australia's comment s on the complainants' responses to Panel question No. 157. 
3305 Australia's comment s on the complainants' responses to Panel question No. 157. 
3306 Australia's response to Panel question No. 151. 
3307 Australia's response to Panel question No. 151. 
3308 Australia's response to Panel question No. 151. 
3309 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel quest ion Nos. 151 and 165.  
3310 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel question Nos. 151 and 165.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 497 - 
  ages of 18 -21 years".3311 This is, in Australia's view, a more marked r estriction on "freedom" than 
limitations on the ability to use certain branding elements on packaging.3312 With respect to 
pre-vetting, Australia submits that "the complainants contend that any increase in compliance 
costs, in and of itself, amounts to trade -restrictiveness", and that "Australia has explained the very 
significant compliance, regulatory and other costs that would be imposed on the industry and new 
entrants were a user -pays 'pre -vetting' scheme to be introduced".3313 Australia further considers 
the Dominican Republic's argument that the trade -restrictiveness of the alternative measures 
should be viewed under "the prism of the covered agreements to have no legal foundation 
whatsoever".3314 
7.2.5.6.1.2   Analysis by the Panel  
7.1362.   As described above, a complainant may seek  to identify a possible alternative measure 
that "is less trade restrictive, makes an equivalent contribution to the relevant objective, and is 
reasonably available", as part of its prima facie  case that a technical regulation is more 
trade -restrictive tha n necessary.3315 Such alternatives are "conceptual tools" to demonstrate that a 
technical regulation is more trade -restrictive than necessary.3316  
7.1363.   The burden rests with the complainant to identify a possible alternative measure that is 
less trade -restrictive, m akes an equivalent contribution to the relevant objective, and is reasonably 
available. If this is done, the burden is then on the responding Member to rebut the complainant's 
prima facie  case, by presenting evidence and arguments showing that the challeng ed measure is 
not more trade -restrictive than necessary by demonstrating, for example, that the alternative 
measure identified by the complainant is not, in fact, "reasonably available", is not less 
trade -restrictive, or does not make an equivalent contrib ution to the achievement of the relevant 
legitimate objective.3317  
7.1364.   Overall, therefore, for a proposed alternative measure to form the basis of a 
determination that the challenged measure is more trade -restrictive than necessary, it would need 
to cumulatively  satisfy all of the elements of the comparative analysis. It would thus need to be 
demonstrated that a proposed alternative measure would not only be less trade -restrictive than 
the challenged measures, but also that it would make at least an equivalent co ntribution to the 
objective being pursued through the challenged measure, and be "reasonably available" to the 
Member as an alternative to the challenged measures.3318 
7.1365.   A comparison of the relative trade -restrictiveness3319 of a challenged technical regulation 
and a proposed alternative measure requires first an identification of the trade -restrictiveness 
caused by the proposed alternative. An assessment of the trade -restrictiveness of a measure 
requires an assessment of its degree of trade -restrictiveness, rather  than merely a determination 
of whether or not the measure involves some restriction on trade.3320 This is necessary in 
particular to allow a comparison to be carried out, as to whether a proposed alternative is "less" 
trade -restrictive than the challenged technical regulation and to reach a conclusion as to whether 
the challenged measures are " more trade -restrictive than necessary" within the meaning of 
Article  2.2.3321 This assessment does not differ in nature from that of the degree of 
trade -restrictiveness of the challenged measures in the "relational analysis" above, in that this 
                                                
3311 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel que stion Nos. 151 and 165.  
3312 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel question Nos. 151 and 165.  
3313 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel q uestion Nos. 151 and 165.  
3314 Australia's comment s on the complainants' responses to Panel question Nos. 151 and 165.  
3315 Appellate Body Reports, US – Tuna II (Mexico) , para. 323; US – COOL , para. 379; and US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.213. 
3316 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.213.  
3317 Appellate Body Report, US – Tuna II (Mexico) , para. 323. 
3318 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.213.  
3319 Appellate Body Reports, US – COOL , para. 471. 
3320 See Appellate  Body Report, Colombia  – Textiles , para. 5.104 (quoting  Appellate  Body Report,  
Argentina  – Financial Services , para. 6.234).  
3321 See Appellate Body Report, Colombia  – Textiles , para. 5.116.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 498 - 
  inquiry similarly concerns the extent to which the proposed alternative would have a limiting effect 
on trade.3322 For the comparison to be meaningful, the same parameters need to app ly to both 
assessments to the greatest extent feasible. However, the nature and quality of evidence available 
in respect of a proposed alternative measure may be limited by the fact that it is, by nature, a 
hypothetical conceptual tool. In addition, there may be inherent limits to, and constraints on, the 
degree of precision with which this comparison can be carried out, depending on the manner in 
which the challenged technical regulation and the proposed alternative measure would each 
operate and thereby a ffect international trade.  
7.1366.   Similarly, in respect of the contribution  made by the technical regulation at issue and a 
proposed alternative measure, the respective degrees  of contribution of those measures to the 
objective pursued must first be ascertained, as a prerequisite to an assessment of their 
equivalence.3323  
7.1367.   We note in this respect the complainants' arguments on the nature of the evidence to be 
taken into account in assessing the degree of contribution of their proposed alternative measures 
(including whether the assessment should be based on qualitative or quantitative evidence) and 
how the comparison with the contribution of the TPP measures  should be carried out. As described 
above, it is inherent in the nature of this comparison, which is based in p art on a hypothetical 
situation, that there may be limits to the degree of precision that can be achieved in assessing the 
degree of contribution of a proposed alternative measure. In addition, the availability and quality 
of relevant evidence also affects  the degree of precision with which the degree of contribution of 
the challenged measures themselves can be determined. Nonetheless, as described above, this 
does not relieve the Panel of its duty to assess the relative degrees of contribution of the 
challenged measures and proposed alternative measures and to then take this assessment into 
account, in carrying out its overall assessment. Rather, we must strive to establish as precisely as 
possible, in light of the entirety of the relevant evidence before u s, the degree of contribution that 
the proposed alternatives would make to the objective. In this respect, as was the case with 
respect to the determination of the degree of contribution of the TPP measures  to their objective, 
we do not consider it appropr iate to a priori exclude from consideration certain types of evidence 
(for example evidence of a qualitative or quantitative nature). Rather, we must take account of all 
relevant evidence before us, to the extent that it may inform our assessment of the de gree of 
contribution that would be expected from  a proposed alternative measure . 
7.1368.   Having determined, to the extent feasible, the degree of contribution of a proposed 
alternative measure to the objective pursued by the Member, a comparison of the respective 
contributions of the challenged measures and proposed alternatives should be based on whether 
these contributions can be said to be "equivalent". What is relevant in an assessment of 
"equivalence" is "the overall degree of contribution that the technical r egulation makes to the 
objective pursued … rather than any individual isolated aspect or component of contribution". As 
described by the Appellate Body, the exact contours of this assessment may vary from case to 
case and should take into account " the char acteristics of the technical regulation at issue as 
revealed through its design and structure, as well as the nature of the objective pursued and the 
nature, quantity, and quality of the evidence available".3324  
7.1369.   Furthermore, in seeking to demonstrate such eq uivalence, a complainant need not 
demonstrate that its proposed alternative measure achieves a degree of contribution identical to 
that achieved by the challenged technical regulation. Rather, a proposed alternative measure may 
achieve an equivalent degree  of contribution in ways different from the technical regulation at 
issue3325 and there is a margin of appreciation in this assessment.3326 This margin of appreciation 
may be informed by the nature of the risks and the gravity of the consequences arising from th e 
non-fulfilment of the technical regulation's objective.3327 We note in this respect the Appellate 
                                                
3322 Appellate Body Reports, US – COOL , para. 375 ( referring to  Appellate Body Report, US – Tuna II 
(Mexico) , para. 319. 
3323 See Appellate Body Report, Colombia  – Textiles , para. 5.116.  
3324 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.216  and 
5.254 -5.255.  
3325 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.215, 5.254.  
3326 Appellate Body Reports, US – COOL , para. 373; and US – COOL ( Article  21.5 – Canada and Mexico) , 
paras.  5.215 and 5.254.  
3327 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 499 - 
  Body's observation that the need for equivalence of the respective degrees of contribution 
comports with the principle reflected in the sixth recital of the pr eamble to the TBT Agreement ; 
namely, that a Member shall not be prevented from pursuing a legitimate objective "at the levels it 
considers appropriate".3328 
7.1370.   Given the hypothetical nature of a proposed alternative measure, some imprecision in 
assessing the equ ivalence of the respective degrees of contribution of a technical regulation and 
such alternative is to be expected, and may be inevitable.3329 By way of example, the Appellate 
Body notes that "a technical regulation and the proposed alternative measures may deploy various 
methods or techniques that jointly or separately contribute to achieving the objective pursued, 
which may not each be quantifiable in an isolated manner".3330 However, this does not, in and of 
itself, "relieve a panel from its duty to assess th e equivalence of the respective degrees of 
contribution", and a panel should proceed with the overall weighing and balancing under 
Article  2.2 in spite of such imprecision.3331 We are guided by these considerations in our 
assessment.  
7.1371.   We also recall the requirement to consider " the risks non -fulfilment would create ", which 
suggests that the comparison of the challenged measure with a possible alternative measure 
should be made in the light of "the nature of the risks at issue and the gravity of the co nsequences 
that would arise from non -fulfilment of the legitimate objective"3332 as an element of weighing and 
balancing in the determination .3333 This factor may affect in particular the Panel's margin of 
appreciation in assessing the equivalence of the respect ive degrees of contribution.3334  
7.1372.   In the context of these proceedings, as we have established earlier, the nature of the 
risks that non -fulfilment of Australia's legitimate objective would create is that public health would 
not be improved as the use of, and exposure to, tobacco products would not be reduced.3335 We 
have also found that the public health consequences of not fulfilling this objective are particularly 
grave. We will therefore take due account of this factor in our comparison of the TPP measures  
with the alternatives proposed by the complainants.  
7.1373.   Finally, a proposed alternative measure under Article  2.2 must be " reasonably available " 
to the responding Member.3336 A measure may be found not to be reasonably available where it is 
merely theoretical in na ture, for instance, where the responding Member is not capable of taking 
it, or where the measure imposes an undue burden on that Member, such as prohibitive costs or 
substantial technical difficulties.3337  
7.1374.   The nature and degree of evidence required for a co mplainant to establish the 
"reasonable availability" of a proposed alternative measure "will necessarily vary from measure to 
measure and from case to case".3338 The fact that the assessment pertains to proposed alternative 
measures that function as "conceptu al tool[s]" informs the nature and degree of evidence required 
                                                
3328 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.214. See also 
Appellate Body Reports,  US – COOL , para. 373. 
3329 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216.  
3330 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216 and fn  660 
(referring to Appellate Body Report, Brazil  – Retreaded Tyres , para. 151).  
3331 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216.  
3332 Appellate Body Report, US – Tuna II (Mexico) , para.  321. 
3333 Appellate Body Report, US – Tuna II (Mexico) , para.  321.  
3334 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.254 and 5.269.  
3335 See para. 7.1322  above.  
3336 Appellate Body Reports, US – Tuna II (Mexico) , para. 323; US – COOL , para. 379; and US – COOL 
(Article  21.5 – Canada and Mexico) , para. 5.327.  
3337 Appellate Body Report, Brazil  – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US – 
Gambling , para. 308).  
3338 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.327 (referring t o 
Appellate Body Report, Chile – Price Band System ( Article  21.5 – Argentina) , para. 134, which in turn refers to 
Appellate Body Reports, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, p. 335; and US – Carbon Steel , 
para. 157).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 500 - 
  to establish the "reasonable availability" of proposed alternative measures in making a prima facie 
case under Article  2.2 of the TBT Agreement .3339  
7.1375.   While it is for the complainant to make a prima facie case that its proposed alternative 
measure is reasonably available3340, a complainant is not required under Article  2.2 to provide 
detailed information on how a proposed alternative would be implemented by the respondent in 
practice, or precise and co mprehensive estimates of the cost that such implementation would 
entail.3341 Rather, "once a complainant has established prima fa cie that the proposed alternative is 
reasonably available to the respondent, it would be for the respondent to adduce specific evi dence 
showing that associated costs would be prohibitive, or that technical difficulties would be so 
substantial that implementation of such an alternative would entail an undue burden for the 
Member in question".3342  
7.1376.   Having clarified the general basis for o ur assessment, we address certain issues raised by 
the parties concerning the manner in which the comparative analysis should be approached, in a 
situation where the measure at issue is part of "a more complex suite of measures directed at the 
same objecti ve".3343 
7.1377.   Australia's primary argument with respect to three of the four alternative measures 
proposed by the complainants is that they are not "true" alternatives for the purpose of the legal 
assessment under Article  2.2. Australia submits that "[a]part from the proposed 'pre -vetting 
scheme', the 'alternatives' proposed by the complainants are either precise replicas of, or in the 
case of the proposed increase in the [MLPA], slight variations on, measures that Australia has 
already implemented".3344 In this conne ction, Australia relies on the Appellate Body's 
determinations in Brazil  – Retreaded Tyres .3345 
7.1378.   Australia argues that it has " already explained … why a comprehensive and dynamic 
approach to tobacco control is required" and that "[i]n this light, each proposed  'alternative' 
cannot substitute for the contribution of the tobacco plain packaging measure to its objectives 
because that measure plays a distinct and complementary role within Australia's suite of tobacco 
control measures".3346 
7.1379.   The complainants submit that  certain modifications to existing measures can nonetheless 
qualify as alternative measures. For example, Honduras submits that the " scope of valid 
alternative measures includes not only measures that are new to the responding Member, but also 
measures whi ch consist of an increase in magnitude or an improvement of an existing 
measure".3347 The Dominican Republic argues that a "proposed measure is an alternative if it is 
different in its substantive effects from an existing measure, including in terms of the ex tent of the 
contribution to the relevant objective", and that an "alternative measure may, therefore, include 
many features of an existing measure but with a stricter element of regulation".3348 These 
                                                
3339 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.328 (referring to 
Appellate Body Report, US – Tuna II (Mexico) , para. 320).  
3340 This is to be contrasted with Article  XX of the GATT 1994, which the Appellate Body distinguishes in 
the following terms:  
 
[W]e see differences between, on the one hand, the burden on the respondent under Article  XX 
of the GATT 1994 to prove that an alternative measure proposed by the complainant would 
impose an undue burden – e.g. due to prohibitively high cost or substantial technical difficulties – 
and that this alternative is therefore not reasonably available and, on the other hand, the burden 
on the complainant under Article  2.2 of the TBT Agreement  to make a prima facie case that the 
alternative measure it proposes would be reasonably available.  
 
See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.337  (emphasis original).  
3341 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.334.  
3342 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.338.  
3343 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216 fn 660 
(referring to Appellate Body Report, Brazil  – Retreaded Tyres , para. 151).  
3344 Australia's first written submission, para. 705. 
3345 Appellate Body Report, Brazil  – Retreaded Tyres , para. 172. 
3346 Australia's first written submission, para. 706. 
3347 Honduras's first written submission, para. 823. 
3348 Dominican  Republic 's second written submission, para. 631. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  complainants refer to the panel rulings in China  – Rare Ea rths, which, in their view, confirm that 
(in the Dominican Republic's formulation)  a reasonably available alternative measure "may be an 
improved version of an existing measure".3349 
7.1380.   We shall address, as part of our assessment, whether each of the specific me asures 
proposed by the complainants is indeed an "alternative" for the purpose of our analysis of those 
proposals. At this stage, we consider the relevant clarifications provided in prior rulings cited by 
the parties and how they may inform what qualifies as an "alternative" in a context where different 
measures are maintained towards a common objective.  
7.1381.   In Brazil  – Retreaded Tyres , the panel considered a number of alternatives to Brazil's 
import ban on retreaded tyres put forward by the European Communiti es, and found them to be 
already implemented, or in the process of being implemented, by Brazil. The panel thus concluded 
that "the alternative measures identified by the European Communities to avoid the generation of 
waste do not constitute alternatives that could apply as a substitute for the import ban on 
retreaded tyres to achieve its goal of preventing the generation of waste tyres to the maximum 
extent possible".3350 On appeal, the Appellate Body found that:  
In fact, like the Import Ban, these measures already figure as elements of a 
comprehensive strategy designed by Brazil to deal with waste tyres. Substituting one 
element of this comprehensive policy for another would weaken the policy by reducing 
the synergies between its components, as well as its t otal effect. We are therefore of 
the view that the Panel did not err in rejecting as alternatives to the Import Ban 
components of Brazil's policy regarding waste tyres that are complementary to the 
Import Ban.3351 
7.1382.   In China  – Rare Earths , China argued that the  alternative measures identified by the 
complainants "are not in fact 'alternatives', since China already imposes such measures". The 
panel accepted this contention, but observed that:  
China has not explained why it could not, as an alternative to the expo rt duties (which 
the Panel has found are WTO -inconsistent and not apt to make a material contribution 
to the protection of human, animal, or plant life or health), increase  the volume 
restrictions on mining and production, increase  the pollution controls o n mining and 
production, increase  the resource tax, and/or increase  the pollution tax. In this 
regard, the fact that China already imposes these types of measures does not explain 
why increasing the rates  (e.g. on the resource tax) is not an "alternative" to export 
duties.3352 
7.1383.   These rulings shed light on aspects of the comparative analysis relevant to our analysis in 
these proceedings.  
7.1384.   First, we agree with Australia's contention, reflected in the reasoning o f the panel and the 
Appellate Body in Brazil  – Retreaded Tyres, that where a responding Member maintains the 
measure at issue as one "element [] of [a] comprehensive policy", substituting another "element of 
[that] comprehensive policy" for the measure at i ssue may "weaken the policy by reducing the 
synergies between" the components of that package, as well as its total effects.3353 In light of this, 
it is appropriate to take due account, in a comparative analysis under Article  2.2, of the context in 
which the challenged measure is applied, including, where relevant, the fact that it may constitute 
one component of a comprehensive policy. This is also consistent, in our view, with the need to 
take into account, as the Appellate Body expressed it, of " the charact eristics of the technical 
regulation at issue as revealed through its design and structure, as well as the nature of the 
objective pursued and the nature, quantity, and quality of the evidence available" in assessing the 
                                                
3349 Dominican  Republic 's first written submission, para. 747. See also Dominican  Republic 's second 
written submission, para. 631 (referring to Panel Reports, China  – Rare Earths , para. 7.186)  and Honduras's 
second written submission, paras. 587 -588. 
3350 Panel Report, Brazil  – Retreaded Tyres , para. 7.172. (emphasis original)  
3351 Appellate Body Report, Brazil  – Retreaded Tyres , para. 172. (footnote omitted)  
3352 Panel Reports, China  – Rare Earths , para. 7.186.  (emphasis original)  
3353 Appellate Body Report, Brazil – Retreaded Tyres , para. 172. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  relative contributions of the chall enged measure and proposed alternative measures to the 
objective pursued by the responding Member.3354 
7.1385.   Second, though we accept Australia's argument that the aforementioned statement by 
the panel in China  – Rare Earths was made arguendo , we agree with the pre mise that appears to 
underlie the panel's reasoning in that case – namely, that a proposed measure that is a variation  
of an existing measure may constitute a valid alternative. Indeed, this is consistent with the 
Appellate Body's observation that alternat ive measures are "of a hypothetical nature in the context 
of the analysis under Article  2.2 because they do not yet exist in the Member in question, or at 
least not in the particular form proposed by the complainant ".3355 This confirms that a measure 
may be a  valid alternative where it exists in the responding Member, albeit in a different form from 
that proposed by the complainant. In such a case, it is the variation  proposed by the complainants 
as a substitute for the challenged measure that would be the sub ject of the comparative analysis 
under Article  2.2 of the TBT Agreement , including of whether that variation of an existing measure 
would make an equivalent contribution to the objective pursued by the responding Member.  
7.1386.   Turning to the implications of these general considerations for our assessment, we recall 
our conclusion that the objective of the TPP measures  is to improve public health by reducing the 
use of, and exposure to, tobacco products. The TPP measures  seek to achieve this by reducing the 
appeal of tobacco products, increasing the effectiveness of GHWs and reducing the ability of the 
retail packaging of tobacco products to mislead consumers about the harmful effects of smoking or 
using tobacco products.3356 We have  concluded above that the evidence before us, taken in its 
totality, supports the conclusion that the TPP measures , in combination with other tobacco -control 
measures maintained by Australia (including the enlarged GHWs introduced simultaneously with 
TPP), make a meaningful contribution to Australia's objective of improving public health by 
reducing the use of, and exposure to, tobacco products.  
7.1387.   We also recall the regulatory background with respect to tobacco control in Australia, as 
set out in Section 2.2  of these Report s. As described in detail above, Australia maintains a range of 
tobacco control measures, including restrictions on the advertisement and promotion of tobacco 
products, taxation measures and restrictions on the sale of tobacco products.3357 We also recall the 
immediate context in which Australia adopted the TPP measures , namely, as one of four measures 
that Australia announced to "deliver on [the] recommendations of the [NPHT]", including a tobacco 
excise increase of 25%, restrictions on Austra lian internet advertising of tobacco products and 
extra expenditure on anti -smoking campaigns.3358 Australia has explained and documented in 
these proceedings that these measures are part of a long -term comprehensive tobacco control 
strategy.3359 
7.1388.   Furthermore, we note that this approach is consistent with that outlined in the FCTC, 
which Australia has indicated that it seeks to implement inter alia through the TPP measures . As 
described earlier3360, Article  5(1) of the FCTC thus contains a "general obl igation" to "develop, 
implement, periodically update and review comprehensive multisectoral national tobacco control 
strategies, plans and programmes in accordance with" the FCTC and other applicable protocols.3361  
7.1389.   The FCTC encompasses a comprehensive range of actions to address different aspects of 
tobacco control.3362 This is reflected in the fact that it is structured on the basis of a distinction 
between measures relating to the reduction of demand for tobacco (which include price and tax 
                                                
3354 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3355 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.328. (emphasis 
added)  
3356 TPP Act (Exhibits AUS -1, JE-1), Section 3(2).  
3357 See sections 2.2.1 (Mandatory text and graphic health warnings); 2.2.2 (Restrictions on 
advertisement and promotion of tobacco products); 2.2.3 (Taxation measures); 2.2.4 (Restrictions on the sale 
of tobacco products); and 2.2.5 (Other meas ures, including bans on tobacco consumption in particular 
locations, anti -smoking social marketing campaigns, the provision of nicotine replacement and cessation 
medicines, Quitlines, and measures with respect to the illicit tobacco trade) above.  
3358 See para. 2.8 above.  
3359 See, e.g. Australia's first written submission, section II.D.  
3360 See para. 2.101.  
3361 FCTC, (Exhibits AUS -44, JE -19), Article  5(1). 
3362 See footnote 1064 and, e.g.  the discussion at  paras.  7.327 -7.328  and 7.388  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  measures; measures to protect against exposure to tobacco smoke; regulation of the contents of 
tobacco products; regulation of product disclosure; measures concerning the packaging and 
labelling of tobacco products; education, communication, training and public awareness; to bacco 
advertising, promotion and sponsorship; demand reduction measures concerning tobacco 
dependence and cessation)3363 and measures relating to the reduction of the supply of tobacco 
(which include measures relating to illicit trade in tobacco products and sales to and by 
minors).3364 
7.1390.   We also note that the proposition that the use of , and exposure to , tobacco products 
should be addressed through a combination of measures working together is echoed in 
publications by the WHO3365, the World Bank3366, the US Surgeon  General3367, the USIOM3368, and 
the US Center s for Disease Control and Prevention  (USCDC ).3369 This multifaceted approach 
reflects the multiplicity of factors that are recognized to influence tobacco use, as discussed 
above.3370 
7.1391.   These elements indicate that the TPP measu res operate "as part of a more complex suite 
of measures directed at the same objective"3371 and we will take due account of this broader 
regulatory context as we conduct our comparative assessment. At the same time, as discussed 
above, this does not imply th at the complainants could not identify as an alternative to the 
TPP measures , a measure in the form of a variation of one of the other measures applied by 
Australia as a part of its broader suite of measures directed at tobacco control.  
7.2.5.6.2   First proposed alte rnative measure: Increase in the MLPA  
7.1392.   All complainants  argue that an increase in the MLPA for tobacco products in Australia 
from 18 to 21 years would be a less trade -restrictive alternative to the TPP measures , that would 
make an equivalent contribution to  Australia's objective.  
7.1393.   Australia's  primary argument in response to this proposed alternative is that an increase 
in the MLPA is not an alternative measure, but "rather a slight  variation to a measure Australia has 
already implemented".3372 We therefore consider first whether an increase in the MLPA may be 
considered to be an "alternative" measure.  
7.1394.   Should we determine that such an increase would constitute an alternative measure, we 
would need to consider whether it would be, as the complai nants suggest, a less trade -restrictive 
measure that would make an equivalent contribution to Australia's objective of improving public 
                                                
3363 FCTC, (Exhibits AUS -44, JE -19), Articles  6-14. 
3364 FCTC, (Exhibits AUS -44, JE -19), Articles  15-17. 
3365 WHO Policy Package to Reverse the Tobacco Epidemic , (Exhibit AUS -607), p. 11 (recognizing that 
tobacco control policies "are complementary and synergistic").  
3366 Jha and Chaloupka 1999, (Exhibit AUS-51), p p. 82-83 (noting that "[w]here governments  decide to 
take strong action to curb the tobacco epidemic, a multipronged strategy should be adopted …").  
3367 US Surgeon General's Report 2014, (Exhibits AUS -37, DOM-104, CUB -35), p. 7 (noting that "[s]ince 
the 1964 Surgeon General's report, comprehensive tobacco control programs and policies have been proven 
effective for controlling tobacco use", and that "[f]urther gains can be made with the full, forceful, and 
sustained use of these measures"); and US Surgeon General's Report 2000, (Exhibi t AUS -53), p. 11 (noting 
that "a public health success in reducing tobacco use requires activity on all fronts", and that a "comprehensive 
approach —one that optimizes synergy from a mix of strategies —has emerged as the guiding principle for 
future efforts to reduce tobacco use"). See also US Surgeon General's Report 2012,  (Exhibit AUS -76), Chap.  6. 
3368 2015 USIOM Report , (Exhibit DOM-232), p. 6-20 (noting, in its discussion of youth access 
restrictions, that "there is some evidence that comprehensive tobacco programs that include youth access 
restrictions  are effective at reducing underage tobacco use … ").  
3369 USCDC Best Practices for Comprehensive Tobacco Control Programs , (Exhibit AUS-50), p p. 6 and 9 
(recognizing the effectiveness of comprehensive tobacco co ntrol approaches that combine "educational, 
clinical, regulatory, economic, and social strategies", and noting that "research has shown greater effectiveness 
with interventional efforts that integrate the implementation of programmatic and policy initiativ es to influence 
social norms, systems, and networks").  
3370 See e.g. the discussion at paras.  7.703 -7.720  above.  
3371 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216 fn 660 
(referring to Appellate Body Report, Brazil  – Retreaded Tyres , para. 151).  
3372 Australia's first written submission, para. 709. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  health by reducing the use of, and exposure to, tobacco products, and be reasonably available to 
Australia. As a prelimi nary matter, we first describe the proposed measure.  
7.2.5.6.2.1   Description of the proposed measure  
7.1395.   Honduras  argues that a less trade -restrictive alternative measure consists of increasing 
Australia's MLPA for tobacco products from 18 to 21 , which could restrict the availability of tobacco 
products for adolescents .3373 The Dominican Republic  argues that, "[b]eyond increasing taxation, 
a[n …] alternative means of tackling this issue would be to increase the [MLPA] from the current 
18 years to 21 years for tobacco products  in Australia" as it "would be a more effective, 
straightforward, readily available option that, unlike the TPP measures , would not encumber the 
use of trademarks".3374 Cuba "adopts" the arguments put forward by the Dominican Republic in 
respect of an increas e in the MLPA.3375 Indonesia  "endorses" the alternatives "proposed by" the 
Dominican Republic's regarding raising the legal smoking age from 18 to 21.3376 
7.1396.   We also note the Dominican Republic's argument that, should the Panel consider that a 
greater reduction in smoking achieved by an increase in the MLPA from 18 to 21 years, on its own, 
necessarily means greater trade -restrictiveness, the Dominican Republic "offers a calibrated 
approach to increasing the MLPA", which "would ensure that the contribution to reducin g smoking 
made by increasing the MLPA would remain equivalent to any contribution that the [TPP] measures 
might make".3377 In particular, "the MLPA could be raised to 19 or 20 [years], were the Panel to 
find that raising the MLPA to 21 [years] is considerably  more effective than the [TPP] measures in 
reducing volumes of tobacco products sold, and this is a decisive consideration in assessing trade 
restrictiveness".3378 This is because raising the MLPA to 19 years would have a lower impact on 
prevalence rates than  an increase to 21 years, and the contribution "to reducing smoking [of 
raising the MLPA to 20 years] would necessarily fall in the middle of the range of effects found for 
an MLPA of 19 and 21 [years].3379  
7.1397.   As the Dominican Republic's suggestion that Austral ia could raise the MLPA to 19 or 
20 years depends on our other findings in respect of the trade -restrictiveness and contribution of 
an increase in the MLPA to 21 years, we will consider these arguments in the event that we make 
the findings identified by t he Dominican Republic (i.e. that a greater reduction in smoking achieved 
by an increase in the MLPA from 18 to 21 years, on its own, necessarily results in a greater degree 
of trade -restrictiveness).  
7.2.5.6.2.2   Whether an increase in the MLPA to 21 years is an altern ative measure  
7.1398.   Australia points out that each of Australia's states and territories increased the MLPA from 
16 to 18 years over the period 1990 to 1998.3380 Australia adds that there are a broad range of 
policies in Australia directed at restricting youth acce ss to tobacco products, including prohibitions 
on selling tobacco products to minors, purchasing on behalf of minors, and using false 
identification documents to purchase tobacco products.3381 In addition, "some states have also 
implemented laws authorising t he seizure of tobacco products being smoked [by] or in the 
possession of a person under the age of 18 years".3382 For Australia, such measures are 
complements to, rather than substitutes for, the TPP measures .3383 
7.1399.   The complainants' arguments with respect to the extent to which variations on existing 
measures can be classified as "alternatives" for the purpose of the comparative analysis are 
                                                
3373 Honduras's first written submission, paras.  567 and 913.  
3374 Dominican  Republic 's first written submission , para. 763. (footnote omitted)  
3375 Cuba's first written submission, para. 287. 
3376 Indonesia's first wr itten submission, para. 457. See also Indonesia's second written submission, 
paras.  283-293. 
3377 Dominican  Republic 's response to Panel question No. 157, para. 133. 
3378 Dominican  Republic 's response to Panel question No. 151, para. 58. 
3379 Dominican  Republic 's response to Panel question No. 157, para. 135. 
3380 Australia's first written submission, para. 710. 
3381 Australia's first written submission, para. 710. 
3382 Australia's first written submission, para. 710. 
3383 Australia's first written submission, para. 710. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  summarized above.3384 In addition, Indonesia argues that "the fact that Austral ia raised its [MLPA] 
from 16 to 18 almost 20 years ago has no bearing on the positive effects that a raise from 18 to 
21 now could generate".3385 
7.1400.   Australia's existing MLPA is 18 years, and is maintained through measures at the state 
and territory level.3386 As explained above, a measure may be a valid alternative where it exists in 
the responding Member, albeit in a different form from that proposed by the complainant.3387 In 
this instance, though Australia does maintain an MLPA, it is not in the form proposed by th e 
complainants (i.e. it is 18 years, not 21 years, as proposed). Australia has not demonstrated why 
a variation of this nature (i.e. increasing the MLPA by three years) is not sufficient to render the 
complainants' proposal an alternative measure for the p urpose of our analysis; it merely asserts 
that the existence of an MLPA of 18 years renders such a measure a complement to, rather than a 
substitute for, the TPP measures .3388 
7.1401.   Therefore, we are not persuaded that the complainants' proposal to increase the MLP A to 
21 years is not an alternative measure, based solely on the fact that it is a "slight variation" on 
Australia's existing minimum purchasing age of 18 years.3389 
7.1402.   We therefore conclude that increasing the MLPA to 21 is an alternative measure, in that it 
is a measure not currently applied by Australia. We therefore proceed to assess further whether 
this measure, as an alternative to the TPP measures , would be less trade -restrictive than the 
TPP measures , make an equivalent contribution to Australia's objecti ve, and be reasonably 
available for Australia to implement.  
7.2.5.6.2.3   Whether an increase in the MLPA to 21 years would be less trade -restrictive 
than the TPP measures  
Arguments of the parties  
7.1403.   Honduras  argues that an increase in the MLPA to 21 years is less trade -restrictive than 
the trademark and format requirements of the TPP measures , as it does not affect producers' 
ability to use branded packaging in order to signal quality and reputation to consumers in the 
Australian market, and would not impose on producers a ny compliance costs concerning 
modifications to the appearance of packaging and tobacco products themselves.3390 Honduras adds 
that an increase in the MLPA to 21 years in no way distorts competitive opportunities by 
detrimentally affecting producers' protecte d IP right s and their ability to legitimately distinguish 
their products from those of competitors in the Australian market, nor does it impose any 
additional compliance costs on traders and does not create uncertainties in the market.3391 
7.1404.   The Dominican Repub lic argues that an increase in the MLPA to 21 years would be less 
trade -restrictive than the TPP measures . According to the Dominican Republic, while the 
TPP measures  prevent trademarks from playing "their vital role as a differentiator", and thus 
eliminat e competitive opportunities for producers of tobacco products, an increase in the MLPA 
would have none of these trade -restrictive effects.3392  
7.1405.   The Dominican Republic also argues that if the Panel were to find that the TPP measures  
contribute to Australia's o bjective, the measures will also be trade -restrictive by reducing the 
volume of sales of tobacco products.3393 On the basis of this assumption, the Dominican Republic 
submits that an increase in the MLPA to 21 years is less trade -restrictive than the TPP meas ures, 
because it would entail the same volume -based restrictions as the TPP measures , but would not 
                                                
3384 See para. 7.1379  above.  
3385 Indonesia's second written submission, para. 289. (emphasis original)  
3386 Reporting Instrument of the WHO FCTC submitted by Australia , (Exhibit HND -26); and Australia's 
first written submission, Annex ure C, fn 1102.  
3387 See para. 7.1385  above.  
3388 Australia's first written su bmission, para. 710. 
3389 See para. 2.65 and fn 309 above for a discussion of Australia's existing MLPA.  
3390 Honduras's first written submission , paras.  580 and 916; and response to Panel question No. 151. 
3391 Honduras's response to Panel question  No. 151. 
3392 Dominican  Republic 's first written submission, paras.  1022-1023.  
3393 Dominican  Republic 's second written submission, para. 970. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  restrict competitive opportunities, as the TPP measures  do, by curtailing differentiation and 
distorting competitive opportunities. Specifically, increasing the MLPA does not affect the use of 
trademarks or other elements of packaging and products that serve to differentiate tobacco 
products from each other3394, and does not lead to downtrading because it denies young people 
the ability to purchase any and all tobacco products, whether high - or low -end.3395 Furthermore, 
the Dominican Republic submits, an increase in the MLPA can be calibrated to ensure that its 
effects on the volume of sales of tobacco products are equivalent in size to any such volume 
effects that the TPP measures  are found to have. It could be raised to 19 or 20 years, were the 
Panel to find that raising the MLPA to 21 years is considerably more eff ective than the 
TPP measures  in reducing volumes of tobacco products sold.3396 
7.1406.   The Dominican Republic also argues that, assuming no origin -based discrimination, an 
age restriction is not a trade -restrictive measure under the TBT Agreement , the GATT 1994, the 
TRIPS  Agreement , or any other covered agreement. It argues that the reduction in competitive 
opportunities entailed by non -discriminatory age restriction is not protected by the covered 
agreements. The Dominican Republic argues that, if an alternative meas ure is not trade -restrictive 
under the covered agreements, and a challenged technical regulation is, that is a "strong and even 
decisive" indication that the alternative is less trade -restrictive under those agreements.3397 
7.1407.   Cuba adopts the arguments put forward by the Dominican Republic in respect of this 
alternative.3398  
7.1408.   Indonesia  "endorses" the alternatives "proposed by" the Dominican Republic's regarding 
raising the legal smoking age from 18 to 21.3399 
7.1409.   Australia  argues that "accord ing to the complainants' own case, the effect of increasing 
the [MLPA], would, by its design, structure and intended operation, eliminate a 'competitive 
opportunity' currently available to tobacco companies in Australia, namely the opportunity to 
compete l egally for sales of tobacco products to consumers between the ages of 18 to 21".3400 
Accordingly, in Australia's view, "under the complainants' own misguided standard of 'competitive 
opportunities', an increase in the minimum legal purchase age would be 'trad e-restrictive'".3401 
7.1410.   Australia adds that the Dominican Republic's suggestion that increasing the MLPA would 
lead to declines in tobacco use necessarily implies that these measures will restrict trade. In 
addition, Australia submits that the Dominican Republic 's argument that increasing the MLPA to 21 
years will lead to an equivalent or greater degree of contribution to reducing tobacco use than 
tobacco plain packaging, necessarily implies an equivalent or greater reduction in the volume of 
imports of tobacco p roducts; and, therefore, will lead to "an equivalent or greater degree of 
trade -restrictiveness".3402 
Analysis by the Panel  
7.1411.   As discussed earlier, a measure is trade -restrictive within the meaning of Article  2.2 of 
the TBT Agreement  where that measure has a limiting effect on international trade.3403  
                                                
3394 Dominican  Republic 's second written submission, paras.  970-976; and response to Panel question 
No. 151. 
3395 Dominican  Republic 's response to Panel question No. 151. 
3396 Dominican  Republic 's response to Panel question Nos. 151 and 157.  
3397 Dominican  Republic 's response to Panel question No. 151. 
3398 Cuba's first written submission, para. 287. 
3399 Indonesia's first written submission, para. 457. 
3400 Honduras's second written submission, para. 563. 
3401 Honduras's second written submission, para. 563. 
3402 Australia's comment s on the complainants' response to Panel question No. 153. 
3403 As expressed by the Appellate Body in US – Tuna II (Mexico) , para. 219, also quoted above, 
"Article  2.2 is thus concerned with restrictions on international trade". This is consistent with the first sentence 
of Article  2.2, which uses the term "unnecessar y obstacles to international trade", not just "unnecessary 
obstacles to trade". The term "trade" is also qualified by "international" in other key provisions of the 
TBT Agreement , including "conduct of international trade" (preamble, third recital) , "rest riction on 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1412.   The complainants argue, in essence, that an increase in the MLPA to 21 would be less 
trade -restrictive than the TPP measures  because it would not involve the type of restrictions on the 
competitive opportunities arising from the ability to differentiate products on the basis of 
trademarks and other branded packaging elements. Australia responds, with reference to the 
complainants' arguments on "competitive opportunities",  that increasing th e MLPA from 18 to 21 
years would eliminate a competitive opportunity currently available to tobacco companies in 
Australia to compete legally for sales of tobacco products to consumers between the ages of 18 to 
21.  
7.1413.   We agree with Australia that an increase  in the MLPA from 18 to 21 years would eliminate 
the ability of tobacco companies to sell their products to people under the age of 21 years, and 
any competitive opportunities associated with such sales, including for imported tobacco products. 
In this res pect, we note that, although 18 -21 year -olds make up only a segment of the market of 
people who may, or do, use tobacco products, we have noted the importance of younger smokers 
to the tobacco industry. We recall in this respect the evidence before us from  the tobacco industry 
itself, suggesting that "[t]he future success of any cigarette brand is driven by its ability to attract 
younger adult smokers, between the age of 18 and 24 years old", and that "smokers aged 18 -24 
determine the future trends of the t obacco industry".3404  
7.1414.   We also recall our determination, in respect of the TPP measures , that they are 
trade -restrictive, to the extent that they have a limiting effect on the total volume of trade in 
tobacco products.3405 To the extent that an increase in the M LPA to 21 years would make a 
contribution to Australia's objective of improving public health by reducing the use of , and 
exposure to , tobacco products at least equivalent to that of the TPP measures  (which the 
complainants argue it would) by reducing over all consumption of tobacco products, such an effect 
would equally affect the overall volume of imports into Australia.3406 We find therefore that an 
increase in the MLPA to 21 years, like the TPP measures , would restrict the volume of trade by an 
amount comme nsurate with its contribution to Australia's objective.  
7.1415.   In addition, we recall our determination above that, while we agree that, by restricting 
the opportunity for brands to differentiate themselves, the TPP measures  limit the opportunity for 
tobacco man ufacturers to compete on the basis of such brand differentiation3407, we are not 
persuaded that this modification of the competitive environment for all tobacco products on the 
entire market (which may in principle increase  competition on the market) constitu tes, in itself, a 
restriction on "competitive opportunities" for imported tobacco products that must be assumed to 
have a "limiting effect" on international trade. In this respect, we also recall our conclusion that we 
are not persuaded that the complainan ts have demonstrated that this reduced opportunity for 
brand differentiation has led to an increase in price competition and a fall in prices and 
consequently to a decrease in the sales value of tobacco products and the total value of imports.  
7.1416.   We also note  that while the evidence before us provides only a very limited basis upon 
which to assess with any degree of precision the potential impact of an increase in the MLPA to 21 
years on the total value of imports (and thus to determine whether this alternativ e has a limiting 
effect on trade, on this basis), we have no reason to assume that such impact would be less than 
that observed in relation to the TPP measures . Along the same lines, we also note that the 
                                                                                                                                                  
international trade" (preamble, 6th recital), and "obstacle [s] to international trade" (preamble, 5th recital; 
Article  2.5; Article  5.1.2; Annex 3 .E). 
3404 Camel Advertising Development White Paper, (Exhibit AUS-197), p . 1.  
3405 See para. 7.1208  above.  
3406 We note in this respect the Dominican  Republic 's own acknowledgement that its proposed increase 
in the MLPA from 18 to 21 may result in a grea ter reduction in smoking than that achieved through the 
TPP measures , so that the degree of trade -restrictiveness arising from this alternative would be greater  than 
that achieved through the TPP measures : 
 
[S]hould the Panel consider that a greater reduct ion in smoking achieved by an increase in the 
MLPA from 18 to 21, on its own, necessarily means greater trade restrictiveness, the 
Dominican  Republic  offers a calibrated approach to increasing the MLPA …. This calibrated 
approach would ensure that the cont ribution to reducing smoking made by increasing the MLPA 
would remain equivalent to any contribution that the [T]PP measures might make.  
  
Dominican  Republic 's response to Panel question No. 157, para. 133. See also para. 7.1396  above.  
3407 See para. 7.1167  above . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  evidence before us in respect of this alternative d oes not specifically discuss the potential impact 
of an increase in the MLPA to 21 years on the volume and value of imports of cigarettes by 
price-segment. Other evidence on the record, however, suggests that young adult smokers are 
more price -sensitive th an older smokers3408, thus suggesting that an increase in the MLPA would in 
the short term be expected to affect the low -price segment more than the premium price segment.  
7.1417.   In light of these elements, we are not persuaded that the complainants have 
demonstrate d that an increase in the MLPA to 21 years would necessarily be less trade -restrictive 
than the TPP measures .  
7.1418.   Notwithstanding this conclusion, we find it appropriate to pursue our analysis and 
determine also whether, assuming that such a measure could be considered less trade -restrictive 
than the TPP measures , an increase of the MLPA would make an equivalent contribution to 
Australia's objective of improving public health by reducing the use of, and exposure to, tobacco 
products.   
7.2.5.6.2.4   Whether an increase in th e MLPA would make an equivalent contribution to 
Australia's objective  
Main arguments of the parties  
7.1419.   Honduras  argues that the MLPA increase to 21 years "could … contribute to Australia's 
smoking prevalence objective to an equal or even larger extent than th e plain packaging 
trademark and format restrictions".3409 Such an increase would have the effect of removing 
tobacco products from adolescents' social networks, thereby restricting access by those 
adolescents to tobacco products and reducing smoking prevalence by addressing its root cause 
(that is, by preventing  initiation during adolescence). Honduras refers3410 to the expert report by 
Professor Steinberg, who favours interventions that affect the availability of tobacco products to 
adolescents, instead of interventions that seek to influence adolescents' demand fo r them.3411 
Honduras adds that, since the submission of Professor Steinberg's first report to the Panel, a 
committee of the USIOM  has published a report, to which he contributed, in which it agreed with 
his recommendation that raising the MLPA for tobacco pro ducts to 21 or 25 years would help 
prevent initiation of tobacco use among adolescents.3412 Honduras argues that various jurisdictions 
across the world have successfully reduced smoking prevalence by increasing the MLPA for tobacco 
products.3413 Honduras also re fers to studies predicting that, in the United States, an increase in 
the MLPA to 21 years would, in 75 years, reduce the prevalence among 15 - to 17 -year-olds from 
22.1% to 7.5%, and from 22.3% to 13.6% among those aged 18 and older.3414  
7.1420.   Honduras argues that  raising the MLPA will likely prevent or delay initiation of tobacco 
use by adolescents and young adults, reducing significantly smoking rates, such that even in the 
short term, this measure would address directly Australia's objec tive of improving public 
health .3415 Honduras adds that, "in the long -run, as the size of the Australian smoking population 
will decrease as a result of Honduras's measure, less people in Australia will need to quit smoking 
                                                
3408 This include s the observation, by the US Surgeon General, that several studies indicate that youth 
and young adults in the United States are two to three times as responsive to price as adults, and in any case 
that there is an inverse relationship between age and sens itivity to price. See US Surgeon General's Report 
2012,  (Exhibit AUS -76), p p. 697-707. This statistic concerning price responsiveness is also noted in Chaloupka 
et al. 2012,  (Exhibit DOM -115). See also 2015 USIOM Report , (Exhibit DOM-232), p. 6-8; 2011 IARC 
Handbook, (Exhibit DOM -117), p. 352; and Steinberg Report (Exhibit DOM/H ND-6, para. 39 and para. 40 
(noting that the availability of cheaper tobacco products may lead to an increase in youth initiation).  
3409 Honduras's first written submission, para. 917. 
3410 Honduras's first written submission, para. 913. See also Honduras's first written submission, 
para. 571; and second written submission, para. 218. 
3411 Honduras's first written submission, paras.  569-570. 
3412 Honduras's second written submission, para. 220 (r eferring to Steinberg Rebuttal Report, (Exhibit 
DOM/HND -10)). 
3413 Honduras's first written submission, paras.  573-575; and second written submission, para. 219. 
Honduras refers to increases in the MLPA in England, Scotland and Wales, Finland (from 16 years t o 18 years), 
and Needham, Massachusetts (from 18 years to 21 years).  
3414 Honduras's first written submission , para. 576. 
3415 Honduras's second written submission, para. 692. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  or abstain from relapsing into smoking, which is in line wit h Australia's own strategy to reduce its 
smoking population by addressing smoking initiations among youth".3416 
7.1421.   The Dominican Republic  argues that an increase in the MLPA to 21 years would have a 
significant impact on the initial and ongoing consumption of to bacco products "by the age group of 
greatest concern", and, in the longer term, on the rates of adult tobacco consumption and smoking 
prevalence. It also refers to the expert report of Professor Steinberg, who explains that "policies 
that limit adolescents ' ability to obtain cigarettes are likely to have a greater impact than those 
that attempt to diminish adolescents' interest in smoking".3417 The Dominican Republic adds 
"raising the MLPA would remove cigarettes from the social networks of younger people", wh o 
typically receive their first cigarettes from friends who can legally purchase cigarettes and share 
them within their social network.3418 An increase of the MLPA would also, according to the 
Dominican Republic, have a longer term impact on decreasing adult smoking rates .3419 The 
Dominican Republic notes references by Professor Steinberg to real-world examples, including 
"increases in the MLPA in England, Scotland, Wales, Finland, and Sweden, that have been found to 
reduce purchase and smoking by young people".3420 The Dominican Republic refers to a separate 
study from the United States which projects that, over 50 years, raising the MLPA from 18 to 21 in 
the United States could reduce prevalence for (a) 14 -17 year olds, from 20% to as low as 6.6%, 
(b) 18 -20 year ol ds, from 26.9% to as low as 12.2%, and (c) for those 21 years old and older, 
from 21.8% to as low as 15.5%.3421 
7.1422.   The Dominican Republic also refers to a 2015 publication  by the USIOM  entitled Public 
Health Implications of Raising the Minimum Age of Legal Acces s to Tobacco Products3422 (2015 
USIOM  Report), which examined the impact of raising the MLPA from 18 to 21 years . According to 
the Dominican Republic, the 20 15 USIOM  Report  "agreed with Professor Steinberg that raising the 
MLPA from 18 to 21 years would reduce smoking rates among young people by removing tobacco 
products from the social networks of young people less than 18"3423 and found that it would have 
long-term benefits o n adult smoking rates because, if access to tobacco products is delayed, many 
young people will never take up smoking.3424 The Dominican Republic presents estimates by the 
USIOM  concerning the reduction in initiation rates, if the MLPA were raised from 18 to  21, for 
those under 15 years (15%); those between 15 and 17 years (25%); those aged 18 years (15%); 
and those aged 19 to 20 years (15%).3425 
7.1423.   The Dominican Republic states that the contribution of the TPP measures  "could [be] 
charitably described as little mor e than speculative"3426 while, "[i]n contrast, the evidence 
surveyed above, in particular the 2015 USIOM  Report, shows that an increase in the MLPA from 18 
to 21 would, with virtual certainty , make a large contribution to reducing smoking behaviour, in 
the sh ort- and long -term, and both among young people and adults".3427 The Dominican Republic 
                                                
3416 Honduras's second written submission, para. 692. See also Honduras's response to Pan el question 
No. 151. 
3417 Dominican  Republic 's first written submission, para. 768 (quoting Steinberg Report , (Exhibit 
DOM/HND -6), para. 68); and second written submission , para. 604-605. See also Dominican  Republic 's first 
written submission, para. 769. 
3418 Dominican  Republic 's first written submission, para. 770. See also Dominican  Republic 's first written 
submission, paras.  769-771. 
3419 Dominican  Republic 's first written submission, paras.  773-777; and second written submission , 
para. 606. 
3420 Dominican  Republic 's first written submission, para. 775. 
3421 Dominican  Republic 's first written submission , para. 776 (referring to Ahmad 2005a, ( Exhibits 
DOM-130, HND -75)). 
3422 2015 US IOM Report, (Exhibit DOM-232).  
3423 Dominican  Republic 's second written submission, para. 609. 
3424 Dominican  Republic 's second written submission, para. 610 (referring to 2015 USIOM Report , 
(Exhibit DOM-232), p. S-6); response to Panel question Nos. 65, 126 and 157.  
3425 Dominican  Republic 's second written submission, para. 609 (referring to 2015 USIOM R eport, 
(Exhibit DOM-232), p. 7-11); and response to Panel question No. 157. 
3426 Dominican  Republic 's second written submission, para. 619; and response to Panel question 
No. 157. 
3427 Dominican  Republic 's second written submission, para. 620; and response to Panel question 
No. 157. See also Dominican  Republic 's second written submission, para. 621. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  submits that an increase in the MLPA would also serve as an effective alternative to the 
TPP measures  in curbing cigar smoking among young people.3428 
7.1424.   Cuba adopts the argumen ts put forward by the Dominican Republic in respect of an 
increase in the MLPA.3429 Cuba refers to the 2015 USIOM  Report3430 and points out that it 
concludes that increasing the minimum purchase age can prevent or delay initiation of tobacco use 
by young people.3431 In Cuba's view, restricting youth access through enforcement efforts or by 
raising the minimum purchase age has a direct impact on smoking prevalence to achieve the 
objective of public health improvement.3432 
7.1425.   Indonesia  "endorses" the alternatives "proposed by" the Dominican Republic's regarding 
raising the legal smoking age from 18 to 21.3433 Indonesia adds that "there is evidence in the 
record that increasing the legal minimum purchase age … also has a positive effect on reducing 
smoking prevalence".3434 
7.1426.   Australi a submits that any increase in the MLPA would not be effective in decreasing the 
appeal of tobacco products, and that restrictions on access to tobacco products exist to discourage 
adolescents from taking up smoking. Such measures would, in Australia's vie w, have no impact on 
those aged over 21 years, nor would they encourage quitting or discourage relapse. In contrast, 
Australia, posits, the TPP measures  have the potential to influence all consumers and potential 
consumers of tobacco products.  
7.1427.   Australia a dds that the Dominican Republic "attempts to transfer to the Panel its burden 
of proposing less trade -restrictive alternative measures that make an equivalent contribution to 
the objectives of the" TPP measures , specifically, with respect to "how the alternative measures, or 
a combination of the alternative measures, could be implemented to make an equivalent 
contribution" to the TPP measures . Australia submits that the Dominican Republic leaves the 
alternative measures "completely unspecified , expecting the Panel to determine, for example, how 
to 'carefully tailor' … to what extent to increase the MLPA, such that these measures would have 
an impact on the volume of trade identical to that made by tobacco plain p ackaging".3435  
7.1428.   Australia argues that the evidence in support of an increase in the MLPA is equivocal.3436 
Australia refers to the conclusion of its experts', Professor Chaloupka and Dr Biglan, that the 
evidence in support of an increase in the MLPA was "mixed",  and that the studies reviewed by 
Professor Steinberg related almost exclusively to increasing the minimum legal purchase age to 18 
years, which Australia has already done.3437 Australia points out that, in the USIOM 's assessment, 
prior to the release of its report there was a "dearth of direct evidence" and no "pertinent studies" 
on the effect of raising the MLPA for tobacco products.3438  
7.1429.   Australia adds, however, that an increase in the MLPA "is a policy that Australia may 
consider implementing in the future, a longside tobacco plain packaging, particularly if the evidence 
base in support of it continues to grow" (and notes that the state of Tasmania is debating 
legislation that would ban the sale of tobacco products to anyone born on or after 1 January 
2000).3439  
                                                
3428 Dominican  Republic 's response to Panel question No. 152. 
3429 Cuba's first written submission, para. 287. 
3430 Cuba did not submit this report as a n exhibit. However, from Cuba's description and discussion of 
the report it discusses, we understand this to be the same USIOM  report submitted by the Dominican  Republic  
as Exhibit DOM-232. 
3431 Cuba's second written submission, paras.  349-353. 
3432 Cuba's secon d written submission, para. 348. 
3433 Indonesia's first written submission, para. 457. 
3434 Indonesia's second written submission, para. 201. 
3435 Australia's comment s on the complainants' responses Panel question Nos. 151 and 165.  
3436 Australia's first written submi ssion, paras.  722-724. 
3437 Australia's second written submission, paras.  556-557. See also Australia's response to Panel 
question No. 148. 
3438 Australia's second written submission, paras.  558-559; and response to Panel question No. 139. 
3439 Australia's second w ritten submission, para. 560; and response to Panel question No. 139. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1430.   Australia adds that increasing the MLPA to 21 years cannot achieve an equivalent degree 
of contribution to Australia's public health objectives. Australia asserts that the only stated aim of 
increasing the [MLPA] is to discourage youth smoking initiation, and as such it would have no 
impact on those over 21 years or on cessation or relapse.3440 Australia adds that, if tobacco plain 
packaging were replaced with an adjustment to Australia's approach to restricting youth access to 
tobacco products, Australia's me ans of influencing the behaviour of consumers who are affected by 
advertising on packs or GHWs would be compromised, thus "reducing the comprehensiveness and 
effectiveness of Australia's tobacco control policy". In Australia's view, "a tobacco control stra tegy 
that restricts access to tobacco products and reduces their appeal, increases the effectiveness of 
GHWs, and reduces the ability of the packaging to mislead consumers about the harmful effects of 
tobacco use … is more effective than either measure ope rating alone".3441  
7.1431.   Australia submits that the Dominican Republic's contention that the assessment of the 
equivalence of contribution must focus on the overall contribution to the objective of "reducing 
smoking prevalence and consumption" ignores the fact tha t encouraging quitting and discouraging 
relapse are two of the stated objectives of the TPP measure, as set out in Subsections 3(1)(a)(ii) 
and (iii) of the TPP Act. For Australia, by generalising the objectives of the TPP measure in this 
way, the Dominican  Republic seeks to avoid the obvious conclusion that its proposed alternative 
would fail to achieve two of the measure's explicit objectives.  
Analysis by the Panel  
7.1432.   As described above, we must first consider whether and, if so, to what degree, an 
increase in the MLPA to 21 years would contribute to Australia's objective of improving public 
health by reducing the use of, and exposure to, tobacco products, to then asses s whether such 
contribution would be "equivalent" to that of the TPP measures  to the same objective.  
7.1433.   To demonstrate the contribution that an increase in the MLPA to 21 years would make to 
Australia's objective, the complainants rely primarily on Professor Steinberg's expert reports and 
the 2015 USIOM  Report .3442 Australia relies primarily on the expert reports by Professor 
Chaloupka3443, Professor Slovic3444 and Dr Biglan3445 to respond to Professor Steinberg's reports.  
7.1434.   We have already described Professor Steinberg's views in respect of the causes of 
smoking initiation.3446 In addition, Professor  Steinberg argues that policies that limit adolescents' 
ability to obtain cigarettes are likely to have a greater impact than those that attempt to diminish 
adolescents' interest in smoking.3447 In Professor Steinberg's view, "the two strategies most likely 
to succeed in combating minors' access to cigarettes are raising the MLPA (combined with effective 
enforcement) and increasing the price of cigarettes, both of which will greatly diminish the 
likelihood that individuals under the age of 18 will find themselves in social situations with peers 
who have cigarettes".3448 
7.1435.   Professor Steinberg refers to studies in relation to an increase in the MLPA from 16 to 18 
years in England, Scotland and Wales. One  study, he explains, found that this measure led to a 
significant drop in the prevalence of smoking among 16 to 17 year -olds; another reported that 
increasing the MLPA was associated with a reduction in regular smoking and a significant increase 
in the pro portion of pupils who reported finding it difficult to buy cigarettes from a shop.3449 
Professor Steinberg also states that increases in the MLPA in Finland and Sweden have been 
reported to reduce underage purchasing and/or underage smoking, and that several studies that 
                                                
3440 Australia's second written submission, para. 561; and response to Panel question No. 139. 
3441 Australia's second written submission, para. 562; and response to Panel question No. 139. 
3442 2015 US IOM Report, (Exhibit DOM-232).  
3443 Chaloupka Public Health Report, (Exhibit AUS -9). 
3444 Slovic Report , (Exhibit AUS -12); and Slovic Rebuttal Report , (Exhibit AUS -532).  
3445 Biglan Report , (Exhibit AUS -13). 
3446 See, e.g. paras.  7.710 -7.711  above.  
3447 Steinberg Report , (Exhibit DOM/HND -6), para. 68. 
3448 Steinberg Report , (Exhibit DOM/HND -6), para. 69. 
3449 Steinberg Report , (Exhibit DOM/HND -6), para. 70. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 512 - 
  have attempted to model the impact of increasing the MLPA on underage smoking in the United 
States have concluded that this "would lead to significant reductions".3450  
7.1436.   Professor Steinberg concludes that raising the MLPA is an effective means of combating 
underage smoking, provided that the laws are enforced. He notes that some experts "have asked 
whether more effective enforcement of age of purchase restrictions should be combined with laws 
criminalizing 'proxy purchases' (adults purchasing cigar ettes for minors)", and adds that it is his 
understanding "that all states and territories in Australia currently prohibit proxy purchasing by 
adults for minors", and that "it is probable that such laws, if vigilantly enforced, would help restrict 
proxy sa les and therefore reinforce access measures based on ensuring compliance with [MLPA] 
requirements".3451 
7.1437.   Professor Steinberg argues that "[e]ven less dramatic rises of this sort, from 18 to 19, 
would likely … have some positive effect", but adds that there are  two potential advantages to 
raising the MLPA  significantly beyond the age of 18, to 21 years.3452 First, this offers the possibility 
of removing cigarettes from secondary students' social networks, given that adolescents frequently 
obtain cigarettes from fri ends and tend to be friends with people of the same age. Professor 
Steinberg states that because many 16 - and 17 -year-olds have friends, romantic partners, and 
schoolmates who are 18, permitting 18 -year-olds to purchase cigarettes "guarantees an easy flow 
of legally purchased cigarettes into the social networks of many underage smokers, especially if 
they attend school together".3453 In contrast, far fewer adolescents under 18 socialize with 
individuals who are significantly older, thus making it more difficul t to obtain cigarettes socially "if 
the MLPA were raised several years beyond age 18".3454 Second, given research indicating that the 
chances of an individual becoming a chronic smoker are far less if the initiation of smoking is 
delayed until after adolescen ce, "discouraging more people from smoking as teenagers will have a 
significant long -term impact on the health of the adult population".3455 
7.1438.   Turning to the 2015 USIOM  Report, its stated purpose is "to examine existing literature 
on tobacco use initiation, and  use modelling and other methods to predict the likely public health 
outcomes of raising the minimum age for purchase of tobacco products to 21 years and 25 
years".3456 The findings in that report include the following:  
 increasing the minimum age of legal acc ess (MLA) to tobacco products will likely prevent 
or delay initiation of tobacco use by adolescents and young adults3457; 
 although changes in the MLA to tobacco products will directly pertain to individuals who 
are age 18 or older, the largest proportionate r eduction in the initiation of tobacco use 
will likely occur among adolescents of ages 15 to 17 years3458; 
 the impact on the initiation of tobacco use of raising the MLA to tobacco products to 21 
will likely be substantially higher than raising it to 19, but t he added effect of raising the 
minimum age beyond age 21 to age 25 will likely be considerably smaller3459; 
 raising the MLA to tobacco products, particularly to ages 21 and 25, will likely lead to 
substantial reductions in smoking prevalence3460; and 
 raising the MLA to tobacco products will likely lead to substantial reductions in 
smoking -related mortality.3461 
                                                
3450 Steinberg Report , (Exhibit DOM/HND -6), para. 70. 
3451 Steinberg Report , (Exhibit DOM/HND -6), para. 71. 
3452 Steinberg Report , (Exhibit DOM/HND -6), paras.  73-74. 
3453 Steinberg Report , (Exhibit DOM/HND -6), para. 74. 
3454 Steinberg Report , (Exhibit DOM/HND -6), para. 74. 
3455 Steinberg Report , (Exhibit DOM/HND -6), para. 74 
3456 2015 USIOM Report , (Exhibit DOM-232), p. S-1. 
3457 2015 USIOM Report , (Exhibit DOM-232), p p. S-3 and 7-10. 
3458 2015 USIOM Report , (Exhibit DOM-232), p p. S-4 and 7 -10. 
3459 2015 USIOM Report , (Exhibit DOM-232), p p. S-4 and 7 -10. 
3460 2015 USIOM Report , (Exhibit DOM-232), p p. S-6 and 7 -20. 
3461 2015 USIOM Report , (Exhibit DOM-232), p p. S-6 and 8 -20. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1439.   The 2015 USIOM  Report further concludes that raising the MLA for tobacco products will 
likely immediately improve the health of adolescents and you ng adults by reducing the number of 
those with smoking -caused diminished health status. Moreover, as the initial birth cohorts affected 
by the policy change age into adulthood, the benefits of the reductions of the intermediate and 
long-term adverse health  effects will also begin to manifest. Raising the MLA to tobacco products 
will also likely reduce exposure to secondhand smoke and the prevalence of other tobacco 
products, further reducing their associated adverse health effects, both immediately and over  
time.3462 
7.1440.   Australia submits that the evidence in respect of an increase in the MLPA is equivocal3463 
and argues  that, contrary to the Dominican Republic's assertions to the contrary, the 2015 USIOM  
Report  "does not conclude with certainty  that the measure will immediately reduce smoking".3464 
Australia notes the USIOM 's observation that, prior to the release of its report, there was "a dearth 
of direct evidence" and no "pertinent studies" on the effect of raising the MLPA for tobacco 
products .3465 This is elaborated b y its expert, Professor Chaloupka, who states that "[w]hile these 
policies and related efforts have substantially reduced the commercial supply of cigarettes to 
young people, they have increased young smokers' reliance on social sources for tobacco 
product s".3466 He also submits that "there appears to be little association between levels of retailer 
compliance and the prevalence of current smoking or ever smoking among high school students in 
the U.S. or of early initiation of cigarette smoking among U.S. yout h".3467  
7.1441.   We note however that the complainants have presented relevant evidence from credible 
sources suggesting that an increase in the MLPA, including an increase to 21 years, has the 
potential to contribute to a reduction in tobacco use, by limiting access  to tobacco products for 
youth under 21 years of age, and thereby affecting smoking initiation and prevalence. We are not 
persuaded that Australia has shown that the underlying logic reflected in this evidence is 
inapplicable in the Australian context. Spe cifically, in respect of initiation, there is no evidence 
before us to suggest that the USIOM 's reasoning that eliminating the opportunity for those under 
21 years to legally purchase tobacco products would limit access for this age group because they 
are less likely to be part of social networks that comprised of people of the age of 21 years3468, is 
inapplicable in the Australian context. Similarly, in respect of smoking prevalence, Australia has 
not submitted evidence to suggest that the predicted patterns in changes to prevalence over time 
as the result of an increase in the MLPA to 21 years are inapplicable in the Australian context – 
specifically, that reductions in population -wide smoking prevalence would become meaningful after 
some years, as the measur e would primarily affect children, adolescents, and young adults, such 
that the full health effects would only become apparent after these people have aged.3469 Rather, 
Australia submits that "in the light of the conclusion reached by the [ USIOM ], and in conf ormity 
with Australia's evidence -based approach to policy development, an increase in the [MLPA] is a 
                                                
3462 2015 USIOM Report , (Exhibit DOM-232), p p. S-6 and 8 -20. We note that some or all of these 
conclusions accord with a number of other studies submitted by the complainants. See Fidler and West 2010, 
(Exhibits DOM -128, HND -70); Schneider et al. 2015, (Exhibit DOM -370); Ahmad 2005a (Exhibits DOM -130, 
HND-75); Ahmad and Billimek 2007, (Exhibit HND -74); and Ahmad 2005b, (Exhibit HND -76). Of the other 
studies submitted to us, a number were cited approvingly by the USIOM . See, e.g. Fidler and West 2010, 
(Exhibits DOM -128, HND -70); Schneider et al. 2015, (Exhibit DOM -370); Ahmad 2005a (Exhibits DOM -130, 
HND-75); Ahmad and Billimek 2007, (Exhibit HND -74); and Ahmad 2005b, (Exhibit HND -76). In this respect, 
we note the assertion by Australia's expert, Dr Biglan, that "the evidence of the effects of access reduction on 
youth smoking is mixed". In support of this argument, Dr Biglan refers to his involvement in one unpublished 
study "that suggested that a program to reduce illegal sales to young people may reduce the prevalen ce of 
youth smoking". He also refers to a meta -analysis of the evidence which "concluded that there was no 
evidence that access reduction would affect youth smoking". See Biglan Report , (Exhibit AUS -13), para. 190. 
We are not persuaded that this descriptio n is sufficient to rebut the large number of studies cited and endorsed 
by the USIOM  in its report which support the increase in the MLPA. We note that Dr Biglan also makes further 
arguments in this connection, which we address below.  
3463 Australia's first w ritten submission, para. 724. 
3464 Australia's second written submission, paras.  558-559; and response to Panel question No. 139. 
3465 Australia's second written submission, para. 559. 
3466 Chaloupka Public Health Report , (Exhibit AUS -9), para. 51. 
3467 Chaloupka Publ ic Health Report , (Exhibit AUS -9), para. 52. 
3468 2015 USIOM Report , (Exhibit DOM-232), p p. 7-4 and 7 -5. See also Steinberg Report , (Exhibit 
DOM/HND -6), paras.  73-75. 
3469 2015 USIOM Report , (Exhibit DOM-232), p. 7-19. The USIOM  report suggests that such patterns 
would be expected to increase and ultimately yield a "considerable" reduction in smoking prevalence over 
coming decades. Ibid.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  policy that Australia may consider implementing in the future, alongside tobacco plain packaging, 
particularly if the evidence base in support of it conti nues to grow".3470 Australia notes that 
Tasmania is considering a proposal to ban sales of tobacco products to individuals born after the 
year 2000.3471 
7.1442.   We also note that Australia does not dispute that measures aimed at restricting access to 
tobacco products, including MLPAs, may contribute to a reduction in the use of tobacco products. 
Indeed, Australia itself maintains such a measure, through a minimum purchasing age of 18. We 
also note that the chapeau of Article  16(1) of the FCTC, entitled "Sales to and by minors", requires 
each party to "adopt and implement effective … measures at the appropriate government level to 
prohibit the sales of tobacco produ cts to persons under the age set by domestic law, national law, 
or [18 years]".3472 Article  16(4) of the FCTC states that the "parties recognize that in order to 
increase their effectiveness, measures to prevent tobacco product sales to minors should, where 
appropriate, be implemented in conjunction with other provisions contained in [the FCTC]".3473 
7.1443.   At the same time, we note that concerns similar to those raised by Australia in respect of 
access to tobacco products through social sources are echoed in various st udies of an increase in 
the MLPA3474, including the 2015 USIOM  Report.3475 Indeed, the 2015 USIOM  Report states that 
"even a complete cut -off of retail tobacco to underage users will contain, but not eliminate, overall 
tobacco availability to them unless there i s a major crackdown on social distribution".3476 In this 
respect, the USIOM  notes that such "social sources" (which the USIOM  defines as "causal 
distributors" (relatives, friends, and strangers who give tobacco to underage users) and "proxy 
sources" (relative s, friends, and strangers who purchase tobacco for underage users and are paid 
a small fee)3477) will remain the primary sources of tobacco for underage persons.3478  
7.1444.   This evidence suggests that it is recognized that, as a result of access to tobacco products 
through social sources, the institution of an MLPA will "contain, but not eliminate" underage access 
to tobacco products. The USIOM  also suggests that different MLPAs have different effects on 
access to tobacco products from social sources, and in particular  that an MLPA of 21 years 
provides "a greater distancing from social sources" than lower (or even higher) MLPAs:  
For adolescents under 15 years of age, raising the MLA from 18 to 19 may have only a 
modest impact on reducing social sources, given the closen ess in age. If adolescents 
already have networks with 18 -year-olds, then these networks may also include 
19-year-olds who have access to tobacco. Increasing the MLA to 21, however, 
provides a greater distancing of social sources. Although 19 -year-olds may still be in 
high schools and thus potentially influence those under 15, it is far less likely that 
21-year-olds are in the same social networks. Increasing the MLA from 21 to 25, 
however, is not likely to achieve any additional notable reductions in social  sources for 
those under 15 than what is achieved with the 21 -year-old MLA policy.3479 
                                                
3470 Australia's second written submission, para. 560. In this connection, we note that the comp lainants 
filed an additional study published in June 2015, which found that an increase in the MLPA to 21 in Needham, 
Massachusetts, contributed to a greater decline in youth smoking relative to communities that did not pass the 
same measure. See Schneider  et al. 2015, (Exhibit DOM -370). Australia has not contested this evidence.  
3471 Tasmania strategic plan, (Exhibit AUS -609).  
3472 FCTC, (Exhibits AUS -44, JE -19), Article  16(1).  
3473 FCTC, (Exhibits AUS -44, JE -19), Article  16(4).  
3474 See, e.g. Ahmad 2005a, (Exhibit s DOM-130, HND -75), p. 75; Ahmad 2005b, (Exhibit HND -76), 
p. 338; and Schneider et al. 2015, (Exhibit DOM -370).  
3475 See, e.g 2015 USIOM Report , (Exhibit DOM-232), p p. S-3, S-8, 5-8-5-9, and 6 -15. 
3476 2015 USIOM Report , (Exhibit DOM-232), p. 6-15. 
3477 2015 USIOM Report , (Exhibit DOM-232), p. 5-11. 
3478 Rimpel ä and Rain io 2004, (Exhibit HND -72), cited at 2015 USIOM Report , (Exhibit  DOM-232), 
p. 6-2. The Report also states that "[i]f the law applies only to retailers or is not enforced against 
non-commercial providers (i.e., social sources), it is likely that any decrease in retail tobacco availability will 
result in a corresponding increase in access from social sources". 2015 USIOM Report , (Exhibit DOM-232), 
pp. 6-8 and 6 -15. 
3479 2015 USIOM Report , (Exhibit DOM-232), p. 7-4. This conclusion is supported by other studies 
submitted by the complainants. See Ahmad 2005b, (Exhibits DOM -130, HND -75) p. 75; and Ahmad and 
Billimek 2007, (HND -74), p. 380. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1445.   We also note the observation by the USIOM  that "if a state or locality ramped up the 
threat of detection and punishment against social sources, the impact on adolescent and  young 
adult consumption could be greater than [ the 2015 USIOM  Report] has projected".3480 
7.1446.   In this respect, we observe that all Australian States and Territories prohibit the purchase 
of tobacco products on behalf of persons below the existing MLPA of 18 year s3481, and Queensland, 
New South Wales  (NSW) , South Australia, Tasmania, and Western Australia authorise the seizure 
of tobacco products being smoked by or in the possession of a person under the age of 18.3482 
Such restrictions are also supported by measures th at address compliance at the retail level. 
Indeed, "[m]ost states and territories have introduced strict proof -of-age requirements for the sale 
of tobacco, requiring the seller to request and sight approved photo ID to determine the age of a 
person attempt ing to purchase tobacco".3483 As of 2011, N SW, Western Australia, Victoria, South 
Australia, Tasmania, the A CT and the Northern Territory conducted random monitoring of 
compliance with the MLPA, while Queensland employs "covert surveillance operations" both 
opportunistically and in response to complaints to monitor and enforce the legislation.3484 It 
appears to us, t herefore, that Australia has in place a regulatory framework to address supply of 
tobacco products to those under 18 years through social and commercial sources, of the kind that 
could contribute to the reduction  of "leakage"3485 that could be caused by suppl y through such 
sources.3486 
7.1447.   In light of the above, we find that the complainants have provided sufficient evidence to 
demonstrate that an increase in the MLPA to 21 years would be apt to contribute to Australia's 
objective of improving public health by reduci ng the use of , and exposure to , tobacco products. To 
                                                
3480 2015 USIOM Report , (Exhibit DOM-232), p. S-8. 
3481 See Tobacco (Amendment) Act 1990  (ACT), (Exhibit AUS -351), Section 5 substituting Part II 
Section 5 in the Tobacco Act 1927 (ACT), Tobacco Products Control Act 2006 (WA), (Exhibit AUS -350), Section 
7; Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS -267), Section 23; and Tobacco Control Act 2002 
(NT), (Exhibit AUS -374), Section 43(2). See also Australia's first written submission, Annex C. See specifically 
Australia's first written submission, fn 1103. See also Chaloupka Public Health Report , (Exhibit AUS -9), Annex 
C. 
3482 See Tobacco Products (Prevention of Supply to Children) Act 1998 (Qld), Section 15, 22, 40, 
(Exhibit AUS -353), Section 40; Public Health Amendment (Juvenile Smoking) Act 2002 (NSW), (Exhibit 
AUS-358), Schedule 1 item 1, inserting Section 58 into the Public Healt h Act 1991 (NSW); Tobacco Products 
Regulation (Miscellaneous Offences) Amendment Act 2007 (SA), (Exhibit AUS -359), Section 15, inserting new 
Section 70A into the Tobacco Products Regulation Act 1997 (SA); Public Health Act 1997 (Tas), (Exhibit 
AUS-360), Se ction 66; and Tobacco Products Control Act 2006  (WA), (Exhibit AUS -350), Section 99. Australia 
notes that the ACT, the Northern Territory and Victoria did not have seizure laws in place as at 4 March 2013. 
Australia's first written submission, Annex ure C. See specifically  ibid. fn 1104.  
3483 Tobacco in Australia 2012, DOM excerpts, (Exhibit DOM -126), p. 97. 
3484 Tobacco in Australia 2012, DOM excerpts, (Exhibit DOM -126), p. 97. 
3485 Ahmad 2005a, (Exhibits DOM -130, HND -75), p. 82; Ahmad and Billimek 2007, (HND -74), p. 388; 
and Ahmad 2005b, (Exhibit HND -76), p. 338. 
3486 We are not suggesting that these enforcement mechanisms perfectly address the problem of retailer 
compliance, or the problem of the provision of tobacco products through social sources. Indeed, as observ ed 
by CCV, "[w]hoever supplies their early cigarettes, once smoking is initiated, young smokers adapt their means 
of access to fit the prevailing social and legislative environment". See Tobacco in Australia 2012, DOM 
excerpts, (Exhibit DOM -126), p. 53. In deed, Philip Morris has identified that residual demand for tobacco 
products threatens to undermine the proposal in Tasmania to ban sales of tobacco products to individuals born 
after the year 2000 by driving an illicit market for tobacco products. See Phi lip Morris Submission  to Legislative 
Council of Tasmanian Parliament , (Exhibit AUS -559). Our observation is not to suggest that "leakages" would 
not occur under Australia's regime, it is simply to observe that a regulatory framework exists in Australia tha t 
could contribute to the reduction  of such "leakages". We note also Professor Chaloupka's criticism that there is 
little association between levels of retailer compliance and the percentage of high school students in the United 
States smoking at least one  day in the last 30 days. See Chaloupka Public Health Report , (Exhibit AUS -9), 
Figure 2. In this respect, we observe that Professor Chaloupka does not distinguish between "the experiences 
in Australia" ( Chaloupka Public Health Report , (Exhibit AUS -9), para. 51) (where the MLPA is already 18 in al l 
states and territories) (cf. A nnex C of Australia's first written submission for the measures) and the United 
States (where the MLPA is set under federal law at 18, but some states and localities have increased th e MLPA 
to various ages between 19 and 22). 2015 USIOM Report , (Exhibit DOM-232, p. 5-3). The evidence 
summarized above suggests that such a lack of uniformity between MLPAs at the federal, state and municipal 
level in the United States will concomitantly c ause variations in youth prevalence across these jurisdictions. 
Therefore, it is not clear to us that a straight comparison between the rate of retailer non -compliance and the 
rate of having smoked in the last 30 days across the United States could be expe cted to provide an accurate 
comparison for the purpose of determining the correlation that Professor Chaloupka asserts.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the extent that the degree of effectiveness of an increase in the MLPA to 21 years would likely be 
affected by factors such as access through social sources or the existence of effective enforcement 
meas ures, we have observed in that Australia has in place a regulatory framework to address such 
issues.3487 
7.1448.   The 2015 USIOM  Report estimates the following reduction in initiation rates in the United 
States for various age groups if the MLPA is raised from 18 to  21: 
Table 3: Estimated r eduction in US initiation r ates following an  increase in the MLPA, by 
age g roup  
Reduction in initiation by age group  MLPA 21  
Qualitative 
descriptor  Numeric estimate  
Under age 15 years  Medium  15% 
Ages 15 -17 years  Large  25% 
Age 18 years  Medium  15% 
Ages 19 -20 years  Medium  15% 
Source:  2015 USIOM Report , (Exhibit DOM -232), p.  7-11. 
 
7.1449.   The 2015 USIOM  Report also models adult smoking prevalence in the United States using 
the C ancer Intervention and Surveillance Modeling Network (CIS NET) and SimSmoke3488 models in 
respect of increasing the MLPA from 18 years to 19, 21 or 25 years. These models produce the 
following results, respectively:  
                                                
3487 See para. 7.1446  above.  
3488 The USIOM  descri bes these models in the following terms:  
 
For this report, the committee commissioned the use of two established cigarette smoking 
macro -simulation models to complement its conclusions about the effects of a change in the 
[MLPA] on tobacco initiation by pr oviding quantitative estimates of how the likely effects on 
initiation would affect future smoking prevalence and select measures of smoking -related 
morbidity and mortality. The models are the Cancer Intervention and Surveillance Modeling 
Network (CISNET) smoking population model and the SimSmoke model. Both models simulate 
annual age -specific smoking prevalence and smoking -attributable mortality. In addition, CISNET 
models the variation in smoking patterns by birth cohort and can account for the effects of  
smoking intensity. SimSmoke models the effects of important tobacco control policies and 
supports the simulation of maternal and child health outcomes. While increasing the [MLPA] is 
currently the purview of states and localities, the models project the e ffects of a policy change on 
the United States as a whole and cannot take into consideration important differences across the 
country that could influence the magnitude of the effect of raising the MLA in states or localities.  
 
See 2015 USIOM Report , (Exhi bit DOM-232), p. 1-7. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Figure 15: Adult smoking prevalence - CISNET  
 
Source :  2015 US IOM Report , (Exhibit DOM-232), p. 7-17. 
 
Figure 16: Adult smoking prevalence – SimSmoke  
 
 
Source :  2015 US IOM Report , (Exhibit DOM-232), p. 7-18. 
 
7.1450.   The USIOM  explains that despite differences between the CISNET and SimSmoke models, 
and differences in prevalence predictions by each model in respect of each potential MLPA under 
consideration in the 2015 USIOM  Report, both models "estimate … an 11 -12 per cent dec rease for 
[an MLPA of 21 years]".3489 The 2015 USIOM  Report also provides CISNET and SimSmoke models 
that indicate the short and long -term consequences of an increase of the MLPA in respect of the 
predicted numbers of lives saved.  
7.1451.   The USIOM  summarizes the implications of raising the MLPA as follows:  
The [modelling] analysis suggests that raising the [MLPA] could lead to considerable 
reductions in smoking -attributed mortality and morbidity over time … Both models 
suggest a time delay of a few  decades for the overall mortality benefits to accrue at 
the population level because of the lag time between smoking exposure and major 
health outcomes and because the policy primarily affects adolescents and young 
adults. Nonetheless, more immediate effe cts would be observed for maternal and child 
outcomes, as well as other acute outcomes. Moreover, the analysis shows that new 
generations, starting with those born between 2000 and 2019, could see significant 
reductions in mortality and years of life lost accumulated throughout their 
lifetimes.3490 
7.1452.   We are reluctant to assume that these specific projections of the USIOM , based on 
modelling in the United States, can be transposed directly onto the Australian market to provide 
an exact measure of the degree of co ntribution that this measure would or could make to a 
                                                
3489 2015 USIOM Report , (Exhibit DOM-232), p. 7-18. The report also notes that the models predict "a 
roughly 3 percent decrease in the 2100 prevalence for [an MLPA of 19 years]", and a "15.7 percent decrease 
for [an MLPA of 25 years]".  
3490 2015 USIOM Report , (Exhibit DOM -232), p. 8-19. 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 518 - 
  reduction in the use of, or exposure to, tobacco products in Australia.3491 We note in particular 
that, as pointed out by Australia, the degree of effectiveness of such a measure would likely be 
affected by factors such as access through social sources or the existence of effective enforcement 
mechanisms in the jurisdiction imple menting the measure.  
7.1453.   Overall, in light of the above, we find that the evidence before us suggests that, 
notwithstanding the difficulty associated with making precise projections on the basis of the 
evidence before us from other jurisdictions, an increase in the MLPA to 21 years would in principle 
be apt to make a meaningful contribution to Australia's objective of improving public health by 
reducing the use of, and exposure to, tobacco products. Having reached this conclusion, we 
consider whether such a co ntribution would be equivalent to that made by the TPP measures . 
7.1454.    As discussed above3492, this assessment should be made in the light of the 
characteristics of the technical regulation at issue as revealed through its design and structure, as 
well as the natu re of the objective pursued and the nature, quantity, and quality of the evidence 
available.3493 We also recall that a proposed alternative measure may achieve an equivalent 
degree of contribution in ways different from the technical regulation at issue3494 and that what is 
relevant is the overall degree of contribution that the technical regulation makes to the objective 
pursued, rather than any individual isolated aspect or component of contribution.3495 
7.1455.   For the purpose of assessing equivalence in respect of an in crease in the MLPA to 21 
years, the question before us is, therefore, whether an increase of Australia's MLPA from 18 to 21 
years, as a substitute  for the TPP measures , would, overall, make a contribution to Australia's 
objective equivalent to that of the TPP measures , as applied in conjunction with Australia's other 
existing tobacco control measures.  
7.1456.   We recall our findings above that, based on the evidence before us, that the 
TPP measures  make a meaningful contribution to Australia's objective. In this con text, we found 
inter alia that the images and messages conveyed by tobacco packaging are of such a nature as to 
be capable of conveying a belief that initiating tobacco use can fulfil certain needs, and that youth 
and young adults are particularly vulnerab le to acting on compulsions that are caused by those 
needs. We also found that by removing the opportunity for the packaging to convey such 
messages, plain packaging is apt to reduce the appeal of tobacco products, enhance the 
effectiveness of GHWs and red uce the ability of the retail packaging of tobacco products to mislead 
consumers about the harmful effects of smoking or using tobacco products, and, as a 
consequence, have an impact on smoking behaviours.  
7.1457.   We note that an increase in the MLPA to 21 years i s directed to the availability of tobacco 
products to individuals between 18 and 21.3496 Professor Steinberg argues that interventions "that 
restrict the availability  of cigarettes to adolescents (i.e., supply -based) are far more likely to be 
effective than t hose that seek to influence adolescents' demand for them".3497 We note that the 
availability of tobacco products is a recognized factor that may affect whether adolescents initiate 
smoking3498, and that mandatory limitations on sales of tobacco products to and b y minors are 
recognized by the FCTC as an element of a comprehensive tobacco control policy.3499 We also 
recall that all Australian States and Territories maintain an MLPA of 18 years, and that youth is a 
group recognized to be especialy exposed to the risks of smoking.3500  
                                                
3491 We note also the USIOM 's general assessment that an increase in the MLPA to 21 years in the 
United States could, in the USIOM 's words, have a "medium" effect on initiation for those under 15 years an 
effect  that is "greater" than those under 15 years for those who are 15 -17 years ( 2015 USIOM Report , (Exhibit 
DOM-232), p.  7-5); and a "higher" than "small" reduction in initiation for those between 18 and 20 years. 2015 
USIOM Report , (Exhibit DOM-232), p. 7-6. 
3492 See para. 7.1368  above.  
3493 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3494 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3495 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216.  
3496 Steinberg Response to Panel Question No. 159, (Exhibit DOM/HND -20), para. 3. 
3497 Steinberg Response to Panel Question No. 159, (Exhibit DOM/HND -20), para. 9. (emphasis omitted)  
3498 US Surgeon General's Report 1994, Executive Summary, (Exhibit AUS -73). 
3499 FCTC, (Exhibits AUS -44, JE -19), Article  16. See also paras.  7.1389  and 7.1442  above.  
3500 See paras.  7.1316 -7.1317  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1458.   To the extent that an increase in the MLPA to 21 years would have the ability to 
meaningfully affect youth initiation, and thereby, in the longer term, reduce smoking prevalence, it 
would make a contribution to Australia's objective that woul d be partly comparable in nature to 
that of the TPP measures , although it would operate through a different mechanism (i.e. affecting 
the availability of tobacco products rather than demand, in this particular age group).   
7.1459.   However, an increase in Australia's MLPA would address only the availability of tobacco 
products to individuals below 21 years of age. As we have found above, the TPP measures , in 
addition to making a contribution to discouraging initiation by adolescents and young adults, are 
apt to contribute to encouraging cessation and preventing relapse by smokers not falling within 
this age group. An increase in the MLPA would not address initiation, cessation or relapse in any 
age group over 21. In addition, an incre ase in the MLPA would also not affect the design features 
of tobacco packaging that, as we have found, convey images and messages which are in turn 
capable of conveying a belief, in particular to adolescents and young adults, that initiating tobacco 
use ca n fulfil certain psychological needs and contribute to making tobacco products appealing. 
Adolescents would continue to be susceptible to those images and messages, and thus the 
compulsions to act on them, in an environment where branded packages were stil l available, 
including through non -commercial channels. In the absence of the TPP measures , this means of 
communication would not be addressed at all.  
7.1460.   Overall, therefore, an increase in the MLPA to 21 years would have an impact only on the 
availability of  tobacco products on an important but circumscribed age group, would not address 
initiation, cessation or relapse in other age groups, and would not address those aspects of 
demand  for tobacco products (for all age groups) that are addressed by the TPP measures . For 
these reasons, we are not persuaded that an increase in the MLPA to 21 years, as a substitute  for 
the TPP measures , could be said to make an equivalent contribution to Australia's public health 
objective.  
7.1461.   In reaching this finding, we stress that  these observations are not to detract from the 
recognized role of MLPAs (including the possibility of an MLPA of 21 years) as part of a 
comprehensive tobacco control policy. We note in this respect the observation of the USIOM  that 
"[u]nderage tobacco use  is most substantially reduced when the jurisdiction adopts a strong array 
of tobacco control measures, including strongly enforced youth access restrictions".3501 However, 
the substitution of the TPP measures  with an increase in the MLPA would not address th e fact that 
Australia's existing MLPA combined with  the TPP measures  addresses more comprehensively the 
different elements affecting tobacco use by different age groups within Australia. Substituting the 
TPP measures  for an increase in Australia's MLPA cou ld weaken the synergies between the 
different components of Australia's tobacco control policy, by leaving unaddressed the effect of the 
images and messages conveyed by the figurative and other design features of tobacco 
packaging.3502 
7.1462.   We also note the Domini can Republic's argument that our assessment of equivalence 
must be made "in light of at least three factors: (1) the degree or extent of the contribution; (2) 
where the contribution is expected in the future, the likelihood or probability of the contributi on 
materializing; and (3) where the contribution is expected in the future, the timeframe within which 
the contribution is expected to materialize".3503 We do not exclude that the time -frame within 
which the effects of a measure may be expected to arise could  be pertinent in an assessment of 
the equivalence of contribution of different measures under Article  2.2 of the TBT Agreement .3504 
Taking such elements into account, however, does not modify our observation, above, that the 
effects of tobacco packaging would  not be addressed at all in the absence of the TPP measures , 
irrespective of the time -frame within which the effects of an increase in the MLPA to 21 years 
would manifest. Therefore, a consideration of this factor does not lead us to modify our conclusion 
that the complainants have not demonstrated that an increase in the MLPA to 21 years w ould 
make a contribution to Australia's objective equivalent to that of the TPP measures . 
                                                
3501 2015 USIOM Report , (Exhibit DOM-232), p. 6-20. 
3502 Appellate Body Re port, Brazil  – Retreaded Tyres , para. 170. 
3503 Dominican  Republic 's response to Panel question No. 157; and comment s on Australia's response to 
Panel question No. 156. 
3504 Cf. para. 7.938  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1463.   We also recall that the contours of our margin of appreciation in assessing whether a 
proposed alternative measure achieve an equivalent degree of contribution may be  informed by 
the nature of the risks and the gravity of the consequences arising from the non -fulfilment of the 
objective being pursued.3505 We have determined above that the nature of the risks that 
non-fulfilment of Australia's objective would create is tha t public health would not be improved as 
the use of, and exposure to, tobacco products would not be reduced.3506 We have also found that 
the public health consequences of not fulfilling this objective are particularly grave, and are 
important to Australia. Su ch gravity and seriousness supports, in our view, our conclusion that the 
removal of the TPP measures  could not be offset by the implementation of a higher MLPA that 
would leave unaddressed the effect of the images and messages conveyed by the design featu res 
of tobacco packaging. We note in particular in this respect Australia's explanations that it seeks to 
prevent the existence of regulatory gaps in its overall tobacco control policy, which includes, as 
one of its pillars, extensive restrictions on adver tising and promotion. Taking the nature of these 
risks and the gravity of these consequences into account thus confirms our earlier conclusion that 
an increase in the MLPA to 21 years would not make an equivalent contribution to Australia's 
objective.   
7.1464.   For all these reasons, we are not persuaded that an increase in the MLPA from 18 to 21 
would make an equivalent contribution to Australia's objective of improving public health by 
reducing the use of, and exposure to, tobacco products.  
7.2.5.6.2.5   Whether an increase in the MLPA is a measure reasonably available to 
Australia  
7.1465.   As described above, a proposed alternative measure would not be reasonably available  
where it is merely theoretical in nature, for instance, where the responding Member is not capable 
of taking it, or  where it imposes an undue burden on that Member, such as prohibitive costs or 
substantial technical difficulties.3507  
7.1466.   Honduras argues that an increase in the MLPA to 21 years is reasonably available to 
Australia, as it merely entails a legislative action to  modify various State and Territory laws on the 
MLPA  for tobacco products and the effective enforcement of these laws. Honduras argues that 
Australia has already adopted numerous anti -tobacco laws at the Federal, State and Territory 
levels and effectively enforced them, and the proposed alternative measure is thus clearly within 
Australia's reach. Honduras adds that the mere fact that the adoption of this measure will require 
some additional costs does not mean that this measure is not reasonably available.  Moreover, the 
measure will not impose any technical difficulties on Australian authorities.3508 The Dominican 
Republic argues that an increase in the MLPA is a reasonably available option in Australia, as it 
would involve the federal and/or state governments  changing the minimum age under Australian 
law from 18 to 21 years and would not require any additional government resources beyond those 
for current enforcement of the existing MLPA of 18.3509 
7.1467.   Australia has not disputed the availability to it of an increase in the MLPA as an 
alternative measure. Indeed, as described above, it has stated that it is a measure that it may 
consider adopting.3510 
7.2.5.6.2.6   Overall conclusion on an increased MLPA as an alternative to the 
TPP measures  
7.1468.   We have found above that the complainants' p roposal that Australia increase its MLPA to 
21 years would be an "alternative" measure, in that it is a measure not currently applied by 
Australia.  
                                                
3505 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3506 See para. 7.1322  above.  
3507 Appellate Body Report, Brazil  – Retreaded Tyres , para. 156 (quoting Appellate Body Report, US –
 Gambling , para. 308).  
3508 Honduras's first written submission , paras.  918 and 583 -585. 
3509 Dominican  Republic 's first written submission, para. 778. 
3510 See para. 7.1429  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1469.   However, we have also determined that the complainants have not demonstrated that an 
increase in the MLPA to  21 years would be less trade -restrictive than the TPP measures .  
7.1470.   We are also not persuaded that this measure, as a substitute to the TPP measures , would 
make an equivalent contribution to Australia's objective of improving public health by reducing the 
use of, and exposure to, tobacco products. In particular, we have found that while an increase in 
the MLPA to 21 years  would be apt in principle to make a meaningful contribution to Australia's 
objective, we are not persuaded that , as a substitute for the TPP measures , it would make an 
equivalent contribution to this objective. In making this finding, we have taken into account in 
particular the characteristics of the TPP measures , against the broader context in which they 
operate as part of Australia's compr ehensive suite of measures directed at reducing the use of, 
and exposure to, tobacco products, and the risks that non -fulfilment of the TPP measures ' 
objective would create.3511 
7.1471.   In light of the above, we conclude that the complainants have not demonstrated th at an 
increase in the MLPA from 18 to 21 years is a less trade -restrictive alternative measure that would 
make a contribution to Australia's objective equivalent to that of the TPP measures . 
7.2.5.6.3   Second proposed alternative measure: Increased taxation of tobacc o products  
7.1472.   All complainants argue that an increase in the taxation of tobacco products in Australia is 
a reasonably available alternative to the TPP measures .  
7.1473.   Australia considers that this is not an "alternative" measure, as it is already applied. We 
therefore consider this question first, after describing the proposed measure.  
7.2.5.6.3.1   Description of the proposed measure  
7.1474.   The complainants have generally characterized this alternative as an excise tax increase 
that could achieve any reduction in tobacco use resu lting from the TPP measures . Accordingly, the 
complainants do not prescribe a precise level of taxation or manner of implementation, but rather 
contend that the increase in taxation could be set at the level needed to make the desired 
contribution to Austr alia's objective.3512  
7.1475.   We therefore proceed on the basis that the alternative measure proposed by the 
complainants is an increase of the excise tax levied on tobacco products, with flexibility as to the 
exact magnitude and manner of such tax increase dependin g on the degree of contribution found 
to be achieved by the TPP measures . While it is the complainants' burden to identify and define an 
alternative measure under Article  2.2 of the TBT Agreement , we assess the tax increase proposed 
by the complainants having regard to the fact that a complainant may not necessarily be required 
to provide detailed information on the implementation or operation of a proposed alternative in 
practice, given the hypothetical nature of such proposed alternative measures.3513 
7.2.5.6.3.2   Whether increased taxation is an alternative measure  
7.1476.   Australia argues that an increase in the taxation of tobacco products is not an alternative, 
as Australia implements "regular and substantial increases" in its tobacco excise duties, and plans 
to do so in t he future. In this regard, Australia refers to separate past and planned increases in its 
tobacco taxation since the introduction of the TPP measures .3514 Australia further submits that the 
reasoning of the panel and Appellate Body in Brazil  – Retreaded Tyres  "completely disposes of 
tobacco excise increases as an alternative measure", on the basis that measures that have already 
been implemented, in whole or in part, or are in the process of being implemented, as part of a 
                                                
3511 See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3512 See, e.g. Honduras's first written submission, paras.  594, 919 -921; Honduras's second written  
submission, para. 221; Dominican  Republic 's first written submission, para. 761; Dominican  Republic 's second 
written submission, para. 975; Cuba's first written submission, paras.  277-280; and Indonesia's first written 
submission, paras.  430-434. 
3513 See, e .g. Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.334 and 
5.338.  
3514 Australia's first written submission, para. 707; and second written submission, para. 552. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  comprehensive policy to address a com plex public health problem, are not alternatives  to be taken 
into account in the "weighing and balancing" exercise. Rather, such measures are complementary 
to the measure at issue.3515  
7.1477.   We recall that Australia imposes excise taxes on tobacco products and tha t, in addition to 
indexation adjustments, the excise rate has been increased on several occasions with projections 
for future increases.3516 Specifically, Australia amended the Excise Tariff Act 1921 (Cth) in 1999 
such that an excise tax was applied to cigare ttes, cigars, and other tobacco products on a per stick 
basis (for products in stick form not exceeding 0.8 grams of tobacco per stick), or on a per 
kilogram basis (for products exceeding 0.8 grams per stick) at a rate equivalent to the per stick 
rate.3517 Further, Australia has increased the excise rate applicable to tobacco on several 
occasions. On 29 April 2010, Australia announced an increase in the tobacco excise rate of 25% to 
be applied from 30 April 2010.3518 On 1 August 2013, Australia announced four add itional 12.5% 
increases in excise tax, effective on 1  December 2013, 1  September 2014, 1 September 2015, and 
1 September 2016.3519 In addition, Australia's National Tobacco Strategy includes 
recommendations to "[c]ontinue to implement regular staged increases  in tobacco excise as 
appropriate"3520 with a further increase scheduled for 2017.3521 These increases are additional to 
increases in taxes that were historically indexed to the consumer price index and, as of March 
2014, indexed to average weekly ordinary time earnings.3522 Moreover, Australia's Goods and 
Services Tax is applied to all tobacco products3523, such that Australia's taxes on cigarettes account 
for over 60% of retail prices for popular brands.3524 
7.1478.   The alternative proposed by the complainants is characterized as an increase  on existing 
levels of taxation. While we recognize the existence of past and planned tobacco tax increases 
within Australia, we do not consider that this circumstance renders the alternative proposed by the 
complainants duplicative of existi ng measures or practices already implemented by Australia. 
Rather, we understand that, regardless of the precise level of taxation imposed on tobacco 
products in Australia at present or any future point in time, the complainants propose an increase 
of that  level of taxation, as a replacement  for the TPP measures . We consider that this would 
necessarily constitute a variation of Australia's existing taxation of tobacco products. To the extent 
that Australia argues that this variation would compromise the eff ectiveness of its comprehensive 
approach to tobacco control, we consider that this argument is more pertinent to whether the 
increased taxation proposed by the complainants achieves an equivalent degree of contribution to 
fulfilment of the TPP measures ' objective.  
                                                
3515 Australia's response to Panel question No. 158. 
3516 See para . 2.62 above.  
3517 See Australia's first written submission, Annexure B, Section D(1); Excise Tariff Amendment Act 
(No. 1) 2000 (Cth), (Exhibit AUS -417), Schedule 1; and Tobacco Excise Increase PIR , (Exhibits AUS -292, 
HND-80, DOM -119, CUB -64, IDN -21), paras.  4-5. 
3518 PM Rudd, Anti-Smoking Action Media Release, (Exhibit s AUS-115, HND -4, DOM -52); Excise Tariff 
Amendment (Tobacco) Act 2010  (Cth), (Exhibit AUS -418), Schedule 1; and  Tobacco Excise Increase PIR , 
(Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), paras.  24-26. 
3519 Tobacco Excise Media Release , (Exhibits AUS -421, HND -85, DOM -114, IDN -5); Statements of the 
Hon. Chris Bowen MP, Treasurer, and Senator the Hon. Penny Wong, Minister for Finance and Deregulation , 
(Exhibit AUS -265), p.  33. 
3520 National Tobacco Strateg y 2012 -2018, (Exhibits AUS -129, DOM -131), p. 20. 
3521 Australia's second written submission, para. 552. 
3522 See Tobacco Excise Media Release , (Exhibits AUS -421, HND -85, DOM -114, IDN -5); and Chaloupka 
Public Health Report , (Exhibit AUS -9), para. 18. Professor Chaloupka further explains that:  
 
In 1983, Australia became the first country to index its tobacco excise taxes to the consumer 
price index in order to ensure that the value of these taxes was not eroded over time by 
inflation. More recently, in March 2014 , Australia became the first country in the world to index 
its tobacco excise taxes to average weekly ordinary time earnings so as to ensure that tobacco 
products do not become more affordable over time.  
 
Ibid. para. 39. See also Excise Tariff Amendment (Tobacco) Act 2014  (Cth), (Exhibit HND -86), Section 
6AA; and  Excise Tariff Working Pages , (Exhibit IDN -23), p. 4. 
3523 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 7. 
3524 Chaloupka Public Health Report , (Exhibit AUS -9), para. 18; Tobacco Excise Increase PIR , (Exhibits 
AUS-292, HND -80, DOM -119, CUB -64, IDN -21), paras.  88-89; and  PM Rudd, Anti-Smoking Action Media 
Release, (Exhibit s AUS-115, HND -4, DOM -52). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1479.   We consider, therefore, that the complainants' proposed increase of taxation of tobacco 
products constitutes a variation of a measure already applied by Australia, and, as such, 
constitutes an alternative measure.  
7.1480.   We now turn to assess whether an  increase in the level of taxation of tobacco products 
would be less trade -restrictive than the TPP measures  and make an equivalent contribution to 
Australia's objective, taking account of the risks non -fulfilment of the objective would create.  
7.2.5.6.3.3   Whether inc reased taxation would be less trade -restrictive than the 
TPP measures  
Arguments of the parties  
7.1481.   Honduras  argues that a tax increase is less trade -restrictive than the plain packaging 
trademark and format restrictions, since tobacco producers would not be prevented from 
competing in the Australian market by using branded packaging to signal quality and reputation to 
consumers. Honduras adds that a po ssible tax increase would not entail compliance costs related 
to the modification of production processes to produce packaging and tobacco products in 
compliance with the format restrictions of the TPP measures .3525 In addition, taxes "are predictable 
and tra nsparent, and therefore less trade restrictive than non -tax measures as evidenced by the 
preference in the WTO system for transparent and predictable duties, taxes and charges".3526 
Honduras, referring to the Appellate Body in US – COOL3527, also submits that th e costs of a tax 
increase are normally passed on to consumers, with the effect that a tax increase is clearly less 
trade -restrictive than the TPP measures .3528 Honduras adds that Australia's argument that industry 
price increases often coincide with tax incre ases indicates that tax increases do not dint producers' 
profitability or market shares, such that excise tax increases do not cause any other distorting 
market effects and are therefore not more trade -restrictive than the TPP measures .3529 
7.1482.   Honduras argues th at a tax increase "does not modify the conditions of competition for 
imported products, … create uncertainties … [or] disincentivize the importation of tobacco products 
to Australia". Honduras also submits that a gradual increase in taxes does not impose a ny 
additional compliance costs in terms of the production process or importation costs.  Honduras 
adds that an increase in taxes may "also lead to downtrading, as Australia notes", but that does 
not mean that it is as trade distortive and restrictive as pla in packaging, which prevents producers 
from differentiating their products and thus from fairly competing with one another. Moreover, 
Honduras submits that, as distinct "from a technical regulation like plain packaging", the only 
requirement that applies t o internal taxes is that they comply with Article  III of the GATT 1994. 
Non-discriminatory taxes are thus per se WTO-consistent measures, while a technical regulation is 
WTO-inconsistent if it is not effective or if it is more trade -restrictive than necess ary. Therefore, 
Honduras asserts, internal non -discriminatory taxes are a WTO -consistent alternative to a 
WTO-inconsistent measure and are therefore to be preferred.3530 
7.1483.   The Dominican Republic  argues that, by preventing trademarks "from playing their vital 
role as a differentiator, the [TPP]  measures eliminate competitive opportunities for producers of 
tobacco products, and are likely to have a disproportionate (discriminatory) effect on the tr ade of 
premium tobacco products … in Australia".3531 The Dominican Republic argues that increased 
taxation would have no effect on trademarks, and thus "would do nothing to distort the 
competitive opportunities of tobacco products and producers".3532 
                                                
3525 Honduras's first written submission, para. 920; and second writ ten submission, para. 221. See also 
Honduras's first written submission, para. 597; and response to Panel question No. 151. 
3526 Honduras's response to Panel question No. 151. 
3527 Honduras's response to Panel question No. 151, (referring to Appellate Body Reports, US – COOL , 
para. 483).  
3528 Honduras's response to Panel question No. 151 (referring to Appellate Body Reports, US – COOL , 
para. 483).  
3529 Honduras's second written submission, para. 705. 
3530 Honduras's response to Panel question No. 151; and comment s on Australia's response to Panel 
question Nos. 151 and 165.  
3531 Dominican  Republic 's first written submission, para. 1022.  
3532 Dominican  Republic 's first written submission, para. 1023.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1484.   Furthermore , the Dominican Republic "accepts that an increase in taxation is trade 
restrictive" in that, if the Panel finds that the TPP measures  "reduce smoking behaviour, which 
entails a restriction on the volume of tobacco products sold, an alternative must simila rly reduce 
smoking behaviour and, therefore, be similarly trade restrictive".3533 Indeed, the "extent of that 
reduction can be calibrated precisely to ensure that its effects on the volume of sales of tobacco 
products are equivalent in size to any such volume  effects that the [TPP]  measures might be found 
to have".3534 However, the Dominican Republic adds that an increase in taxation "is much less 
trade restrictive than the [TPP]  measures because, even if both restricted the volume of sales to 
an equivalent exten t, an increase in taxation would not prevent producers from enjoying the 
competitive opportunities that flow from differentiating goods through the use of trademarks". 
Higher excise taxes would allow producers and exporters to "decide where and how to posi tion 
their brand on the price -quality spectrum", such that, while the TPP measures  restrict trade in 
goods in two respects, increased taxation restricts it in just one.3535 In response to Australia's 
argument that an increase in taxation would lead to downtra ding, the Dominican Republic argues 
that "Australia's assertion is vague and unsupported", because Australia does not indicate what 
level of additional taxation would be needed to reduce smoking to an extent equivalent to the 
TPP measures , and therefore do es not support its assertion by showing how the particular 
additional taxation in question would lead to more downtrading than the TPP measures . The 
Dominican Republic argues that the evidence indicates that the TPP measures  led to a far greater 
increase i n downtrading than the large 25% tax increase in April 2010, indicating that the 
TPP measures  have had a much greater degree of trade -restrictiveness as measured by 
value -based downtrading effects.3536 
7.1485.   In any event, the Dominican Republic argues that taxation , and specifically a 
non-discriminatory internal tax is not a trade -restrictive measure under the TBT Agreement , the 
GATT  1994, the TRIPS  Agreement , or any other covered agreement. Moreover, internal taxation 
also does not interfere with competitive opport unities to differentiate products, or with the use of 
trademarks. The Dominican Republic submits that this "is a strong, even decisive, indication that 
[this alternative measure is] inherently less trade restrictive under the covered agreements".3537 
7.1486.   Cuba argues that a "non -discriminatory excise tax increase is fully WTO -consistent and 
does not restrict the use of intellectual property rights or impose WTO -inconsistent regulatory 
burdens on exporters". In Cuba's view, "Australia's decision to adopt plain packa ging, which can 
confer marginal efficacy at best but which carries significant risks both in terms of stimulating 
[d]own -trading and price reductions cannot be justified".3538 
7.1487.   Indonesia  argues that a tax increase is less trade -restrictive than the TPP measure s 
because such increases do not interfere with the ability of producers to distinguish their goods to 
consumers and they do not disproportionately affect producers of premium and imported 
products.3539 
7.1488.   Indonesia adds that tax increases (as an example) might r educe the consumption of a 
product, while not being trade -restrictive under the WTO covered agreements. It elaborates that a 
tobacco control measure that makes a contribution to reducing smoking prevalence may also 
result in a decline in demand for tobacco  products, although it does not necessarily follow that 
such an effect adversely impacts competitive opportunities for imports and is trade -restrictive. A 
reduction in prevalence, to the extent it also reduced consumption of tobacco products, would only 
affect overall commercial opportunities as a result of declining demand. Indonesia submits that the 
question of which measure is "less trade restrictive" should be assessed by comparing the 
challenged measure with proposed less trade -restrictive alternatives  and selecting the measure 
                                                
3533 Dominican  Republic 's second written submission, para. 980. 
3534 Dominican  Republic 's response to Panel question No. 151. 
3535 Dominican  Republic 's second written submission, para. 981. 
3536 Dominican  Republic 's response to Panel question No. 151 (referring to Dominican  Republic 's first 
written submission, para. 497 and Fig ure 15). 
3537 Dominican  Republic 's response to Panel question No. 151. 
3538 Cuba's first written submission, para. 280. 
3539 Indonesia's first written submission, para. 431. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 525 - 
  that interferes the least with "competitive" opportunities available among products in the market 
place.3540 
7.1489.   Australia  submits that, even if the Panel were to consider downtrading to be relevant to 
an assessment of the trade -restric tiveness of the TPP measures  and the proposed alternative 
measures, the Dominican Republic has not demonstrated that the downtrading allegedly caused by 
the TPP measures  exceeds that caused by excise increases. In Australia's view, rather than 
providing evidence to demonstrate that the downtrading caused by excise increases is less than 
that allegedly caused by tobacco plain packaging, the Dominican Republic has simply as serted that 
this is case.3541 Australia also submits that the Dominican Republic's suggestion that increasing 
excise taxes would lead to declines in tobacco use necessarily implies that these measures will 
restrict trade. In addition, Australia argues that th e Dominican Republic's argument that this will 
lead to an equivalent or greater degree of contribution to reducing tobacco use than tobacco plain 
packaging, necessarily implies an equivalent or greater reduction in the volume of imports of 
tobacco products ; and, therefore, an equivalent or greater degree of trade -restrictiveness.3542 
Analysis by the Panel  
7.1490.   As presented by the complainants, the alternative of increased taxation would be 
calibrated to achieve the same overall reduction in the use of, and exposure  to, tobacco as that 
achieved by the TPP measures .  
7.1491.   To the extent that a taxation increase would be designed to have the same degree of 
contribution as the TPP measures  in reducing the use of, and exposure to, tobacco products, and 
would therefore have an equal degree of impacts of a reduction of the overall consumption of such 
products, then it would be equally trade -restrictive in terms of its impact on the volume  of trade in 
tobacco products. Thus, the complainants have not shown that it would be less tr ade-restrictive 
than the TPP measures  in terms of impact on total volumes of imports of tobacco products. Any 
form of increased taxation that would lead to a commensurate decrease in the volume of imported 
tobacco products would seem to entail at least the  same degree of trade -restrictiveness as is 
attributable to the TPP measures  by virtue of their contribution to Australia's objective.  
7.1492.   In addition, we note that certain types of taxation measures have been found to give rise 
to the type of "downtrading" or  downward substitution effects that the complainants argue arise 
from the TPP measures  and are, in their view, trade -restrictive. We note that the extent of this 
effect may depend, in principle, on the type of taxation chosen, and that the WHO suggests tha t 
this concern may arise in particular in connection with ad valorem  taxation.3543 Correspondingly, 
taxing all tobacco products consistently – so that the tax accounts for a comparable share of price 
on different products and so that tax increases result in p roportionate increases in the prices on all 
products – should reduce, all things being equal, the potential for substitution among them.3544 
However, we also note evidence indicating that tobacco taxation in Australia, which, to date, is 
specific rather than ad valorem , is the main recognized source of "downtrading" on the Australian 
market.3545  
                                                
3540 Indonesia's comment s on Australia's response to Panel question No. 165. 
3541 Australia's com ments on the complainants' responses to Panel question Nos. 161 and 165.  
3542 Australia's comment s on the complainants' responses to Panel question No. 153. 
3543 This is explained by studies finding that, in the case of uneven increases in prices across tobacco 
products, there is potential for substitution among tobacco products in response to changes in the relative  
prices of these products. WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 22; and 2011 IARC 
Handbook, (Exhibit DOM -117), p. 5 ("[d]ifferenti al rates on different types of tobacco products or even on 
items within the same product category result in price gaps and opportunities for product substitution to 
lower -taxed products and brands"). In principle, specific taxation should lower the relativ e price of premium 
cigarettes and partly offset a possible downtrading effect of the tax -induced increase in the price of cigarettes.  
3544 WHO Tobacco Tax Manual, Full Text, (Exhibit  CUB-62), p p. 11, 90; and 2011 IARC Handbook, 
(Exhibit  DOM-117), p. 26 ("Applying a similar tax level would reduce the incentive for substitution and increase 
the effectiveness of taxation policy in reducing tobacco use"). See also Chaloupka et al. 2012,  (Exhibit 
DOM-115), p. 174; and Chaloupka Public Health Report , (Exhib it AUS-9), para. 12. 
3545 See Australia's first written submission, fn 982. See also HoustonKemp Report , (Exhibit AUS -19) 
(SCI), Section 3.3, p. 18; Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, 
IDN-21), p. 26; and Industry statemen ts on excise and downtrading, (Exhibit AUS -293).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 526 - 
  7.1493.   Although the parties have not addressed the precise form of taxation proposed, we take 
note of evidence before us that increasing tobacco excises may have different impa cts according to 
the type of excise used.3546 For instance, there is evidence that specific excises may tend to 
increase consumer prices relatively more than ad valorem  excises, leading to relatively higher 
reductions in consumption3547, and that consumer prices  are more likely to rise by more than the 
tax increase when the tax is specific.3548 We also note the possibility that ad valorem  taxation 
might increase market competition by enhancing existing price differentials between brands, and it 
has been noted in thi s connection that ad valorem  adjustments may increase the possibility of 
downward substitution to lower priced tobacco products.3549 While there are a number of possible 
tax regimes governments may adopt to balance such effects of increased taxation3550, we note  
that the overall impact of taxation on tobacco use may also entail other effects on product and 
brand competition due to the elevation of prices. In the specific case of Australia's 2010 increase 
of the tobacco excise by 25%, it was reported by tobacco co mpanies that the excise increase led 
to greater market share of low cost brands, altering the relative competitive positions of cigarette 
suppliers, and a consumer shift to RYO tobacco.3551 
7.1494.   In light of these elements, it is not clear to us how an increase in taxation levels would 
address or avoid the concerns about "downtrading"/downward substitution that the complainants 
have expressed in conn ection with the TPP measures , or any resulting impact on the total value of 
trade in tobacco products. Indeed, to the extent that such downward substitution could contribute 
to a measure's trade -restrictiveness, it is unclear that a comparable or greater degree of 
trade -restrictiveness would not result also from the imposition of increased tobacco taxation.  
7.1495.   Overall, therefore, we are not persuaded that the complainants have demonstrated that 
an increase of tobacco taxation that would make the same degree of contribution as the 
TPP measures  would be less trade -restrictive than the TPP measures .  
7.1496.   Notwithstandin g this conclusion, we find it appropriate to pursue our analysis and 
determine also whether, assuming that it may be less trade -restrictive than the TPP measures , an 
increase in the level of taxation of tobacco products would make an equivalent contributio n to 
Australia's objective of improving public health by reducing the use of, and exposure to, tobacco 
products.   
                                                
3546 For example, the IARC noted that "[s]pecific and ad valorem taxes have different effects on prices, 
profits and competitive positions of tobacco producers, tax revenues, quality and variety of products, 
administration and distribution of income. They will contribute in a different way to the achievement of health 
objectives." 2011 IARC Handbook, (Exhibit  DOM-117), p. 16. 
3547 WHO Tobacco Tax Manual, Full Text, (Exhibit  CUB-62), p. 42. 
3548 WHO Tobacco Tax Manual,  Full Text, (Exhibit  CUB-62), p. 44. 
3549 See WHO Tobacco Tax Simulation Model, (Exhibit CUB -63), p. 11. As stated by the IARC, ad 
valorem duties "will maintain the relative (pre -tax) price differentials between high - and low -taxed cigarettes", 
such that "the re will be more price competition under an ad valorem system, which may entail a lower average 
price" and "have a multiplier effect that favours low quality". 2011 IARC Handbook, (Exhibit DOM -117), p. 18. 
3550 For example, the possibility of downward substitution could be addressed through use of a 
single -rate specific tax that would lead to relatively higher price increases for cheap cigarettes thereby 
reducing their market share. In this light, however, a spe cific excise could be considered to be more favourable 
to existing brand variety and packaging as there is evidence suggesting an effect of "upwards substitutability" 
favouring premium brands under specific excises. See WHO Tobacco Tax Manual, Full Text, ( Exhibit CUB-62), 
pp. 45-46. The IARC noted that specific duties "will reduce the relative price differentials between high - and 
low-taxed cigarettes" that "may lead consumers to switch to higher -priced cigarettes, assuming that more 
expensive cigarettes ar e considered to be of a higher quality (and thus more appealing )". 2011 IARC 
Handbook, (Exhibit DOM-117), p. 18. 
3551 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB-64, IDN -21), 
paras.  116-121. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 527 - 
  7.2.5.6.3.4   Whether increased taxation of tobacco products would make an equivalent 
contribution to Australia's objective  
Arguments of the parties  
7.1497.   Hondur as argues that "it is well recognized that making tobacco products more expensive 
through increased taxation is the most effective way to reduce tobacco consumption".3552  
7.1498.   Honduras contends that if the Panel finds that the TPP measures  make some contribution 
to Australia's objective, the proposed tax increase for tobacco products "could achieve an 
equivalent degree of contribution", because the magnitude of the proposed tax can be calibrated 
to match any level of desired consumption red uction.3553 Honduras submits that the impact of tax 
measures is explained by a product's price elasticity (that is, the extent to which demand for a 
product falls or rises as a result of increases or decreases in its price).3554 Honduras refers to the 
WHO Techni cal Manual on Tobacco Tax Administration and states that price elasticities for 
cigarettes are estimated to be -0.4, which means that if the price of cigarettes were to increase by 
10%, cigarette consumption would decline by 4%.3555 Honduras thus argues that the Panel would 
need to determine with clarity and precision the degree of contribution that the challenged 
measure would make, such that the required magnitude of the tax increase would depend on the 
degree of contribution made by the challenged measure.3556 
7.1499.   The Dominican Republic  argues that "[h]ealth institutions, governments and health 
experts worldwide universally recognize that tobacco taxation is an extremely effective – if not the 
most effective – policy tool to reduce smoking uptake, and to facilitate  cessation".3557 The 
Dominican Republic submits that taxation works well for both cigarettes and cigars.3558 
7.1500.   The Dominican Republic further argues that increased taxation would make an 
"equivalent or greater contribution" to the objective of the TPP measures . The Dominican Republic 
argues that "taxation is a 'tried and tested' means of successfully tackling each of the three 
smoking behaviours identified" in the TPP Act3559 and refers to several sources to support its 
argument that increased taxation is the most eff ective way of reducing the use of tobacco 
products.3560 The Dominican Republic asserts that "around half of the reduction in overall 
consumption is attributable to a reduction in smoking prevalence and the other half in smoking 
intensity ".3561 The Dominican Repu blic sets out calculations for price and tax increases that would 
make the same contribution as the TPP measures , based on hypothetical levels of the contribution 
made by the TPP measures3562 (and which "would apply in addition to the prevailing excise tax ra te 
in Australia, whatever that might be at any given time"3563): 
                                                
3552 Honduras's first written submission, para. 589; and second written submission , para. 699. 
3553 Honduras's first written submission, para. 921. 
3554 Honduras's first written submission, para. 590. 
3555 Honduras's first written submission, para. 590. 
3556 Honduras's first written submission, paras.  598 and  921; and second written submission, para. 221. 
3557 Dominican  Republic 's first written submission, para. 751; and second written submission, para. 636. 
3558 Dominican  Republic 's response to Panel question No. 152. 
3559 Dominican  Republic 's first written submission, para. 757 and heading VI.H.3.e.ii(1)(b) . 
3560 Dominican  Republic 's first written submission, paras.  753-756 and 1021.  
3561 Dominican  Republic 's first written submission, paras.  758-760 and 1021.  (emphasis original)  
3562 Dominican  Republ ic's second written submission, para. 639, Table 4. The Dominican  Republic  adds 
that the use of higher elasticity estimates would significantly lower the estimate of the requisite increase in 
taxation to achieve the stated reductions in prevalence. Dominic an Republic 's second written submission, 
para. 640. 
3563 Dominican  Republic 's second written submission, para. 641. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Table 4: Estimated price and tax increase equivalents to hypothetical c ontribution s of 
the TPP m easures  to reducing the number of s mokers  
Equivalence 
of 
contribution  Hypo thetical 
contribution of 
TPP measures  to 
reducing number of 
smokers (%)  Price  increase to make 
same contribution over 
current rate (%)  Tax increase to make 
same contribution over 
current rate (%)  
Example 1  .5 2.5 4.39 
Example 2  1.0 5.0 8.78 
Example 3  1.5 7.5 13.17  
Example 4  2.0 10.0 17.57  
Source:  Dominican  Republic's second written submission, para.  639, Table 4.  
 
7.1501.   The Dominican Republic argues that the "clear advantage of increased taxation as an 
alternative is that the tax increase required to make  an equivalent contribution to reducing 
prevalence can be calibrated with considerable quantitative precision using these elasticities".3564 
The Dominican Republic also argues that, "unlike [the TPP]  measures which will take years for 
their full effect to be seen, according to Australia", taxation is effective immediately upon 
implementation, and is likely to be most effective against young people who are known to be 
particularly price sensitive.3565 The Dominican Republic contends that, c onsidering size, likelih ood, 
and timing together, along with the risks of non -fulfilment, an increase in taxation would make a 
contribution to reducing smoking that is much more than equivalent to any made by the 
TPP measures .3566 
7.1502.   The Dominican Republic argues that Australia's argum ent that "taxation is effective for 
cessation and relapse, but not initiation" contradicts "conventional wisdom espoused by health 
organizations, governments, and academics alike, that taxation is also successful in preventing 
smoking initiation, particula rly among young people".3567 In relation to Australia's argument that 
"the [TPP]  measures may affect different groups of consumers than tax increases"3568, the 
Dominican Republic states that the [TPP]  measures are aimed particularly at young people and 
socially disadvantaged consumers, and that taxation is widely regarded as particularly effective at 
reducing smoking among these groups. The Dominican Republic adds that Australia and its experts 
provide no evidence to support the assertions that taxation is not ef fective in persuading 
high-income consumers not to smoke, or that the [TPP]  measures would be particularly helpful in 
so doing. The Dominican Republic argues that, in fact, empirical evidence shows that taxation is 
effective for all demographic groups.3569 In relation to Australia's argument that  taxation works 
through different mechanisms, and so cannot reduce the appeal of tobacco products, increasing 
perceptions of harm, the Dominican Republic argues that so long as an alternative makes an 
equivalent con tribution, it does not matter if it does so through another mechanism.3570  
7.1503.   Cuba argues that any reduction in tobacco use resulting from the TPP measures  "could 
easily be replicated (and improved) through an appropriate excise tax increase.  Cuba argues that 
the requisite tax increase on tobacco products can be quantified by reference to the "price 
elasticity" of market demand. Cuba submits that it is universally accepted that -0.4 is a good 
estimate for the price elasticity for tobacco demand in high income co untries and that, even 
assuming an elasticity value of -0.2, Australia would be able to achieve a 2% drop in consumption 
of tobacco products with a mere 10% increase in their price.3571 In any event, Cuba argues that 
"[a] tax increase can be closely fine -tuned to achieve the desired public health benefit".3572 Cuba 
                                                
3564 Dominican  Republic 's first written submission, paras.  761 and 1021; and second written submission, 
paras.  638 and 646.  
3565 Dominican  Republic 's responses to Panel question Nos. 65 and 157; and second written submission, 
paras.  646-648. 
3566 Dominican  Republic 's response to Panel question No. 157. 
3567 Dominican  Republic 's second written submission, para. 651. 
3568 Dominican  Republic 's second written submission, para. 652. 
3569 Dominican  Republic 's second written submission, paras.  653-654. 
3570 Dominican  Republic 's second written submission , paras.  655-656. 
3571 Cuba's first written submission, para. 278. 
3572 Cuba's first written submission, para. 279. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  argues that taxes are the single most effective tobacco control measure, especially given its 
impact on people with lower incomes, such as young people.3573 
7.1504.   Indonesia  states that increasing taxes on tobac co products is widely recognized as "the 
single most effective policy option for reducing the public health toll from tobacco".3574 It submits 
that the TPP measures  have not shown any impact on smoking prevalence after its introduction, 
and tobacco tax increa ses have consistently demonstrated an immediate, quantifiable reduction in 
prevalence, while at the same time not disrupting competitive opportunities in the market.3575 
Furthermore, tobacco tax increases have the added advantage of generating observable impa cts. 
Specifically, the 2010 25% tobacco tax increase resulted in a decline in cigarette consumption  of 
15 sticks per capita each quarter and Australia has estimated that a 1% increase in the price of 
cigarettes will result in a reduction in consumption of 0.4%.3576 
7.1505.   Australia  responds that, "[w]hile it is recognised that taxation of tobacco products is the 
single most effective policy for reducing tobacco use (i.e. if only one measure were used)", the 
best approach to tobacco control is a comprehensive one.3577 Australia argues that taxation 
measures cannot achieve Australia's three specific objectives as set out in the TPP measures  
(namely decreasing the appeal of tobacco products, increasing the effectiveness of health warnings 
and reducing the ability of the ret ail packaging of tobacco products to mislead consumers).3578 
Rather, Australia contends, "excise increases 'directly impact tobacco use by changing the 
economic accessibility of tobacco products through increases in retail prices'".3579 Relying on 
evidence from Professor Chaloupka, Australia argues that consumers respond differently to 
tobacco control interventions depending on where they are in their life -cycle and smoking history, 
and that this limits the extent to which excise increases are able to influence t he smoking 
behaviour of all consumers or potential consumers.3580 Australia submits that advertising bans, 
including tobacco plain packaging, and taxation increases have different degrees of effectiveness 
at different stages of the initiation process, contrar y to the assertion of the Dominican Republic 
that Australia or Profes sor Chaloupka suggested that  taxation is effective for cessation and 
relapse, but not initiation.3581 Australia submits that the "different causal pathways by which 
tobacco plain packaging and excise influence consumer (and potential consumer) behaviour" 
means that the measures are together able to influence a broader range of consumers than either 
measure acting alone.3582 Australia thus contends that "replacing tobacco plain packaging with a 
variation on Australia's already strong excise policy would reduce the synergies between these 
measures and weaken 'the total effect' of Australia's comprehensive approach".3583 Australia adds 
that tobacco plain packaging may impact consumers and potential co nsumers who are impervious 
to price increases.3584  
Analysis by the Panel  
7.1506.   As described above, the complainants contend that the tax level could be increased to 
reduce tobacco consumption in Australia by the same amount as any reduced consumption 
attributable to the TPP measures .  
                                                
3573 Cuba's second written submission, para. 342; and comment s on Australia's responses to Panel 
question Nos. 157 and 158.  
3574 Indonesia's first written submission, para. 430. 
3575 Indonesia's first written submission, para. 433. 
3576 Indonesia's first writ ten submission, para. 433. 
3577 Australia's first written submission, para. 719. 
3578 Australia's first written submission, para. 720. 
3579 Australia's first written submission, para. 720 ( referring to  Chaloupka Public Health Report , (Exhibit 
AUS-9), para. 37). 
3580 Australia's first written submission, para. 720 ( referring to  Chaloupka Public Health Report , (Exhibit 
AUS-9), paras.  35, 42 and 44).  
3581 See Australia's comments on the complainants' responses to Panel question No. 161, para. 108 
(referring to Chaloupka Public Health Report, (Exhibit AUS -9), para. 35); and Chaloupka Rebuttal Report, 
(Exhibit AUS -582), para. 29 (referring to Dominican Repub lic's second written submission, para. 650).  
3582 Australia's first written submission, para. 721. 
3583 Australia's comment s on the complainants' responses to Panel question No. 157. See also Australia's 
response to Panel question No. 148, para . 23 (referring to  Appellate Body Report, Brazil – Retreaded Tyres , 
para. 172 ). 
3584 Australia's first written submission, para. 721. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1507.   We note at the outset that it is uncontested that taxation of tobacco products is 
recognized to be an effective measure for tobacco control.3585 Notably, Australia's existing tobacco 
taxation measures have been based on explicit recognit ion of taxation's contribution to Australia's 
public health objectives. The Australian Treasury has observed that "[i]t is well publicised that 
anti-smoking measures should include higher taxes" as "[h]igher taxes on tobacco products lead to 
higher prices,  which reduce tobacco use, which in turn, reduce the health and social costs 
associated with tobacco use".3586 Australia's National Tobacco Strategy for 2004 -2009 recognized 
that taxes on tobacco products increase prices, which helps to discourage consumption , and 
further recognized that the policy intention of Australian excise increases was to make tobacco 
products less affordable.3587 Accordingly, Australia's NPHT developed a strategy in which it 
recommended inter alia an increase in tobacco excise on public h ealth grounds and identified the 
reduced affordability of tobacco products as a key action to reduce tobacco consumption and 
prevalence.3588 Further, Australia announced the staged increases of its tobacco excise recognizing 
that "increasing excise is the sin gle most effective way for government to reduce premature death 
and disease due to smoking", with the expectation that it would be "particularly effective in 
dropping the number of young people who smoke".3589 
7.1508.   The WHO has also recognized the effectiveness of taxation as a tobacco control measure. 
According to the WHO, taxation is considered to be the most cost -effective tobacco control 
measure available to governments, particularly as an intervention for reducing tobacco use among 
the young and the poor.3590 The WHO has specifically noted that, "[o]f all tobacco -product taxes, 
excises are the most important for achieving the health objective of reduced tobacco consumption, 
since they are uniquely applied to tobacco products and raise the prices of these products r elative 
to the prices of other goods and services."3591 Summarizing the salient findings from relevant 
literature, the WHO states that:  
[A] large and growing literature clearly demonstrates that the overall demand for 
tobacco products is significantly affecte d by changes in tobacco product taxes and 
prices. These studies demonstrate that price affects all aspects of tobacco 
consumption, with higher prices preventing initiation among potential users, inducing 
cessation among current users, and reducing the freq uency of consumption and 
amount consumed by continuing users.3592 
7.1509.   In accordance with these considerations, the FCTC provides in Article  6(1) that its parties 
"recognize that price and tax measures are an effective and important means of reducing tobacco 
consu mption by various segments of the population, in particular young persons". Article  6(2)(a) 
further provides that FCTC parties should "adopt or maintain, as appropriate, measures which may 
                                                
3585 We note in this respect Australia's statement that "Australia and its experts have never contested" 
that excise increases are an effective to bacco control policy. See Australia's comment s on the complainants' 
responses to Panel question No. 157, para. 80. 
3586 Tobacco Excise Increase PIR,  (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 27. 
3587 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 14. 
3588 Tobacco Excise Increase PIR,  (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 16. 
We note that the Australian government did not at the time adopt this particular recommendation of staged 
increases on account of the financial stress on those who continue smoking. See ibid. para. 18; and Response 
to NPHT, The Roadmap for Action, (Exh ibits AUS -116, JE -15), p. 63. 
3589 Tobacco Excise Media Release, (Exhibits AUS -421, HND -85, DOM -114, IDN -5). See also Response to 
NPHT, The Roadmap for Action, (Exhibits AUS -116, JE -15), p p. 61-62; and National Tobacco Strategy 
2012-2018, (Exhibits AUS -129, D OM-131), p. 19. 
3590 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), p p. 9, 18, 20 -22, 104; and WHO Tobacco 
Tax Simulation Model, (Exhibit CUB-63), p. 1. See also  WHO, Raising Tax on Tobacco , (Exhibit IDN-88), p. 6 
("[r]aising taxes on tobacco is the mos t cost -effective solution for reducing tobacco use in all types of 
settings" ); 2011 IARC Handbook, (Exhibit DOM -117), p. 3 ("A significant increase in tobacco product taxes and 
prices has been demonstrated to be the single most effective and cost -effective intervention for reducing 
tobacco use, particularly among the young and the poor …"); WHO Report on the Global Tobacco Epidemic 
2013, (Exhibits DOM-318, CUB -81), p. 79 ("[r]aising taxes to increase the price of tobacco products is the 
most effect ive means to reduce tobacco use and encourage smokers to quit"); and WHO Report on the Global 
Tobacco Epidemic 2015, (Exhibit s AUS -595, DOM-319), p. 16 ("raising tobacco taxes to more than 75% of the 
retail price is among the most effective and cost -effect ive tobacco control interventions").  
3591 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), p. 11. 
3592 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), p. 23. See also ibid. p p. 76-77. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  include … implementing tax policies and, where appropriate, price p olicies, on tobacco products so 
as to contribute to the health objectives aimed at reducing tobacco consumption".3593 
7.1510.   The general efficacy of taxation as a means of tobacco control also finds recognition in a 
number of other academic, governmental, and other expert sources on the record of these 
proceedings.3594 
7.1511.   On this basis, we conclude that taxation is recognized in principle as an effective tobacco 
control measure, which is capable of contributing to reducing the use of tobacco products. We 
therefore turn to consider the degree of contribution that might be made to Australia's objective 
under the complainants' alternative.  
7.1512.   We be gin by recalling our observations concerning Australia's existing excise regime on 
tobacco products, including its recent increases of  the excise rate, the indexation of tax rates to 
consumer prices and average weekly ordinary time earnings, and evidence of Australia's intention 
to continue to implement regular staged increases in the tobacco excise.3595 Further, it has been 
noted that Aust ralia has among the highest tobacco product excise taxes in the world, which have 
been increased steadily over time and have resulted in among the highest tobacco product prices 
in the world.3596 
7.1513.   Our understanding of the alternative measure proposed by the co mplainants is that it 
would entail an increase of the tobacco excise in particular, as distinct from other forms of taxation 
on tobacco products.3597 Beyond this, there are potential variations as to how an excise increase 
                                                
3593 FCTC, (Exhibits AUS -44, JE -19), Article  6. We also note that the Gu idelines for Implementation of 
Article  6 of the FCTC state: "Tax and price policies are widely recognized to be one of the most effective means 
of influencing the demand for and thus the consumption of tobacco products."  Article  6 FCTC Guidelines , 
(Exhibit  AUS-111), Introduction, p. 1. 
3594 Chaloupka et al. 2012, (Exhibit DOM-115), p p. 172 and 179; Chaloupka Public Health Report , 
(Exhibit AUS-9), paras.  10 and 37; Chaloupka and Warner 1998, (Exhibit DOM -116) p. 56; Ross and 
Chaloupka 2006, (Exhibit DOM -118), p. S114; US Surgeon General's Report 2014, (Exhibits AUS -37, 
DOM-104, CUB -35), p. 12 ("The evidence is sufficient to conclude that increases in the prices of tobacco 
products, including those resulting from excise tax increases, prevent initiation of tobacco use, promote 
cessation, and reduce the prevalence and intensity of tobacco use among youth and adults"); Pechmann et al. 
2011, (Exhibit HND -149), p. 24; Jha and Chaloupka 1999 , (Exhibit AUS -51), p. 5; C. Tworek et al. 2010, 
(Exhibit HND -152), p. 9; Tauras et al. 2013, (Exhibit HND -153), p.  4317; Sussman et al. 2013, 
(Exhibit  HND-154), pp.  2-3; Guindon et al. 2013, (Exhibit HND -156), p.  1; Cummings et al. 2009, (Exhibit 
HND-157), p.  443; Nargis et al. 2013, (Exhibit HND -158), p.  2; Tobacco in Austral ia 2012, HND excerpts , 
(Exhibit HND -79), Chapter 13, p. 1 ("[t]he evidence for the effectiveness of tax and price policies is 
overwhelming"); Dunlop et al. 2011, (Exhibit HND -83), p. 1687 ("tax increases are regarded as the most 
effective single interventi on to reduce demand for tobacco, with research showing that the higher the tax 
increase, the greater the reduction in cigarette sales"); F. Chalou pka, "How Effective Are Taxes in  Reducing 
Tobacco Consumption", (Exhibit IDN -87), p. 7; U.S. Surgeon General 's Report 2000 , Executive Summary  
(Exhibit IDN -89), p. 22; and Chaloupka Rebuttal Report , (Exhibit AUS -582), para. 29 ("My research has 
consistently demonstrated the effectiveness of higher tobacco taxes in discouraging initiation and uptake of 
tobacco use a mong young people, promoting cessation among adult tobacco users, and reducing consumption 
among continuing users, with relatively larger effects on tobacco use among the young and the poor.").  
3595 See para. 7.1477  above.  
3596 Chaloupka Public Health Report , (Exhibit AUS-9), paras.  9(b), 18 and 41 ; Chaloupka Rebuttal 
Report, (Exhibit AUS -582), para. 26; and WHO Report on the Global Tobacco Epidemic 2015, 
(Exhibits  AUS-595, DOM -319), p. 39.  Professor Chaloupka also notes that Australia has reduced its duty free 
allowance over time.  Chaloupka Public Health Report , (Exhibit AUS-9), para. 18.  
3597 Australia currently imposes excise and other taxes on tobacco pro ducts. Excise is a tax on certain 
goods produced in Australia that, compared to other taxes designed to raise revenue, can also be applied 
selectively to pursue non -revenue objectives. Imported goods comparable to those subject to excise are taxed 
in an eq uivalent fashion through imposition of a customs duty imposed at the same rate as the excise rate. 
Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 2. Other taxes 
applied to tobacco products include value added taxes,  general sales or consumption taxes, and special levies 
that fund particular programmes. WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p p. 19, 28 -29; and 
Chaloupka et al. 2012, (Exhibit DOM -115), p. 173. It has also been noted that, of the various t axes imposed 
by governments on tobacco, "tobacco product excise taxes (including other taxes specifically applied to tobacco 
products but called by other names) are most important for achieving the health objective of reduced tobacco 
consumption since thes e are the taxes that are uniquely applied to tobacco products and that raise the prices 
of these products relative to the prices of other goods and services." Chaloupka et al. 2012, (Exhibit 
DOM-115), p. 173. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  could be applied under this alternat ive. For example, both specific and ad valorem  excises are 
possible, with the former levied based on quantity (e.g. a fixed amount per cigarette or weight of 
tobacco) and the latter levied based on value (e.g. a percentage of the factory or retail price).3598 
Thus, one potential variation of the alternative could be an increase of Australia's existing specific  
excise that is applied on a per stick or per kilogram basis.3599 
7.1514.   Although the parties have not directly addressed some of the potential variations of 
increased tobacco taxation, we take them into account to the extent they may inform the degree 
of contribution that could be made by this alternative measure.3600 In this regard, we are mindful 
that variability in the type of tobacco excises imposed may reflect di fferences in governments' 
objectives and the particular constraints they face.3601 We also recall that alternative measures 
serve as a conceptual tool in the overall analysis under Article  2.2, and that "[s]uch alternative 
measures are of a hypothetical natur e in the context of the analysis under Article  2.2 because they 
do not yet exist in the Member in question, or at least not in the particular form proposed by the 
complainant".3602 The alternative proposed by the complainants is inherently variable given its 
hypothetical nature and the complainants' argument that increased taxation could be calibrated to 
achieve an equivalent contribution to that found by the Panel to be achieved by the TPP measures .  
7.1515.   In arguing that the level of increased taxation could be ca librated to contribute to 
Australia's public health objective to a degree equivalent to that of the TPP measures , the 
complainants have all referred to the magnitude of the effects of price on tobacco consumption as 
measured by the price elasticity of dema nd3603, which indicates the proportionate reduction on 
consumption resulting from an increase in price. The WHO has observed that relevant studies 
concerning cigarettes  have produced a wide range of estimates in this regard, but that "the vast 
majority of the se studies estimate price elasticities in the range from -0.25 to -0.5, with most of 
these clustered around -0.4", meaning that a price increase of 10% would lead to a 4% reduction 
in consumption.3604 Drawing upon these sources, the Australian government has characterized this 
as "the consensus price elasticity of around -0.4" that, based on studies by the World Bank and 
WHO, is valid for high income countries notwithstanding somewhat more dispersed estimates for 
high-income countries other than the U nited Sta tes and United Kingdom.3605  
7.1516.   The elasticity figure of -0.4, which has not been contested by any party in these 
proceedings3606, refers to the price elasticity of overall  tobacco demand. In this regard, the WHO 
                                                
3598 See WHO Tobacco Tax Manual, Full Text, (Exhib it CUB -62), p. 11; and Chaloupka et al. 2012, 
(Exhibit DOM -115), p p. 173-174. 
3599 See, e.g. Neven Report , (Exhibit UKR -3) (SCI), p. 34, fn 62. An additional consideration that has not 
been specified is whether the alternative would entail single -rate specifi c taxation for all tobacco products, or 
whether the alternative could differentiate among different tobacco products (including by price category and 
other brand characteristics).  WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 34. See also ibid. p. 11 
(noting that "[i]n addition to specific taxation, depending on the characteristics of the product consumed most 
widely and the structure of each industry, the government can also impose an ad valorem tax to adjust 
specification attributes (appeal and  variety) to a desired level"). See also Chaloupka et al. 2012, (Exhibit 
DOM-115), p. 173 (describing different excise regimes levied according to manufacturers' prices, production 
scale, and characteristics of cigarettes).  
3600 See, e.g. 2011 IARC Handbook, (Exhibit DOM -117), p. 5 (noting that "[t]he tax level and the tax 
regime have implications for consumer behaviour, the behaviour of the tobacco industry, and the effectiveness 
of tobacco tax as a public policy measure").  
3601 See, e.g. WHO Tobacco Tax Manual,  Full Text, (Exhibit CUB -62), p. 11. 
3602 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.328.  
3603 See Honduras's first written submission, para. 590; the Dominican  Republic 's first written 
submission, paras.  759-761; Cuba's first written submission, para. 278; and Indonesia's first written 
submission, para. 433. 
3604 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 21. See also Chaloupka et al. 2012, 
(Exhibit DOM -115), p. 175; US Surgeon General's Report 2014, (Exhibits AUS -37, DOM-104, CUB -35), p. 789 
(referring to a "consensus estimate" from two reviews "that a 10% increase in cigarette price will result in a 
3-5% reduction in overall cigarettes consumed"). Moreover, studies on tobacco use in low -income and 
middle -income count ries have indicated that demand for tobacco products is more responsive to price than it is 
in high income countries. See 2011 IARC Handbook, (Exhibit DOM -117), p. 350. 
3605 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 32. 
See also ibid. para. 64. 
3606 The Dominican  Republic  has also cited empirical estimates of the smoking prevalence  elasticity 
calculated for the Australian market, ranging from -0.436 to -0.863, which the Dominican  Republic  interprets 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  has observed that the reduced overall consumption of  tobacco attributable to increased taxation is 
composed both of reduced smoking prevalence (due to cessation by tobacco users) and reduced 
intensity (due to reductions in the amount of tobacco consumed by the remaining smokers).3607 
Moreover, we note that the  impact of excise and corresponding price increases may differ over the 
short term and lon g term, with evidence that long -term impacts may be greater than those in the 
short term.3608 As stated by the Australian government, "a reduction in smoking prevalence due to 
current smokers quitting will have an immediate impact on smoking rates whereas a reduction in 
prevalence due to a lower take -up of smoking will have an impact over the longer terms as it 
affects potential future smokers".3609 
7.1517.   In respect of its increas e of the tobacco excise by 25% in 2010, Australia's aims included 
cutting total tobacco consumption by around 6% and reducing the prevalence of smokers by 
2%-3%.3610 In its PIR of this excise increase, Australia identified certain effects through which 
tobacc o consumption would be reduced, namely less smoking by some smokers, cessation by 
others, discouragement/prevention of relapse, and decline in smoking initiation.3611 Subject to 
certain data limitations, the Australian Treasury's Post -Implementation Review re ported positive 
improvements in respect of reducing total tobacco consumption and, to a lesser extent, prevalence 
among adults.3612  
7.1518.   The elasticity figures estimated in academic research, and Australia's own experience in 
levying a tobacco excise, are indicat ive of the potential contribution of increased taxation to 
Australia's objective. Nevertheless, in assessing the degree of such contribution, we note that the 
complainants have not defined the exact contours of their proposed increase in taxation, but have  
instead referred primarily to these figures concerning price elasticity of demand as a basis for 
                                                                                                                                                  
to comprise hal f of an elasticity of overall consumption in Australia. See Dominican  Republic 's first written 
submission, paras.  760-761.  
3607 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), p. 21; WHO, Raising Tax on Tobacco, 
(Exhibit  IDN-88), p. 8; WHO Report on the  Global Tobacco Epidemic 2015, (Exhibit s AUS-595, DOM-319), 
p. 26. Various other sources similarly attest to a combined impact of reduced smoking prevalence and 
intensity. The IARC of the WHO reports that "studies that examine both smoking prevalence and i ntensity 
generally find that the effects of price on consumption are about evenly split between the effect of price on 
smoking prevalence and the effect of price on intensity of smoking among those who smoke." 2011 IARC 
Handbook, (Exhibit DOM-117), p. 176. Similarly, academic studies regarding price effects on consumption have 
indicated that "about half of the impact of price on tobacco use results from its effect on prevalence, largely 
reflecting cessation among adult users." Chaloupka et al. 2012, (Exhibi t DOM-115), p. 175. This dual impact on 
intensity and prevalence has been submitted to imply that the price elasticity of overall consumption is double 
the elasticity of prevalence, referred to as a "rule of two". See Dominican  Republic 's first written sub mission, 
para. 758. 
3608 See, e.g. 2011 IARC Handbook, (Exhibit DOM -117), p. 119, Tables 4.1, 4.2, and 4.3 presenting 
elasticity estimates from countries of varying income levels and presenting many long -run elasticity estimates 
that are greater than short -run elasticity estimates. See also Chaloupka et al. 2012, (Exhibit DOM -115), p. 175 
(noting that several studies have "modelled the addictive nature of tobacco use, finding that tobacco demand is 
more price responsive in the long run that in the short run" ); and WHO Tobacco Tax Manual, Full Text, (Exhibit 
CUB-62), p. 23 (noting that "[a]s predicted by economic theories of addiction, the impact of a permanent 
increase in price will be larger in the long run than in the short run").  
3609 Tobacco Excise Increase PIR, (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 33. 
We note that this is consistent with empirical estimates for price elasticities calculated specifically for the 
Australian market. See Bardsley and Olekalns 1999 , (Exhibit DOM -122), p. 237, Figure 5; and 2011 IARC 
Handbook, (Exhibit DOM -117), p p. 117-118. 
3610 PM Rudd, Anti-Smoking Action Media Release, (Exhibit s AUS-115, HND -4, DOM -52); and  Tobacco 
Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 59. The reduction of total 
tobacco consumption by 6% was estimated on the basis that a 25% excise increase would lead to a 15% price 
increase (assuming approximately 60% of a packet of cigarettes is excise), and then calculating the decline in 
consumption with an assumed elasticity figure. See  Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, 
DOM-119, CUB -64, IDN -21), para. 64. The reduction of smoking prevalence was estimated on the basis a 
smoking rate of 17% among the adult population. See ibid. para. 69. 
3611 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 62. 
3612 Tobacco Excise Increase PIR, (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), 
paras.  133-135. Moreover, research conducted after the 2010 tax increase indic ated that recent quitters who 
had quit after the tax increase (versus before) were more likely to report that they were influenced by price, 
and smokers' responses to the price increases included smoking -related changes (i.e. trying to quit or cut 
down) an d product -related changes (i.e. changing to lower priced brands, using loose tobacco, or buying in 
bulk). National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 19. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  arguing that taxation could be calibrated to make a contribution equivalent to any contribution 
made by the TPP measures . 
7.1519.   We further note that, as we discuss below, there are various other considerations that 
could have implications on the degree of contribution to Australia's objective that might be 
achieved under this alternative.  
7.1520.   Evidence before us regarding the impacts of tobacco excise increases suggests t hat the 
potential contribution may vary across different population groups.3613 In this vein, the WHO 
estimates that the impact of a tobacco excise increase will be 2 -3 times greater for those with less 
money, including youth.3614 The IARC, noting that adult smo king prevalence and intensity are 
inversely related to price, reports that empirical evidence supports the prediction of economic 
theory that tobacco use among young people would be more responsive to price than would adult 
tobacco use.3615 With regard to dif ferent socio -economic groups, in setting the National Tobacco 
Strategy 2012 -2018, Australia's Intergovernmental Committee on Drugs noted research showing 
that the impact of price rises is most significant in low -income groups.3616 This is in line with the 
IARC's conclusion that the price responsiveness of tobacco demand is generally higher among the 
poor than the rich in high -income countries.3617 This evidence is indicative of the potentially 
greater effectiveness of taxation for certain population groups, while  others may be relatively less 
responsive to price changes than to other tobacco control measures.3618 
7.1521.   In addition, in support of their arguments regarding the adoption of increased taxation as 
an alternative to the TPP measures , the complainants have drawn a ttention to the fact that 
Australia's tobacco taxes are lower than the WHO recommended taxation level of 70% of the 
consumer price of tobacco products.3619 We note that this recommended level is an indicative 
benchmark for which the WHO has recognized that ot her considerations may be relevant for an 
implementing government.3620 In any event, given the incentives through which an excise increase 
would contribute to the objective at issue, we consider that it is tobacco product prices, rather 
than underlying tax ra tes alone, that are most directly relevant to the influence on tobacco 
                                                
3613 As stated by Professor Chaloupka, the behavioural impact from increasing the tobacco excise may 
not be uniform, and further increases in Australia's existing excise taxes on tobacco "will reduce tobacco 
among some current and potential users, while others  will change their behaviors in a ways that have a smaller 
impact on consumption, while still others will be unaffected". Chaloupka Public Health Report , (Exhibit AUS-9), 
para. 9(b). See also ibid. paras. 34, 42, and 44. With regard to age groups, the Aust ralian Treasury has noted 
findings of studies that teenagers and young adults are significantly more responsive to price increases . 
Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 35 (referring to  
economic literature  on price elasticity of demand that estimates that a 10 % increase in cigarette prices reduces 
consumption by approximately 5 -12% for teenage smokers compared to around 1% for smokers in their late 
20s). 
3614 WHO, Raising Tax on Tobacco, (Exhibit IDN -88), p p. 6-7. 
3615 2011 IARC Handbook, (Exhibit DOM -117), p. 352. 
3616 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 19. 
3617 2011 IARC Handbook, (Exhibit DOM -117), p. 353 (noting that this is based largely on evidence from 
the U nited States and the U nited Kingdom).  
3618 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 34. 
(referring to  a study by the US National Bureau of Economic Research claiming that increases in cigarette taxes 
are associated with insignificant decreases in adults' consumption, and that it would take a 100% tax increase 
to decrease adult smoking by as much as 5%).  Chaloupka observes that "while higher income smokers are 
relatively unresponsive to cigarette price increases, they are more likely to respond to less than fully 
comprehensive smoke -free workplace policies … given their greater exposure to these policies." Chaloupka 
Public Health Report , (Exhibit AUS -9), para. 34. 
3619 See Honduras's first written submission, para. 595; Honduras's second written submission, 
para. 702; and Cuba's second written submission, para. 343. 
3620 WHO Tobacco Tax Manual, Full Text, (Exhibit  CUB-62), pp. 53 and 104 (referring to the 70% excise 
tax level as a "best practice" that should account for factors such as differences in countries' "starting point 
with respect to tax structure and tax rates"). In addition, the WHO Report on the Global Tobacco 
Epidemic  2015, (Exhibits AUS -595, DOM -319), p. 111 states that "it is important to note that changes in tax as 
a share of price are not only dependent on tax changes but also on price changes. Therefore, despite an 
increase in tax, the tax share co uld remain the same or go down; similarly sometimes a tax share can increase 
even if there is no change/increase in the tax." We also note that the Article  6 FCTC Guidelines, (Exhibit 
AUS-111), Section 3.2, entitled "Level of tax rates to apply", states th at "[t]here is no single optimal level of 
tobacco taxes that apply to all countries …".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  consumption.3621 This is consistent with the WHO's recommended best practice that, "[i]n order to 
maximize the public health impact of higher tobacco taxes, while at the same time generati ng 
higher revenues, governments should raise taxes so as to raise prices and reduce the affordability 
of tobacco products".3622 In this regard, we note that Australia has among the highest tobacco 
prices in the world.3623 Further, Australia's automatic increases  of its specific excise based on 
average weekly earnings have been recognized by the WHO as ensuring that tobacco products do 
not relatively become more affordable over time.3624 Indeed, there is evidence that Australia's 
excise increases have been successful  in leading to a decline in consumer affordability.3625 
7.1522.   We also note that a central premise underlying the complainants' alternative appears to 
be that tax increases would be passed on to smokers through an increase in the consumers' price, 
rather than being absorbed by the industry, so as to create the deterrent effect on tobacco use.3626 
To the extent that the benchmark taxation level recommended by the WHO has not been achieved 
due to industry pricing practices, such "over -shift" practices by the industry may augment, rather 
than negate, the reduced affordability of tobacco products that is effected by a tax increase. We 
therefore do not consider the proportion of excise taxes in the total price in itself to be conclusive 
as to the potential degree of contribut ion that would be achieved by increased taxation.   
7.1523.   Taking these considerations into account, we agree that an increase in tobacco excise 
taxes in Australia could, in principle, make a meaningful contribution to Australia's objective of 
improving public hea lth by reducing the use of, and exposure to, tobacco products. Indeed, we do 
not understand Australia to challenge th e proposition  that taxation of tobacco products is capable 
of contributing to the achievement of its objective . 
7.1524.   We therefore consider wheth er such increased taxation would achieve a degree of 
contribution to the objective of reducing use of, and exposure to, tobacco products, equivalent  to 
that made by the TPP measures .  
7.1525.   As described above, it is uncontested that taxation is an effective inst rument of tobacco 
control and would be expected to impact consumer behaviour, and thereby contribute to the 
objective of reducing the use of, and exposure to, tobacco products. Australia has accordingly 
implemented scaled increases of its own tobacco excis e for the same public health objective as 
that pursued by the TPP measures , and with indications of its intention to continue to do so in the 
future as part of its comprehensive tobacco control strategy.3627 In this case, we consider it highly 
relevant that p art of this comprehensive strategy entails a version of the alternative proposed, 
which Australian authorities have successively augmented in the past while taking into account 
potentially undesirable impacts of increased taxation.3628 We have also noted evid ence that 
                                                
3621 Tobacco Excise Increase PIR , (Exhibits AUS -292, HND -80, DOM -119, CUB -64, IDN -21), para. 91. 
We note in this connection the Dominican  Republic 's observation that "the  tax-to-retail price ratio is just one 
benchmark for assessing levels of taxation, and not necessarily the most appropriate", as "[t]here are several 
other benchmarks used to assess the affordability of tobacco products". Dominican  Republic 's second writte n 
submission, para. 662. For instance, the WHO has also examined the measure of tobacco affordability based on 
the relationship between per capita income growth and the rise in tobacco prices, and has further noted that 
"[t]ax as a proportion of price does  not tell the whole story". See WHO Report on the Global Tobacco 
Epidemic  2015, (Exhibit s AUS-595, DOM-319), p p. 82 and 112.  
3622 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 107. 
3623 See WHO Report on the Global Tobacco Epidemic 2015, Appendix IX , (Exhibit AUS-595.A), 
Table  9.1, Graph 9.2.0.  See also fn 3596 above.  
3624 See WHO Report on the Global Tobacco Epidemic 2015, (Exhibit s AUS-595, DOM-319), p. 39; an d 
Chaloupka Rebuttal Report , (Exhibit AUS -582), para. 28. 
3625 British American Tobacco Australia, Submission to the Australian Government's Re:think – Tax 
discussion paper consultation, 5 June 2015, ( BATA Submission  on Australian Government Tax Discussion 
Paper), (Exhibit AUS -593), p. 9; and Chaloupka Rebuttal Report, (Exhibit AUS -582), para. 28.  
3626 See, e.g. WHO Tobacco Tax Simulation Model, (Exhibit CUB-63), p. 9. 
3627 See Australia's second written submission, para. 552; and National Tobacco Strategy 2012 -2018, 
(Exhibits AUS -129, DOM -131), p. 20. 
3628 See NPHT Technical Report 2, (Exhibits AUS -52, JE-12), p. 15 (providing recommendations to 
increase taxation in conjunction with effective measures to prevent revenue evasion and better services for 
quitters); an d Response to NPHT, The Roadmap for Action, (Exhibits AUS -116, JE-15), p. 63 (noting that the 
Australian government declined to pursue the full excise increase advocated by the Preventative Health 
Taskforce in light of potential financial stress among peop le who continue to smoke).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  tobacco prices in Australia are among the highest in the world, and that indexation of excises to 
wages has been recognized as contributing to reduced affordability of tobacco products.  
7.1526.   Nonetheless, we are not persuaded that substituting  the TPP measures  with additional 
tobacco taxation would result in an equivalent contribution to Australia's objective. The 
complainants have argued that the level of taxation could be calibrated to replicate any 
contribution made by the TPP measures . However, eve n assuming that the exact reduction in 
overall consumption caused by the TPP measures  could be isolated and quantified, an increase in 
taxation designed to achieve the same overall reduction would necessarily leave in place those 
aspects of tobacco product  and retail packaging that the TPP measures  address as "part of a more 
complex suite of measures directed at the same objective" of tobacco control.3629 Indeed, we have 
already found that the TPP measures  contribute to Australia's objective, inter alia by removing the 
types of images and associated messages that may be conveyed by tobacco packaging that are of 
such a nature as to be capable of conveying a belief that initiating tobacco use can fulfil certain 
needs, to which youth and young adults are pa rticularly vulnerable, and by influencing smoking 
cessation or relapse by acting on the ability of the pack to act as a conditioned cue for smoking 
and thus affect the ability of smokers to quit smoking, or not relapse. We have also found that, 
more genera lly, by removing the opportunity for the packaging to have such effects, plain 
packaging is apt to reduce the appeal of tobacco products, enhance the effectiveness of GHWs and 
reduce the ability of the retail packaging of tobacco products to mislead consum ers about the 
harmful effects of smoking or using tobacco products, and, as a consequence, have an impact on 
smoking behaviours.  
7.1527.   We are mindful that a proposed alternative measure need not achieve a degree of 
contribution identical to that achieved by the  challenged technical regulation in order for it to be 
found to contribute to an equivalent  degree of contribution. At the same time, as described above, 
we consider that the operation of the TPP measures , including their contribution to Australia's 
object ive of reducing the use of , and exposure to , tobacco products, must be viewed against the 
broader context of the comprehensive strategy designed and implemented by Australia to address 
tobacco control. In this connection, we note that were an increase in t obacco excise tax 
implemented in Australia as a substitute for the TPP measures , the effects of tobacco packaging 
that the TPP measures  seek to address, including any images or messaging conveyed by tobacco 
packaging and the ability of the pack to act as a  conditioned cue, would not be addressed, and any 
associated impact on smoking behaviours  would be foregone . We further note, in this re spect, that 
while taxation as an instrument of tobacco control may contribute to reducing prevalence and 
intensity of sm oking generally3630, the limitations of tobacco taxation as an isolated measure are 
recognized in the FCTC Guidelines for Implementation of Article  63631, which state that "tobacco 
taxes do not exist in a vacuum and should be implemented as part of a comprehensi ve 
tobacco -control strategy".3632 In our view, this statement is consistent with the potential indirect 
effects that may need to be accounted for in the implementation of increased taxation, as well as 
the failure of increased taxation to address aspects of t he appearance of tobacco products and 
their retail packaging that are addressed by the TPP measures .  
7.1528.   We consider the situation before us to be one in which "[s]ubstituting one element of this 
comprehensive policy for another would weaken the policy by red ucing the synergies between its 
components, as well as its total effect."3633 While different measures may have the capacity to 
contribute through various means to the same objective of reducing the use of, and exposure to, 
tobacco products, this does not imp ly that they would be interchangeable or substitutable, and 
thereby constitute "alternatives" to each other, where each measure is intended to address a 
distinct aspect of a multifaceted problem, and where the comprehensive and complementary 
nature of the measures is an integral part of the approach pursued. In such a context, the removal 
                                                
3629 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216 fn 660. 
3630 As discussed above, the imposition of taxes may entail competitive impacts between tobacco brands 
and products as well as the potential  for incidental effects relating to illicit trade, tax evasion, and financial 
hardship on lower -income groups of the population. See, e.g. WHO Tobacco Tax Manual, Full Text, (Exhibit 
CUB-62), Chapter 4.  
3631 See para. 7.1509  above.  
3632 Article  6 FCTC Guidelines, (Exhibit AUS -111), Section 1.6, p. 2. See also ibid. Section 1, 
"Introduction", p. 1. 
3633 Appellate Body Report , Brazil  – Retreaded Tyres , para. 172. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  of one element of the comprehensive policy may, as the Appellate Body has described it, weaken 
the policy by reducing the synergies between its components, as well as its total effect.  
7.1529.   In addressing the particular risks arising from tobacco use and exposure, it is recognized 
that "a combination of measures may be appropriate" and the public health objective in this case 
is pursued by "different measures [that] address diff erent aspects of the same risk and 
complement each other towards addressing this risk".3634 Specifically, the TPP measures  occupy a 
role as a contributing element in the comprehensive tobacco control regime maintained by 
Australia, which includes in particula r a total prohibition on advertising and promotion and GHWs, 
as well as regular scaled increases of tobacco taxation. In this context, as discussed above, the 
TPP measures  contribute to reinforcing, and avoid undermining, the broader prohibition on 
adverti sing and promotion for tobacco products and GHWs that Australia also maintains, neither of 
which is challenged in these proceedings. We also note that, as discussed above, Australia also 
already maintains a high level of excise and other taxes on tobacco p roducts, as an integral 
component of its comprehensive tobacco control strategy. In this context, an increased tobacco 
excise without the simultaneous contribution by the TPP measures , described above, would impact 
consumer behaviour while at the same time  preserving packaging features and brand appeal that 
could possibly frustrate or undermine the price disincentive effected by excise increases.3635  
7.1530.   As provided in Article  2.2, we also take account of the risks non -fulfilment of Australia's 
objective would cr eate, particularly considering the nature of the risks and gravity of the 
consequences that are posed by tobacco use and exposure. The risk to human health from the use 
of, and exposure to, tobacco products is recognized to be particularly grave.3636 In our v iew, this is 
consonant both with Australia's aim of closing potential regulatory gaps in its broader approach to 
tobacco control3637, as well as WTO Members' entitlement under the TBT Agreement  to pursue 
legitimate regulatory objectives at levels they conside r appropriate.3638 
7.1531.   In light of all these elements, we are not persuaded that the complainants have 
demonstrated that increased tobacco taxation, as a substitute for the TPP measures , would 
achieve Australia's objective to an equivalent degree, taking into acc ount the nature of the 
objective, the risks non -fulfilment would create, and the evidence before us regarding the 
TPP measures ' complementarity with other existing tobacco control measures.  
7.2.5.6.3.5   Whether an increase in taxation of tobacco products is reasonably available 
to Australia  
Arguments of the parties  
7.1532.   Honduras  argues that the proposed tax increase is reasonably available  to Australia, since 
it does not involve substantial technical difficulties or prohibitive costs, and because Australia had 
adopted various tax increases over the past years.3639 Honduras adds that 54 other FCTC parties 
had reached a 70% tax rate by 20153640, and 25 other parties have a higher overall tax than 
Australia.3641 With reference to Australia's argument that its taxes do not account for 70% of the 
retail price of tobacco products because of industry pricing policy, Honduras submits that it "is no 
defense" to "blame its own regulatory failure on the industry when the industry is merely 
implementing common and well -understood pricing policies".3642 Honduras asserts that the 
industry does not react differently in Australia than it does in any other markets where tax 
                                                
3634 Panel Report, Brazil  – Retreaded Tyres , para. 7.213.  
3635 See WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), p p. 45, 51, 105.  
3636 See para. 7.1310  above. Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , 
fn 660. 
3637 See, e.g. Australia's first written submission, para. 45; response to Panel question No. 64, 
para. 144; and response to Panel question No. 152, para. 56. 
3638 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3639 Honduras's first written submission, paras.  600 and 922; and second written submission, para. 221. 
3640 Honduras's second written submission , para. 702. 
3641 Honduras's second w ritten submission , para. 703. 
3642 Honduras's second written submission , para. 702. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  increases are frequently complemented with price increases because such price increases are less 
noticeable when they are combined with tax increases.3643 
7.1533.   The Dominican Republic  also submits that excise tax increases on tobacco products are 
reasonably ava ilable  to Australia, as there would be no additional government administrative or 
enforcement costs for an increased tax rate. The Dominican Republic adds that increased tax rates 
may increase overall revenue, which could be earmarked to fund tobacco contr ol programmes that 
promote cessation and prevent initiation of tobacco use (including the social marketing 
programmes, also advocated by the Dominican Republic).3644 The Dominican Republic also submits 
that Australia's current taxes do not meet the WHO's reco mmendations for tobacco products, i.e. 
that total taxes (the sum of excise tax, general sales tax, value -added tax, etc.) account for at 
least 75% of the retail price3645 and notes that these WHO recommendations take account of the 
fact that the tobacco indus try (like any other industry) raises its prices over time, such that 
"sustained" tax increases are needed to "raise" and "preserve" the share of excise tax in the 
price.3646 
7.1534.   Cuba argues that gradual tax increases are "reasonably possible and less 
trade -restrictive".3647 Cuba refers to the WHO's Tobacco Tax Simulation Model and argues that the 
"Australian Treasury is able easily to conduct the analyses that would allow for this alternative 
measure to be adopted and implemented successfully".3648 Cuba also considers t hat Australia has 
not rebutted the argument that its tobacco taxes are lower than the WHO recommendation of 70% 
of the retail price, that it is "no defence" to blame industry pricing policy for its own regulatory 
failure, and that 38 States Parties to the FCTC (and Cuba) met the objective of 70% in 2013 
contradicting Australia's assertions.3649 
7.1535.   Indonesia  also argues that tax increases are reasonably available  as they are already in 
effect, as evidenced by Australia's 25% tobacco tax increase in April 2010, and  the four annual 
12.5% increases announced by Australia that began in December 2013. Indonesia notes that even 
with planned tax increases, Australia's level of tobacco taxation remains low by international 
standards and is below the WHO's recommended targe t of 70% (Indonesia points out that "the 
Australian Treasury Department estimated that Australia's total excise tax rate was only at 60 per 
cent" in its PIR of the April 2010 25% tax increase).3650 
7.1536.   Australia  submits that the complainants have not specified "w ith any precision" the 
magnitude of the excise increases they propose as an alternative measure. To the extent the 
complainants advocate excise increases in excess of those already, or to be, introduced, Australia 
argues that it balances its tobacco contro l objectives against other considerations, such as the 
extent to which tax increases result in financial hardship for those smokers who are unable to give 
up their addiction3651, which, Australia states, is "entirely consistent" with Article  6 of the FCTC, 
which states that its recommendations are "[w]ithout prejudice to the sovereign right of the 
Parties to determine and establish their taxation policies".3652 
7.1537.   Australia further argues that the complainants' attempts to compare Australia's policy 
unfavourably wit h the WHO recommendation that taxes account for 70% of the retail prices of 
tobacco products are not credible, as Australia's excise taxes and tobacco prices are among the 
highest in the world. In addition, Australia contends that the tobacco industry has "typically 
'over-shifted' excise increases", with the effect that the "70% tax/price ratio effectively becomes a 
                                                
3643 Honduras's comment s on Australia's response to Panel question No. 158. 
3644 Dominican  Republic 's first written submission, paras.  762 and 1021; and second written submission , 
paras. 657-669. 
3645 Dominican  Republic 's comment s on Australia's response to Panel question No. 158 ( referring to  
WHO Report on the Global Tobacco Epidemic 2015, (Exhibit s AUS-595, DOM-319), p. 78). 
3646 Dominican  Republic 's comment s on Australia's response to Panel question No. 158 ( referring to  
WHO Report on the Global Tobacco Epidemic 2015, (Exhibit s AUS-595, DOM-319), p p. 39 and 82).  
3647 Cuba's second written submission, para. 342. 
3648 Cuba's first written submission, para. 279. 
3649 Cuba's second written submission, para. 343. 
3650 Indonesia's first written submission, para. 432. 
3651 Australia's first written submission, para. 738; and response to Panel question No. 158. 
3652 Australia's first written submission, paras.  738-739. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  moving target".3653 Australia adds that "while this strategy means that Australia moves more 
slowly towards the 70% target than would otherwise be  the case, it in fact enhances the 
effectiveness of Australia's excise increases by providing an additional boost to price".3654 
Analysis by the Panel  
7.1538.   The Panel notes that the WHO and tobacco control experts have recognized the 
cost-effective nature of taxati on as a tobacco control measure. In this regard, it has been noted 
that higher tobacco taxes generate additional government revenue while at the same time 
reducing tobacco consumption.3655 The relatively low price elasticity of demand for tobacco 
products (less than -1.0), as well as a relatively low share of excises in retail prices3656, is 
indicative that there may be room to increase excises in a manner that would increase revenues 
while st ill reducing tobacco consumption.3657 As a general matter, there is also evidence before us 
to suggest that, in comparison to other tobacco control measures, the taxation of tobacco products 
entails relatively little governmental expense.  
7.1539.   At the same time, w e are mindful that the imposition or escalation of tobacco taxation 
may pose potential challenges and administrative burdens. These may relate, for example, to illicit 
trade, domestic employment, tax avoidance and evasion, and the regressivity of tax rates  for 
lower -income groups of the population.3658 This suggests that, notwithstanding its relative 
cost-effectiveness for governments, increased taxation may present a variety of potential concerns 
that may need to be taken into account within a specific regula tory and market context. In this 
regard, we note that Australia's past excise increases have reflected consideration of other factors 
such as financial stress among those who continue to smoke and the prevention of illicit trade in 
tobacco.3659 
7.1540.   Nevertheless, we do not understand Australia to argue that it is incapable of increasing its 
existing taxes on tobacco products, for example due to prohibitive costs or substantial technical 
difficulties.3660 In addition, we note the existence of resources and models that provide elaborate 
guidance for tobacco tax administration across different settings and situations to facilitate 
governments' utilization of taxation as a public policy tool while accounting for the burdens and 
potential complexities of implementation and administration.3661  
7.1541.   We therefore conclude that the implementation of increased taxation of toba cco products 
would be a measure  reasonably available to Australia, to the extent that it would be feasible in 
practice.  
7.2.5.6.3.6   Overall conclusion on increased taxation as  an alternative to the 
TPP measures  
7.1542.   On the basis of the foregoing, we have concluded above that the complainants' proposal 
that Australia adopt increased taxation of tobacco products would be an alternative measure, in 
that it is not currently being applie d by Australia.  
                                                
3653 Australia's fi rst written submission, para. 708; and response to Panel question No. 158. 
3654 Australia's response to Panel question No. 158. 
3655 WHO Tobacco Tax Simulation Model, (Exhibit CUB-63), p. 1. See also WHO,  Raising Tax on Tobacco, 
(Exhibit IDN-88), p. 6 ("[r]aisin g taxes on tobacco is the most cost -effective solution for reducing tobacco use 
in all types of settings" ). 
3656 See WHO Report on the Global Tobacco Epidemic 2015, Appendix IX,  (Exhibit AUS-595.A), Graph 
9.1.0; and WHO Report on the Global Tobacco Epidemic 2015, (Exhibit s AUS-595, DOM-319), Table 2.3.6.  
3657 WHO Tobacco Tax Manual, Full Text, (Exhibit CUB -62), p. 71. 
3658 See, e.g. WHO Tobacco Tax Manual, Full Text, (Exhibit CUB-62), Chapter 4; WHO Tobacco Tax 
Simulation Model), (Exhibit CUB-63); and  Tobacco Excis e Increase PIR , (Exhibits AUS-292, HND -80, DOM -119, 
CUB-64, IDN -21), paras.  96-110. 
3659 See Response to NPHT, The Roadmap for Action, (Exhibits AUS -116, JE -15), p. 63; Tobacco Excise 
Increase PIR , (Exhibits AUS-292, HND -80, DOM -119, CUB -64, IDN -21), paras.  99-100; and National Tobacco 
Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 20. 
3660 See Appellate Body Report, Brazil  – Retreaded Tyres , para. 156. 
3661 See WHO Tobacco Tax Simulation Model, (Exhibit CUB -63). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1543.   However, we have also found that we are not persuaded that the complainants have 
demonstrated that increased taxation would be less trade -restrictive than the TPP measures . In 
this context, we have found, inter alia, that taxation is recog nized to give rise, including on the 
Australian market, to the type of "downtrading" or "downward substitution" effects that are of 
concern to the complainants in respect of the TPP measures . 
7.1544.   We also concluded that, while increased taxation could be expect ed to make a meaningful 
contribution to Australia's objective of improving public health by reducing the use of, and 
exposure to, tobacco products, we are not persuaded that, as a substitute to the TPP measures , it 
would make an equivalent contribution to this objective, as it would leave unaddressed a number 
of aspects of demand for tobacco products that are addressed by the TPP measures  as part of 
Australia's comprehensive tobacco control strategy. In making this finding, we have taken into 
account the de sign of the TPP measures , the risks that non -fulfilment of the TPP measures ' 
objective would create, as well as the broader context of Australia's comprehensive suite of 
measures directed at reducing the use of, and exposure to, tobacco products, including  the fact 
that it currently already maintains high levels of taxation on tobacco products.3662 
7.1545.   We therefore find that the complainants have not demonstrated that increased tobacco 
taxation would be a less trade -restrictive alternative to the TPP measures , that would make an 
equivalent contribution to Australia's objective.  
7.2.5.6.4   Third proposed alternative measure: social marketing campaigns  
7.1546.   All complainants  argue that "improvements" to3663, or "effective"3664, social marketing 
campaigns in Australia would be a less trade -restrictive alternative to the TPP measures , which 
would make an equivalent contribution to Australia's objective.  
7.1547.   Australia 's primary argument in response to this proposed alternative is that it " has a 
long history of using education and social marketing  campaigns as a tobacco control measure", 
and that the complainants' "attempt to dress -up an existing Australian tobacco control measure as 
an 'alternative' is simply not credible".3665 We therefore consider the proposal by the complainants, 
before turning to  Australia's argument on this point.  
7.2.5.6.4.1   Description of the proposed measure  
7.1548.   Honduras  proposes as an additional alternative "improve[ments to] key aspects of 
Australia's existing anti -smoking social marketing campaigns".3666 
7.1549.   Specifically, Honduras refers to an e xpert report by Professor Keller jointly submitted by 
Honduras and the Dominican Republic.  In this report, Professor Keller submits that Australia's 
National Tobacco Campaign's (NTC) "main campaign" has consistently failed to contribute to 
Australia's goal  of reducing smoking prevalenc e, and that the NTC is deficient in all of the eight 
steps that should be used for the development of an effective social marketing campaign.3667 
7.1550.   Professor Keller presents an alternative social marketing campaign which consists o f 
specific changes to the NTC campaigns for each stage of this framework, which Honduras 
summarizes as follows:  
a. Step 1: segment the target audience on the basis of "usage status" and age, which 
would provide three distinct ways of reaching the Australian p opulation: by lowering 
                                                
3662 See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
3663 Honduras's first written submission, paras.  626, 927.  
3664 Dominican  Republic 's first written submission , para. 779. Cuba "adopts" the arguments put forward 
by the Dominican  Republic  in respect of  social media  campaigns . Cuba's first written submission, para. 288. 
Indonesia "endorses" the alternatives "proposed by" the Dominican  Republic 's regarding "increasing the 
effectiveness of social marketing campaigns". Indonesia's first written submission, para. 457. 
3665 Australia's first written submission, para. 714. 
3666 Honduras's first written submission, paras.  626 and 927.  
3667 Honduras's first written submission, para. 633. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  smoking initiation; achieving higher cessation rates; as well as enabling lower relapse 
levels.3668 
b. Step 2: determine objectives, which should be applied for each communication objective 
and for each target audience.3669 
c. Step 3: redesign t he message in a manner that should reflect and amplify the needs of 
each of its target audiences.3670 
d. Step 4: select the communication channels, which, instead of relying primarily on TV and 
other mass media, should include multiple channels, particularly cha nnels that facilitate 
personal communication. Moreover, new message themes and the communication 
channels would be chosen, which use personal testimonies presented online and on 
social media.3671 
e. Step 5: establish media budget accountability, using four concr ete strategies: (i) NTC 
marketers should use the Centre for Disease Control's … MessageWorks to identify the 
most effective message, and to test -run multiple messages for Non-smokers and 
Reflectors  before they are launched; (ii) NTC use social media and mH ealth (SMS and 
text messages) to reduce communication costs; and (iv) the NTC should build 
relationships with partners, especially network partners and service providers, to get pro 
bono air time, bandwidth or server space, and thereby lower costs to deliv er personal 
messages to target audiences.3672 
f. Step 6: decide on the media mix, shifting the thrust of its activities on social networks 
and internet -based channels, especially to address young adult " Reflectors ".3673 
g. Step 7: improve evaluation design and metrics.3674 
h. Step 8: manage integrated marketing communications, by integrating programs, 
campaigns, messages, and communication channels in the following manner: (i) improve 
coverage; (ii) improve contribution; (iii) improve commonality; (iv) improve 
complem entarity; (v) improve conformability; and (vi) improve costs.3675 
7.1551.   The Dominican Republic  argues that a less restrictive alternative to the TPP measures  is 
"the formulation and execution of effective social marketing campaigns in Australia", also with 
referenc e to the expert report by Professor Keller.3676 The Dominican Republic describes social 
marketing campaigns as "public service messages transmitted over a range of communication 
platforms (e.g. advertising online and social media, mobile marketing, direct mar keting and 
personal selling) to reach vulnerable segments of the population".3677 The Dominican Republic 
asserts that Australia has failed to make effective use of social marketing campaigns, and that its 
recent social marketing campaigns under the umbrella o f the NTC "have not had any appreciable 
                                                
3668 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  111-123).  
3669 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  124-128).  
3670 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  129-135).  
3671 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  136-140).  
3672 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  141-145).  
3673 Honduras's first writte n submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  146-152).  
3674 Honduras's first written submission, para. 635 ( referring to  Keller Report , (Exhibit DOM/HND -8), 
paras.  153-156).  
3675 Honduras's first written submission, para. 635.  
3676 Dominican  Republic 's first written submission , para. 779. 
3677 Dominican  Republic 's first written submission , para. 781 (quoting Keller Report , (Exhibit 
DOM/HND -8), para. 5). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 542 - 
  results regarding key behavioural metrics over the last years".3678 More specifically, Professor 
Keller points out that recent campaigns do not target the prevention of smoking initiation and 
relapse but only focus on e fforts to encourage attempts to quit among an overly broad group of 
existing smokers aged 16 -40.3679 The Dominican Republic thus refers to Professor Keller's 
proposed social marketing campaigns, using the same eight -step process described by 
Honduras.3680 The Do minican Republic summarizes this as follows:  
Professor Keller recommends an improvement of NTC's current social marketing 
campaign with the goal of developing a multi -channel campaign that target audiences 
will perceive as relatable and relevant to their o wn situation. The campaign would be 
tailored to meet the target audiences' needs, while reducing NTC's development and 
transmission costs by leveraging empirical tools to design more effective messages, 
using online and social media to reduce creation and dissemination costs, and by 
getting pro bono air time, bandwidth, and exposure through partner organizations and 
corporate sponsors.3681 
7.1552.   Cuba "adopts the arguments put forward by the Dominican Republic" with respect to 
implementing more effective social media  campaigns.3682  
7.1553.   Indonesia  "endorses [the alternative measures] proposed by the Dominican Republic 
regarding increasing the effectiveness of social marketing campaigns".3683  
7.1554.   Australia  argues that the complainants' "attempt to dress -up an existing Australian 
tobacco control measure as an 'alternative' is simply not credible".3684 Australia elaborates that it 
"has a long history of using education and social marketing campaigns as a tobacco control 
measure and is regarded as a world leader in this area". Australia ar gues that it has received 
positive reviews across all metrics used by the WHO to analyse campaigns, and cites the 
adaptation of campaigns developed in Australia for use in other countries.3685 
7.1555.   In light of these arguments, we first address Australia's argument  that the proposal does 
not amount to an alternative measure.  
7.2.5.6.4.2   Whether "improved" social marketing campaigns are an alternative measure  
7.1556.   As noted above, the complainants rely on an expert report by Professor Keller in support 
of their contention that the imp rovement of Australia's anti -smoking social marketing campaigns is 
a less trade -restrictive alternative to the TPP measures  that is reasonably available to Australia.3686 
Professor Keller states that:  
The key question that I address in my report is whether Australia was justified in 
implementing plain packaging as a back -up for its failing social marketing campaigns 
for tobacco control, or whether it could simply have improved its existing social 
marketing campaigns such that they create a viable alternative  to plain packaging 
regulation.3687 
7.1557.   Professor Keller also states:  
                                                
3678 Dominican  Republic 's first written submission , para. 782 (quoting Keller Report , (Exhibit 
DOM/HND -8), para. 10). 
3679 Dominican  Republic 's first written submission , para. 782 (quoting Keller Report , (Exhibit 
DOM/HND -8), paras.  11(i) and 89).  
3680 Dominican  Republic 's first written submission , paras.  785-790 (referring to Keller Repor t, (Exhibit 
DOM/HND -8), para. 8 and Section 3).  
3681 Dominican  Republic 's first written submission , para. 786. 
3682 Cuba's first written submission, para. 288. 
3683 Indonesia's first written submission, para. 457; and second written submission , para. 293. 
3684 Austra lia's first written submission, para. 714. 
3685 Australia's first written submission, para. 714 (referring to WHO Country Profile - Australia, (Exhibit 
AUS-281), p. 5); and second written submission, para. 552. 
3686 See Honduras's first written submission, paras . 927 and  626. See also Dominican  Republic 's first 
written submission , para. 779. 
3687 Keller Report , (Exhibit DOM/HND -8), para. 4. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  I limit myself to examining the question brought before me by the Dominican Republic 
and Honduras, namely how a successful anti -tobacco marketing campaign, that could 
make a significant contribution to Australia 's ambitious prevalence objectives, would 
be structured. In so doing, I also assess whether Australia has fully exhausted the 
potential of its current federal social marketing campaigns, and what kind of changes 
in the current camp aigns could further reduce smoking prevalence to a level that is 
equal or superior to the effects generated by plain packaging (if ever there were any 
positive effects from plain packaging). In other words, I examine whether Australia's 
federal social mark eting campaigns can be improved such as to constitute a less 
restrictive alternative to plain packaging.3688 
7.1558.   Professor Keller proceeds to consider the NTC's 2011 –2013 campaigns and identifies what 
are, in her view, a number of shortcomings of those campaigns.  In Professor Keller's description, 
the NTC is the name by which Australia's federal anti -tobacco campaigns are collectively 
known.3689 Professor Keller discusses the "current series of NTC campaigns" (which, she states, is 
from 2011 to the time of her report ), which include the "NTC – Main" campaign, the "NTC – Break 
the Chain" campaign, and the "NTC – More Targeted Approach" campaign.3690 Professor Keller's 
report is based on a "review of all publicly available NTC evaluation reports that the Government of 
Australia's Department of Health has commissioned to assess the success (or lack thereof) of NTC 
campaigns", with a particular "focus on five annual evaluation reports commissioned by [the 
Australian National Preventive Health Agency (ANPHA)] and [Tobacco Cont rol Taskforce 
(TCT)]".3691 Professor Keller then sets out a number of recommendations in respect of "designing 
effective federal social marketing campaigns to reduce smoking prevalence in Australia".3692 It is 
on the basis of these recommendations that the compl ainants identify "improvement of Australia's 
anti-smoking campaigns"3693 and "effective social marketing campaigns" as an alternative to the 
TPP measures .3694 Australia considers that this is not a genuine alternative and is rather an 
"attempt to dress -up" an ex isting measure as an alternative.3695 
7.1559.   We therefore first consider whether the measure identified by the complainants 
constitutes an alternative measure, and in particular to what extent it differs from Australia's 
existing social marketing measures. In doing so, we recall our initial observations that we do not 
exclude that a variation on an existing measure may validly constitute an alternative measure to 
be considered in an assessment under Article  2.2 of the TBT Agreement , and that a measure may 
be a valid alternative where it exists in the responding Member, albeit in a different form from that 
proposed by the complainant.3696 
7.1560.   We first observe that Professor Keller's assessment, as she acknowledges, relates to 
"whether Australia's federal  social marketing camp aigns can be improved such as to constitute a 
less restrictive alternative  to plain packaging".3697 However, responsibility for social marketing 
campaigns in respect of tobacco use in Australia is shared between federal campaigns and 
campaigns undertaken at the state and territory level.  
7.1561.   Professor Keller, while explicitly limiting her assessment to fed eral campaigns, 
acknowledges that "[e ]very State or Territory in Australia has its own tobacco control program 
which organizes anti -smoking social marketing campaigns within its geographic region. Australian 
State and Territory anti -tobacco programs are im plemented through various State and Territory 
organizations. "3698 
7.1562.   Professor Keller notes that Australian state and territory tobacco control programs "have 
memorandums of understanding with the Commonwealth Government to coordinate some aspects 
                                                
3688 Keller Report , (Exhibit DOM/HND -8), para. 6. (emphasis original)  
3689 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 1. 
3690 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 7. 
3691 Keller Report , (Exhibit DOM/HND -8), para. 65. 
3692 Keller Report , (Exhibit DOM/HND -8), Chap.  5. 
3693 Honduras's first written submission, para. 927. 
3694 The Dominican  Republic 's first written submission, para. 779. 
3695 Australia's first written submission, para. 714. 
3696 See para. 7.1385 . 
3697 Keller Report , (Exhibit DOM/HND -8), para. 6. (emphasis added)  
3698 Keller Report , (Exhibit DOM/HND -8), para. 61, fn 92. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  of anti -tobacc o activities".3699 She states that there "exists significant overlap between state and 
federal activities", and that "[d]uplication is especially evident in the anti -tobacco social marketing 
communication and advertising campaigns, and the quit lines".3700 For e xample, Professor Keller 
notes that states and territories operate their own quit lines, produce their own anti -smoking 
campaigns and messages, fund and conduct their own smoking research, train health 
professionals, print their own posters, pamphlets and brochures, and provide sponsorship of 
organizations and events.3701 In Australia's description, state -level campaigns are "typically 
focused on 'Quit week' activities", but also encompass mass media campaigns, sports 
sponsorships, community events, and educat ion campaigns in schools, hospitals, worksites, health 
centres and other community -based events.3702 We note that the division of responsibility for 
delivery of Australia's social marketing campaigns is further elaborated in Australia's National 
Tobacco Strat egy 2012 -2018, which indicates that responsibility for "run[ning] effective mass 
media campaigns (including television, radio, print and digital media formats) at levels of reach 
and frequency demonstrated to reduce smoking and based on current best practi ce principles", as 
well as other social media -related responsibilities, is to be shared between the Australian 
Government, and state and territory governments (and in some cases non -government 
organisations as well) .3703 
7.1563.   It is therefore clear to us that, as Australia suggests3704, a thorough and accurate 
assessment of Australia's social marketing landscape must include an assessment of those social 
marketing measures that exist at the federal, and state and territory, levels. Such an assessment 
is, in our view, essential considering that the complainants' alternative in this respect relates to 
the "improvement of Australia's anti -smoking campaigns"3705 and "effective social marketing 
campaigns"3706, and is not limited to the NTC, even though Professor Keller's report i s focused 
exclusively on measures at the federal level and specifically on the NTC. Consideration of 
campaigns other than the NTC is absent from Professor Keller's report, with the exception of where 
Professor Keller argues that there is insufficient integ ration between social marketing activities at 
these different levels of government.3707 We are therefore not persuaded that Professor Keller's 
report presents a thorough audit of the use of social media campaigns in Australia.3708 
7.1564.   Notwithstanding this observatio n, Australia's argument is that the complainants' 
assertions about social marketing as an alternative to the TPP measures  do not amount to them 
having identified a genuine alternative, but rather is an "attempt to dress -up" an existing measure 
as an altern ative.3709 We will now consider this question, notwithstanding the fact that Professor 
Keller's criticisms are limited to federal anti -smoking campaigns under the umbrella of the NTC.3710  
                                                
3699 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 18. 
3700 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 18. 
3701 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 18. 
3702 Tobacco in Australia 2012, IDN excerpts , (Exhibit IDN-24), p. 12. 
3703 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131) p. 18. Other rel evant areas of 
shared responsibility include: "continue mass media campaigns targeted to Aboriginal and Torres Strait 
Islander people, including robust evaluation to inform future campaign strategies"; "continue to monitor the 
appropriateness and effective ness of recommended media weights and media types/channels, including 
exploration of the potential role of digital media such as YouTube, Facebook and Twitter"; "continue to 
implement national tobacco campaigns and state and territory campaigns, including a balance of existing 
material with proven effectiveness and a suite of new materials"; "enhance collaborative action between the 
Australian Government, state and territory governments and non -government organisations to maximise the 
effectiveness of mass media campaigns"; "complement the implementation of tobacco control policies (e.g. 
new health warnings on packs and plain packaging) with mass media campaigns to enhance cessation efforts 
by smokers"; "continue to build the evidence base on the effectivene ss of mass media to inform and refine 
future campaign development, including specific analysis of the effectiveness of these campaigns among 
groups with a high prevalence of smoking"; and "continue to share campaign materials, evaluations and other 
evidenc e of effectiveness of mass media campaigns with the global tobacco control community".  
3704 Australia's first written submission, paras.  715-716. 
3705 Honduras's first written submission, para. 927. 
3706 Dominican  Republic 's first written submission, para. 779. 
3707 Keller Report , (Exhibit DOM/HND -8), Annex 3, paras.  54-61. 
3708 Keller Report , (Exhibit DOM/HND -8), para. 81. 
3709 Australia's first written submission, para. 714. 
3710 We note Professor Keller's general observations that the NTC has "failed to increase quit actions and 
quit-related behaviour", and her criticisms of the indirect contribution made by the NTC to Australia's 
objectives, including that: the NTC is not a sign ificant motivator for quitting; the NTC did not increase the 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1565.   Professor Keller conducts a "social marketing audit of Australia's federa l social marketing 
campaigns" from 2011 to 2013, in which she "assess[es] the reasons for the weak performance of 
Australia 's federal social marketing campaigns over the period 2011 to 2013".3711 She does so with 
reference to an 8 -step framework used by "acad emics and public health professionals" to develop 
effective marketing communications. As described above, this involves the following steps:  
Figure 17: Framework proposed by Professor Keller regarding effective marketing 
communicat ions 
 
Step 1  Step 2  Step 3  Step 4  Step 5  Step 6  Step 7  Step 8  
 
 
Source:  Keller R eport, (Exhibit DOM/HND -8), para.  8. 
 
7.1566.   As a preliminary observation, Professor Keller argues that "[d]uring the 2011 to 2013 
period, NTC has focused almost exclusively on smoking cessation strategies, with some limited 
emphasis on preventing relapse , and virtually no NTC campaigns specifically targeted at the 
prevention of smoking initiation ".3712 For Professor Keller, "the omission of initiation -related 
communication is one of the key flaws in Australia 's current federal social marketing efforts".3713 
Professor Keller adds that, "[a]long the same lin es, smokers aged 40 and older are not targeted by 
the NTC, despite the facts that Australia explicitly wishes to discourage smoking uptake and 
relapse and to encourage quitting for all Australians", and that "[p]eople aged 40 –49 were the age 
group most lik ely to smoke daily (16.2%)"; "[p]eople aged 18 –49 today are far less likely to 
smoke daily than they were 12 years ago, but over the same period, there was little change in 
daily smoking by people aged 60 or older"; and "[o]ver time, smokers in general red uced the 
average number of cigarettes smoked per week, from 111 cigarettes in 2010 to 96 in 2013", 
though "[s]mokers aged 50 –69 […] continued to smoke the largest number of cigarettes per week 
on average (about 120), nearly double the number for smokers in  their 20s (about 75)".3714 
7.1567.   Professor Keller then assesses the NTC's social marketing campaigns between 2011 and 
2013 according to the 8 -step approach described above, and makes a number of 
recommendations:  
                                                                                                                                                  
range of health harms and the certainty of health damage associated with smoking; the NTC has failed to 
strengthen anti -smoking norms and attitudes; the NTC has failed to enhance desire to quit s moking; the NTC 
has failed to enhance perceived behavioural control; and the NTC has failed to strengthen intentions to quit 
smoking. Professor Keller summarizes that:  
 
Compared to the 2010 benchmark period, the contemporary series of NTC campaigns under t he 
umbrella of the NTC has failed to change smoking behavior and quit -related actions, such as 
trying nicotine replacement therapy, talking to a health professional, or even accessing 
information on the QuitNow website. While almost all Australians are awa re of the negative 
health effects of smoking and of the NTC 's anti -smoking messages, a consistently small minority 
of 2% gave the NTC credit for having been able to quit. Significant changes in NTC 's impact on 
the antecedents of a potential behavior change  (such as attitudes, social norms, perceived 
behavioral control, and intentions to quit) are equally absent, which exacerbates the situation.  
 
NTC had evidence spanning three consecutive years that the national anti -smoking campaigns 
were not working. By r epeatedly ignoring evaluation data, NTC has missed multiple opportunities 
to improve the effectiveness of Australia 's federal anti -smoking campaigns, for example by 
creating more effective anti -smoking messages and refraining from airing messages verifiabl y 
deemed to be ineffective by Australian smokers. Instead, Australia continued to increase NTC 
funding, despite unequivocal evidence on absence of significant improvements toward 
communication and behavioral goals.  
 
See Keller Report , (Exhibit DOM/HND -8), paras.  70-80. 
3711 Keller Report , (Exhibit DOM/HND -8), para. 81. 
3712 Keller Report , (Exhibit DOM/HND -8), para. 84. (emphasis original)  
3713 Keller Report , (Exhibit DOM/HND -8), para. 86. 
3714 Keller Report , (Exhibit DOM/HND -8), para. 87. (emphasis original)  
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  a. The NTC 's segmentation and targeting strategy is deficient . In respect of this criticism, 
Professor Keller recommends i) segmentation of the market using behavioral 
segmentation because, "[a]ccording to Australia 's own research, the key need is to 
provide support services to help smokers who want to quit , to help smokers stay 
non-smokers, to help smokers who don 't believe they are smokers ( e.g. people who 
smoke cigars and cigarillos), and to help people resist the peer pressure to start 
smoking". For each of these segments, Australia should identify the a ge (12 - 17, 18 -24, 
25+ years) and usage behavior ( Non-Smokers , "Rejectors ", "Reflectors ", Quitters )".3715 
It should then ii) evaluate these segments, by considering "predetermined segment 
attractiveness criteria such as need (size, vulnerability, how large is  the group), 
vulnerability (level of health risk), accessibility (personal and non -personal reach), and 
responsiveness (how likely are they to change their behaviour).3716 
b. The NTC 's communication objectives are mis -specified . In respect of this criticism, 
Professor Keller recommends that Australia apply the "SMART" principle (definition of 
specific, measurable, attainable, realistic, time -bound criteria) for each communication 
objective and for each target audience. Professor Keller suggests that an "example o f a 
'SMART' objective is to reduce smoking initiation rates among adolescent Non-Smokers  
by 0.25% per year, from approximately 1.5% to 1.25% in 2015", and that the 
"overarching behavioral objectives [of] 'reducing initiation', 'induc[ing] quitting', and 
'prevent[ing] relapse' should guide the marketer to establish concrete process goals".  
c. The NTC's messages are flawed in their design . In respect of this criticism, Professor 
Keller recommends that Australia tailor the messages to reflect and amplify the need s of 
different target audiences; conduct new, and use existing, research on audience needs 
to create relevant message content for target audiences; modify the content of NTC 
messages through i) inclusion of social consequences of smoking in the message; an d ii) 
provision of concrete guidelines on how to quit smoking; creation of positive, 
empowering messages that emphasize the benefits of not smoking rather than the 
harmful effects of smoking; and the use of credible (familiar, relatable, authentic, 
success ful, and trustworthy) sources and positive images ( e.g. people who have quit 
successfully), to communicate the message.3717 
d. NTC's selection of communication channels is unbalanced and too mass media -centric . In 
respect of this criticism, Professor Keller recommends the selection of proper 
communication channels that efficiently support key messages and enable social 
marketers to reach the target audience (i.e. channels that facilitate personal 
communication, and integrated face -to-face and digital channels ), rather than relying 
primarily on TV and other mass media. Professor Keller also recommends ensuring that 
the communication channels fit with message content and execution; more usage of 
online, social media, and personal communication channels, and less  mass media 
advertising ).3718 
e. NTC's budget allocation is erratic, allots insufficient funds to social media, and lacks 
transparency . In respect of this criticism, Professor Keller recommends application of the 
objective -and-task method3719 to determine the budge t for each target audience; 
leveraging social media to reduce communication costs; use of assessment tools such as 
                                                
3715 Keller R eport, (Exhibit DOM/HND -8), paras.  92 and 127 -132. 
3716 Keller Report , (Exhibit DOM/HND -8), paras.  92 and 133 -137. 
3717 Keller Report , (Exhibit DOM/HND -8), paras.  101 and 143 -149. 
3718 Keller Report , (Exhibit DOM/HND -8), paras.  105 and 150 -154. 
3719 Professor Keller elaborates on this method in the following terms:  
 
In marketing, there are three main methods used to determine an advertising budget: (i) the 
affordable method ( i.e., available budget); (ii) the competitive parity method (benchmark budge t 
against what is spent by competitors); and (iii) the objective -and-task method ( i.e., sum of costs 
of tasks required to meet the objective). Although the objective -and-task method is typically 
used to determine the budget for mass media advertising, it m ay equally be used to determine 
campaign costs for personal communication campaigns as well.  
 
Keller Report , (Exhibit DOM/HND -8), para. 41. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  MessageWorks to design more effective and cost -saving messages; and teaming up with 
partners, especially network partners and service provide rs, to get pro bono airtime and 
lower costs to deliver personal messages.3720 
f. NTC's media mix decisions are ineffective . In respect of this criticism, Professor Keller 
recommends that the media plan reflect target audience needs, and identify those 
sources of  information that influence the target audience; the use of less mass media 
advertising and more social networks and personal influence, including "mHealth"3721 
applications such as SMS and text messaging; the creation of fewer but more effective 
mass media a dvertising messages to reduce development and transmission costs; and 
the use of all available data to establish the optimal fit between the media plan and each 
target audience.3722 
g. NTC uses the wrong methods and metrics to measure its communication results . In 
respect of this criticism, Professor Keller recommends that an evaluation plan track 
results and redesign the weak components of campaign; assessment of the effect of 
each campaign as well as the joint effect of multiple messages; assessment of the effe ct 
of each communication channel separately; use of appropriate timeframes as baseline; 
use of consistent evaluation methods for all NTC campaigns; and measurement of 
intended and unintended results in a pilot prior to mass exposure.3723 
h. NTC's communication i s insufficiently integrated . In respect of this criticism, Professor 
Keller recommends that the communication plan use and implement the six criteria for 
measuring the effectiveness of integrated marketing communication strategies to 
integrate its communic ation assets. Under this "six C's" approach3724, Professor Keller 
highlights improving "contribution" by pretesting each message to assess message 
uniqueness or whether the message offers new information: improving "commonality" by 
using a consistent and cohe sive brand image around the QuitNow brand; improving 
"complementarity" by ensuring that complimentary quitting benefits add up to a healthy 
lifestyle across messages and channels; and improving "conformability" by continuously 
updating challenges for the t arget audience. Professor Keller also argues that online and 
traditional media should complement each other to reduce costs.3725 
i. NTC does not build on the evaluation results of previous periods . In respect of this 
criticism, Professor Keller recommends the use of feedback to constantly improve the 
next communication plan; analysis of low quit rates to examine which audiences have 
unmet needs; the conduct of marketing research to uncover benefits so ught by 
behavioural segments; accountability for involved agencies if SMART communication 
                                                
3720 Keller Report , (Exhibit DOM/HND -8), paras.  109, 155 -159. 
3721 Professor Keller defines "mHealth" in the following ter ms: 
 
mHealth or m -Health is short for "mobile health". It refers to the practice of public health 
supported by mobile devices. mHealth initiatives use mobile communication devices, such as 
mobile phones, tablet computers and PDAs, for health services and i nformation, but also to affect 
emotional states. The simplest form of mHealth are SMS alerts, but more interactive 
communication, such as games and quizzes for communicating health prevention messages and 
motivating behavior change, are becoming ever more popular.  
 
Keller Report , (Exhibit DOM/HND -8), fn 11. 
3722 Keller Report , (Exhibit DOM/HND -8), paras.  113, 160 -166. 
3723 Keller Report , (Exhibit DOM/HND -8), paras.  117 and 167 -171. 
3724 Professor Keller defines the "six C's" as follows:  
 
1. Coverage (to what extent do different communication options reach the designated target market?);  
2. Contribution (do different communication options create behavior change?);  
3. Commonality (is there a consistent brand image across communication options?);  
4. Complementarity (are  different messages/channels evoking complimentary brand associations?);  
5. Conformability (will the communication options sustain audience interest?); and  
6. Cost (what is the cost to deliver on all the preceding criteria?).  
 
Keller Report , (Exhibit DOM/H ND-8), para. 55. 
3725 Keller Report , (Exhibit DOM/HND -8), paras.  121 and 172 -173. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  objectives are not met and the communication plan is largely unchanged; analysis of 
effects of mass media advertising and communication channels to determine budget 
reallocation; design of rigorous evaluation with controls to "weed out" weak messages, 
inefficient channels, and unresponsive audiences.3726 
7.1568.   Australia argues that Professor Keller's criticisms of federal social marketing campaigns 
are "unwarranted".3727 In respec t of Professor Keller's suggestion that Australia segment the 
audience for its social marketing campaigns, Australia submits that "[t]his suggestion is in direct 
conflict with the recommendations of the United States Surgeon General and the World Health 
Organization".3728 Australia also points out that Professor Keller also "entirely overlooks the 
campaigns run by Australia's states and territories, which are a major and critical component of 
Australia's social marketing efforts".3729 In doing so, Australia conte nds that Professor Keller's 
analysis misrepresents, "for example, the extent to which 'new communication' channels are an 
element in Australia's social marketing mix; the extent to which 'personal influencers', such as 
healthcare providers are used as a co mmunication channel; the extent to which audiences are 
exposed to positive messages, which provide guidelines regarding how to quit and highlight the 
social consequences of smoking; and the extent to which Australia's social marketing campaigns 
target spec ific audiences".3730 
7.1569.   Australia refers to a number of campaigns in operation at the state and territory level in 
Australia. For example, Australia refers to the campaign "Your future's not pretty", which was run 
in Queensland and directed "to young females age d 18-24 about the damaging effects of smoking 
to their looks", which was "rolled out across TV, digital and out -of-home channels", and was also 
"brought to life as an experiential campaign in shopping malls —where young females are 
made -over to experience w hat they will look like in the future if they smoked".3731 That campaign 
noted that:  
Market research has revealed that young females are highly aware of the negative 
impacts of smoking on their health. They have a strong desire to quit smoking, but 
they see t his happening in the distant future. But, they are generally concerned about 
the aesthetic impacts of smoking on their skin.  
Communicating the life -threatening health risks of smoking isn 't enough to deter 
young females.  
Your future's not pretty focusses  on another truth, that smoking damages one 's skin 
and speeds up the aging process.  
The campaign used state -of-the-art 3D modelling to show a young woman 
transforming into her future self with the tell -tale signs of long -term smoking – 
wrinkles, discolour ed skin, crow 's feet, frayed hair and increased acne.3732 
7.1570.   Australia further refers to an "All by myself campaign" in Queensland, which used 
"television, radio, digital and outdoor ads" to "remind[] smokers [that] the rest of Queensland has 
quit smoking and 'it's time you did too'".3733 Australia also refers to the "iCanQuit" website,3734 and 
                                                
3726 Keller Report , (Exhibit DOM/HND -8), paras.  124 and 174.  
3727 Australia's first written submission, para. 716. 
3728 Australia's comment s on the complainants' responses to Panel question No. 157. 
3729 Australia's first written submission, para. 716. 
3730 Australia's first written submission, para. 716. 
3731 Queensland Health website , (Exhibit AUS -289), p. 1. 
3732 Queensland Health website , (Exhibit AUS -289), p. 1. 
3733 Queensland Health website , (Exhibit AUS -289), p. 3. Information concerning this campaign indicates 
that "smoking rates remain high among adults aged 25 -44 years old with children at home or those who are 
considering having children", and tha t research "revealed that financial costs and concern for health and family 
were the key motivators for smokers to quit". This campaign also notes that "[c]oncepts built around guilt and 
isolation had the greatest impact, relevance and believability among target groups". Noting that "most 
smokers" have "seen, heard and become immune to all the messages before", the "creative challenge behind 
this campaign was to communicate in a different way the other aspects of smoking that were affecting their 
lives" by "send[ing] an emotional message rather than using graphic images to shock smokers into quitting". 
See generally ibid.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the "WeCanQuit" campaign, both maintained by the Cancer Institute of NSW, which " encourages 
smokers to quit smoking by letting them know that their friends, family and Austral ian celebrities 
are quitting something too to support them".3735 This campaign features " messages are embedded 
in media content using editorial, advertorials, sponsorship and in program segments", and 
television commercials featuring an actress from a popular  television program and an Australian 
Football League "legend".3736 Australia also refers to the Quit Victoria website, where individuals 
can learn more about quitting, make preparations for quitting, and managing the aftermath of 
having quit in order to avoi d relapse.3737  
7.1571.   Australia has also submitted evidence concerning social marketing measures taken to 
address tobacco use in the indigenous community. For example, Australia refers to "SmokeCheck", 
an "indigenous smoking program" in Queensland pursuant to which  trained health professionals 
can "identify, encourage and support Aboriginal and Torres Strait Islander people who smoke 
tobacco to make positive and healthy behaviour changes".3738 It also refers to the "Butt out 
boondah (smoke)" campaign, a "smoking cessat ion and healthy lifestyle program designed for 
Aboriginal communities in southern NSW".3739 
7.1572.   We read this evidence as indicating that a number of measures in existence in Australia 
address many of the criticisms or areas for improvement identified by Professor  Keller in 
connection with Australia's federal social marketing campaigns. Specifically, it reveals that a 
number of her recommendations align with the approach pursued within Australia, either at the 
federal or state/territory level (or, indeed, through c ombined federal/state/territory government 
endeavours), and thus already form part of the social marketing strategy to address tobacco use 
that has been, or is being, implemented at the federal or state/territory level. For example, 
Australia already tailo rs, or is in the process of tailoring, messages to reflect the needs of different 
target audiences on the basis of audience research, and through the use of positive messages and 
celebrities.3740 These comport with Professor Keller's proposal in respect of th e design of 
messages.  Moreover, Australia and its states and territories are already, or are in the process of, 
utilizing television, radio, print, and digital media formats, and are using or exploring the role of 
digital media outlets such as Youtube, Fac ebook and Twitter for its messages.3741 Indeed, 
Professor Keller acknowledges that "[i]ncreasingly, NTC utilizes the internet ( e.g., the QuitNow 
Facebook page) and electronic applications to deliver the quit smoking message [which are] 
available through the N TC QuitNow website".3742 This indicates that effective and efficient 
communication channels, as Professor Keller describes them3743, including so -called "old media " 
(such as, inter alia, advertising, promotions, events) and new media (online and social media, 
mobile marketing, and direct marketing) are already in use in Australia. The evidence also 
indicates to us that Australia is already utilizing a "media mix", including through the use of 
                                                                                                                                                  
3734 Cancer Institute NSW website, (Exhibit AUS-283).  This webpage is a forum with areas where 
individuals can share stories and experiences,  make a plan to quit, find information on how to quit, get started 
with quitting, remain quit, and calculate the financial and health benefits associated with quitting.  
3735 NSW YouTube video, (Exhibit AUS -288).  
3736 NSW YouTube video, (Exhibit AUS -288).  
3737 Victorian QuitTxt application,  (Exhibit AUS -284).  This website also provides access to a Quitline call 
service; a "Quitcoach" service, which collects information about individuals' smoking habits and uses that 
information to provide personalized advice; and a QuitTxt service, which "provides regular SMS messages 
including tips and encouragement to help you keep on track throughout your quit attempt ". This Quit website 
also contains a "triggers" page, separately referred to by Australia, which identifies situations which may 
trigger a cigarette craving and  provides, inter alia , "tips on how to beat them from other ex -smokers ". See Quit 
Victoria, (Exhibit AUS-287). 
3738 Queensland Health program , (Exhibit AUS -285).  
3739 Anti-smoking campaign website, (Exhibit AUS-286).  This programme consisted of a promotional fi lm 
and four short videos which feature local Indigenous people who share their stories about helping family and 
community to quit smoking or not to take up the habit. A factsheet  was developed to inform local general 
practitioners about the program and "how  their patients could benefit from registering with the programs 
available as part of the campaign".  
3740 See NSW YouTube video, (Exhibit AUS -288); and Queensland Health website , (Exhibit AUS-289).  
3741 See Keller Report , (Exhibit DOM/HND -8), paras.  105, 150 -154; and National Tobacco Strategy 
2012-2018, (Exhibits AUS -129, DOM -131), pp. 16 and 18 (actions 6.2.1 and 6.2.3). See also Cancer Institute 
NSW website, (Exhibit AUS -283); Victorian QuitTxt application, (Exhibit AUS-284); Queensland Health 
program , (Exhibit  AUS-285); NSW YouTube video, (Exhibit AUS -288); and Queensland Health website , (Exhibit 
AUS-289).  
3742 Keller Report , (Exhibit DOM/HND -8), Annex 1, para. 9. 
3743 Keller Report , (Exhibit DOM/HND -8), paras.  150-154. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  "mHealth" applications like "myquitbuddy".3744 In our view, this addresses  directly Professor 
Keller's observations concerning whether Australia's campaigns are "unbalanced and too mass 
media centric"3745 or reflect ineffective media mix decisions.3746 We also note that Australia's 
National Tobacco Strategy 2012 -2018 includes as "actions" the implementation of campaigns 
which "include a balance of existing material with proven effectiveness and a suite of new 
materials"3747, and its aim to "continue to build the evidence base on the effectiveness of mass 
media to inform and refine fu ture campaign development".3748 Australia already appears to be 
doing this with respect to smokers of "lower socio -economic status".3749 In our view, this 
addresses Professor Keller's criticism in respect of the evaluation of past programmes3750, and the 
methods us ed to measure communication results.3751 Furthermore, the various cost -saving 
measures proposed by Professor Keller appear to us to flow from a number of the other steps she 
identifies which, as indicated above, Australia has already adopted or is in the proc ess of 
incorporating into its campaigns, such as use of social media and mHealth applications.3752  
7.1573.   We noted above3753 that, when a complaining party identifies an alternative measure3754, 
that alternative measure may be one that is not maintained by the responding  Member in the 
particular form proposed by the complainant3755, and that a respondent may be required to 
articulate why a proposed measure that is a variation  of an existing measure is not a valid 
alternative in the context of a given case.3756 Based on the rele vant evidence before us, we have 
found that almost all of the elements identified by Professor Keller have already been 
implemented, or are being implemented3757, by the Australian government, acting either alone, in 
conjunction with, or exclusively through t he state and territory governments within Australia. In 
our view, these elements are not, therefore, a variation of existing or planned measures in 
Australia.  
7.1574.   Overall, based on the evidence before us, it appears to us that the only elements of the 
proposa l that would be a variation of Australia's existing measures are the following:  
a. What Professor Keller describes as "proper" segmentation of the market and 
identification of relevant target audiences (i.e. Step 1 of the framework relied on by 
Professor Kell er)3758: we understand the segmentation proposed by Professor Keller 
(based on dividing the population by age, and by different "usage statuses") to be 
different from the manner in which Australia currently divides the Australian market for 
the purposes of it s social marketing campaigns3759;  
b. What Professor Keller describes as the better integration by the NTC of its individual 
efforts and messages (i.e. Step 8 of the framework relied on by Professor Keller)3760: 
Australia does not adduce evidence in respect of how existing measures address 
Professor Keller's arguments that the NTC needs to better integrate its individual efforts 
                                                
3744 Keller Report , (Exhibit DOM/HND -8), paras.  113 and 160 -166; and Evidence Brief: Tobacco Control 
and Mass Media Campaigns, (Exhibit AUS -280), p. 12. We also note that such mHealth applications are already 
in place in Victoria. See Victorian QuitTxt application, (Exhibit AUS -284).  
3745 Keller Report , (Exhibit DOM/HND -8), paras.  105 and 150 -154. 
3746 Keller Report , (Exhibit DOM/HND -8), paras.  113 and 160 -166. 
3747 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 18 (action 6.2.4).  
3748 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 18 (action 6.2.7).  
3749 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 17. 
3750 Keller Report , (Exhibit DOM/HND -8), paras.  124 and 174.  
3751 Keller Report , (Exhibit DOM/HND -8), paras.  117 and 167 -171. 
3752 Keller Report , (Exhibit DOM/HND -8), paras.  155-159. 
3753 See para. 7.1385  above.  
3754 See Appellate Body Reports, US – COOL , para. 379. 
3755 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.328.  
3756 See Panel Reports, China  – Rare Earths , para. 7.186.  
3757 We note that this strategy encompasses 2012 -2018 such that elements of the "actions" it 
recommends may still be in the process of implementation. We note that the findings in Brazil  – Retreaded 
Tyres illustrate that measures that have been adopted, or are in the process of being implemented, are not  
valid alternative s. See Panel Report, Brazil  – Retreaded Tyres , paras.  7.169; and Appellate Body Report, 
Brazil  – Retreaded Tyres , fn 297. 
3758 Keller Report , (Exhibit DOM/HND -8), paras.  13(i), 92, 127 -132. 
3759 See paras.  7.1600 -7.1604 . 
3760 Keller Report , (Exhibit DOM/HND -8), paras.  118-121 and 172 -173. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  and messages3761 and, therefore, has not indicated why such integration would not 
constitute a variation on an existing measure.  
7.1575.   In respect of  the other elements of the campaign design proposed by Professor Keller, we 
are not persuaded that the complainants have demonstrated that such elements vary the social 
marketing campaigns currently maintained in Australia, or that are currently being impl emented 
pursuant to the National Tobacco Strategy 2012 -2018.  
7.1576.   We therefore consider that the complainants' proposal in respect of Australia's social 
marketing campaigns is a variation of Australia's existing social marketing campaigns only to the 
extent th at it proposes to segment the market in the specific manner proposed by Professor Keller; 
and to better integrate messages. We shall now consider whether this amounts to a reasonably 
available less trade -restrictive alternative to the TPP measures , which w ill make an equivalent 
contribution to Australia's objective of reducing use of , and exposure to , tobacco products.  
7.2.5.6.4.3   Whether "improved" social marketing campaigns would be less 
trade -restrictive than the TPP measures  
Arguments of the parties  
7.1577.   Honduras  argues  that its proposed improvements to Australia's anti -smoking campaigns 
are less trade -restrictive  than the trademark and the format requirements in the TPP measures . 
Specifically, this alternative does not entail any restriction on the use of trademarks on packaging 
of tobacco products, such that tobacco products would be able to compete in the Australian market 
by relying on the brand differentiation that is normally achieved through brand packaging. 
Moreover, Honduras argues that this alternative measure d oes not result in any compliance costs 
for tobacco producers.3762 Honduras adds that this alternative " is not trade restrictive in any way 
given that it merely affects the demand side and does not impose any burden on traders", as it 
does not entail any restr iction on the use of trademarks such that tobacco products would be able 
to compete in a fair manner, and does not result in any compliance costs for tobacco 
producers.3763 
7.1578.   The Dominican Republic  submits that the formulation and execution of effective social 
marketing campaigns in Australia would have no effect on trademarks, and thus would do nothing 
to distort the competitive opportunities of tobacco products and producers.3764 Specifically with 
respect to trade -restrictiveness measured by changes in volume of sales, the Dominican Republic 
adds that "[s]ocial marketing does not involve any regulation of the market at all, even though it 
reduces the volume of sales", and as such is not "a trade restr ictive measure subject to the 
disciplines under the covered agreement[s]".3765 In any event, the Dominican Republic submits 
that "social marketing does not involve any regulation of the market at all, and is not a trade/IP 
restrictive measure subject to any d isciplines under the covered agreement".3766 
7.1579.   Indonesia , in "endors[ing] [the alternative measures] proposed by the Dominican 
Republic regarding increasing the effectiveness of social marketing campaigns"3767, notes that 
"[i]mplementing the kinds of structural pr ogrammatic changes recommended by Professor Keller 
would result … be less trade -restrictive than the [TPP]  measures".3768 
7.1580.   Australia  argues that the Dominican Republic "attempts to transfer to the Panel its burden 
of proposing less trade -restrictive alternativ e measures that make an equivalent contribution to 
                                                
3761 Professor Keller argues that this is because they lack consistency across channels and 
communication vehicles; commonality and consistency among messages; complementarity across channels; 
and coordination of its Main and More Targeted Approach, and  between national, State and Territory tobacco 
social marketing communication programs. See Keller Report , (Exhibit DOM/HND -8), para. 172. 
3762 Honduras's first written submission, paras.  638 and 928.  
3763 Honduras's response to Panel question No. 151. 
3764 Dominican  Republic 's first written submission , para. 1023; and second written submission, 
para. 976. 
3765 Dominican  Republic 's response to Panel question No. 151. 
3766 Dominican  Republic 's comment s on Australia's response to Panel question No. 151. 
3767 Indonesia's  first written submission, para. 457; and second written submission , para. 293. 
3768 Indonesia's second written submission, para. 289. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the objectives of the" TPP measures , specifically, with respect to "how the alternative measures, or 
a combination of the alternative measures, could be implemented to make an equivalent 
contribution" to t he TPP measures . Australia submits that the Dominican Republic leaves the 
alternative measures "completely unspecified , expecting the Panel to determine, for example, how 
to 'carefully tailor' Australia's existing social marketing campaigns … such that the se measures 
would have an impact on the volume of trade identical to that made by tobacco plain 
packaging".3769 
Analysis by the Panel  
7.1581.   As we have noted, a measure is trade -restrictive within the meaning of Article  2.2 of the 
TBT Agreement  where that measure ha s a limiting effect on international trade.3770  
7.1582.   The Dominican Republic submits that social marketing campaigns are not, as such, "a 
trade restrictive measure subject to the disciplines under the covered agreements".3771 We are not 
persuaded, however, that this is a directly pertinent consideration in our assessment of the extent 
to which the proposed alternative measure would or would not be trade -restrictive. Rather, as 
described above, we must c onsider the extent to which it  could be expected to have a limitin g 
effect on international trade.  
7.1583.   We recall our findings above that the TPP measures  are trade -restrictive to the extent 
that they reduce overall consumption of tobacco products and thereby reduce the overall volume 
of imports of tobacco products.3772 To the extent that improved social marketing campaigns would 
make an equivalent contribution to Australia's objective, as the complainants argue would be the 
case, and that they would do so by reducing the consumption of tobacco products, they would at 
least be a s trade -restrictive as the TPP measures . 
7.1584.   We are not persuaded, therefore, that improved social marketing campa igns, to the 
extent that they would be as effective as the TPP measures  in contributing to Australia's objective, 
would be less trade -restrictive than the TPP measures . 
7.1585.   Notwithstanding this conclusion, we find it appropriate to pursue our analysis and 
determine also, assuming that this alternative may be less trade -restrictive than the 
TPP measures , whether it would make an equivalent contribution t o Australia's objective of 
improving public health by reducing the use of, and exposure to, tobacco products.  
7.2.5.6.4.4   Whether "improved" social marketing campaigns would make an equivalent 
contribution to Australia's objective  
Arguments of the parties  
7.1586.   Honduras  argues that the proposed improvements to Australia's anti -tobacco campaigns 
can make the same degree of contribution to Australia's objective as the trademark and format 
requirements of the TPP measures . According to Honduras, Professor Keller's plan, "if  implemented 
correctly, can contribute to preventing smoking initiation among non -smokers, increase cessation 
among current smokers, and prevent relapse among ex -smokers", thus contributing "to Australia's 
objective of reducing smoking prevalence to the sa me extent as the trademark and format 
restrictions contained in the plain packaging measures".3773 
                                                
3769 Australia's comment s on the complainants' responses to Panel question Nos. 151 and 165.  
3770 As expressed by the Appellate Bo dy in US – Tuna II (Mexico) , para. 219, also quoted above, 
"Article  2.2 is thus concerned with restrictions on international trade". This is consistent with the first sentence 
of Article  2.2, which uses the term "unnecessary obstacles to international trad e", not just "unnecessary 
obstacles to trade". The term "trade" is qualified by "international" in other key provisions of the 
TBT Agreement , including: "conduct of international trade" (preamble, third recital); "restriction on 
international trade" (pream ble, 6th recital); and "obstacles to international trade" (preamble, 5th recital; 
Article  2.5; Article  5.1.2; and Annex 3 .E). 
3771 Dominican  Republic 's response to Panel question No. 151. 
3772 See para. 7.1255 . 
3773 Honduras's first written submission, paras.  639-640 and 929.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1587.   Honduras argues that the non -fulfilment of Australia's objective through the 
TPP measures  would not result in grave consequences, given Australia's declining sm oking rates 
and its comprehensive regulatory framework. Honduras submits that these circumstances would 
not change if Australia were to adopt an alternative measure to the TPP measures . The low gravity 
of the consequences of non -fulfilment, therefore, rema ins unchanged when considering either the 
TPP measures  or any other alternative measure.  
7.1588.   The Dominican Republic  submits that the development and launch of effective social 
marketing campaigns can make at least an equivalent contribution to the objective of  reducing 
tobacco use in Australia.3774 The Dominican Republic submits that social marketing tobacco control 
campaigns have been used successfully by governments around the world to reduce smoking 
prevalence since the 1970s. It refers to Australia's National Tobacco Strategy 2012 -2018, which 
"highlights evidence demonstrating that media campaigns can be particularly useful in preventing 
relapse among smokers who have recently quit, and references evidence demonstrating the 
effectiveness of media campaigns for low socioeconomic groups".3775 The Dominican Republic also 
refers to campaigns in New York and the United Kingdom.3776 It submits that social marketing 
campaigns are as effective for cigars as they are for cigarettes3777, and impact all segments of the 
population a nd all smoking behaviours.3778 The Dominican Republic adds, with reference to 
Professor Keller's report, in comparison with the TPP measures , that through segmentation, social 
marketing "can be carefully tailored to address the needs and choices of each targe t audience", 
such that "social marketing is also scalable to have an equal impact on all the smoking behaviours 
– initiation and cessation – that the [TPP]  measures could have".3779 
7.1589.   Cuba adopts the arguments put forward by the Dominican Republic with respect to social 
media campaigns.3780 Cuba adds, in its second written submission, that Australia's argument that 
the Keller report overlooks the campaigns run by States and Territories "misses the point".3781 
Specifically, by focusing on the quantity rather than the q uality of these social marketing 
campaigns, Australia is pointing out the availability of these measures, but ignores their 
effectiveness.3782 
7.1590.   Indonesia  endorses the alternative measures proposed by the Dominican Republic 
regarding increasing the effectivenes s of social marketing campaigns.3783 Indonesia adds that 
Australia recognizes that its social marketing campaigns could be more effective, and that 
"[i]mplementing the kinds of structural programmatic changes recommended by Professor Keller 
would result in ne w, more effective, programs that would make an increased contribution to 
reducing prevalence and be less trade -restrictive than the [TPP]  measures".3784 
7.1591.   Australia  submits that Professor Keller's critique of its social marketing campaigns "is 
fundamentally mis conceived" and "entirely overlooks the campaigns run by Australia's states and 
territories, which are a major and critical component of Australia's social marketing efforts". 
Australia therefore contends that Professor Keller misrepresents, for example, "t he extent to which 
'new communication' channels are an element in Australia's social marketing mix; the extent to 
which 'personal influencers', such as healthcare providers are used as a communication channel; 
the extent to which audiences are exposed to p ositive messages, which provide guidelines 
regarding how to quit and highlight the social consequences of smoking; and the extent to which 
Australia's social marketing campaigns target specific audiences".3785 Australia adds that tobacco 
plain packaging enhan ces the effectiveness of its social marketing campaigns, which are otherwise 
                                                
3774 Dominican  Republic 's first written submission , para. 792; and response to Panel question No. 151. 
3775 Dominican  Republic 's firs t written submission , para. 793 (referring to National Tobacco Strategy 
2012-2018, (Exhibits AUS -129, DOM -131), p p. 16-17). 
3776 Dominican  Republic 's first written submission , para. 796. See also Dominican  Republic 's response to 
Panel question No. 65. 
3777 Domin ican Republic 's response to Panel question No. 152. 
3778 Dominican  Republic 's response to Panel question No. 157. 
3779 Dominican  Republic 's response to Panel question No. 151. 
3780 Cuba's first written submission, para. 288. 
3781 Cuba's second written submission, para. 354. 
3782 Cuba's second written submission, para. 354. 
3783 Indonesia's first written submission, para. 457; and second written submission , para. 293. 
3784 Indonesia's second written submission, para. 289. 
3785 Australia's first written submission, para. 716. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  hindered by tobacco product marketing, and that plain packaging enhances the effectiveness of 
GHWs, which themselves reinforce the messages conveyed in anti -tobacco social marketi ng 
campaigns (and do so at the point of consumption).3786 
7.1592.   In addition, Australia argues that the Dominican Republic "attempts to transfer to the 
Panel its burden of proposing less trade -restrictive alternative measures that make an equivalent 
contribution to the objectives of the" TPP measures , specifically, with respect to "how the 
alternative measures, or a combination of the alternative measures, could be implemented to 
make an equivalent contribution" to the TPP measures . Australia submits that the Dominic an 
Republic leaves the alternative measures "completely unspecified , expecting the Panel to 
determine, for example, how to 'carefully tailor' Australia's existing social marketing campaigns 
[…] such that these measures would have an impact on the volume of  trade identical to that made 
by tobacco plain packaging".3787 Australia also submits that the Dominican Republic's contention, 
on the basis of Professor Keller's recommendation, that Australia should divide its social marketing 
audience into narrow segments,  including targeting 12 -17 year olds, "is in direct conflict with the 
recommendations of the United States Surgeon General and the World Health Organization".3788 
7.1593.   Australia adds that its approach to social marketing is dynamic , such that it reviews and 
update s its approach on an annual  basis. For Australia, "[l]eaving aside other problems in 
Professor Keller's report", it reviews Australia's social marketing strategy up until 2013 and was 
therefore out -of-date at the time that it was filed in 2014. On this bas is, Australia argues that the 
2013 campaign is no longer an appropriate reference point for proposing improvements to its 
social marketing strategy.3789  
Analysis by the Panel  
7.1594.   At the outset, we note that the parties appear to agree that social marketing campa igns 
can contribute to a reduction in the use of tobacco products.3790 This is also recognized in 
Article  12 of the FCTC, entitled "Education, communication, training and public awareness", which, 
in its chapeau , obliges all parties to "promote and strengthen  public awareness of tobacco control 
issues, using all available communication tools, as appropriate".3791 We also note that the 
importance of effective social marketing campaigns as an element of a tobacco control policy is 
                                                
3786 Australia's comment s on the complainants' responses to Panel question No. 161. 
3787 Australia's comment s on the complainants' responses to Panel question Nos. 151 and 165.  
3788 Australia's comment s on the complainants' responses to Panel question No. 157 (refer ring to  WHO 
Policy Package to Reverse the Tobacco Epidemic  , (Exhibit AUS -607) and US Surgeon General's Report 2012,  
(Exhibit AUS -76)). 
3789 Australia's response to Panel question No. 158. 
3790 See, in particular, Australia's first written submission, para. 714 (noting that "Australia has a long 
history of using education and social marketing campaigns as a tobacco control measure and is regarded as a 
world leader in this area"). See also Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit 
AUS-280).  
3791 Article  12 elaborates that, towards this end, each Party shall adopt and implement effective 
legislative, executive, administrative or other measures to promote: "(a) broad access to effective and 
comprehensive educational and public awareness program mes on the health risks including the addictive 
characteristics of tobacco consumption and exposure to tobacco smoke; (b) public awareness about the health 
risks of tobacco consumption and exposure to tobacco smoke, and about the benefits of the cessation of 
tobacco use and tobacco -free lifestyles as specified in Article  14.2; (c) public access, in accordance with 
national law, to a wide range of information on the tobacco industry as relevant to the objective of this 
Convention; (d) effective and appropria te training or sensitization and awareness programmes on tobacco 
control addressed to persons such as health workers, community workers, social workers, media professionals, 
educators, decision -makers, administrators and other concerned persons; (e) awaren ess and participation of 
public and private agencies and nongovernmental organizations not affiliated with the tobacco industry in 
developing and implementing intersectoral programmes and strategies for tobacco control; and (f) public 
awareness of and acce ss to information regarding the adverse health, economic, and environmental 
consequences of tobacco production and consumption". FCTC, (Exhibits AUS -44, JE -19), Article  12. See also 
FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS -109, DOM -44), Article  12, pp. 73-91. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  recognized in publications by othe r public health bodies, such as the US Surgeon  General3792, the 
USIOM3793, and the USCDC.3794 
7.1595.   Furthermore, as Australia submits, it already maintains social marketing programs, 
details of which we have already discussed above. As we have concluded, however, our inq uiry for 
present purposes is whether Australia, by modifying its existing social marketing campaigns so as 
to segment the market in the manner proposed by Professor Keller, and to integrate messages, 
could make a contribution equivalent to that made by the  TPP measures  in a less trade -restrictive 
manner.  
7.1596.   We consider first the segmentation of the market and targeting of audiences in Australia, 
in the manner proposed by Professor Keller. Professor Keller argues that:  
All of NTC 's campaigns from 2011 to 2013 h ave selected one target audience – 
Australian smokers between the ages of 16 and 40 years. Under ANPHA, the NTC –
 Main campaign does not single out any smokers in this group, whereas NTC 's tailored 
campaigns [that is, the NTC – Break the Chain and NTC – More Targeted Approach 
campaign s], organized by TCT, single out five smoker audiences: 1) culturally and 
linguistically diverse (CALD) smokers of 18 -40 years of age; 2) indigenous smokers 
(16-40 years); 3) pregnant women who smoke, and smokers planning to get pregnant 
(16-40 years); 4) prisoners and recently released prisoners who smoke 
(age-unspecified); and 5) mentally ill smokers (age unspecified). It is important to 
note that even though these groups are under the umbrella of the NTC – More 
Targeted App roach and NTC – Break the Chain campaigns, they remain within the 
single target audience segment of the Main campaign – smokers, primarily between 
18 years (occasionally 16) and 40 years of age. Non -smokers, i.e., never -smokers and 
ex-smokers, are not incl uded in the target audience.3795 
7.1597.   Professor Keller therefore proposes to segment the market "using behavioral 
segmentation":  
According to Australia 's own research, the key need is to provide support services to 
help smokers who want to quit, to help smokers st ay non -smokers, to help smokers 
who don 't believe they are smokers (e.g., people who smoke cigars and cigarillos), 
and to help people resist the peer pressure to start smoking. For each of the segments 
above, identify the age (12 -17, 18 -24, 25+ years) and usage behavior (Non -Smokers, 
"Rejectors", "Reflectors", Quitters).3796 
7.1598.   In respect of these "usage" categories, Professor Keller defines "reflectors" as smokers 
who would like to quit but are in need of support services to help them quit; "quitters" as 
ex-smok ers seeking help to stay quit; "rejectors" as smokers who don 't see themselves as 
addicted and need information to enable them to realize that they have a problem; and 
non-smokers as those whose need is to develop tools and strategies enabling them to resi st the 
temptation and peer pressure to start smoking.3797  
7.1599.   Regarding the age categories, Professor Keller's segmentation is "rooted in the different 
needs, wants, motivators and costs that each group exhibits when it comes to (non -)smoking", a 
conclusion whic h Professor Keller derives in part from Australian government research and 
evaluations.3798 According to her proposal, Australia's social marketing campaigns should be 
segmented on the following basis:  
                                                
3792 US Surgeon General's Report 2014, (Exhibits AUS -37, DOM-104, CUB -35), p. 812; US Surgeon 
General's Report 2000, (Exhibit AUS -53), p. 20; and US Surgeon General's Report 2012, (Exhibit AUS-76), 
pp. 691 and 853.  
3793 1994 USIOM Report, Chap. 8 , (Exhibit AUS -547), p. 240. 
3794 USCDC Best Practices for Comprehensive Tobacco Control Programs, (Exhibit AUS-50), p. 31. 
3795 Keller Report , (Exhibit DOM/HND -8), para. 89. See also para. 125. 
3796 Keller Report , (Exhibit DOM/HND -8), paras. 92 and 127 -132. 
3797 Keller Report , (Exhibit DOM/HND -8), paras.  127-129. 
3798 Keller Report , (Exhibit DOM/HND -8), para. 132 and fns  173 and 175.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Table 5: Proposed s egmentation for Australian social marketing c ampaigns  
Segment no.  Non-smokers  Quitters  Rejectors  Reflectors  
12-17 years 
(adolescents)  1 2 3 4 
18-24 years 
(young adults)  5 6 7 8 
25+ years 
(adults)  9 10 11 12 
Source:  Keller R eport, (Exhibit DOM/HND -8), para. 129, Figure 3.  
 
7.1600.   We note that Australia appears to recognize that anti -smoking campaign messages are 
often tailored to particular sub -groups in the population.3799 The ANPHA notes, however, that the 
development of tailored campaigns is burdened by the in creased cost of creating multiple 
campaigns to suit each sub -group, and the danger of creating public perceptions that the targeted 
sub-group is the only one for whom the behaviour is a problem, such that the decision whether or 
not to pursue this option m ust take into account the "mixed evidence for campaigns tailored to 
different subgroups".3800 For example, the ANPHA notes that "with the exception of the US 'truth' 
campaign, youth campaigns often include message themes known to be less effective (short -term 
consequences, humour, social norms) and there is potential for these campaigns to promote the 
undesirable notion that smoking is something only youth in particular should avoid, and is not so 
much an issue for adults".3801 This report also notes that some ca mpaigns targeted to specific 
ethnic groups have reported success, whereas other evaluations found general audience 
campaigns more successful than tailored campaigns, and that widely broadcast mass media 
campaigns developed for a general audience have the p otential to be at least equally effective 
across socio -economic sub -groups, as long as each group has equal opportunity to be exposed.3802 
7.1601.   In this connection, we also note that the US Surgeon General has observed that tailoring 
a message's content to specific  audience subgroups (defined, for example, by age, gender, 
race/ethnicity, a desire for sensation, or socioeconomic status) has the potential advantage of 
increasing a message's relevance and ability to persuade.3803 However, it has also appraised 
evidence in dicating, in respect of youth - versus adult -targeted campaigns, that "it is a matter of 
debate whether these campaigns are the best choice for reducing youth smoking".3804 For 
example, studies examined by the US Surgeon -General observe that it may be particularly difficult 
to design messages that appeal to older youth; that evidence that younger youth may be more 
likely than older youth to decrease their intentions to smoke in response to counter industry mass 
media campaigns was interpreted as indicat ing that older adolescents may be better addressed by 
campaigns targeted to a general audience; that youth responded as favorably to adult -targeted 
ads as to youth -targeted ads, which is consistent with findings from adult -targeted mass media 
campaigns tha t have successfully reduced the initiation of smoking and of smoking behavior 
among youth; and that, in the US, beneficial effects on youth smoking were found from exposure 
to the overall complement of state anti -tobacco campaign ads, not just youth -target ed campaigns, 
and that a majority of the state campaign gross rating points  (GRPs)3805 came from adults rather 
than youth.3806 The US Surgeon -General also notes reviews of the media and tobacco use which 
propose that the success of adult -targeted campaigns for a dolescents may be due in part to 
changing the broader social norms about smoking, and that adult -focused campaigns for reducing 
                                                
3799 Evidence Brief: Tobacco Control and Mass Media Campaign s, (Exhibit AUS -280), p. 10; and  Tobacco 
in Australia 2012, IDN excerpts , (Exhibit IDN -24), p p. 24-26. 
3800 Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit AUS -280), p. 10. 
3801 Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit AUS -280), p.11. See also  
Tobacco in Australia 2012, IDN excerpts , (Exhibit IDN -24), p p. 22-23. 
3802 Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit AUS -280), p. 11. 
3803 US Surgeon General's Report 2012,  (Exhibit AUS -76), pp. 689-690. 
3804 US Surgeon General's Report 2012,  (Exhibit AUS -76), p. 690. 
3805 GRPs "measure the relative reach and frequency of exposure to the campaign among the target 
audience within specific media markets ". US Surgeon General's Report 2012,  (Exhibit AUS -76), p. 684. 
3806 US Surgeon General's Report 2012,  (Exhibit AUS -76), p. 690. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  smoking in youth may avoid the danger that the use of youth targeted mass media campaigns in 
isolation creates the impression th at, whilst children should avoid it, tobacco use is an acceptable 
adult behaviour.3807 
7.1602.   The foregoing suggests that while different age groups may exhibit different needs, as 
identified by Professor Keller3808, those differences alone may not always justify segme ntation on 
the basis of age, as Professor Keller recommends. Specifically, some of the evidence before us 
suggests that segmentation on the basis of age may not duly account for significant overlaps with 
respect to the needs of different age groups, with t he potential that segmentation on the basis of 
age can potentially undermine the overall effectiveness of social marketing campaigns.  
7.1603.   We further note that the evidence before us demonstrates that Australia has in fact taken 
a number of social marketing act ions on the basis of the identification and targeting of particularly 
vulnerable groups. As we noted above, Professor Keller points out that the NTC's "Break the 
Chain" campaign aims at halving the smoking rate among indigenous Australians by 2018, and is 
specifically aimed at smokers and recent quitters from the Aborigine and Torres Strait Islander 
community aged 16 to 40 years. In addition, the "More Targeted Approach" campaign targets 
vulnerable groups that are difficult to reach, and specifically cultur ally and linguistically diverse, 
non-white, audiences, between 18 and 40; pregnant women who smoke, aged 16 to 30 years, as 
well as smokers who are planning to become pregnant within the next two years, aged 18 to 30 
years; imprisoned and recently released  persons; and persons with mental illnesses.3809 Australia 
identifies that "[s]moking rates among these groups remains unacceptably high": in 2010, while 
overall smoking prevalence was 16.6% among Australians aged 14 and over, smoking rates were 
41% among pre gnant teenagers, 38% among unemployed people, 34% among people unable to 
work, 32% among people with a mental illness, and 78% and 83% among male and female 
prisoners, respectively.3810 We have less information before us concerning the details of the 
specific  campaigns that target these groups. However, we are aware that campaigns directed 
towards pregnant women involve "[a] range of advertising material has been specifically 
developed to target these groups and raise awareness of the support which is availabl e to assist 
this group in their quit attempt without stigma", and specifically that "[t]he 'Quit for you – Quit for 
Two' campaign promotes that there are health harms associated with smoking while pregnant and 
that women can call the quitline or download t he 'Quit for you – Quit for Two' mobile app to 
support their quit journey".3811 Moreover, the campaign provides information in a range of 
languages in print and on radio to individuals from culturally and linguistically diverse 
backgrounds.3812 
7.1604.   It appears, there fore, that Australia has in fact segmented the audience insofar as it has 
identified those sub -groups within its population who are particularly affected by tobacco use and 
has designed campaigns in order to target those groups. We therefore disagree with Professor 
Keller's assertion that "Australia more or less applies a 'one -size/message -fits-all' approach to 
anti-tobacco campaigns".3813 However, as noted, Professor Keller has also proposed to segment 
the Australian market on the basis of "usage status" (in addition to segmenting it on the basis of 
age, as we discussed above), and specifically whether an individual is a non -smoker, a "rejector", 
a "reflector", or a quitter.3814 In this connection, Professor Keller argues that this segmentation is 
"[b]ased on exi sting research conducted in Australia".3815 In support of this, Professor Keller refers 
to a 2010 "Tobacco Social Marketing Campaign Report", which is not on the record of these 
proceedings3816, and provides no further elaboration or explanation of the basis upo n which she 
has segmented the market in this manner. We are not persuaded that the assertion that Australia 
                                                
3807 US Surgeon General's Report 2012,  (Exhibit AUS -76), pp. 690 and 692 . 
3808 Keller Report , (Exhibit DOM/HND -8), para. 132. 
3809 Keller Report , (Exhibit DOM/HND -8), para. 89. See also Quitnow  website , (Exhibit AUS -441).  
3810 Response to NPHT, The Roadmap for Action, (Exhibit s AUS-116, JE-15), pp. 64-65. 
3811 Quitnow  website , (Exhibit AUS -441), p. 1. 
3812 Quitnow  website , (Exhibit AUS -441), p. 2. 
3813 Keller Report , (Exhibit DOM/HND -8), para. 91. 
3814 Keller Report , (Exhibit DOM/HND -8), para. 92. 
3815 Keller Report , (Exhibit DOM/HND -8), para. 127. 
3816 Keller Report , (Exhibit DOM/HND -8), para. 127 fn 166. Professor Keller defines in her report the 
"Tobacco Social Marketing Campaign Report (2010)" as "Tobacco social marketing campaign report, Stage 2, 
Qualitative Exploration, prepared for Marketing Research Unit, URBIS, Communications Branch, Department  of 
Health & Aging (June 2010)". Ibid. p. 138. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 558 - 
  should segment the market along these lines is sufficient to demonstrate that Australia's existing 
targeting and segmentation of the market is inval id. Specifically, we are not persuaded that the 
complainants have demonstrated that the specific segmentation proposed by Professor Keller 
would be as, or any more, effective than Australia's current approach of targeting those segments 
of the population t hat it has identified as having the greatest vulnerability to and use of tobacco 
products.  
7.1605.   We turn now to consider the integration of messages proposed by Professor Keller. In her 
description, an "integrated marketing communication should follow the so -called "six C's":  
1) coverage (to what extent do different communication options reach the designated 
target markets?); 2) contribution (do different communication options create behavior 
change?); 3) commonality (is there a consistent brand image across com munication 
options?); 4) complementarity (do different communications evoke complimentary 
brand associations?); 5) conformability (will the communication options sustain 
audience interest?); and 6) cost (what is the cost to deliver on all the preceding 
criteria?).3817 
7.1606.   Professor Keller elaborates her arguments in respect of the first five of these "six C's", 
with reference to her description of shortcomings of the NTC.  
7.1607.   It is unclear to us how Professor Keller's observations regarding the NTC are indicative of 
its being ineffective. For example, it is unclear why the NTC is rendered ineffective because two 
campaigns target the same demographic3818; how or why it is problematic that the Main and 
tailored campaigns are assessed differently3819; how the achievement of a brand identity is a "vital 
NTC project" and the significance of the alleged failure to do so3820; why the absence of the 
quitting methods featured on the Quit websites in television advertisements renders them less 
effective3821, considering the importance of ut ilizing different media mixes for different purposes, 
including " powerful social media and mHealth applications [that] provide unique peer network 
support benefits and 'just -in-time' communication devices to interact with target audiences"3822; 
and how or why  the fact that "almost identical" Quitlines are maintained at the federal a nd 
state/territory level means  that they are not integrated.3823 Moreover, Professor Keller's 
recommendations in respect of each of these supposed shortcomings seems to be predicated o n 
the target audience being adolescent non -smokers and 18 -24 year -old "reflectors", pursuant to 
her proposed market segmentation. However, as described above, we are not persuaded that the 
complainants have demonstrated that the proposal to segment audienc es along these lines would 
necessarily be as, or any more, effective than Australia's current approach of targeting those 
segments of the population that it has identified as having the greatest vulnerability to exposure to 
and use of tobacco products.  
7.1608.   In addition, notwithstanding our observation above regarding the design of social 
marketing campaign messages in Australia, and our conclusion that Professor Keller's 
recommendations already have been, or are being, implemented in Australia, we consider it 
pertinent to address certain arguments made by Professor Keller in this respect. Specifically, one 
of the key tenets of Professor Keller's arguments relates to the content of social marketing 
campaign messages – she advocates for messages that focus on the individual, not others; that 
use "loss frames" ("for example, if you smoke, you will not be able to excel in sports"); that 
highlight social consequences of tobacco use; that use "emotional" messages; and that present 
tips on quitting or saying no "in a vi vid fashion".  Professor Keller elaborates that NTC messages 
"should focus on the 'why' of quitting/not smoking", and "provide Non-Smokers and Rejectors with 
concrete 'how to' strategies for coping with temptation or other obstacles".3824 Professor Keller also  
argues that "[a]vailable evidence from the Australian market indicates the benefits of creating 
positive, empowering messages that emphasize the benefits of not smoking, such as stamina and 
                                                
3817 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 8. 
3818 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 56. 
3819 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 57. 
3820 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 58. 
3821 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 59. 
3822 Keller Report , (Exhibit DOM/HND -8), para. 13(vi).  
3823 Keller Report , (Exhibit DOM/HND -8), Annex 3, para. 60. 
3824 Keller Report , (Exhibit DOM/HND -8), para. 145. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 559 - 
  virility for males and anti -aging and fertility for females, rath er than fear -appeals that repeat the 
harmful effects of smoking".3825 She thus argues that, to engage adolescent Non-Smokers , if the 
NTC wants to design mass media advertising messages it should focus on tying foregoing 
cigarettes to better physical shape and appearance. To reach young adult Reflectors , the NTC 
should aim to reduce smokers' stress by creating messages that focu s on the practical tips for 
quitting in an empowering message format.3826 
7.1609.   We address in particular Professor Keller's assertion regarding the imperative of "creating 
positive, empowering messages that emphasize the benefits of not smoking".  In this connection , 
we note that the US Surgeon -General reports a series of findings which present mixed results 
concerning the relative effectiveness of various message contents. Specifically, it reports findings 
that "ads showing the serious physical consequences of smoki ng — portrayed either graphically, 
dramatically, or emotionally — performed well"; that a summary of 186 focus groups indicated that 
"ads about second -hand smoke or about industry manipulation rated best"; and that "ads 
depicting the impact of smoking on i nfants and children, those showing that smoking is socially 
unacceptable, and ads indicating that non -smoking is the norm significantly decreased youth's 
reported intentions to smoke".3827 The US Surgeon -General's review also, however, echoes 
Professor Keller 's assertions in respect of the relative merit of positive and negative messages3828; 
indeed, its 2012 report also states "exposure to high levels of negative emotion may actually 
hinder persuasiveness and elicit undesirable negative consequences depending on  the stimulus 
itself"3829, and that ads about the social consequences of smoking can be effective.3830 In short, 
the US Surgeon -General identifies that different message designs, positive and negative, are both 
capable of producing relatively successful outcomes .3831 Moreover, in the Australian context, CCV 
reports that in respect of both adults and youth campaigns that focus on negative health effects 
and contain high levels of emotion and personal testimony are most effective.3832 Though the 
ANPHA echoes this observa tion, it also notes research indicating that positive, supportive 
messages have also been effective, and concludes that further research into this question is 
required.3833 Such divergences in results would seem to confirm the importance of message 
testing, a s identified by the US -Surgeon -General.3834 
7.1610.   Overall, this evidence before us suggests that the success of different types of messages 
and campaigns is relative to the context in which they appear, and that a range of types of 
messages may be effective. In lig ht of this evidence, it is not clear to us that we are in a position 
to assess in the abstract whether social marketing campaign messages designed along the lines 
proposed by Professor Keller would be effective in contributing to Australia's objective to a  greater 
degree than its current mix of campaign messages does.   
7.1611.   The evidence before us also shows that Australia already applies a broad range of social 
media campaigns, both at the federal and state levels, that includes most of features considered 
desirable in Professor Keller's report. We also note that it is inherent in Australia's approach to 
these campaigns that they are subject to evaluation and review in light of evidence available. This 
is reflected in Australia's National Tobacco Strategy 20 12-2018,  which identifies the imperative of 
"strengthen[ing] mass media campaigns", and "[c]ontinu[ing] to build the evidence base on the 
effectiveness of mass media to inform and refine future campaign development, including specific 
analysis of the effec tiveness of these campaigns among groups with a high prevalence of smoking" 
                                                
3825 Keller Report , (Exhib it DOM/HND -8), para. 146. 
3826 Keller Report , (Exhibit DOM/HND -8), para. 146. 
3827 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 686. The same report also notes that 
reviews that have considered both the theme and emotional tone of advertisements, and have concluded "that 
there is consistent evidence that ads eliciting strong emotional responses (such as disgust, loss, sadness, 
dread, a nd anger) through personal testimonials and visceral imagery of the health effects of smoking, or that 
portray deception on the part of the tobacco industry, can increase attention, generate greater recall and 
appeal, and affect young audiences' smoking -related beliefs and intentions to smoke". Ibid.  
3828 Keller Report , (Exhibit DOM/HND -8), para. 146. 
3829 US Surgeon General's Report 2012,  (Exhibit AUS -76), p. 686. 
3830 US Surgeon General's Report 2012, (Exhibit AUS -76), p. 687. 
3831 US Surgeon General's Report 2012,  (Exhibit AUS -76), p p. 686-687. 
3832 Tobacco in Australia 2012, IDN excerpts,  (Exhibit IDN -24), p p. 21-22. 
3833 Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit AUS -280), p p. 15-16. 
3834 US Surgeon General's Report 2012,  (Exhibit AUS -76), p. 686. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 560 - 
  as an "action".3835 We also note that Australia's campaigns have been used as a basis for 
campaigns internationally.3836  
7.1612.   For these reasons, we are not persuaded by the complainants' arg ument that social 
marketing campaign messages should necessarily be redesigned in the exact form proposed by 
Professor Keller.  
7.1613.   More generally, in light of the above, we are not persuaded that the complainants have 
demonstrated that the elements of social media campaigns identified in Professor Keller's report, 
including those specific aspects that appear to be a variation of what Australia is currently 
implementing would necessarily constitute improvements that would make a meaningful 
contribution to Austr alia's objective beyond that of its existing social media campaigns.  
7.1614.   Even assuming that the proposed modifications to Australia's social media campaigns 
would  constitute improvements over its current set of social marketing actions, we are not 
persuaded t hat the effect of such social media campaigns would be equivalent to the effect of 
Australia's existing social marketing campaigns together with the removal of the branding  
elements of tobacco packaging through the TPP measures . Specifically, we are not persuaded that 
the improvement of social media campaigns, as proposed by the complainants, as a substitute to 
the TPP measures , would achieve a contribution to Australia's objective equivalent to the combined 
effect of Australia' s existing social marketing campaigns and the TPP measures . Specifically, in the 
absence of the TPP measures  applied simultaneously with effective social media campaigns, 
consumers would be faced with competing messages on tobacco products and their retail  
packaging, thus potentially undermining the effectiveness of those social marketing campaigns. 
Put differently, a measure that would permit the continued use of design features on tobacco 
packaging, together with the deleterious effect that such elements may have on the effectiveness 
of other tobacco control policies, including social marketing, cannot be said to be as effective, 
overall, as Australia's existing social marketing campaigns and the TPP measures  operating 
together, where no such counterproduc tive effects would be expected to occur. This is consistent, 
in our view, with the gravity of the consequences of non -fulfilment of Australia's objective and 
Australia's stated objective of avoiding any regulatory gaps in addressing them. In this respect, we 
recall our observation above that the importance of a comprehensive approach to tobacco control, 
(including, relevantly to the present question, social marketing campaigns), is recognized in the 
FCTC3837, as well as by the WHO3838, the World Bank3839, the US Surgeon General3840, and the 
USCDC.3841 
7.1615.   For these reasons, we consider that the complainants have not demonstrated that the 
modified social media campaigns proposed by the complainants would, as a substitute to the 
TPP measures , make a contribution to Australia's o bjective equivalent to that of the TPP measures  
operating in conjunction with Australia's existing social marketing campaigns.  
                                                
3835 National Tobacco Strategy 2012 -2018, (Exhibits AUS -129, DOM -131), p. 18. 
3836 Evidence Brief: Tobacco Control and Mass Media Campaigns, (Exhibit AUS -280), p. 5; and Tobacco 
in Australia 2012, IDN excerpts  (Exhibit IDN -24), p. 14. 
3837 FCTC, (Exhibits AUS -44, JE -19), Articles  4.2, 4.4, 5.1, 7 and 12.  
3838 WHO Policy Package to Reverse the Tobacco Epidemic, (Exhibit AUS -607), p p. 11-12 (recognizing 
that tobacco control policies "are complementary and synergistic", and noting, in particular, under the notion of 
"warn[i ng people] about the dangers of tobacco", that this involves "require[ing] effective package warning 
labels", "implement[ing] counter -tobacco advertising", and "obtain[ing] free media coverage of anti -tobacco 
activities").  
3839 Jha and Chaloupka 1999, (Exhibi t AUS-51), p. 6 (identifying information measures such as mass 
media counter -advertising, prominent health warning labels and the publication and dissemination of research 
findings on the health consequences of smoking as a non -price measure to reduce dema nd for tobacco 
products).  
3840 US Surgeon General's Report 2000 , (Exhibit  AUS-53), pp. 7-8 and Figures 1.1 and 1.2 (the former 
of which idenitifies "health education" and "social advocacy" as among the many anti -tobacco influences on 
young non -smokers, current smokers and former smokers).  
3841 USCDC Best Practices for Comprehensive Tobacco Control Programs, (Exhibit AUS-50), p p. 6 and 9 
(recognizing the effectiveness of comprehensive tobacco control approaches that combine "educational, 
clinical, regulatory, economic, and social strategies", and noting that "research has shown greater effectiveness 
with interventional efforts that integrate the implementation of programmatic and policy initiatives to influence 
social norms, systems, and networks").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2.5.6.4.5   Whether "improved" social marketing campaigns are reasonably available to 
Australia  
7.1616.   Honduras  argues that Professor Keller's sugge stions are reasonably available to Australia 
as they would not require any additional financial resources, as cost -saving measures would mean 
that revised marketing would not lead to an increase of the overall NTC budget. Honduras adds 
that the revised mar keting plan does not entail technical aspects outside the expertise or 
experience of the A NPHA  or the TCT.3842 
7.1617.   The Dominican Republic  submits that Australia can make effective use of social marketing 
campaigns without increasing its current levels of expendit ures on its "existing, but ineffective, 
social marketing campaigns", and can make more efficient use of the current funding. In addition, 
the Dominican Republic argues that Australia could consider increasing its budget for social 
marketing campaigns from revenue raised by an increase in excise taxes on tobacco products. The 
Dominican Republic states that Australia's social marketing spending "has used less than 0.5 
percent … of the tobacco excise taxes collected, which leaves significant room for increasin g 
Australia's federal social marketing budget".3843 
7.1618.   Australia  does not address the reasonable availability of this measure as an "alternative" 
measure. It has also not suggested, however, that it would not be feasible for it to implement 
changes to its social  marketing campaigns of the type proposed by the complainants.  
7.1619.   We therefore find that the above changes to Australia's social marketing campaigns would 
be reasonably available, to the extent that their implementation would not entail an excessive cost 
or burden.  
7.2.5.6.4.6   Overall conclusion on improved social marketing campaigns as an 
alternative to the TPP measures  
7.1620.   We have concluded above that the complainants' proposal for "improvements" to3844, or 
"effective"3845, social marketing campaigns in Australia is only an alter native measure to the extent 
that certain elements of the proposal that the complainants have made – that is, in respect of 
segmentation of the market and integration of messages – are not already in place in Australia.  
7.1621.   We have also found that we are not persuaded that this alternative would necessarily be 
less trade -restrictive than the TPP measures , insofar as it would, if it were at least as effective as 
the TPP measures  in reducing tobacco consumption, entail at least the same degree of impact on 
the total volume of imports of tobacco products.  
7.1622.   We have also found that we are not persuaded that the complainants have demonstrated 
that the proposed modifications to Australia's social marketing campaigns would be as, or any 
more, effective than Australia's current approach to social marketing. Furthermore, we are not 
persuaded that such "improved" social media campaigns, would, as a substitute  to the 
TPP measures , achieve a contribution to Australia's objective equivalent to the combined effect of 
Australia' s existing social marketing campaigns and the TPP measures . 
7.1623.   In making this finding in respect of the "equivalence" of the contribution made by this 
alternative, we have also taken into account the nature of Australia's objective, the risks that 
non-fulfilment of the TPP measures ' objective would create (including the nature of the risks and 
the gravity of the consequences arising from the non -fulfilment of the technical regulation's 
objective), the characteristics of the TPP measures  (including the r egulatory context in which they 
operate, including Australia's existing social marketing campaigns), and the evidence available.3846 
                                                
3842 Honduras's first written submission, paras.  641 and 931.  
3843 Dominican  Republic 's first written submission, paras.  797-798. 
3844 Honduras's first written submission, paras.  626, 927.  
3845 Dominican  Republic 's first written submission, para. 779. 
3846 Appellate Bod y Report, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1624.   We therefore find that the complainants have not demonstrated that improved social 
marketing campaigns would be a less trade -restrictive alternative to the TPP measures  that would 
make an equivalent contribution to Australia's objective.  
7.2.5.6.5   Fourth proposed alternative measure: pre-vetting  
7.1625.   Honduras  argues that, in the event that "the Panel finds that smoking prevalence in 
Australia could be influenced by particular elements of tobacco packaging and products", its expert 
Mr Shavin explains how a pre -vetting mechanism, administered by the ACCC, could regulate the 
use of these elements in a less restrictive manner than the TPP measures .3847 
7.1626.   The Dominican Republic  submits that the creation of a new pre -vetting mechanism for 
tobacco packaging would impose less of a restriction to trade, make at least an equal contribution 
to Australia's objective; and be reasonably available to the respondent .3848 Specifically (and 
assuming the Panel finds that the TPP measures  actually contribute to their objective to some 
extent), pre -vetting would achieve the same objective through the very same mechanisms set out 
in the TPP measures  because, rather than impos ing a blanket prohibition that indiscriminately 
strips all design elements of all retail packaging for tobacco products and of individual cigars and 
cigarettes, pre -vetting would provide for an individualized assessment of packaging and sticks, 
including i ndividual elements of individual trademarks, to ensure that they do not include any 
allegedly problematic design features.3849  
7.1627.   Cuba argues that imposi ng a "mandatory ex ante approval regime for the packaging and 
trademarks of tobacco products"  is an alternat ive measure .3850 Indonesia  argues that the 
TPP measures  "regulate virtually all features of tobacco packaging and sticks on all tobacco 
products, without any consideration for which particular tobacco packaging or stick element (if 
any) induces tobacco consum ption, creates confusion, or undermines the graphic health warning, 
without testing that proposition for any of those features".3851 In Indonesia's view, because the 
TPP measures  fail to make this distinction, a pre -vetting mechanism involving an individualiz ed 
assessment of each tobacco package and stick is a less trade -restrictive alternative that would 
achieve the same level of protection, make the same contribution to the TPP measures ' legitimate 
objective, and is reasonably available to Australia.3852 
7.1628.   Australia  submits that the complainants' proposed pre -vetting mechanism would be 
highly trade -restrictive, as it would  be costly to administer  and impose significant expenses upon 
the tobacco industry . Australia  also argues that pre-vetting would not make an equivalent 
contribution to  the objectives of the TPP measures . The effectiveness of packaging restrictions is 
dependent upon standardization , and pre-vetting would undermine the mechanisms of the TPP 
measures by reinstating tobacco packaging as a vehicl e for advertising and promotion.  According 
to Australia,  the complainants' proposal would also place a significant burden upon the ACCC . No 
study the ACCC could ever conduct would satisfy the tobacco industry that a package submitted 
for pre -vetting was li kely to induce consumption , prior to releasing  the package onto the market. 
Further, any attempt by the ACCC to restrain the use of a particular package would almost 
certainly trigger lengthy and costly litigation.  Pre-vetting is not, according to Australi a, a 
reasonably available alternative  to the TPP measures .3853 
7.2.5.6.5.1   Description of the proposed measure  
7.1629.   The complainants broadly concur in their descriptions of this alternative by proposing a 
pre-vetting mechanism as described in the expert report prepared by Mr Shavin.3854 The essential 
feature of the pre -vetting mechanism is that it would involve "an individualised assessment of each 
                                                
3847 Honduras's first written submission, paras.  923 and 603 -604. 
3848 Dominican  Republic 's first written submission, paras.  1020-1021.  
3849 Dominican  Republic 's first written submission, paras.  799-801. 
3850 Cuba's first written submission, para. 281. 
3851 Indonesia's first written submission, para. 439. 
3852 Indonesia's first written submission, para. 440. 
3853 Australia's first written submission, paras. 718, 726 -728, 736, and 740; and second written 
submission, paras. 564 -569. 
3854 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  1-6. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 563 - 
  tobacco package and stick, and their constitutive elements, before it is allowed on the market in 
Australia".3855 Based on the proposal of the complainants as elaborated in the expert report by 
Mr Shavin, the creation of such a pre -vetting mechanism would involve the following main 
elements:  
a. the development of disqualifying criteria on the basis of which Australia c ould assess 
"any proposed use of marks on the packaging and sticks of tobacco products, as well as 
of the physical properties of packaging and sticks, prior their being used";  
b. a compulsory pre -notification regime in which a designated regulatory authority  would 
have the mandate to pre -approve or refuse the use of various aspects of tobacco 
packaging and products;  
c. the possibility of reconsideration of the regulatory authority's pre -vetting decisions, 
including through recourse to an appellate mechanism; and  
d. provisions for the enforcement of determinations made through the pre -vetting 
mechanism.3856  
7.1630.   We discuss each of these elements in turn, principally drawing upon the description 
contained in Mr Shavin's report, as submitted and relied upon by the complainants.  
7.1631.   First, Mr Shavin describes a pre -vetting mechanism that would include "disqualifying 
criteria against which marks and physical features could be assessed" whereby "Australia co uld 
eliminate any packaging or stick elements that would likely induce consumption, while allowing all 
other elements that do not otherwise violate Australian law".3857 Additionally, Mr Shavin suggests 
that such a mechanism could also include consideration of  misleading or deceptive aspects of 
tobacco packaging, although he separately concludes that any concern about misleading or 
deceptive packaging is already fully addressed in Australia under the ACL. Thus, Mr Shavin states 
that the disqualifying criteria f or marks and physical features might include:  
(A) Any elements of the sign or physical feature which, apart from any reputation that 
subsists in the trademark, are likely to:  
(i) increase the appeal of using tobacco products; and/or  
(ii) detract from the i mpact of the health warnings, including the graphic health 
warnings otherwise contained on the packaging; and/or  
(iii) contravene section 18 of the Australian Consumer Law ("ACL") because use 
of such elements or physical features would be likely to mislead  or deceive 
consumers;  
and thereby promote, directly or indirectly, consumption or use of tobacco products, 
whether or not by persons who have previously consumed or used tobacco products.  
(B) Among the "elements" of the sign considered in section (A) are,  inter alia , the 
colours or colour combinations, images, figures, metaphors, and the relative size of 
letters and images.3858 
7.1632.   We note Mr Shavin's statement that such criteria could be guided by existing standards 
under Australian law regarding the term "likel y" in Australian legislation, as interpreted by 
                                                
3855 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  17 and 25.  
3856 See, e.g. Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  27 and 36. See also Honduras's 
first written submission, paras.  923, 606 -608; Honduras's second written submission, para. 223; 
Dominican  Republic 's first written submission, para. 809; Domin ican Republic 's response to Panel question 
No. 41; Cuba's first written submission , paras.  283-284; and Indonesia's first written submission, para. 441. 
3857 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 38. 
3858 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 40. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 564 - 
  Australian courts.3859 Further, Mr Shavin states that applying these criteria in practice would 
involve "any credible evidence from relevant disciplines" that could be drawn, for example, "from 
marketing, social  psychology, public health, and other relevant disciplines, and could also include 
relevant data and information on consumer behaviour as well as market data, for example, 
relating to similar packaging in Australia or even from other markets".3860 As describe d by 
Mr Shavin, the disqualifying criteria set out above "could be included in the form of an information 
standard" based on legal provisions and mechanisms currently existing in Australia.3861 
7.1633.   Second, as the next "key step" to establishing the pre -vetting me chanism, Mr Shavin 
describes the creation of a pre -notification regime leading either to the pre -approval or refusal of 
tobacco packaging and sticks, which could involve a number of elements. According to Mr Shavin, 
one possible version would entail suppli ers of tobacco products undertaking, on a compulsory 
basis, "a pre -notification of the proposed form of packaging and sticks, including by submission of 
mock -ups of the proposed packaging items and sticks" to a regulatory authority.3862 Under Mr 
Shavin's desc ription, "[t]he ACCC could be vested with the power to accept such a notification and 
to provide a ruling, formally or informally, as to whether, based on the information available to it 
at the time, it had any objection to the proposed packaging and stick s", whether in the context of 
existing consumer protection laws generally or the "yet to be developed" information standard 
described above.3863  
7.1634.   We note that the complainants have generally presented arguments related to 
pre-vetting based on Mr Shavin's sugg estion that the ACCC could administer such a scheme. At 
the same time, Mr Shavin notes that "Australia could, of course, choose to administer the 
mechanism through a different agency or commission", and his proposal does not foreclose the 
creation of a new  agency or body to administer the pre -vetting mechanism.3864 Accordingly, we 
will refer generically to the "regulatory authority" responsible for administration of a pre -vetting 
scheme so as to accommodate the possibility of either the ACCC or some other body  assuming this 
function. As described by the complainants, under either scenario the pre -vetting process and 
mechanism would be similar in design.3865  
7.1635.   Under the compulsory pre -notification process described by Mr Shavin, "the relevant 
tobacco product could n ot be put on the market unless the ACCC had first granted the approval of 
the packaging and stick elements subject to pre -notification".3866 Mr Shavin contemplates that 
"Australia could enact and implement a set of provisions that establish a procedure for ve tting, 
prior to public use, the proposed use of signs and physical features", and that such provisions 
could be included within Australia's CCA or established as self -standing legislation.3867  
7.1636.   The process of pre -notification and approval would involve applic ants submitting any 
proposed new form of packaging or sticks to the regulatory authority "when the producers are 
ready to transition from the current packages and sticks (which comply with the existing [T]PP 
Act) to add distinguishing features that are not  now permitted under the [T]PP Act".3868 Within a 
specified period of receiving the proposed packaging, the regulatory authority "would need to 
publish a draft assessment as to whether the packaging and sticks would comply" with the 
                                                
3859 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 41 (explaining that the standard 
applied by courts regarding conduct that is likely to mislead or deceive turns on whether there is a "real or not 
remote chance or probabilit y" of misleading or deceiving, and that this "is not a strictly mathematical formula" 
but rather that in the civil context "the courts must be persuaded on the balance of probabilities"). See also 
Shavin Report , (Exhibit DOM/HND -1), para. 41. 
3860 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 42. 
3861 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  44-47 (referring to provisions in the ACL); 
and Shavin Report , (Exhibit DOM/HND -1), para. 16. 
3862 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 48. 
3863 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 49. 
3864 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), fn 11. 
3865 See, e.g. Cuba's first written submission, paras.  281-282; and Dominican  Republic 's second written 
submission, para. 719. 
3866 Shavin Pre-Vetting Report, (Exhibit DOM/HND -9), para. 50. 
3867 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 51 (further stating Mr Shavin's opinion in 
either case "there would be no substantive legal difference; the choice of implementation would be one onl y of 
policy").  
3868 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 53. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 565 - 
  relevant regulations.3869 Mr Shavin describes the potential for an applicant to "have a specified 
period within which to make further submissions" on the basis of the draft determination, which 
"could include proposed variations to the packaging and sticks designed to meet issues rais ed by 
the draft determination".3870 The scheme could also provide that the decision as to whether or not 
to grant approval for the use of the proposed packaging and sticks would be based upon the 
material made available to the regulatory authority at the time .3871  
7.1637.   Third, the pre -vetting proposal set out by Mr Shavin contemplates possible avenues for 
reconsideration of pre -vetting decisions in addition to possible appeals of pre -vetting decisions 
through recourse to the Australian judiciary. The first instance of  reconsideration would pertain to 
approvals  and would reside with the pre -vetting regulatory authority itself, whereby the regulator 
"could revisit its decision after packaging or sticks containing the pre -vetted marks or physical 
features appear on the ma rket, in case it later can be demonstrated that the use of those marks or 
physical features in fact has the effect of inducing consumption, misleading, or otherwise 
undermining the impact of the graphic health warnings".3872 In other words, the regulatory 
authority "would not, by reason of having previously granted an approval during the pre -vetting 
process to the Applicant, be prevented or otherwise constrained from subsequently instituting 
proceedings to seek orders from th e Federal Court of Australia restraining the further use of the 
packaging or sticks".3873 Under such a scenario, the regulatory authority would be able to seek 
orders from Australian courts restraining the further use of the packaging or sticks, and an 
applic ant having been granted approval (in the absence of fraud) would be able to continue to use 
the approved packaging without penalty until the date of any restraining order by a court.3874 
7.1638.   Mr Shavin describes an additional layer of judicial review for denials  of applications by the 
regulatory authority. Specifically, Mr Shavin suggests that such review could be carried out by the 
Australian Competition Tribunal established by the CCA, which, although principally concerned with 
the administrative review of compet ition matters, could "readily deal with any issues arising from 
the use of trademarks on, or physical aspects of, tobacco packaging".3875 
7.1639.   Fourth, Mr Shavin describes "[m]odelling the enforcement of the pre -vetting scheme on 
the enforcement mechanisms in the [ T]PP Act" to create effective mechanisms to ensure 
compliance.3876 According to Mr Shavin, such enforcement provisions "would be directed to the use 
of a mark on the packaging of tobacco products where the ACCC has not first granted approval, 
and also where t he marks have been used after first having been approved through the 
pre-vetting mechanism, but subsequently assessed by the ACCC as inducing tobacco 
consumption".3877 This could entail the imposition of civil and criminal penalties, as well as the 
granting o f restraining orders.3878  
7.1640.   Finally, Mr Shavin addresses the costs of administering and enforcing a pre -vetting 
scheme, suggesting that such costs "could readily be recovered by charges levied on persons 
seeking approval of the use of new tobacco packaging or sticks".3879 Mr Shavin states that the 
scheme could therefore be funded on a "user pays" basis, citing the examples of the Alcohol 
Beverages Advertising (and Packaging) Code  (ABAC ) in Australia as well as Australia's application 
                                                
3869 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 54. 
3870 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 55. 
3871 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 56. 
3872 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 43. See also ibid. para. 27(c) 
(contemplating "the preservation of the right of the ACCC to change its mind after packaging and sticks 
containing the marks and physical features are used in the marketplace, if it is shown that the use of individual 
aspects of those marks or physical features induce consumption").  
3873 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 56. 
3874 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  56-57. 
3875 Shavin Pr e-Vetting Report, (Exhibit DOM/HND -9), paras.  58 and 60. See also ibid. para. 27(b).  
3876 In this regard, Mr Shavin refers to provisions of the TPP Act relating to offences as well as the 
attendant criminal and civil penalties for contravention of the TPP Act. See Shavin Pre -Vetting Report, (Exhibit 
DOM/HND -9), paras.  67-73. 
3877 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 66. 
3878 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 66. See also ibid. para. 27(b).  
3879 Shavin Pre -Vetting Report, (Exhibit DO M/HND -9), para. 74. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 566 - 
  of the "user pays" principle t o the supply of government services by, for example, the ACCC and 
the Federal Court.3880 
7.2.5.6.5.2   Whether a pre -vetting mechanism would be less trade -restrictive than the 
TPP measures  
Arguments of the parties  
7.1641.   Honduras  argues that the pre -vetting mechanism is less rest rictive than the 
TPP measures , "as it envisages an individualised assessment by the ACCC of signs, design and 
format features of tobacco packages and products"; as opposed to "a blunt attempt to regulate the 
use of all signs and features, regardless of the ir potential effect on tobacco consumption".3881 
Honduras submits that if  credible evidence were to demonstrate that particular features or 
elements of a trademark do induce tobacco consumption, those specific design elements would not 
be allowed on the marke t, the effect of which is that the pre -vetting mechanism "w ould by 
definition" constitu te a measure that is less restrictive than prohibiting all design features on a 
tobacco trademark, as do the TPP measures .3882 
7.1642.   In comparing the trade -restrictiveness of a p re-vetting mechanism with the 
TPP measures , Honduras submits that such a mechanism "is a less blunt instrument compared to 
plain packaging as it only stops those trademarks that are considered to be problematic", as it 
"necessarily allows for more product differentiation than is currently the case  under" the 
TPP measures . For Honduras, "it is therefore less restrictive in terms of access to the Australian 
market and less trade restrictive in terms of the down -trading effect that plain packaging is 
causing". Honduras also argues that pre -vetting "do es not require a change in the entire 
production process and does not impose any compliance costs", and "merely affects the demand 
side and does not impose any burden on traders". Honduras adds that "it does not entail any 
restriction on the use of tradema rks on packaging of tobacco products and tobacco products would 
be able to compete in a fair manner in the Australian market", or "result in any compliance costs 
for tobacco producers".3883  
7.1643.   In addition, in response to Australia's arguments, Honduras states t hat Australia has not 
substantiated its claim that the costs of compliance with the pre -vetting mechanism would be far 
greater than the costs of compliance with the TPP measures . Those market participants that prefer 
not to apply for pre -vetting would be a llowed to sell their products on the Australian market in 
plain packs. Honduras points out that Australia fails to acknowledge similar schemes, such as the 
ABAC, which are funded on a "user pays" basis. Honduras also classifies as "speculative" 
Australia's  argument that the pre -vetting mechanism would be "highly litigious", and adds that it 
will be in the interests of the suppliers to make the system work rather than to frustrate it.3884 
7.1644.   The Dominican Republic  submits that a pre -vetting mechanism would be less  
trade -restrictive by preserving the ability of producers to maintain those aspects of trademarks 
and packaging that are permitted under the mechanism, such that "the limitation, if any, on 
trademarks, and the ensuing restriction on trade, would be signifi cantly decreased relative to the 
impact of the blanket prohibitions and extreme conditions mandated by the [TPP]  measures".3885 
7.1645.   Insofar as the volume of sales are used to assess trade -restrictiveness, the Dominican 
Republic argues that pre -vetting would enabl e the regulator to ban any pack design features that 
lead to increased smoking, without banning others, thereby making an equivalent contribution to 
reducing sales volumes, while still maintaining more differentiation than the TPP measures  and 
                                                
3880 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 75. 
3881 Honduras's first written submission, paras.  924, 613; and second written submission, para. 224. 
3882 Honduras's first written submission, para. 614; second written submission, para. 224; and response 
to Panel question No. 151. 
3883 Honduras's response to Panel question No. 151. 
3884 Honduras's second written submission, paras.  713-714. 
3885 Dominican  Republic 's first written submission, para. 1024. See also Dominican  Republic 's response 
to Panel question Nos. 41 and 65 . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 567 - 
  thus causing  less downtrading. According to the Dominican Republic, a pre -vetting mechanism 
would therefore be less trade -restrictive than the TPP measures .3886 
7.1646.   In respect of the trade -restrictiveness of this alternative, Cuba submits that a pre -vetting 
mechanism "would effectively target only the elements of packaging and trademarks that Australia 
claims may encourage tobacco consumption, whilst at the same time upholding the rights of 
trademark owners to use those trademarks to differentiate their products". The alterna tive would 
therefore "be both more effective (and at least as effective) in contributing to Australia's health 
objectives and less restrictive than the [TPP]  measures".3887 
7.1647.   Indonesia  submits that a pre -vetting mechanism would be less trade -restrictive because  
it would still allow producers to use other marks and design elements to distinguish their products 
based on factors such as quality.3888 
7.1648.   Australia  argues that, as the pre -vetting scheme would be user -pays it would therefore 
"add a very significant expense f or producers selling their products in the Australian market" 
(which would "be far greater than any of the alleged costs of complying with the tobacco plain 
packaging measure").3889 Furthermore, for Australia, the extent to which tobacco producers have 
change d their packaging in the Australian market in the past means that the pre -vetting system 
would require the commitment of significant resources by the ACCC. Australia also argues that the 
system is likely to be "highly litigious", with several avenues of ap peal of any decision. Moreover, if 
a producer were required to change its packaging as a result of the scheme, additional costs would 
be incurred. Thus, according to Australia, "on the complainants' own terms, the system would be 
highly trade -restrictive".3890 Moreover, with respect to the argument that the tobacco industry 
would not incur significant costs under the pre -vetting scheme because the industry rarely changes 
its packaging, Australia argues that such an argument is belied by the submissions of the tobacco 
industry in the litigation against the United States Food and Drug Administration (USFDA ) in 
relation to that similar pre -vetting scheme. Specifically, Australia states that the industry is 
arguing that the scheme will cause "concrete injury and ha rdship" to it because of how "frequently 
[tobacco companies] modify the labels of their products".3891 
Analysis by the Panel  
7.1649.   To the extent that a pre -vetting mechanism would make a contribution to Australia's 
objective at least equivalent to that of the TPP measures , as the complainants argue, and would do 
so by reducing overall consumption of tobacco products, it would also have a corresponding effect 
on the total volume of trade, to at least the same extent as the TPP measures . In that respect, it 
would ther efore be at least as trade -restrictive as the TPP measures .  
7.1650.   The complainants' contentions in respect of trade -restrictiveness rest on the premise that 
a pre -vetting mechanism would necessarily allow for more product differentiation than is currently 
the c ase under the TPP measures , and thereby be less trade -restrictive than the TPP measures . 
We recall in this respect our earlier conclusion that we are not persuaded, however, that a 
modification of the competitive environment for all tobacco products on the  entire market through 
a reduction in the opportunity to differentiate products on the basis of branding features (which 
may in principle increase  competition on the market) constitutes, in itself, a restriction on 
"competitive opportunities" for imported tobacco products that must be assumed to have a 
"limiting effect" on international trade.3892 Rather, it needs to be established how such effects on 
                                                
3886 Dominican  Republic 's response to Panel question No. 151. 
3887 Cuba's first written submission, para. 286. 
3888 Indonesia's first written submission, para. 440. 
3889 Australia's first written submission, para. 736. Australia adds that, under the methodology proposed 
by the complainants, the ACCC would need to conduct a 12 -month study for each and every package 
submitted for pre -vetting. In its view, this highlights that the complainants' proposed measure would be 
unworkable and hig hly trade -restrictive because of the extreme costs. The voluntary ABAC scheme, to which 
the complainants compare their proposal, contemplates four days for the pre -vetter to reach a decision on 
whether to approve the advertisement. Australia's second writt en submission, fn 633. 
3890 Australia's first written submission, para. 736. 
3891 Australia's response to Panel question No. 151; and comment on the complainants' responses to 
Panel question No. 157. 
3892 See para. 7.1415  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 568 - 
  the conditions of competition on the market give rise to a limiting effect on international trade in 
tobacco p roducts.3893 We further recall our examination in that context of the effects of the 
TPP measures  on the opportunity for brand differentiation and its impact on the overall value of 
trade.  
7.1651.   To the extent that the pre -vetting mechanism proposed by the complain ants would entail 
the same type of limitations on the use of branding and other design features on tobacco products 
and their retail packaging as the TPP measures  (albeit potentially to a lesser extent), it would give 
rise to similar concerns in this respe ct. To the extent that this would, in turn, give rise to a limiting 
effect on international trade, this effect would arise under the pre -vetting mechanism.  
7.1652.   A pre -vetting mechanism could potentially permit packaging differentiation and individual 
elements of tobacco packaging to a greater extent than the TPP measures , such that approval of 
certain branding features by a pre -vetting authority could result in greater differentiation as well 
as the attendant associations made by consumers in respect of the bra nds and packaging 
attributes that are permitted onto the market. In this respect, a pre -vetting mechanism might lead 
to a lesser impact on product differentiation between tobacco products when compared with the 
TPP measures . To the extent that this would, in turn, give rise to a limiting effect on international 
trade, this effect could arise to a lesser degree under the pre -vetting mechanism. However, such 
an outcome cannot be guaranteed, inasmuch as the complainants' proposed alternative could 
potentially result in restrictions (subject to the pre -vetting approval process) that equal or go 
beyond elements of tobacco plain packaging that are regulated by the TPP measures . To the 
extent that the pre -vetting mechanism described by the complainants does not preclude the 
restriction of packaging features such as brand names and brand variants that are not currently 
covered by the TPP measures , it would be possible that the packages permitted onto the mar ket 
would reflect even greater stringency.  
7.1653.   Moreover, a pre -vetting mechanism would introduce significant additional administrative 
and operational costs that, by the complainants' own description, could potentially be placed on 
industry participants themse lves.3894 Regardless of the precise criteria adopted and the scope of 
packaging features covered, a core component of the pre -vetting alternative is the addition of a 
regulatory process through which proposed deviations from plain packaging would be assessed,  
with multiple layers of potential review. We note in this regard the compound burdens and 
challenges that would be posed under a pre -vetting mechanism across the various elements of its 
operation, were all procedural elements to be utilized. This is espec ially evident in considering the 
potential recourse to judicial appeal and further review, for which there is evidence that substantial 
time and resources might be required.3895 It is therefore clear, from the complainants' own 
descriptions of this alternativ e, that pre -vetting would introduce an additional element of costliness 
that could be directly incurred by industry participants. While, in the absence of precise figures in 
this respect, it is difficult to quantify such costs and assess whether they would  be of such 
magnitude as to have a limiting effect on trade, it is clear that these costs, whatever their 
magnitude, would be additional to those arising under the TPP measures . 
7.1654.   In sum, any degree of trade -restrictiveness stemming from reduced product 
differentiation under the TPP measures  would not necessarily be greater than under the 
pre-vetting mechanism proposed by the complainants, which would additionally introduce 
implementation costs that do not arise under the TPP measures . In light of the above, we are 
therefore not persuaded that the complainants have demonstrated that the pre -vetting mechanism 
that they have proposed would be less trade -restrictive than the TPP measures . 
                                                
3893 Australia's first written submission, para. 516. 
3894 The complainants have suggested that the pre -vetting regime could be funded on a "user pays" 
basis, as is the case in the ABAC syst em regarding alcoholic beverages in Australia. While this possibility 
addresses how the costs of administering a pre -vetting regime might be defrayed, it not necessarily 
informative of the magnitude of those costs. The parties have presented various argume nts with respect to the 
implications of a "user pays" approach for industry litigiousness and the prolongation of the process, with the 
complainants notably contending that the tobacco industry would lack the incentive to pursue lengthy 
proceedings if it w ere to incur all associated costs.  
3895 See generally Sims Report , (Exhibit AUS -22) (SCI); and Finkelstein Report , (Exhibit AUS -21). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 569 - 
  7.2.5.6.5.3   Whether a pre -vetting mechanism would make an equivalent contribution to 
Australia's objective  
Arguments of the parties  
7.1655.   Honduras  argues that a pre -vetting mechanism will achieve "the same degree" of 
contribution as the TPP measures , as it would address those elements of tobacco packaging and 
products that, "on the basis of credi ble evidence", were found "to induce consumption, and will, 
therefore, increase the smoking prevalence rate in Australia".3896 Specifically, Honduras proposes 
this alternative in the event the Panel finds that smoking prevalence could be reduced through one 
of the two "mechanisms" set out in Section 3(2) of the TPP Act, namely reducing the appeal of 
tobacco products and packaging, or increasing the effectiveness of GHWs. Honduras's expert Mr 
Shavin argues that the pre -vetting mechanism would not need to includ e consideration of 
misleading or deceptive aspects of tobacco packaging (as this issue is already fully covered by the 
ACL); however, an additional element of the pre -vetting proposal does include the possibility of 
pre-vetting with respect to aspects of t he packaging that would likely be misleading or deceptive 
to consumers.3897 
7.1656.   Honduras submits that Australia has failed to substantiate its allegation that the ACCC 
lacks the expertise to assess the appeal of tobacco products and packaging, or the effect of 
trademarks on the effectiveness of GHWs.3898 Honduras adds that the analysis of whether a 
trademark on a cigarette pack is appealing or may undermine the effectiveness of GHWs is not 
substantially different and that the ACCC could engage external consultants sp ecialised in 
marketing, social psychology, public health for this purpose.3899 In response to Australia's 
submission that the pre -vetting proposal would require "testing thousands of combinations of 
packaging features", Honduras submits that this is an exagge ration, as the packaging of tobacco 
products remains relatively constant over time, and in any case Australia is free to implement the 
measure in its own way in order to address any practical concerns arising from the application of 
the mechanism (for exam ple, by setting a limit on the frequency of changes in packaging).3900 
7.1657.   The Dominican Republic  relies on the expert report by Mr Shavin in respect of the 
contribution that a pre -vetting mechanism would make to Australia's objectives. Citing Mr Shavin's 
report, the Dominican Republic submits that the same contribution, if any, to reducing tobacco 
consumption could be achieved by regulating only those aspects of tobacco packaging or  sticks in 
respect of which credible evidence demonstrates induce consumption. The proposed mechanism 
could be formulated in a manner that closely tracks the mechanisms through which the TPP Act is 
supposed to achieve Australia's objectives, and be substan tiated on the basis of credible evidence 
drawn from relevant disciplines, including marketing, psychology, and public health.3901 In 
addition, such a measure would allow for subsequent reconsideration, whereby the ACCC, having 
granted an approval during the p re-vetting process, would not be prevented from subsequently 
instituting proceedings or seeking orders from the Federal Court of Australia restraining the further 
use of packaging or sticks found to be non -compliant.3902 
7.1658.   Cuba submits that a pre -vetting mechan ism "would effectively target only the elements of 
packaging and trademarks that Australia claims may encourage tobacco consumption, whilst at the 
same time upholding the rights of trademark owners to use those trademarks to differentiate their 
products". The alternative would therefore "be both more effective (and at least as effective) in 
contributing to Australia's health objectives and less restrictive than the [TPP]  measures".3903 
7.1659.   Indonesia  argues that a pre -vetting mechanism could achieve all of the stat ed objectives 
with respect to appeal of tobacco products, effectiveness of the GHWs, and not misleading 
consumers "by regulating only those individual elements of tobacco packaging or tobacco sticks 
                                                
3896 Honduras's first written submission, paras.  925, 615; and second written submission, para. 225. 
3897 Honduras's second written submission, para. 222. 
3898 Honduras's second written submission, para. 708. 
3899 Honduras's second written submission, para. 709. 
3900 Honduras's second written submission, para. 710. 
3901 Dominican  Republic 's first written submission, paras.  816-819. 
3902 Dominican  Republic 's first written submission, paras.  820-821. 
3903 Cuba's first written submission , para. 286. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  that credible evidence demonstrates are contributing to p revalence".3904 Indonesia states that "the 
pre-vetting regulatory review mechanism makes the same contribution  to the objective of reducing 
smoking prevalence as PP", as marks "that are proven to be objectionable will continue to be 
prohibited ".3905 
7.1660.   Australia  responds that pre -vetting would not make an equivalent contribution  to the 
objectives of the measure.3906 Australia argues that Mr Shavin, upon whose expert report the 
complainants rely in respect of pre -vetting, has "absolutely no expertise" upon which to base  his 
"assumption that tobacco plain packaging goes 'much further than is required to achieve [its] 
public policy objectives' and that 'the physical features of tobacco packaging and sticks regulated 
under the [TPP]  measures […] are unlikely to encourage co nsumption of tobacco products'".3907 In 
addition, Australia argues that the assessment of whether a particular feature of tobacco 
packaging is appealing or may diminish the effectiveness of the required GHWs is not within the 
ACCC's area of expertise, and tha t the scheme would require testing thousands of combinations of 
packaging features, across many brands, against the proposed disqualifying criteria. Australia adds 
that the effectiveness of packaging restrictions in achieving the specific objectives of the  measure s 
"is dependent upon standardised packaging, including the standardisation of both the graphic and 
structural features of the pack"3908, which is in accordance with the recommendations in the 
Article  13 FCTC Guidelines.3909 In Australia's view, the relax ation of the restrictions imposed by the 
TPP measures  would lead to packaging innovations that make the initiation and continuance of 
smoking more likely to occur.3910 
7.1661.   Australia also argues that "a fundamental problem" with this proposal lies in the fact that, 
were a package submitted to the ACCC for pre -vetting, the ACCC would need to conduct some 
form of study or testing to determine whether there was credible evidence that the pack would be 
likely to induce consumption if released onto the market. Austr alia argues that "no study the ACCC 
could ever conduct, prior to the release of the package onto the market, would satisfy the tobacco 
industry". Australia states that "hundreds of pre -implementation studies assessing the likely 
impact of a particular pack  design (namely, plain packaging) were conducted over the course of 
two decades, [and] the complainants have purported to find fault with every study".3911 Australia 
contends that the ACCC, were it to reach a conclusion that a particular package were likely t o 
induce consumption, would almost certainly result in the ACCC becoming mired in a spate of 
litigation, due to alleged deficiencies in the evidence in support of its conclusion. Australia adds 
that, in "the absence of sufficient funding for this course of  action to be reasonably available, the 
ACCC would have no option but to approve the release of the branded packaging onto the market, 
and wait for evidence to emerge that particular features of the pack had actually induced 
consumption before restraining its further use".3912 Waiting until new consumers have been 
induced to consume an addictive product before taking action is not acceptable to Australia and 
would not achieve, but would instead undermine, its public health objectives.3913 Australia refers to 
a directive issued by the USFDA which "effectively requir[es] pre -market approval of changes in 
the appearance of tobacco product labels", the validity of which the tobacco industry challenged in 
the United States District Court for the District of Colu mbia.3914 
7.1662.   Australia also submits that an assertion that a pre -vetting mechanism would make an 
equivalent contribution to Australia's objectives is "implausible". For Australia, this is because "the 
pre-vetting scheme would operate through the same  causal mechanisms as tobacco plain 
packaging but in a manner that would fundamentally undermine  those mechanisms by reinstating 
tobacco packaging as a vehicle for advertising and promoting the 'intangible benefits' of tobacco 
                                                
3904 Indonesia's first written submission, para. 440. 
3905 Indonesia's first written submission, para. 442. (emphasis original)  
3906 Australia's first written submission, para. 718. 
3907 Australia's first written submission, para. 725 (quoting Shavin Pre -Vetting Report, (Exhibit 
DOM/HND -9), paras.  34-35). 
3908 Australia's first written submission, para. 728. 
3909 Australia's second written subm ission, paras.  564 and 569.  
3910 Australia's first written submission, para. 728; second written submission, para. 564; response to 
Panel question No. 157; and comment on the complainants' responses to Panel question No. 157. 
3911 Australia's second written subm ission, para. 566. 
3912 Australia's second written submission, para. 566. 
3913 Australia's second written submission, para. 566. 
3914 Australia's second written submission, para. 567. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  products".3915 Australia elaborates that, "r elative  to the standardised packaging implemented by 
the tobacco plain packaging measure, the proposed pre -vetting scheme would increase the appeal 
of tobacco products, reduce the effectiveness of graphic health warnings, and potentially mislead 
consumers, [such that] there is simply no basis for concluding that this alternative would make 'an 
equivalent or greater contribution' to" the objectives of the TPP  measures.3916 
7.1663.   Australia further observes that the types of packages that have been approved for release 
onto t he Turkish market under the process referred to by the complainants "are precisely of the 
kind that Australia's experts have established appeal to particular segments of the market, mislead 
regarding the harmful effects of smoking and reduce the effectiven ess of health warnings".3917 For 
these reasons, Australia argues that pre -vetting is an "inadequate" substitute for the 
TPP measures .3918 
Analysis by the Panel  
7.1664.   Unlike the other alternative measures proposed by the complainants, the pre -vetting 
mechanism would be  intended to achieve Australia's objective of improving public health by 
reducing use of, and exposure to, tobacco products through the same causal mechanisms as those 
employed by the TPP measures , namely reducing appeal, increasing the effectiveness of th e 
GHWs, and reducing the ability of the retail packaging of tobacco products to mislead consumers 
about the harmful effects of smoking or using tobacco products.3919  
7.1665.   The central premise of the complainants' proposal is that a pre -vetting alternative would 
not require the comprehensive restriction of packaging and design features, but instead would 
ensure that such features "were used only in circumstances to distinguish the products, rather 
than to promote the use or consumption of tobacco products (or to mis lead consumers)".3920  
7.1666.   We note in this respect that Australia, through the expert opinion of Professor Fong, 
describes two linked components addressed by the TPP measures , namely the non -structural 
features of the pack (the graphic design, lettering, font, colours, etc. ) and the physical, structural 
features of the pack (the physical dimensions, style of the opening, shape, edges, material used in 
packaging, and physical aspects of the cigarette itself).3921 According to Professor Fong, "[t]hese 
two components  are inherently linked together because the tobacco industry has used both to 
increase appeal, reduce the effectiveness of the warnings, and to communicate to consumers or 
potential consumers that some kinds of cigarettes are less harmful".3922 Professor Fong  thus 
considers that, "in the same way that advertising bans must be comprehensive" to prevent 
advertising from being "channelled more intensely into the channels not covered, the 
standardisation of the package must be comprehensive" given that "otherwise this would allow the 
marketing efforts of the tobacco industry on the package to be continued".3923 
7.1667.   Professor Fong submits that, to achieve the objectives of the TPP measures , 
"standardisation of the physical structure and standardisation of the graphical des ign elements of 
the tobacco package are both critically important" as "[t]o omit one of them would substantially 
weaken the [TPP] Act".3924 More specifically, regarding the first causal mechanism of the 
TPP measures , Professor Fong cites evidence that the pac kage structure (shape and size) for a 
variety of tobacco products can have "a powerful effect on perceptions of appeal"3925, and that 
                                                
3915 Australia's comment s on the complainants' responses to Panel question No. 157. 
3916 Australia's comment s on the complainants' responses to Panel question No. 157. 
3917 Australia's first written submission, para. 727. 
3918 Australia's first written submission, paras.  726-727. 
3919 See, e.g. Honduras's response to Panel question No. 157; Dominican  Republic 's first written 
submission, paras.  799, 810 -811; and Dominican  Republic 's second written submission, para. 706. 
3920 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 112. 
3921 Fong Report , (Exhibit AUS -14), para. 18. See also ibid. paras.  121-126; and Australia's first written 
submission, para. 728. 
3922 Fong Report , (Exhibit AUS -14), para. 19. 
3923 Fong Report , (Exhibit AUS -14), para. 124. 
3924 Fong Report , (Exhibit AUS -14), para. 21. 
3925 Fong Report , (Exhibit AUS -14), para. 169. See also ibid. paras.  170-177. Elsewhere, Professor Fong 
cites a survey of 762 youth in the United Kingdom finding that, compared to a brand ed pack, a standardiz ed 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 572 - 
  "packaging is an essential marketing tool within the tobacco industry".3926 In addition, Professor 
Fong considers that "[t]he im pact of the attractive designs on tobacco packaging in increasing the 
appeal of the product is also experienced among potential  consumers".3927 With regard to the 
second causal mechanism of the TPP measures , Professor  Fong states that the standardiz ed 
packagi ng required by the TPP measures  bans "packaging innovations that would decrease the 
salience and prominence of the health warning".3928 Finally, with regard to the third causal 
mechanism, Professor Fong extensively reviews evidence and studies as to the poten tial for 
creative package design and variant descriptors to mislead consumers inter alia as to product 
attributes3929 and the harmful effects of using tobacco.3930 On the basis of his review, Professor 
Fong states that, "[b]y removing branding elements such as i magery and unique package designs, 
there is strong evidence to suggest that the plain packaging measure will have the effect of 
reducing the ability of the retail packaging of tobacco products to mislead consumers about the 
harmful effects of smoking or us ing tobacco products".3931  
7.1668.   With regard to the potential exploitation of greater packaging permissiveness in a manner 
that would undermine the objective of the TPP measures , we note the opinion of Australia's expert, 
Professor Slovic, that the policy of standardizing packages rests on the view that the tobacco 
industry deliberately goes to great lengths "to build into every feature of a brand's design the very 
qualities of appeal that the complainants deny".3932 We also note that Australia's expert, Dr Bigla n, 
submits that relaxing or eliminating the current Australian policy would open the way to numerous 
marketing innovations. Dr Biglan cites various studies in support of this position to conclude that 
"modifying the plain packaging regulations so that some  variation among brands in the features of 
their packs would open the way for the tobacco industry to develop and test package innovations 
that make the initiation and continuance of smoking more likely to occur".3933 We recall our own 
assessment of evidence as to the role of tobacco packaging as an advertising tool and instrument 
of communication3934, as well as the evidence we have reviewed suggesting that plain packaging of 
tobacco products reduces their appeal to consumers.3935  
7.1669.   We note that the "disqualifying c riteria" presented by Mr Shavin and the complainants 
that would be used in a pre -vetting mechanism are based on the three causal mechanisms 
themselves, and are framed according to the promotion of tobacco consumption through physical 
features and a non -exhaustive set of elements of signs.3936 Given our findings on the contribution 
made by the TPP measures  to their objective (in particular through these mechanisms), and to the 
extent that the proposed pre -vetting mechanism would operate through the same "mechan isms" 
as the TPP measures , we are of the view that a pre -vetting mechanism would contribute to 
Australia's objective of improving public health by reducing the use of , and exposure to , tobacco 
products. However, the foregoing considerations raise the quest ion of the degree of contribution 
that could be made to this objective by targeting, and potentially permitting, individual elements 
of tobacco packaging that deviate from the standard plain package currently required by the 
                                                                                                                                                  
plain pack was significantly less likely to be perceived as more attractive across six different pairs of packs. 
Ibid. para. 205. 
3926 Fong Report , (Exhibit AUS -14), para. 179. See also Fong Supplemental Report , (Exhibit AUS -531), 
para. 132 ( referring to  a review by Sir Cyril Chantler).  
3927 Fong Report , (Exhibit AUS -14), para. 183 (underlining original). Professor Fong further concludes 
based on a review of selected studies that "branding on tobacco packaging, such as shape and colour, has an 
influence on perceptions of taste" and that, "[b]ecause taste has an influence on appea l, it is reasonable to 
conclude that the plain packaging measure would eliminate or reduce the appeal of tobacco products to 
consumers by reducing the ability of branding on the pack to communicate messages about taste". Ibid. 
para. 190. 
3928 Fong Report , (Exhibit AUS -14), para. 37. Professor Fong also cites reports by the US National 
Cancer Institute (2008) and the US Surgeon General (2012) that "have converged in their conclusion that plain 
packaging prevents innovations in packaging that could otherwise dec rease the prominence of the health 
warnings". Ibid. para. 308. 
3929 Fong Report , (Exhibit AUS -14), paras.  357-398. 
3930 Fong Report , (Exhibit AUS -14), paras.  399-412. 
3931 Fong Report , (Exhibit AUS -14), para. 413. 
3932 Slovic Report , (Exhibit AUS -12), paras.  122-127. 
3933 Biglan Report , (Exhibit AUS -13), paras.  131-134. 
3934 See " Analysis by the Panel " within section 7.2.5.3.5.2  above . 
3935 See " Impact of plain packaging on the appeal of tobacco products " within sec tion 7.2.5.3.5.2  above.  
3936 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 40. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TPP measures , and whether such a degree of contribution would be equivalent to that made by the 
TPP measures . 
7.1670.   At the outset, we note that the understanding of tobacco plain packaging as extending 
further than the restriction of individual features finds confirmation particularly in the Article  13 
FCTC Guidelines, which, under the "Recommendation" that FCTC Parties "should consider" 
adopting "plain packaging requirements", state  that "[p]ackaging, individual cigarettes or other 
tobacco products should carry no advertising or promotion, including  design features that make 
products attractive".3937 On the other hand, in paragraph 17, the Article  13 FCTC Guidelines state 
that: "[i]f plain packaging is not yet  mandated, the restriction should cover as many as possible of 
the design features tha t make tobacco products more attractive to consumers such as animals or 
other figures, 'fun' phrases, coloured cigarette papers, attractive smells, novelty or seasoned 
packs."3938  
7.1671.   The pre -vetting proposal put before us by the complainants would hinge on the 
presentation of "credible evidence" that certain features and signs induce tobacco consumption 
through any of the three causal mechanisms of the TPP measures .3939 We note there is potentially 
a significant difference between, on the one hand, requiring the re gulatory authority to present 
credible evidence for a positive determination that certain features induce consumption3940 and, on 
the other hand, requiring applicants to present credible evidence that a given feature does not 
induce consumption through any of  the causal mechanisms of the TPP measures . Under the former 
scenario, which we understand to be that envisaged under the complainants' proposed alternative , 
based on Mr Shavin's description3941, the potential degree of contribution would appear to be 
depende nt on the regulatory authority's ability to make a positive determination based on 
"credible evidence" that isolated packaging features induce consumption. This, in turn, could be 
understood as a presumption that no feature induces consumption through the three causal 
mechanisms of the TPP measures , which would then be for the regulatory authority to disprove by 
presenting credible evidence to the contrary.3942 We refer as relevant to t his aspect of the 
complainants' proposed alternative in our assessment of i ts potential degree of contribution to 
Australia's objective.  
7.1672.   As a fundamental matter, the design of the pre -vetting mechanism proposed by the 
complainants does not necessarily pre -determine in any detail the precise packaging or product 
features that woul d be permitted on the market. Accordingly, it cannot be precluded that, under 
the complainants' proposed pre -vetting scheme, the resulting packages would be identical to those 
required under the TPP measures  in respect of the limitations on physical and gr aphic design 
features. Were such a scenario to be the result of a pre -vetting mechanism, it would logically 
follow that the pre -vetting scheme makes not only an equivalent but also an identical  contribution 
as that achieved by the TPP measures .  
7.1673.   We note, h owever, that the premise underlying the complainants' proposed alternative is 
that it could achieve an equivalent contribution by targeting only those elements that are found to 
                                                
3937 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, "Recommendation" following 
para. 17. (emphasis added)  
3938 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, para.  17 (emphasis added). 
We also recall that paragraph 15 of the Article  13 FCTC Guidelines states inter alia  that "[t ]obacco pack or 
product features are used in various ways to attract consumers, to promote products and to cultivate and 
promote brand identity, for example by using logos, colours, fonts, pictures, shapes and materials on or in 
packs or on individual ciga rettes or other tobacco products." Ibid. Annex, para. 15. 
3939 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 42. 
3940 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  24-25 and 30.  
3941 Throughout his report, Mr Shavin consistently refers to " credible evidence" that a given feature 
induces consumption, rather than evidence that a given feature does not induce consumption. See Shavin 
Pre-Vetting Report, (Exhibit DOM/HND -9), paras.  18, 24 -25 and 30.  
3942 Although it has been clarified that the TPP measures  might remain in place pending entry into force 
of a pre -vetting mechanism, it is not clear from the complainants' descriptions that the proposed alternative 
would consist of a default regime of plain packaging from which applicants could seek speci fic derogations 
based on credible evidence, presented by the applicants, that a given feature does not fall within the 
disqualifying criteria. See, e.g. Dominican  Republic 's response to Panel question No. 41, para. 199; and Shavin 
Pre-Vetting Report, (Exhibit DOM/HND -9), para. 53. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  induce consumption, or otherwise infringe the disqualifying criteria.3943 By comp arison, the 
TPP measures  are characterised by the complainants' expert, Mr Shavin, as prohibiting in a 
"blanket manner" packaging characteristics without any attempt at differentiation, potentially 
resulting in an over-inclusive  restriction of the possible  features of tobacco packaging for the 
purposes of Australia's objective.3944 At the same time, although the pre -vetting mechanism is 
proposed as a potentially more permissive regime, we note that it could extend to aspects beyond 
those regulated by the TPP measures . For instance, as noted by Australia's expert, Professor Fong:  
[A]lthough the [ TPP measures ] eliminate[] the use of packaging design and colours of 
the pack to mislead consumers, there remains the name itself of the brand, for 
example, the use of n ames of colours in the names of brand variants that are not 
banned (e.g. "blue", "gold") as well as word descriptors that are not banned (e.g. 
"smooth").3945  
7.1674.   Professor Fong goes on to state that this "is a consequence of the fact that the industry 
still has other tools besides packaging that have also been shown to be effective in misleading 
consumers into believing that some brands are less harmful than others".3946 Thus, it is 
theoretically possible that a pre -vetting mechanism could apply to, and result in disqualification of, 
a greater  number of packaging elements than under the TPP measures , based on a regulatory 
determination that they increase appeal, reduce the effectiveness of GHWs, or mislead consumers, 
thus potentially making a greater contribution to Australia's objective.  
7.1675.   Regardless, the parties' contentions as to the potential contribution of a pre -vetting 
mechanism largely relate to the capacity of a pre -vetting authority to effectively isolate and 
distinguish individual  packaging features that undermine the objective and causal mechanisms of 
the TPP measures . We consider that a critical aspect of the degree of contribution that could be 
achieved by pre -vetting is the extent to which the regulatory a uthority administering a pre -vetting 
mechanism would successfully be able to ascertain precisely which individual features are likely to 
induce consumption or otherwise run counter to the disqualifying criteria based on the 
TPP measures ' causal mechanisms.  This would be the case even if the pre -vetting mechanism 
were to encompass packaging features in the review process that are not restricted by the 
TPP measures . Further, as noted, the pre -vetting regime described by Mr Shavin may require a 
regulatory auth ority to prohibit only those particular features in respect of which it can adduce 
specific "credible evidence" that they increase product appeal, reduce the effectiveness of GHWs, 
or mislead consumers, while all other packaging features submitted by appli cants would be 
allowed onto the market. As noted above, this description indicates that the proposed pre -vetting 
mechanism would essentially place the burden on the regulatory authority to put forward positive 
evidence of its determinations as to each and every individual  packaging element for which an 
applicant sought approval.   
7.1676.   We have reviewed above the parties' arguments as to the competence of an existing 
regulator, the ACCC, to carry out this function under a regime for pre -vetting assessment and 
approval. We have been presented with expert opinion that the ACCC has expertise and 
enforcement capability in respect of misleading conduct3947, and further that, for causal 
                                                
3943 According to the complainants, the greater potential permissiveness as to tobacco packaging 
features is in fact the basis for arguing that pre -vetting would be less trade -restrictive than the TPP measures . 
See Honduras's re sponse to Panel question No. 151 (stating that pre -vetting "necessarily allows for more 
product differentiation than is currently the case under the plain packaging regime"); Dominican  Republic 's 
response to Panel question No. 151, paras.  64-65 (referring to the TPP measures  as "over -inclusive" and the 
pre-vetting mechanism as banning "solely those pack design features that lead to smoking" and "maintaining 
more differentiation"); Cuba's first written submission, para. 286; and Indonesia's first written sub mission, 
para. 440 (arguing that a pre -vetting "mechanism would be less trade -restrictive because it would still allow 
producers to use other marks and design elements to distinguish their products based on factors such as 
quality".   
3944 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  20-21 and 114. 
3945 Fong Report , (Exhibit AUS -14), para. 414. 
3946 Fong Report , (Exhibit AUS -14), para. 414. In this regard, the Dominican  Republic  submits that the 
pre-vetting mechanism could actually make a greater contri bution to Australia's objectives to the extent that it 
is accepted that brand and variant names can impact smoking prevalence or consumption through the 
mechanisms specified in the TPP Act. Dominican  Republic 's second written submission, para. 709. 
3947 See generally Heydon Report , (Exhibit UKR -11); and Shavin Report , (Exhibit DOM/HND -1), Section 
V. In particular, with respect to the causal mechanism of reducing the ability of the retail packaging of tobacco 
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- 575 - 
  mechanisms unrelated to misleading information or conduct, the ACCC would nonetheless be  the 
most suitable entity currently existing in Australia to perform the functions of a pre -vetting 
regulatory authority.3948 
7.1677.   At the same time, we have been presented with evidence regarding the limitations of the 
ACCC in respect of the responsibilities that a pre -vetting mechanism would entail. Notably, the 
Chairman of the ACCC since 2011, Mr Sims, has submitted the view that, notwithstanding the 
ACCC's expertise and experience to assess whether packaging is likely to mislead or deceive, the 
ACCC does not pre-approve  proposed marketing or packaging (of any product) for this purpose, 
nor does it assess whether packaging is appealing or diminishes the effectiveness of health 
warnings.3949 Further, within the scope of its current enforcement capabilities under the A CL, the 
ACCC would be faced with its own resource limitations in the course of potentially uncertain 
proceedings against misleading or deceptive tobacco packaging.3950 The limited capacity of the 
ACCC would either mean that fulfilment of the objective could b e achieved partially through only 
one causal mechanism (i.e. enforcing provisions against misleading or deceptive conduct and false 
or misleading representations), or with the additional external assistance of experts, as suggested 
by Mr Shavin, to assist in the gathering of "credible evidence" regarding a proposed tobacco 
package and whether its features increase the appeal of the product, or undermine the 
effectiveness of the GHWs.  
7.1678.   Moreover, the several layers of review in the proposed pre -vetting mechan ism also 
implicate the capacity of the Australian judiciary to review determinations based on the pre -vetting 
criteria and objective of the TPP measures . In this regard, Australia's expert Mr Finkelstein, a 
former President of the Australian Competition Tr ibunal and judge of the Federal Court, opines that 
the objectives of the TPP measures  "are not capable of being achieved by the application of any 
other existing Australian law, specifically the ACL", for the reason that "the objectives of the 
[TPP Act] go far beyond the prevention of misleading or deceptive conduct, and are beyond the 
reach of any other Australian law".3951 Mr Finkelstein further describes how, even if specific 
tobacco advertising or promotion could be characterised as misleading or deceptive , any resulting 
litigation will be "problematic" due to a variety of contributing factors, including the complexity of 
the legal and factual questions presented as well as the costliness and burdens of litigation.3952 
Thus, even if a pre -vetting regime could be legally introduced, this would "involve the courts at 
various stages of giving effect to the scheme", which could potentially generate additional 
uncertainties and inefficiencies.3953 In our view, the considerations raised by Mr Finkelstein and 
Mr Sims, bo th in terms of requiring a scope of review beyond misleading effects and the potential 
magnitude and complexity of proceedings, are indicative of the compound difficulties and 
uncertainties of pre -vetting at the stage of the initial determination, as well as in the subsequent 
judicial review.  
7.1679.   We note in this respect the parties' arguments regarding the example of Turkey's 
pre-vetting system for tobacco products. Australia contends that such a system allows precisely 
the features the TPP measures  seek to av oid3954, whereas the complainants argue that Australia 
would be free to adapt such a regime to its own standards.3955 In our view, Australia's existing 
regulatory structure and tobacco pre -vetting in other jurisdictions, while potentially informative of 
reasonable availability, are not conclusive in the assessment of a hypothetical pre -vetting system's 
comparative degree of contribution to Australia's objective, in the context of its own overall 
approach to tobacco control policy, including its chosen lev el of protection.  
                                                                                                                                                  
products to mislead consumers about the harmfu l effects of smoking or using tobacco products, Mr Shavin 
concludes that the TPP measures  will not contribute anything beyond the consumer protection regime and 
mechanisms that already exist in Australia. See also Australia's first written submission, para. 740. 
3948 See Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 16. 
3949 Sims Report , (Exhibit AUS -22) (SCI), paras.  6.8-6.11. 
3950 Sims Report , (Exhibit AUS -22) (SCI), paras.  5.10-5.11. 
3951 Finkelstein Report , (Exhibit AUS-21), para. 5. See also ibid. para. 70. 
3952 Finkelstein Report , (Exhibit AUS -21), para. 6. See also ibid. paras.  78-93 and 135 -146. In this 
regard, Finkelstein describes tobacco litigation in Australia to illustrate the potential challenges of litigating a 
claim for false and misleading conduct in relation to tobacco packaging, which he considers "likely to be 
complex, protracted and expensive". See ibid. paras.  94-123. 
3953 Finkelstein Report , (Exhibit AUS-21), para. 9. 
3954 Australia's first written submission, para. 727. 
3955 See, e.g. Dominican  Republic 's second written submission, fn 689. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1680.   In assessing the above elements to make a determination in respect of the degree of 
contribution that would be made by pre -vetting, we consider particularly relevant the 
Appellate  Body's guidance that the assessment "should also be made in the light of the 
characteristics of the technical regulation at issue as revealed through its design and structure , as 
well as the nature of the objective pursued and the nature, quantity, and quality of the evidence 
available".3956 In this respect, we con sider that a pre -vetting mechanism, in its design and 
structure, necessarily introduces the possibility of a reduction in the degree of contribution to the 
objective. This is due to the defining character of the pre -vetting mechanism, namely the 
introducti on of administrative discretion and the possibility of permitting certain tobacco packaging 
elements that would lead to greater consumer appeal, reduced effectiveness of GHWs or a greater 
likelihood that consumers are misled about the harmful effects of sm oking or using tobacco 
produ cts.3957 To the extent that such a possibility materialized under a pre -vetting mechanism, this 
would lead to a lesser degree of contribution than that made by the TPP measures . The very 
design of a pre -vetting mechanism would impl y the possibility of such potential deviations in a 
manner and to a degree that is foreclosed by the TPP measures . Thus, in any form of a pre -vetting 
mechanism, there would be a possibility of a lesser degree of contribution to Australia's objective, 
depen ding to a great extent on the disqualifying criteria and the enforcement standards applied by 
the regulatory authority.  
7.1681.   In this connection, we recall the evidence presented that plain packaging can serve to 
reduce packaging appeal, misleading of consumers , and distraction from GHWs3958, and that 
tobacco packaging has been utilized by the tobacco industry to introduce graphic and structural 
features in ways that undermine the objective and causal mechanisms of the TPP measures .3959 
We also find compelling the fac t that the uniform appearance of packages may itself prevent the 
use of differentiating features or the introduction of packaging variety, which could be used as part 
of the use of branding on tobacco retail packs, for the purposes of creating a brand imag e and 
positive associations with the products in such a manner as to potentially increase product appeal, 
reduce the effectiveness of GHWs, or mislead consumers about the harmful effect of smoking or 
using tobacco products.3960 Moreover, while such elements c ould, under the complainants' 
proposal, be retrospectively removed from the market as part of a review process, this would not 
remedy the effect that any such elements may have had whilst on the market (such as, for 
example, transmitting images and assoc iations which may influence adolescents to initiate 
smoking).  
7.1682.   In conclusion, despite various possibilities under a hypothetical pre -vetting mechanism, 
the primary scenario under consideration for the alternative measure proposed by the 
complainants is the po tential allowance of packaging features that are currently prohibited. The 
fact that a pre -vetting mechanism entails a degree of discretion and potential error in the process 
of permitting approved packaging features is particularly significant in this con text. While this risk 
would be generally present under a pre -vetting mechanism, it is apparent in the possibility that a 
pre-vetting mechanism may permit packages which are subsequently deemed to meet the 
disqualifying criteria identified in the pre -vettin g mechanism, creating a window during which the 
subsequent public health effects may arise. Moreover, we have described how the challenges of 
the pre -vetting review may be compounded by placing the burden on an authority to present 
                                                
3956 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215. (emphasis 
added)  
3957 We note in this regard Mr Shavin's explicit contemplation of the subsequent discovery of appealing, 
distracting, or deceptive elements, which is indicative of  the inherent variability and possibili ty of error under a 
pre-vetting mechanism.  
3958 See, e.g. Fong Report , (Exhibit AUS -14), paras.  21, 37, 124 -126. 
3959 See, e.g. Fong Report , (Exhibit AUS -14), p. 94; Biglan Report , (Exhibit AUS -13), paras.  133-134; 
and Slovic Report , (Exhibit AUS -12), paras.  122-128. 
3960 We note, for example, the Imperial Tobacco promotional material referred to by Dr Biglan depicting 
a new "Camel" pack and indicating the messages indicated by different elements of that pack. These include 
the use of a "refined embossed logo  "in "richer gold" (denoting "quality"), the adoption of a "smoother 'walking 
icon' with rounded shapes", denoting "generosity, liveliness", the use of a curved inner frame in the pack to 
denote "smoothness", the absence of another frame denoting a "sense of free dom, space and modernity", and 
the use of a "white halo" to indicate "stylishness". See Biglan Report , (Exhibit AUS -13), p. 30, Figure 6. Such 
evidence, in our view, is consistent with Professor Slovic's observation, which he also bases on internal tobacco  
industry documents, that "the tobacco industry has done everything possible to build into every feature of a 
brand's design the very qualities of appeal that the complainants deny". See Slovic Report , (Exhibit AUS -12), 
paras.  122-127. See also paras.  7.660 , 7.731 , and 7.1666 -7.1668  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 577 - 
  credible evidence and ma ke positive determinations that individual features induce consumption 
through any of the causal mechanisms of the TPP measures . Such considerations are indicative of 
the potential under any pre -vetting regime for greater permissiveness of the type of pack aging 
features that Australia seeks to prevent from being placed on the market.  
7.1683.   We recall our findings above as to the degree of contribution achieved by the 
TPP measures  as well as the risks non -fulfilment of the objective would create. We have found tha t 
these risks are grave on the basis of the public health objective pursued, and have taken into 
account that there is no safe use of, or exposure to, tobacco products in the course of identifying 
the nature of these risks and the gravity of the consequenc es of non -fulfilment of the objective.3961 
The potential shortcomings we have described in respect of a pre -vetting mechanism introduce the 
possibility of a lesser fulfilment of Australia's objective in a manner that would prevent Australia 
from pursuing its legitimate public health objective at the levels it considers appropriate.  
7.1684.   In this regard, our assessment of the pre -vetting mechanism as an alternative to the 
TPP measures  is informed by the sixth preambular recital of the TBT Agreement  that a Member 
should not be prevented from pursuing a legitimate objective "at the levels it considers 
appropriate".3962 We are also mindful of the Appellate Body's guidance that the level a Member 
considers appropriate "is usually revealed by the degree of contribution that a technical regulation 
actually  makes to its objective"3963 and that this "may also be discernible in o ther ways, such as 
through an express provision or statement in the instrument at issue".3964 Both the degree of 
contribution actually made by the TPP measures , as well as provisions and statements found 
within the TPP measures3965, provide support for our concl usion that pre -vetting would not achieve 
an equivalent degree of contribution to that made by the TPP measures , taking into account the 
risks non -fulfilment of the objective would create.  
7.1685.   Accordingly, we find that the complainants have not demonstrated tha t their proposed 
alternative measure of a pre -vetting mechanism for tobacco packaging would make an equivalent 
contribution to Australia's objective, taking into account the nature of the objective and the risks 
non-fulfilment would create.  
7.2.5.6.5.4   Whether a pre -vetting mechanism is reasonably available to Australia  
Arguments of the parties  
7.1686.   Honduras  argues that the ACCC already has "well defined obligations in relation to 
analogous circumstances", and could thus easily administer and enforce such a pre -vetting 
mech anism.3966 Honduras elaborates that the ACCC administers information standards and 
industry codes, and has successfully enforced compliance with the provisions of these instruments. 
It also refers to Australia's CCA, under which pre -vetting/pre -notification p rocesses exist with 
respect to certain forms of potentially anti -competitive conduct and mergers. Honduras states that 
it does not see any compelling reason why this experience is not transposable to pre -vetting in the 
area of tobacco packaging.3967 
7.1687.   Honduras also asserts that a pre -vetting mechanism can be funded on a "user pays" basis 
by the tobacco industry itself, such that it not entail an undue burden for the Australian 
Government. Honduras refers to the pre -vetting scheme established under the ABAC as a good 
example of an existing industry -funded scheme for pre -vetting packaging (and advertisements). 
According to Honduras's expert, Mr Shavin, the ABAC regulates the content of the naming and 
packaging based on the understanding of how that naming and packa ging might induce consumers 
to use, or abuse, alcoholic products. The ABAC also creates a panel which is responsible for 
                                                
3961 This is particularly the case given the evidence we have reviewed regarding the addictive nature of 
tobacco. See , e.g. US Surgeon General's Report 2012, (Exhibit AUS-76). 
3962 See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.201  (footnote 
omitted) . 
3963 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.201. (emphasis 
original ; footnote omitted ) 
3964 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.201 fn  632. 
3965 See, e.g. TPP Bill Explanatory Memorandu m, (Exhibits AUS -2, JE-7), p. 1. 
3966 Honduras's first written submission, paras.  616, 926.  
3967 Honduras's first written submission, para. 617. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 578 - 
  adjudicating on complaints concerning compliance of packaging with the ABAC which, according to 
Honduras and Mr Shavin, attests to its competence and effectiveness in assessing the impact of 
packaging and advertising on consumption. Under Honduras's proposal, if a similar adjudication 
body were to examine the likely impact of a package on tobacco consumption, the elements under 
considerat ion would have to include the trademark at issue as well as the large GHWs appearing 
on the package.3968 
7.1688.   The Dominican Republic  similarly argues that the pre -vetting mechanism would be 
reasonably available as it could be built upon the foundation of Australia n laws and regulations 
already in effect , and could be administered by the ACCC. According to the Dominican Republic, 
the ACCC has regularly taken action against misleading aspects of product packaging pursuant to 
the ACL, and is currently responsible for regulating compliance with information standards and 
other instruments.3969 In addition, costs would be recovered from the tobacco industry, which 
would be obliged to submit their tobacco products and packaging for pre -vetting.3970 
7.1689.   The Dominican Republic also re fers to the voluntary regime for pre -vetting packaging for 
alcoholic beverages under the ABAC, which it describes as a "quasi -regulatory scheme", with 
marketing guidelines that have been negotiated with government.3971 It explains that the ABAC 
operates entir ely on a user -pay basis, is used on a regular basis, and includes a process to 
adjudicate complaints over violations of the Code. For the Dominican Republic, this scheme 
indicates that regulatory schemes dealing with the content of packaging can function 
successfully.3972 
7.1690.   The Dominican Republic also points out that Turkey has enacted a mandatory pre -vetting 
mechanism for the retail packaging of tobacco products, to consider the outer packaging, opening 
band, internal package and aluminium folio of a unit packa ge of tobacco product imported or 
produced in Turkey and cigarettes, to ensure that no misleading or incomplete information 
regarding their features, effects on health, hazards or emissions may be given, and "no text, 
name, brand, type name, metaphor, figu re, sign, color or color combinations implying that a 
particular tobacco product is less harmful than another or inducing or encouraging its 
consumption, or misleading the consumer or making the product attractive, can be used".3973 
7.1691.   Cuba also refers to the ABAC for alcoholic beverages as something that would assist 
Australia in designing and successfully implementing a pre -vetting mechanism for tobacco 
products.3974 Cuba adds that it does not understand why Australia thinks that this alterna tive, 
"which clearly works in connection with alcoholic beverages, would not work with respect to 
tobacco products".3975 
7.1692.   Indonesia  argues that a pre -vetting system "is not just 'theoretical'"3976 as the ACCC 
already conducts regulatory reviews under similar circumstances and  has the authority to prohibit 
deceptive packaging.3977 Indonesia refers by way of example to the fact that persons may request  
from the ACCC a form of "pre -clearance" for certain forms of potentially anti -competitive mergers. 
Moreover, Indon esia submits that the ACCC has gained considerable experience in the 
administration and enforcement of information standards and industry codes, and has dealt with 
                                                
3968 Honduras's first written submission, paras.  926, 618 -625; and second written submission, 
para. 226. 
3969 Dominican  Republic's first written submission, para. 825. 
3970 Dominican  Republic 's first written submission, para. 826. 
3971 Dominican  Republic 's first written submission, paras.  827-828. 
3972 Dominican  Republic 's first written submission, paras.  829-830. 
3973 Dominican  Republic 's first written submission, paras.  805-807; and response to Panel question 
No. 41. 
3974 Cuba's first written submission , para. 285. 
3975 Cuba's second written submission , para. 346. 
3976 Indonesia's first written submission, para. 449. 
3977 Indonesia's first written submission, paras.  443-445. Indonesia also states that the ACCC 
undertakes investigations of alleged contraventions of the Australian Consumer Law, and has taken action 
against "descriptors" such as "light" or "mild" that were previously used on tobacco pa ckaging, alleging that 
these terms mislead consumers into believing that products with this label were less harmful than other 
tobacco products.  Indonesia's first written submission, paras.  446-447. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 579 - 
  the pre -notification of conduct.3978 Indonesia adds that the system could be funded through use r 
fees from manufacturers filing a request for pre -vetting with the ACCC.3979 
7.1693.   Indonesia also refers to the ABAC for pre -vetting packaging of alcoholic beverages, which 
in its view demonstrates that both conceptually and in practice, regulatory schemes dealing  with 
the content of packaging can function successfully.3980 Indonesia also cites the example of the 
pre-vetting mechanism maintained by Turkey, which requires any tobacco product offered on the 
domestic market to be reviewed by a regulatory authority that m ust consider whether the 
proposed packaging includes any features that could increase appeal of the product or be 
misleading to consumers.3981  
7.1694.    Australia  argues that a pre -vetting mechanism would not be reasonably available. In 
Australia's view, the complain ants' contention that the role allocated to the ACCC would be similar 
to that which it assumes in other contexts is inapposite. While the ACCC has the expertise and 
experience which would enable it to assess whether packaging is likely to mislead or deceiv e, 
Australia submits that it does not have the expertise to assess whether aspects of packaging, 
including colour, pictures and other devices, might separately or in combination make the 
packaging appealing or diminish the effectiveness of the required hea lth warnings. Australia adds 
that the ACCC does not issue advisory opinions on whether a corporation has engaged in 
misleading and deceptive conduct, and the proposal that it do so would impose a considerable 
burden on the ACCC.3982 According to Australia, th e litigation costs entailed in defending pre -
vetting decisions in courts would make such an alternative "prohibitively costly ".3983 In Australia's 
view, the Dominican Republic's suggestion that, in view of these difficulties, Australia could create 
an entirel y new agency with the relevant expertise to administer the pre -vetting mechanism only 
reinforces that this alternative is not reasonably available.3984 
Analysis by the Panel  
7.1695.   Having set out above the main characteristics of the pre -vetting mechanism proposed by 
complainants, we note that a central point of contention as to its reasonable availability relates to 
the capacity of the ACCC to perform the regulatory functions of pre -vetting review and approval. 
The complainants largely rely on Mr Shavin's expert op inion regarding the role of the ACCC and its 
competency to administer and enforce a pre -vetting system.3985 In reviewing this opinion, we also 
bear in mind the possibility that the pre -vetting functions could be performed by another 
regulatory authority.  
7.1696.   According to Mr Shavin, "the ACCC has a long history of protecting and promoting fair 
competition in the marketplace through its enforcement of Australia's competition law pursuant to 
the Competition and Consumer Act (CCA), including in the tobacco industry".3986 Mr Shavin adds 
that the ACCC is authorized to prescribe an "industry code" (either mandatory or voluntary), which 
is defined by the CCA as " a code regulating the conduct of participants and industry towards other 
participants in the industry or towards c onsumers in the industry ".3987 Mr Shavin notes the broad 
range of matters covered in the existing four mandatory industry codes prescribed under the 
                                                
3978 Indonesia's first written submission, para. 450. 
3979 Indonesia's first written submission, para. 448. 
3980 Indonesia's first written submission, paras.  451-453. 
3981 Indonesia's first written submission, paras.  454-455. 
3982 Australia's first written submission, para. 740. 
3983 Australia's second written submission, para. 566, footnote 634 and para. 569, footnote 643; and 
Australia's comments on the complainants' responses to Panel ques tion No. 157, para. 82, fn  132. 
3984 Australia's comment s on the complainants' responses to Panel question No. 157. 
3985 See, e.g. Honduras's first written submission, para. 616; Cuba's first written submission, para. 282; 
Dominican  Republic 's first written submission, para. 825; and Indonesia's first written submission, para. 443. 
Mr Shavin explains in his report that he i s an Australian legal practitioner with experience conducting cases in 
the fields of competition law and intellectual property law, having acted both on behalf of and opposed to the 
ACCC in a number of proceedings. Shavin Pre -Vetting Report, (Exhibit DOM/H ND-9), paras.  1-6. 
3986 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 77. Mr Shavin specifically cites the ACCC's 
past involvement in requiring certain tobacco companies to address its concerns as to the likely effect on 
competition of their merger.  
3987 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 80. (emphasis omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 580 - 
  CCA.3988 In addition, Mr Shavin refers to "a pre -vetting type" notification process whereby a person 
may seek fro m the ACCC a form of clearance in relation to certain forms of potentially 
anti-competitive conduct. The ACCC may assess the proposed conduct, with the possibility of 
changing its decision upon learning of additional information.3989 
7.1697.   In this context, we also note the expert opinion of Mr Heydon3990 submitted by Ukraine, 
and referred to by Cuba and Indonesia, addressing the scope and application of existing laws in 
Australia, and in particular the CCA and ACL, to regulate misleading retail packaging in relation to  
tobacco products.3991 Mr Heydon submits that "[t]here is no element of the allegedly misleading 
conduct precluded by the challenged regime which is incapable of remedy under the [ACL]".3992 Mr 
Heydon further cites the remedies under the CCA that are similar to but also "in many respects 
wider than those available under the [TPP] Act", and that the CCA "is capable of enforcement, and 
is enforced, in a determined way by a well -resourced and powerful government agency", 
the ACCC.3993  
7.1698.   Australia disputes the reasonable  availability of pre -vetting on the basis that, "while the 
ACCC has the expertise and experience which would enable it to assess whether packaging is likely 
to mislead or deceive, it does not have the expertise to assess whether aspects of packaging, 
including colour, pictures and other devices, might separately or in combination make the 
packaging appealing or diminish the effectiveness of the required health warnings".3994  
7.1699.   In support of this position, Australia submits the report by Mr Sims which explains t he 
mandate, structure, and functions of the ACCC. As explained by Mr Sims, "[t]he ACCC's role is to 
enforce the CCA and a range of additional legislation, promote competition and fair trading, and 
regulate national infrastructure for the benefit of all Aus tralians".3995 The purpose of the CCA, in 
turn, is to enhance the welfare of Australia by promoting competition among business, promoting 
fair trading by business, and providing for the protection of consumers in their dealings with 
business.3996 Mr Sims further  explains that the ACL is a schedule to the CCA administered by the 
ACCC and "each State and Territory's consumer law agency", and that it is enforced by all 
Australian courts and tribunals, including those of the States and Territories.3997 
7.1700.   Mr Sims describes  the enforcement priorities and exercise of the ACCC's discretion, 
stating that the ACCC cannot pursue all complaints it receives about the conduct of traders or 
businesses, and that its role "is to focus on those circumstances that will, or have the poten tial to, 
harm the competitive process or result in widespread consumer detriment".3998 The ACCC sets 
enforcement priorities based on a variety of factors3999 each year4000 and uses a range of 
compliance and enforcement tools in order to encourage compliance with th e CCA.4001  
7.1701.   Mr Sims reports that the ACCC has received a substantial number of complaints and 
inquiries about tobacco, often related to labelling issues (including plain packaging), issues about 
                                                
3988 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), paras.  82-84. See also ACCC industry codes , 
(Exhibit HND -78). 
3989 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 87. Mr Shavin also refers to the voluntary 
pre-notification of mergers to the ACCC.  
3990 Mr Heydon explains in his report that he previously served as a member of the High Court of 
Australia, in which capacity he participated in several decisions on misleading and d eceptive conduct. Mr 
Heydon additionally describes his experience and expertise as a practitioner and scholar in the field of 
consumer protection. Heydon Report , (Exhibit UKR -11), p p. 4-5, Annexure A.  
3991 We note that Mr Heydon's opinion was submitted in con nection with the proposal by Ukraine that 
Australia's existing consumer protection laws already serve to address "the key concern" of Australia regarding 
the prevention of deceptive packages.  
3992 Heydon Report , (Exhibit UKR-11), p. 3. 
3993 Heydon Report , (Exhib it UKR-11), p. 4. 
3994 Australia's first written submission, para. 740. 
3995 Sims Report , (Exhibit AUS -22) (SCI), para. 1.4. 
3996 Sims Report , (Exhibit AUS -22) (SCI), para. 3.1. 
3997 Sims Report , (Exhibit AUS -22) (SCI), paras.  2.1-2.2. 
3998 Sims Report , (Exhibit AUS -22) (SCI), para. 3.5. 
3999 Sims Report , (Exhibit AUS -22) (SCI), paras.  3.6-3.9. 
4000 Sims Report , (Exhibit AUS -22) (SCI), para. 3.10. 
4001 Sims Report , (Exhibit AUS -22) (SCI), paras.  3.15-3.34. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 581 - 
  tobacco sales, pricing, importation, and manufacturing standards .4002 Mr Sims details  in-depth 
investigation s undertaken by the ACCC in relation to tobacco matters, including the investigation 
against representations by tobacco companies in promoting their cigarette brands as "light", 
"ultra -light", "mild", "ultra -mild", or "low tar".4003 This was resolved in 2005 when the ACCC 
accepted court enforceable undertakings that provided for the removal of "light" and "mild" 
descriptors and other remedial measures, while stipulating that the tobacco companies concerned 
did not accep t that the use of the descriptors amounted to misleading or deceptive conduct.4004 Mr 
Sims states that the ACCC incurred significant costs during the investigation, and that even 
greater resources would have been required, had the matter proceeded to litigati on.4005 Other 
tobacco -related investigations described by Mr Sims include various proceedings for 
non-compliance with labelling requirements, including with respect to deficient labelling of the 
required warning, explanatory and information messages, and grap hic images.4006 
7.1702.   Referring to the causal mechanisms set out in the TPP Act, the Sims report states that 
"the ACCC does not agree with Mr Heydon's premise that the three legislative aims of the 
[TPP Act] are directed at misleading and deceptive conduct, nor his  confidence that there is no 
practical loophole when reliance is based solely on provisions in the ACL which prevent misleading 
or deceptive conduct, and that the ACCC could in all cases successfully prevent such conduct by 
instituting proceedings".4007 Mr Si ms challenges the notion "that any packaging that makes 
tobacco products appealing would be found by a court to be misleading or deceptive or likely to 
mislead or deceive", citing as examples the use of a particular colour on packaging4008 and 
distractions fr om warnings that are not necessarily misleading even if they make the warning less 
effective.4009 Accordingly, Mr Sims presents the view of the ACCC that the provisions of the ACL 
would only partially address the objectives of the TPP Act.4010  
7.1703.   Mr Sims further underscores the limitations of the ACCC's resources and capacity, 
particularly in light of the rigours and uncertainties of the investigative and enforcement 
process.4011 Mr Sims submits that the proposed pre -vetting mechanism would involve new 
legislation to  empower the ACCC to carry out the necessary functions.4012 Mr Sims further 
contrasts existing provisions and procedures with the functions of pre -vetting tobacco packaging, 
for example by stating that the notification process referred to by Mr Shavin differs  from the 
"entirely different (and novel) test and approach" that would be called for under a pre -vetting 
mechanism to consider "whether aspects of the packaging including colour, picture and other 
devices, such as the brand name and logos, might separatel y or in combination make the 
packaging appealing or diminish the effectiveness of the health warnings".4013  
7.1704.   Mr Sims concludes that "the ACCC has demonstrated expertise and experience which 
would enable it to assess whether packaging, in the ACCC's view, is l ikely to mislead or 
                                                
4002 Sims Report , (Exhibit AUS -22) (SCI), para. 4.1. 
4003 Sims Report , (Exhib it AUS -22) (SCI), para. 4.4. In the course of this four-year, "lengthy and 
complex" investigation, the ACCC issued compulsory information notices to certain tobacco companies.  Ibid. 
paras.  4.6-4.7. The ACCC ultimately concluded that certain tobacco companies had misleadingly represented 
that low yield cigarettes had certain health benefits in comparison to regular or higher yield cigarettes.  Ibid. 
paras.  4.9-4.10. 
4004 Sims Report , (Exhibit AUS -22) (SCI),  para. 4.12. See also Australian Competition and Consumer 
Commission, "ACCC Resolves 'Light' and 'Mild' Cigarette Issue with B.A.T. and Philip Morris", Media Release 
No. 119/05 (12  May 2005), available at: 
<https://www.accc.gov.au/media -release/accc -resolves -light-and-mild-cigarette -issue-with-bat-and-philip -mor
ris>, accessed 29  May 2015, (Exhibit DOM -229).  
4005 Sims Report , (Exhibit AUS -22) (SCI), paras.  4.13-4.15. 
4006 See, e.g. Sims R eport , (Exhibit AUS -22) (SCI), paras.  4.20-4.27. 
4007 Sims Report , (Exhibit AUS -22) (SCI), para. 5.4. 
4008 Sims Report , (Exhibit AUS -22) (SCI), para. 5.5. 
4009 Sims Report , (Exhibit AUS -22) (SCI), para. 5.7. 
4010 Sims Report , (Exhibit AUS -22) (SCI), para. 5.8. Sims additionally states that "the assessment of 
whether proposed tobacco packaging might make the packaging appealing or diminish the effectiveness of 
health warnings would be in a very different category to the application of the well -established le gal 
jurisprudence relating to misleading and deceptive conduct". Sims Report, (Exhibit AUS -22) (SCI), para.  6.11. 
(emphasis original)  
4011 Sims Report, (Exhibit AUS -22) (SCI), paras.  5.9-5.12. 
4012 Sims Report, (Exhibit AUS -22) (SCI), paras.  6.1-6.4. 
4013 Sims Report , (Exhibit AUS -22) (SCI), paras.  6.6-6.8. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 582 - 
  deceive".4014 By contrast, Mr Sims states that "the ACCC does not pre-approve  proposed marketing 
or packaging to assess whether it is likely to mislead or deceive", and lacks the necessary 
expertise for an assessment that is not "similar t o any other role the ACCC currently performs".4015 
7.1705.   In light of the expert views outlined above, we examine whether the complainants have 
established that a pre -vetting mechanism would be reasonably available, bearing in mind that 
proposed alternative measures  are of a hypothetical nature and do not yet exist in the Member in 
question, or at least not in the particular form proposed by the complainants.4016 It is clear that 
the pre -vetting mechanism described by Mr Shavin would entail certain burdens and potential  
challenges in each of its necessary elements, including the initial specification of disqualifying 
criteria that go beyond the causal mechanisms set out in the TPP Act. In addition, there is 
compelling evidence from the ACCC that it does not currently per form the precise functions that 
would be demanded if it were to fill the role of the regulatory authority for pre -vetting approval, 
such that it would either require external assistance or need to have the role of a pre -vetting 
authority vested in a separa te and possibly new regulatory body.  
7.1706.   We note that the complainants' proposal specifically contemplates the possibility that the 
ACCC's assessment could be supplemented with outside expertise and external assistance as 
necessary.4017 Moreover, the proposed pr e-vetting scheme does not necessitate that the ACCC 
serve the role of regulatory authority, and the main aspects of the design of the scheme would 
remain the same even if a different administrative agency were charged with the necessary 
functions. These es sential features could potentially be reflected in a number of different ways, 
drawing to a greater or lesser extent on existing elements of Australian legislation and regulatory 
administration with respect to the prevention of misleading or deceptive repr esentations on 
product packaging.  
7.1707.   In this connection, the complainants have cited an existing pre -vetting scheme in Turkey 
as an illustrative example of the mechanism that could be reasonably available to Australia. 
Specifically, in Turkey's Regulations on  Procedures and Rules Applicable to Production and Trading 
of Tobacco Products, eligibility to supply tobacco products to the market requires submission of 
several types of information relating to the type of product, including its packaging and health 
warnings.4018 
7.1708.   While the example of the Turkish pre -vetting mechanism is not prescriptive as to the 
exact features of tobacco packaging as the proposed pre -vetting regime in Australia, it is an 
existing example of such a scheme that relies on assessments and pre -approval of proposed 
tobacco packages according to certain regulatory criteria regarding the inducement and misleading 
of consumers. We are mindful that the complainants are not required to "provide complete and 
exhaustive descriptions of the alternative m easures they propose" under Article  2.2 of the 
                                                
4014 Sims Report , (Exhibit AUS -22) (SCI), para. 6.9. 
4015 Sims Report , (Exhibit AUS -22) (SCI), paras.  6.10-6.11. (emphasis original)  
4016 See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.328.  
4017 See, e.g. Dominican  Republic 's second written submission, para. 722. 
4018 This includes "[u]nit pack and product grouping designs which bear the measurement data; design 
of label on transparent packing if used for product grouping"; "[h]ealth w arnings application plan"; and 
"[i]nformation about production encoding or any other marking".  Turkey, The Regulations on Procedures and 
Rules Applicable to Production and Trading of Tobacco Products, Official Gazette , Issue 27749 
(4 November  2010) , (Exhi bits DOM-133, IDN -93), Article  12(2). This pre -vetting process for tobacco packaging 
requires as follows:  
 
On the visible outside packaging, opening band, internal package and aluminum folio of a unit 
package of tobacco product imported or produced in Turk ey as well as on the cigarettes, no 
misleading or incomplete information regarding their features, effects in health, hazards or 
emissions may be given, and no text, name, brand, type name, metaphor, figure, sign, color or 
color combinations implying that a particular tobacco product is less harmful than another or 
inducing or encouraging its consumption, or misleading the consumer or making the product 
attractive, can be used . 
 
Turkey, Regulations Relating to the Principles and Procedures Applicable to the  Manufacturing Methods, 
Labeling and Control Measures Related to Protection from the Harmful Effects of Tobacco Products, Official 
Gazette , Issue 25692 (6  January  2005), (Exhibits DOM -134, IDN -94), Article  9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TBT Agreement4019, and their reference to an existing regime is simply indicative of the potential 
feasibility of a pre -vetting mechanism for tobacco packaging.  
7.1709.   That said, it is possible that alternative measures  may not be reasonably available on 
account of undue burdens and prohibitive costs.4020 The relevant costs that may be taken into 
consideration include the enforcement and implementation costs incurred by the regulating 
Member, but may also include "significa nt costs or difficulties faced by the affected industry, in 
particular where such costs or difficulties could affect the ability or willingness of the industry to 
comply with the requirements of that measure".4021  
7.1710.   In this connection, the complainants have ra ised the possibility that the costs associated 
with pre -vetting review and enforcement could be defrayed through application of the "user pays" 
principle, whereby tobacco producers would provide funding for their own approval proceedings. 
As an example of such a system, the parties have referred to ABAC4022, which is a voluntary, 
industry -funded scheme that considers inter alia the likely impact on consumption of alcohol 
packaging and advertising.4023 In particular, the ABAC provides in relevant part that the nam ing or 
packaging of alcohol "must not encourage excessive consumption or abuse of alcohol", "must not 
encourage under -age drinking", and must "not have a strong or evident appeal to children or 
adolescents".4024 Further, an Alcohol Advertising Pre -Vetting Service is offered in conjunction with 
ABAC that offers user -pays advice as to whether prospective advertisements comply with the 
compulsory pre -vetting of advertisements under ABAC4025, to offer assurance to companies that 
advertising or packaging will not l ater be precluded from the marketplace via the ABAC complaint 
process.4026  
7.1711.   The administration of ABAC differs from the complainants' proposed pre -vetting scheme 
notably in respect of the products concerned and the fact that it is voluntary for packaging. 
Nevertheless, it provides some evidence of the possible flexibility in a pre -vetting regime to 
distribute costs of administration between the industry and regulator, which may in turn address 
the associated burdens of establishing review, approval, and enforc ement procedures, including 
the burdens of appellate litigation where applicants pursue judicial review of pre -vetting 
determinations.4027  
7.1712.   Overall, on the basis of these elements, we do not consider that a pre -vetting mechanism 
as proposed by the complainant s is "merely theoretical in nature"4028, such as to disqualify it from 
being considered reasonably available to Australia. The operation of the ABAC is indicative of the 
possibility of adopting some form of pre -marketing vetting of a particular product. Howev er, it is 
clear that the administration of such a system – whether the regulatory functions involved would 
be fulfilled by an existing body such as the ACCC (possibly aided by external expert assistance) or 
                                                
4019 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.334.  
4020 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.330.  
4021 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.330 ( quoting  
Appellate Body Report, EC – Seal Produ cts, para. 5.277).  
4022 See "Alcohol Beverages Advertising Code ", available at: 
<http://www.alcohol.gov.au/internet/alcohol/publishing.nsf/Content/BFE15C2AC3242C22CA25718E0081F1C5/
$File/advertising.pdf >, accessed 7 October 2014, (Exhibit DOM -137).  
4023 See A lcohol Beverages Advertising Code, "About the ABAC Scheme", available at: 
<http://www.abac.org.au/about/ >, accessed 7 October 2014, (Exhibit s DOM-136, HND -87); and Shavin 
Pre-Vetting Report, (Exhibit DOM/HND -9), para. 93. Mr Shavin explains that, while the pre -vetting of 
advertisements for a lcoholic beverages is required for ABAC signatories, the pre -vetting of naming and 
packaging is optional for those signatories. Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 94. 
4024 "Alcohol Beverages Advertising Code ", available at:  
<http://www.alcohol.gov.au/internet/alcohol/publishing.nsf/Content/BFE15C2AC3242C22CA25718E0081F1C5/
$File/advertising.pdf >, accessed 7 October 2014, (Exhibit DOM-137); and Shavin Pre -Vetting Report, (Exhibit 
DOM/HND -9), para. 97. 
4025 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 103. See ibid. para. 106 for a summary of 
the ABAC pre -vetting process.  
4026 Shavin Pre -Vetting Report, (Exhibit DOM/HND -9), para. 107. See also Alcohol Beverages Advertising 
Code, "About the ABAC Scheme", available at: <http://www.abac.org.au/about/ >, accessed 7 October 2014, 
(Exhibit s DOM-136, HND -87), p. 3. 
4027 See the concerns as to costliness raised by Australia and its expert Mr Finkelstein, discussed further 
below and in Australia's comment s on complainants' responses to Panel question No. 157, para. 82. 
4028 See Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.330.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 584 - 
  a new regulatory authority – would entail adminis trative burdens, notwithstanding the fact that, 
some of the associated costs could be, as discussed above, distributed between the industry and 
the regulator.  
7.2.5.6.5.5   Overall conclusion on a pre -vetting mechanism as an alternative to the 
TPP measures  
7.1713.   We conclude that the complainants' proposal that Australia adopt a pre -vetting 
mechanism would be an alternative measure, not currently applied by Australia.  
7.1714.   We have also determined, however, that it is unclear that such mechanism would be less 
trade -restrictive than the TPP measures . To the extent that implementation and compliance costs 
are a factor of trade -restrictiveness in this case, it appears that a pre -vetting mechanism would 
likely entail costs that, however distributed between the government and industry, do  not similarly 
arise under the TPP measures . 
7.1715.   We also determined that a pre -vetting mechanism would not make an equivalent 
contribution to Australia's objective of improving public health by reducing the use of, and 
exposure to, tobacco products, taking int o account the nature of the objective and the risks 
non-fulfilment would create. In particular, we consider the potential fo r a pre-vetting mechanism  
to lead to the entry on the market of packaging features that would create the possibility of a 
reduced de gree of contribution to Australia's objective of reducing the use of, and exposure to, 
tobacco products to be contrary to the principle set out in the sixth preambular recital of the 
TBT Agreement  that a Member should not be prevented from pursuing a legit imate objective "at 
the levels it considers appropriate". This conclusion is, in our view, further supported by a 
consideration of the nature of the risks and the gravity of the consequences of non -fulfilment of 
Australia's public health objective, and its  importance to Australia.  
7.1716.   In light of the above, we find that the complainants have not demonstrated that a 
pre-vetting mechanism would be a less trade -restrictive alternative measure reasonably available 
to Australia, that would make an equivalent contrib ution to its objective.  
7.2.5.6.6   "Cumulative" application of alternatives  
7.1717.   Honduras argues that " Australia may also decide to adopt all these alternatives if it 
considers that their combined effects will lead to a greater reduction in smoking prevalence 
rate".4029 The Dominican Republic "offers its alternative cumulatively" – it argues that the 
complainants' proposed alternatives, "whether viewed individually or in combination", make an 
equivalent or greater contribution than the TPP measures  to the objective of redu cing smoking 
prevalence and consumption.4030 The Dominican Republic elaborates on this argument in several 
ways. For example, the Dominican Republic argues that its proposed social marketing campaign 
"would have a significant impact on reducing tobacco use by  existing and potential smokers, either 
independently or in combination with the other alternatives proposed" by it during these 
proceedings.4031 In response to Australia's argument that an increase in the MLPA would not 
reduce smoking by existing smokers, th e Dominican Republic argues that an increase in the MLPA 
can be combined with another alternative, such as increased taxation, which would increase 
cessation.4032  
7.1718.   We note that these complainants have not elaborated on which precise combination of 
alternative s they propose. For example, the Dominican Republic mentions the possibility of 
combining an increase in the MLPA and increases in taxation, or increasing the budget for social 
marketing campaigns by introducing them in conjunction with increases in taxati on.4033 However, 
no systematic combination is put forward, and it is therefore unclear to us which precise 
combination of alternative measures is being proposed. As we understand these submissions, the 
Panel is being asked to combine the alternatives in whate ver manner is required to overcome any 
                                                
4029 Honduras's second written submission, para. 217. 
4030 Dominican  Republic 's response to Panel question No. 157. 
4031 Dominican  Republic 's first written submission, para. 779. 
4032 Dominican  Republic 's response to Panel question No. 157. 
4033 Dominican  Republic 's first written submission, para. 798. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 585 - 
  shortcoming with any single alternative that we might identify in our assessment of the 
equivalence of contribution of each alternative individually, and the TPP measures .4034 In this 
respect, we recall that the burden r ests with the complainant to identify a possible alternative 
measure that is less trade -restrictive, makes an equivalent contribution to the relevant objective, 
and is reasonably available. We do not consider that it is for us to bear the burden of establi shing 
the existence of an alternative measure by constructing an alternative that is comprised of various 
suggested components (in this case, some combination of the four alternatives proposed by the 
complainants).4035  
7.1719.   Moreover, in a panel's assessment of eq uivalence of contribution, we recall that it is the 
overall degree of contribution that the technical regulation makes to the objective pursued that is 
relevant, rather than any individual isolated aspect or component of contribution. The 
complainants have  advanced no argumentation in respect of the overall contribution that would be 
made in the event that some combination of these alternatives was adopted, other than to point 
out in the specific context of the increase in MLPA to 21 years that this measure  could be 
combined with taxation so that initiation and cessation were both addressed.4036 Nor is there any 
elaboration of the level of trade -restrictiveness that would arise, or whether this would be more or 
less than the TPP measures . We are therefore not p ersuaded that the complainants have 
discharged their burden of proof under Article  2.2 of the TBT Agreement  in respect of the 
"cumulative" application of the four alternatives that they have identified.  
7.1720.   Although it is unclear to us how the alternative mea sures discussed above might be 
combined under the complainants' proposal, it would appear to us that such a proposal implicitly 
rests upon the pursuit of Australia's objective through multiple complementary tobacco control 
measures. To the extent that the complainants propose a multifaceted alternative with individual 
elements tailored to achieve a certain degree of contribution, we do not consider this to be 
contrary to Australia's own approach in implementing the TPP measures  in conjunction with its 
existing tobacco control measures.  
7.1721.   In any event, we have found above that, individually, each of the four alternatives 
proposed by the complainants would not make a contribution to Australia's objective that is 
equivalent to the contribution made by the TPP measures  as part of Australia's broader regulatory 
framework regarding tobacco control. One basis for that conclusion is that, as detailed above, 
three of these alternatives would not address the  effect of branding on the appeal of tobacco 
products, on the e ffectiveness of GHWs, and on the ability of retail packaging of tobacco products 
to mislead consumers about the harmful effects of smoking or using tobacco products. This leaves 
one aspect of Australia's multifaceted approach to tobacco control entirely or  partly unaddressed. 
This assessment would not, in the circumstances of this case, change even in the event that the 
four alternatives were combined in some way, taking into account the characteristics of the 
TPP measures  and the regulatory context in whic h they operate.  
7.1722.   In this respect, we are mindful of the Appellate Body's observation that a proposed  
alternative measure need not contribute to the objective to a degree that is identical to the 
measure at issue, and that a proposed alternative measure may achieve an equivalent degree of 
contribution in ways different from the technical regulation at issue.4037 However, as discussed 
above, we do not understand this to imply that, where the concern being addressed is of a 
multifaceted nature and legitimately inv olves a multidimensional response, one aspect of a 
comprehensive strategy could be substituted for another, where they would address different 
aspects of the problem. In addition, a panel's "margin of appreciation" in assessing equivalence 
should be inform ed by the risks that non -fulfilment of the technical regulation's objective would 
create, the nature of the risks and the gravity of the consequences arising from the non -fulfilment 
of the technical regulation's objective, the characteristics of the techni cal regulation at issue as 
revealed through its design and structure, the nature of the objective pursued, and the nature, 
quantity and quality of the evidence available.4038 In the context of these proceedings, considering 
the design of the TPP measures , the nature of the risks of non -fulfilment (including the gravity of 
                                                
4034 Dominican  Republic 's response to Panel question No. 157. 
4035 Appellate Body Report, Japan  – Agricultural Products II , paras.  118-131. 
4036 Dominican  Republic 's response to Panel question No. 157. 
4037 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  
4038 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 586 - 
  the consequences), and in particular the fact that the TPP measures  are designed and structured 
as one of a number of elements of Australia's comprehensive tobacco control strategy (which 
includes taxation, social marketing, and MLPA requirements), we consider that a comparative 
assessment of alternative measures needs to take into account the element of tobacco control that 
would be left unaddressed in the absence of the TPP measures .  
7.1723.   In our  assessment of whether the complainants' proposed alternatives make an 
equivalent contribution to Australia's objective, we have thus considered the failure to address the 
effects of design elements on tobacco packaging on the appeal of tobacco products, t he 
effectiveness of GHWs and their ability to mislead consumers about the harmful effects of smoking 
or using tobacco products, that we have found above to play a role in the contribution to 
Australia's objective that is made by the TPP measures . Although the proposed pre -vetting 
mechanism would have the ability to address such aspects to some degree, for the reasons 
described above, we are nonetheless not persuaded that such a mechanism would make an 
equivalent contribution to Australia's objective as the TPP measures , taking into account the risks 
non-fulfillment would create, Australia's chosen level of protection, and the design of the 
TPP measures  as one element in the context of Australia's comprehensive tobacco control policy.  
7.2.5.7   Overall conclusion on Article 2.2 
7.1724.   As described above, an assessment of whether a technical regulation is more 
trade -restrictive than necessary under Article  2.2 of the TBT Agreement  involves the holistic 
weighing and balancing of various elements, including the degree of contribu tion made by the 
challenged measure to the legitimate objective at issue; the trade -restrictiveness of the measure; 
and the nature of the risks at issue as well as the gravity of the consequences that would arise 
from non -fulfilment of the objective pursue d by the Member through the measure. In addition, 
where a comparison of the challenged measure and possible alternative measures proposed by the 
complainant is undertaken, consideration must be given to whether the proposed alternative would 
be less trade -restrictive; whether it would make an equivalent contribution to the relevant 
legitimate objective, taking account of the risks non -fulfilment would create; and whether it is 
reasonably available to the Member.4039 
7.1725.   In our assessment of the complainants' claim s under Article  2.2 of the TBT Agreement , 
we reached the following conclusions in respect of the various relevant factors:  
a. The objective of the TPP measures  is to improve public health by reducing the use of, 
and exposure to, tobacco products.  
b. The TPP meas ures are apt to, and do, make a meaningful contribution to this objective;  
c. The TPP measures  are trade -restrictive, to the extent that they result in a reduction in 
the total volume of imports; and  
d. The nature of the risks that would arise from the non -fulfilment of Australia's objective is 
that public health would not be improved, as the use of, or exposure to, tobacco 
products, would not be reduced, and the consequences of such use, and exposure, are 
particularly grave.  
7.1726.   We have also considered each of the  four alternative measures proposed by the 
complainants, and determined, in respect of each of these, that the complainants have not 
demonstrated that it would constitute a less trade -restrictive alternative measure that would make 
an equivalent contributi on to Australia's objective, as a substitute for the TPP measures . 
7.1727.   Our determinations as to the degree of contribution achieved by the TPP measures , and 
our comparison with the contribution that would be made by reasonably available alternative 
                                                
4039 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , paras.  5.197 -5.198 
(quoting Appellate Body Reports, US – COOL , para. 471).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 587 - 
  measures, a re made within the context of the comprehensive strategy designed and implemented 
by Australia to address tobacco control.4040  
7.1728.   In this connection, we consider highly relevant the recognition in a number of sources of 
the comprehensive nature of tobacco contr ol in particular, including the numerous iterations to this 
effect within the FCTC and its supporting guidelines for implementation. For instance, "tobacco 
control" is itself defined as "a range of supply, demand and harm reduction strategies"4041, and a 
general obligation under the FCTC calls upon its parties to "develop, implement, periodically 
update and review comprehensive multisectoral  national tobacco control strategies, plans and 
programmes".4042 The multi -faceted nature of tobacco control policies in par ticular is underscored 
throughout the evidence on record before us4043, and underscores the proposition mentioned 
above, that the use of , and exposure to , tobacco products should be addressed through a 
combination of measures working together.4044 We also note, in this respect, Australia's  
observation on the importance of avoiding a regulatory gap in the product coverage of the 
measures by covering all tobacco products.4045 This is consistent also with the FCTC's 
recommendation for comprehensive, mult isectoral tobacco control measures addressing all tobacco 
products.4046 
7.1729.   Specifically, we are mindful that the TPP measures  are, by their design, not intended to 
operate as a stand -alone policy, but rather were implemented as part of "a comprehensive suite of 
reforms to reduce smoking and its harmful effects" in Australia.4047 In our view, taking due account 
of this broader regulatory context of the TPP measures  is essential to our understanding of their 
degree of contribution to Australia's objective. We have thu s given due weight in our  analysis to 
the fact that the TPP measures  operate in conjunction with a number of other wide -ranging 
tobacco control measures, including mandatory GHWs, restrictions on advertisement and 
promotion, taxation measures, restrictions  on the sale and consumption of tobacco products, social 
marketing campaigns, and measures to address illicit tobacco trade.4048  
                                                
4040 See paras.  7.1043 , 7.1384  , and 7.1387  above.  
4041 FCTC, (Exhibits AUS -44, JE -19), Article  1(d). 
4042 FCTC, (Exhibits AUS -44, JE -19), Article  5.1 (emphasis added). The overall structure and specific 
provisions of the FCTC, as well as the FCTC Guidelines, attest that tobacco control involves a comprehensive 
regulatory approach of integrated measures. See, e.g. FCTC,  (Exhibits AUS -44, JE -19), Articles  4.1, 4.4, and 
5.1; Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), p. 21; FCTC Guidelines for Implementation 
(2013 edition), (Exhibits AUS -109, DOM -44), Article  12, p. 74 and Article  14, pp. 129 an d 126; and Article  6 
FCTC Guidelines, (Exhibit AUS -111), Section 1.6 (noting that other policies like "tobacco taxes do not exist in a 
vacuum and should be implemented as part of a comprehensive tobacco -control strategy alongside other 
policies undertaken in line with other articles of the WHO FCTC").  
4043 This conclusion has been reached by, for example, the WHO, the US Surgeon  General , the USI OM, 
and the USCDC . See USCDC Best Practices for Comprehensive Tobacco Control Programs , (Exhibit AUS-50), 
p. 6 (recog nizing the effectiveness of comprehensive tobacco control approaches that combine "educational, 
clinical, regulatory, economic, and social strategies", and noting that "research has shown greater effectiveness 
with interventional efforts that integrate the  implementation of programmatic and policy initiatives to influence 
social norms, systems, and networks"); and WHO Policy Package to Reverse the Tobacco Epidemic, (Exhibit 
AUS-607), p. 11 (recognizing that tobacco control policies "are complementary and sy nergistic"). See also 
Australia's first written submission, paras.  38-49; Samet Report , (Exhibit AUS -7), paras.  106-108; and 
Chaloupka Public Health R eport, (Exhibit AUS -9), paras.  9(a), 11 -16, 31, and 35 , and fns  7 and 8 . 
4044 As we noted in paragraph 7.1390  above, this has been recognized in publications by the World 
Bank, the US Surgeon  General , the USIOM , and the USCDC. See, respectively, Jha and Chaloupka 1999, 
(Exhibit AUS-51), p p. 82-83; US Surgeon General's Report 2014, (Exhibits AUS -37, DOM-104, CUB -35), p. 7; 
US Surgeon General's Report 2000, (Exhibit AUS -53), p. 11; US Surgeon General's Report 2012,  
(Exhibit  AUS-76), C hap. 6; 1994 IOM Rep ort, Chap. 4,  (Exhibit AUS -78), p p. 125-128; and 2015 USIOM 
Report , (Exhibit DOM-232), p. 6-20; and USCDC Best Practices for Comprehensive Tobacco Control Programs, 
(Exhibit  AUS-50), p. 9. 
4045 Australia's response to Panel question No. 13 (referring to  Chaloupka Public Health Report , (Exhibit 
AUS-9), para. 11 ("Tobacco control policies and other interventions need to be comprehensive in terms of the 
tobacco products they cover, given that a policy that impacts only a subset of tobacco products will be ef fective 
in reducing the use of those products, but will likely result in substitution to other products."); and 
Biglan  Report , (Exhibit AUS -13), para. 137).  See also Samet Report, (Exhibit AUS -7), paras. 56 and 114.  
4046 Australia's response to Panel question  No. 13 (referring to  FCTC, (Exhibits AUS -44, JE -19), 
Articles 4.4 and 5.1).  
4047 See, e.g. TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 1. 
4048 See section 2.2 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 588 - 
  7.1730.   Moreover, in our comparative analysis, we have set out the reasons for which we are not 
persuaded that the complainants have demo nstrated that the proposed alternatives would be less 
trade -restrictive than the TPP measures . We have also considered how each proposed alternative 
would contribute to Australia's objective, as a substitute  to the TPP measures . In doing so, we 
have taken due account of the fact that the challenged measures form part of a broader policy 
scheme with multiple complementary elements designed to pursue in a comprehensive manner a 
public health objective over time.4049 We note in this respect the Appellate Body's o bservations 
that "there may be instances where it is difficult to assess with precision whether there is 
equivalence between the technical regulation's degree of contribution and that of a proposed 
alternative measure"4050, including where a technical regulat ion and the proposed alternative 
measures may deploy various methods or techniques that jointly or separately contribute to 
achieving the objective pursued, which may not each be quantifiable in an isolated manner.4051  
7.1731.   The fact that a proposed alternative me asure need not contribute to the objective to a 
degree that is identical to the measure at issue4052 does not, in our view, imply that, where the 
concern being addressed is of a multifaceted nature and legitimately involves a multidimensional 
response, one as pect of a comprehensive strategy could be substituted for another, where this 
would leave unaddressed the aspect of the problem that the challenged measures seek to address. 
We have found that, in the particular context of tobacco control and the regulator y efforts of 
Australia to improve public health by reducing the use of, and exposure to, tobacco products, none 
of the alternatives proposed by complainants would contribute to Australia's objective to an 
equivalent degree as the TPP measures , taking into account the risks non -fulfilment of the 
objective would create and the actual contribution made by the challenged measures as well as the 
principle reflected in the sixth recital of the TBT Agreement , that no Member should be prevented 
from pursuing legiti mate objectives "at the levels it considers appropriate".  
7.1732.   Overall, on the basis of the above, we conclude that the complainants have not 
demonstrated that the TPP measures  are more trade -restrictive than necessary to fulfil a 
legitimate objective, within the meaning of Article  2.2 of the TBT Agreement .  
7.3  The TRIPS  Agreement  
7.3.1   Article  6quinquies  of the Paris  Convention  (1967) , as incorporated by Article  2.1 
of the TRIPS  Agreement  
7.3.1.1   Introduction  
7.1733.   We will now turn to the complainants' claims relating to the provisions of the 
TRIPS  Agreement . As discussed in paragraph 7.11 above, we will first address those pr ovisions 
that concern the protection of trademarks. We will start our analysis with the provisions invoked 
by the complainants that concern the protectable subject matter, including conditions for 
registration, namely first Article  2.1 of the TRIPS  Agreeme nt in conjunction with Article  6quinquies  
of the Paris Convention  (1967)  and then Article  15.4 of the TRIPS  Agreement . 
7.1734.   Paragraph 1 of Article  2 of the TRIPS  Agreement , entitled "Intellectual Property 
Conventions", reads as follows:  
In respect of Parts  II, III and IV of this Agreement, Members shall comply with 
Articles  1 through 12, and Article  19, of the Paris Convention  (1967) . 
7.1735.   Article  6quinquies  A(1) of the Paris Convention  (1967)  reads as follows:  
Every trademark duly registered in the country of origin  shall be accepted for filing 
and protected as is in the other countries of the Union, subject to the reservations 
                                                
4049 See Appellate Body Reports, EC – Seal Products , paras.  5.212 -5.213. See also Appelate Body 
Report, Brazil  – Retreaded Tyres, para. 172. 
4050 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216.  
4051Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.216 (referring to 
Appellate  Body Report, Brazil  – Retreaded Tyres , para. 151).  
4052 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.215.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 589 - 
  indicated in this Article. Such countries may, before proceeding to final registration, 
require the production of a certificate of registrati on in the country of origin, issued by 
the competent authority. No authentication shall be required for this certificate.4053 
7.1736.   Honduras and Cuba, by reference4054, claim that the TPP measures  are inconsistent with 
Article  2.1 of the TRIPS  Agreement  in conjunction  with Article  6quinquies  of the 
Paris Convention  (1967) . More specifically, they claim that the TPP measures  are inconsistent with 
Article  6quinquies  because a trademark duly registered in the country of origin outside Australia is 
not protected "as is", i .e. in its original format.4055 
7.1737.   Australia asks the Panel to reject these claims in their entirety.  
                                                
4053 The arguments by Honduras and Cuba (by reference) focus on paragraph A(1) of Article  6quinquies . 
The other paragraphs of Article  6quinquies  read as follows:  
 
(2) Shall be considered the country of origin the country of the Union where the applicant has a 
real and effective industrial or commercial establishment, or, if he has no such establis hment within the 
Union, the country of the Union where he has his domicile, or, if he has no domicile within the Union but 
is a national of a country of the Union, the country of which he is a national.  
 
B. Trademarks covered by this Article  may be neither  denied registration nor invalidated 
except in the following cases:  
 
1. when they are of such a nature as to infringe rights acquired by third parties in the country where 
protection is claimed;  
 
2. when they are devoid of any distinctive character, or consist exclusively of signs or indications 
which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, place 
of origin, of the goods, or the time of production, or have become customary in the current 
language or in the bona fide  and established practices of the trade of the country where protection 
is claimed;  
 
3. when they are contrary to morality or public order and, in particular, of such a nature as to deceive 
the public. It is understood that a mark may not be considered contra ry to public order for the sole 
reason that it does not conform to a provision of the legislation on marks, except if such provision 
itself relates to public order.  
 
 This provision is subject, however, to the application of Article  10bis. 
 
C. (1) In deter mining whether a mark is eligible for protection, all the factual circumstances 
must be taken into consideration, particularly the length of time the mark has been in use.  
 
(2) No trademark shall be refused in the other countries of the Union for the sole reason that it 
differs from the mark protected in the country of origin only in respect of elements that do not alter its 
distinctive character and do not affect its identity in the form in which it has been registered in the said 
country of origin.  
 
D. No person may benefit from the provisions of this Article if the mark for which he claims 
protection is not registered in the country of origin.  
 
E. However, in no case shall the renewal of the registration of the mark in the country of 
origin involve an obl igation to renew the registration in the other countries of the Union in which the 
mark has been registered.  
 
F. The benefit of priority shall remain unaffected for applications for the registration of marks 
filed within the period fixed by Article  4, even  if registration in the country of origin is effected after the 
expiration of such period.  
 
4054 "Cuba endorses and hereby incorporates by reference all of the claims, arguments and evidence 
advanced in their first written submissions by the Dominican  Republi c, Honduras, Indonesia and Ukraine, under 
Articles  15.4, 16.1, 16.3 and 22.2(b) of the TRIPS Agreement and Article  6quinquies  of the Paris Convention  
(read with Article  2 of the TRIPS Agreement)." Cuba's first written submission, para. 428. Furthermore, "C uba 
adopts and hereby incorporates by reference all the claims, arguments and evidence submitted in the second 
written submissions of the Dominican  Republic , Honduras and Indonesia, on Articles  15.4, 16.1, 16.3 and 
22.2(b) of the TRIPS Agreement and Article 6quinquies  of the Paris Convention  (read with Article  2 of the 
TRIPS Agreement)." Cuba's second written submission, para. 414. 
4055 Honduras's first written submission, para. 938. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 590 - 
  7.3.1.2   Main arguments of the parties  
7.1738.   Honduras  and Cuba, by reference, claim that the TPP trademark restrictions are 
inconsistent with Article  6quinquies  of the Paris Convention , which requires that a trademark 
registered in one country shall be accepted for filing and protected "as is" in other countries.4056  
7.1739.   Honduras submits that the basic obligation stipulated in Article  6quinquies  A(1) is that a 
trademark regist ered in the country of origin shall be accepted for filing and protected "as is" in 
other countries, according to what is known as the " telle quelle " principle. Pursuant to 
Article  6quinquies  A(1), Members may not require that a trademark, already register ed in the 
country of origin, be modified or altered as a condition for acceptance for filing and protection in 
their territory.4057 Countries may depart from the "as is" principle to the extent contemplated in 
the "reservations indicated in this Article", whi ch stipulate various grounds for denial or 
invalidation of registration, including where the trademark is contrary to morality or public order, 
or when it lacks distinctiveness.4058 
7.1740.   Honduras explains that its "claim relates to the second aspect of this provis ion, namely 
the protection of trademarks". Building on dictionary definitions, it argues that the term 
"protection" in the context of Article  6quinquies  A(1) refers to the defence, support, assistance or 
safety that WTO Members are expected to provide to t rademarks.4059 In its view, footnote 3 of the 
TRIPS  Agreement  serves as useful context for interpreting the term "protection" in 
Article  6quinquies  A(1). Honduras asserts that the notions of availability, acquisition, scope, 
maintenance and enforcement mentio ned in footnote 3 have one underlying common 
denominator: the "use" of a trademark. A measure that disallows the use of a trademark seriously 
undermines that trademark owner's rights concerning availability, acquisition, scope, maintenance 
and enforcement.  Hence, Honduras concludes, a measure that prohibits the use of trademarks 
cannot qualify as a measure that protects trademarks.4060 
7.1741.   Honduras argues that Article  6quinquies  A(1) obliges Australia to protect, in its original 
form, any trademark that has been p reviously registered in the country of origin. Australia, 
therefore, may not require, as a condition for protection, that a trademark's original form be 
modified or altered. Honduras adds that "the obligation to afford 'protection', in the sense of 
Article  6quinquies  A(1), necessarily involves ensuring that trademark owners can 'use' their 
trademarks, since this is an integral part of the availability, acquisition, scope, maintenance and 
enforcement of trademark rights".4061 
7.1742.   Honduras submits that the TPP measu res prohibit the use of certain trademarks in their 
original form – i.e. design marks and composite marks – in the retail packaging of tobacco 
products and on those products themselves. Australia only allows these trademarks to be used if 
they are displaye d in the standardized form. Honduras argues that "by conditioning the protection 
of trademarks to compliance with these requirements", Australia fails to protect design marks and 
composite marks in their original form. According to Honduras, this "amounts to an outright 
infringement of the ' telle quelle'  principle contained in Article  6quinquies  A(1) of the 
Paris Convention ".4062 
7.1743.   Australia  responds that Article  6quinquies A(1) addresses the conditions that a Member 
may impose with respect to the acceptance of a particular category of trademarks for registration. 
Specifically, where a trademark is already duly registered in the country of origin, 
Article  6quinquies A(1) provides that a Member may not refuse to register that trademark in its 
                                                
4056 Honduras's first written submission, para. 258. 
4057 Honduras's first written submission, para. 261. 
4058 Honduras's first written submission, para. 262. 
4059 Honduras's first written submission, para. 263. 
4060 Honduras's first written submission, para. 264. 
4061 Honduras's first written submission, para. 266. 
4062 Honduras's first written submission, para. 267. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 591 - 
  territory, even if th e trademark would not otherwise comply with the domestic law of that Member 
concerning the permissible form of the trademark.4063 
7.1744.   It argues that the reference to "protected" in Article  6quinquies  A(1) refers to the 
protection conferred as a result of the regi stration of a trademark – it does not set minimum 
standards with respect to how that trademark is to be protected. Rather, Article  6quinquies  A(1) 
simply provides that a Member may not deny the registration of a trademark that is registered in 
the territory of another Member based on its form.4064  
7.1745.   Australia argues that, in order to establish a prima facie case of violation under 
Article  6quinquies  A(1), Honduras would need to demonstrate that the TPP measures  prevent the 
registration  of trademarks tha t are registered in the territory of another Member based on their 
form. It submits that Honduras has made no such demonstration.4065 
7.1746.   Australia contends that Honduras's interpretation that a Member's obligation to "protect" 
a trademark registered in the terri tory of another Member necessarily involves ensuring that 
trademark owners can "use" their trademarks cannot be reconciled with the plain text of 
Article  6quinquies  A(1). It adds that Article  6quinquies  A(1) does not address the nature of the 
protection th at flows from the registration of a trademark, and does not obligate Members to grant 
trademark owners a "right of use" in respect of their trademarks.4066 Australia adds that "[n]or is 
Honduras able to reconcile its argument with its own recognition that the  'WIPO -administered 
treaties did not establish substantive standards for the protection  of intellectual property  
rights '".4067 
7.1747.   Australia concludes that the TPP measures  are consistent with Article  6quinquies  A(1). It 
adds that Section 28 of the TPP Act expres sly provides that the operation of the TPP Act does not 
affect a trademark owner's ability to register a trademark under the TM Act. The ability of a 
trademark owner to use a trademark falls outside the scope of Article  6quinquies  A(1).4068 
7.1748.   Honduras  responds that Article  6quinquies (A)(1) establishes two independent obligations: 
(i) to accept for filing "as is", and then (ii) to protect "as is" every trademark duly registered in the 
country of origin. In its view, Australia reads out of the scope of Article  6quinquies  A(1) the second 
independent obligation when it states that "protection" within the meaning of 
Article  6quinquies (A)(1) "flows from the registration of a trademark". In Honduras's view, this 
interpretation results in the redundancy or inutility of the terms "protected as is", and is, 
therefore, inconsistent with the principle of effective treaty interpretation, recognized by the 
Appellate Body in previous disputes.4069 Australia  responds that the term "protected" refers to the 
protection that "may or m ay not flow as a result of a trademark being registered in its original 
                                                
4063 Australia's first written submission, para. 292 (referring to Panel Report, US – Section 211 
Appropriations Act , para. 8.83).  
4064 Australia's first written submission, para. 293 (referring to Appellate Body Report, US – Section 211 
Appropriations Act , para. 137; and Panel Report, US – Section 211 Appropriations Act , para. 8.79).  
4065 Australia's first written submission, paras.  294-295. 
4066 Australia's first written submission, paras.  295-296. Australia refers to a Letter from L. Baeumer, 
Director industrial Property Law Department, WIPO to R. Oman, Mudge Rose Guthrie Alexander and Ferdon, 
(31 August 1994), Bates No. 515446013 -515446015, ( Letter from L. Baeumer , WIPO ), (Exhibit AUS -235), 
p. 3: 
 
[I]t is to be noted that Article  6quinquies  A does not address the question of use, but the 
obligation, for any country party to the Paris Convention , to accept for filing and protect (against 
infringement by others) a mark already registered in the countr y of origin. … Article  6quinquies  B 
does not mean that the use of a trademark registered under Article  6quinquies  cannot be the 
subject of a limitation or prohibition for other grounds contained in laws other than trademark 
law. 
 
4067 Australia's first writte n submission, para. 296 (emphasis added  by Australia) ( referring to  
Honduras's first written submission, para. 146).  
4068 Australia's first written submission, para. 297. 
4069 Honduras's second written submission, para. 377 (referring to Appellate Body Reports, US –
 Gasoline , para. 61; and Argentina  – Footwear (EC) , para. 81). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 592 - 
  form". Article  6quinquies  A(1), Australia argues, "does not set out minimum standards with 
respect to the nature  of the protection that may be conferred as a result of registration".4070 
7.1749.   Honduras  clarifies that it has not argued that the terms of Article  6quinquies  A(1) create 
a "right to use". In Honduras's view, "the ability to use a trademark is an 'integral part' of the 
availability, acquisition, scope, maintenance and enforcement of t rademark rights, and is, 
therefore, of crucial importance for the effective 'protection' of a trademark 'as is'". Honduras adds 
that "the ability to exercise the right to 'protect[ion] as is' … depends inherently on the ability of 
trademark owners to use t heir trademarks following their registration".4071 
7.1750.   Honduras does not see how Australia's argument that the WIPO -administered treaties, 
such as the Paris Convention , did not establish substantive standards for the protection of IP right s 
is relevant to its cla im, as it does not argue that the "substantive standards" under 
Article  6quinquies  A(1) include the "right of use". Honduras adds that "Australia appears to 
overlook an important difference between the Paris Convention , as a WIPO -administered 
independent l egal instrument, and the TRIPS  Agreement , incorporating some (but not all) 
elements of this Convention. These two distinct treaties have different administering bodies, 
contexts, and object and purposes; their interpretation can, therefore, lead to differe nt outcomes." 
For Honduras, "[t]he fact that the link between 'use' and 'the minimum internationally -guaranteed 
level of protection of intellectual property rights' may have been weaker under the 
Paris Convention  does not mean that this link remains the sa me after the creation of the TRIPS 
framework". Therefore, for WTO purposes, Honduras argues, the meaning of the obligations under 
Article  6quinquies  A(1) of the Paris Convention  must be interpreted in the context of other relevant 
provisions of the TRIPS  Agreement , and the object and purpose of the TRIPS  Agreement .4072 
7.1751.   Australia  considers that there is a fundamental contradiction in Honduras's claim, as "[i]t 
is not possible for Honduras to continue to interpret Article  6quinquies  A(1) as imposing an 
obligatio n on Members to ensure  that trademark owners can use their trademarks, while at the 
same time acknowledging that trademark owners have no positive right to use those 
trademarks".4073 
7.1752.   Australia submits that its interpretation of Article  6quinquies  A(1) is base d on the plain 
text of this provision interpreted in accordance with the Vienna Convention and is consistent with 
the views of the Appellate  Body and WIPO. While several third parties have expressly agreed with 
Australia's interpretation4074, Honduras has rec eived no third -party support for its claim. Australia 
adds that its interpretation also appears to be supported by an expert relied upon by Honduras, 
Professor  Dinwoodie4075, Cuba4076, and seemingly even Honduras itself.4077  
                                                
4070 Australia's second written submission, para. 20. (emphasis original)  
4071 Honduras's second written submission, para. 378. 
4072 Honduras's second written submission, para. 379. (footnote omitte d) 
4073 Australia's second written submission, para. 19. (emphasis original)  
4074 Australia's second written submission, para. 21 (referring to New  Zealand's third -party submission, 
paras.  14-15; Singapore's third -party submission, para. 11; and South Africa's third-party statement, 
paras.  3.1-3.2). 
4075 Australia's second written submission, para. 21. Australia notes that Ukraine's expert, 
Professor  Dinwoodie, submits that "the overall context – including the lack of any general guarantee of rights 
accorded the ow ner of a trade mark – suggests that the registration provisions of the Paris Convention  did not 
articulate a right to use a mark". Ibid. para. 21 fn 20 (quoting Dinwoodie Report , (Exhibit UKR -1), para. 47). 
4076 Australia's second written submission, para. 21. Australia recalls that, in its response to Panel 
question No. 93, Cuba noted that Article  6quinquies  of the Paris Convention  and Article  15.2 of the TRIPS 
Agreement, on one hand, and Article  20 of the TRIPS Agreement, on the other, deal with different as pects of 
the life -cycle of a brand (i.e. registration vs. use). In Australia's view, Cuba, therefore, appears to agree that 
Article  6quinquies deals with registration and does not deal with use of a trademark. Ibid. para. 21 fn 21. 
4077 Australia's second wri tten submission, para. 21. Australia refers to Honduras's response to Panel 
question No. 93: "Articles  6quinquies /15 and 20 deal with different aspects in the life cycle of a trademark (i.e. 
initial registration vs. ongoing use)". Ibid. para. 21 fn 22. Aus tralia also refers to Honduras's first written 
submission, para. 146: "WIPO -administered treaties did not establish substantive standards for the protection  
of intellectual property rights." Ibid.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 593 - 
  7.1753.   Australia submits that Honduras has failed to demonstrate that the TPP measures  are 
inconsistent with Article  2.1 of the TRIPS  Agreement  incorporating Article  6quinquies  A(1) of the 
Paris Convention .4078 
7.3.1.3   Main arguments of the third parties  
7.1754.   New Zealand  agrees with Australia's interpretation of Article  6quinquies  A(1) of the 
Paris Convention , as incorporated into Article  2.1 of the TRIPS  Agreement .4079 
7.1755.   Singapore  argues  that Article  6quinquies  A(1) addresses the form of a trademark. It 
obliges a Member to accept for  filing and protection "as is" trademarks that are duly registered in 
another country, subject to the reservations indicated in the Article. The TPP measures  do not 
affect a trademark owner's ability to register its trademark in its original form.4080 Singapo re 
considers that the term "protected" in Article  6quinquies  A(1) refers to the protection conferred as 
a result of the registration of a trademark. Article  6quinquies  A(1) itself does not address the 
nature of the protection that flows from registration, or obligate Members to grant trademark 
owners a "right of use" in respect of their trademarks.4081 Singapore also notes that WIPO has 
indicated that "[t]he Paris Convention  does not contain any obligation to the effect that the use of 
a registered trademark m ust be permitted".4082 To the extent that Honduras argues that the 
inability to use a trademark negates the protection guaranteed by Article  6quinquies  A(1), 
Singapore submits that the argument is without merit in light of Section 28 of the TPP Act, which 
allows a tobacco -related trademark to be registered or maintained, and consequently protected "as 
is".4083 Singapore concludes that, since the TPP measures  do not prevent the registration, 
maintenance or protection of a trademark in its original form, the measures do not contravene 
Article  2.1 of the TRIPS  Agreement  incorporating Article  6quinquies  A(1) of the 
Paris Convention  (1967) .4084 
7.1756.   South Africa  submits t hat Article  6quinquies  A(1) of the Paris Convention  (1967) , as 
incorporated into the TRIPS  Agreement , provides that a Member may not deny the registration of 
a trademark that is registered in the territory of another Member based on its form. It is not 
directed towards the "use" of trademarks but towards their registration and validity and does not 
grant trademark owners a positive "right of use". "A trademark registered under Article  6quinquies  
can be the subject of a limitation or prohibition for other gr ounds contained in laws outside of 
trademark law".4085 
7.1757.   Uruguay  requests the Panel to reject the claims of the complainants under 
Article  6quinquies  of the Paris Convention  (1967) .4086 
7.3.1.4   Analysis by the Panel  
7.1758.   We recall that Article  6quinquies  A(1) of the Paris Convention  (1967)  reads as follows:  
Every trademark duly registered in the country of origin shall be accepted for filing 
and protected as is in the other countries of the Union, subject to the reservations 
indicated in this Article. Such countries m ay, before proceeding to final registration, 
require the production of a certificate of registration in the country of origin, issued by 
the competent authority. No authentication shall be required for this certificate.  
                                                
4078 Australia's second written submission, para. 22. 
4079 New Zealand's third -party submission, para. 14. 
4080 Singapore's third -party submission, para. 9 (referring to Section 28 of the TPP Act). 
4081 Singapore's third -party submission, para. 11 (referring to Letter from L. Baeumer, WIPO, (Exhibit 
AUS-235), p. 3; and  Carvalho 3rd edn , AUS excerpts , (Exhibit AUS -236), p. 233).  
4082 Singapore's third -party submission, para. 11 (referring to Australia's first written submission, 
para. 246).  
4083 Singapore's third -party submission, para. 12. 
4084 Singapore's third -party submission , para. 13. 
4085 South Africa's third -party statement, paras.  3.1-3.2. 
4086 Uruguay's third -party submission, para. 107. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 594 - 
  7.1759.   Paragraph A(1) of Article  6quinquies , as incorporated into the TRIPS  Agreement  by 
means of a reference in its Article  2.1, thus requires Members of the WTO4087 to accept for filing 
and to protect "as is" (or in the authentic French text, " telle quelle "4088) every trademark duly 
registered in the c ountry of origin, subject to reservations indicated in Article  6quinquies . 
7.1760.   As observed by the Appellate Body, the Paris Convention  (1967)  provides two ways in 
which a national of a country of the Paris Union may obtain registration of a trademark in a 
country of that Union other than the country of the applicant's origin: one is by registration under 
Article  6 of the Paris Convention  (1967) ; and the other is by registration under 
Article  6quinquies  of that same Convention.4089 
7.1761.   Article  6(1) states the general rule that each country of the Paris Union has the right to 
determine the conditions for filing and registration of trademarks in its domestic legislation.4090 
However, Article  6 is not the only way to register a trademark in another country. If an applicant 
has duly registered a trademark in its country of origin, " Article  6quinquies  A(1) provides an 
alternative way of obtaining protection of that trademark in other countries of the Paris Union".4091 
7.1762.   The requirement under Article  6quinquies  is for the relevant tr ademark to be "accepted 
for filing and protected as is" in the other countries of the Paris Union. The panel in US – Section 
211 Appropriations Act  found that "[t]he ordinary meaning of the term 'as is' and read in its 
context and as confirmed by the negot iating history indicates that Article  6quinquies  A(1) 
addresses  the form of the trademark ; that is, those trademarks duly registered in one country, 
even when they do not comply with the provisions of domestic law of a Member concerning the 
permissible for m of trademarks, have nevertheless to be accepted for filing and protection in 
another country".4092 The Appellate Body upheld the panel's finding that "Section  211(a)(1) is not 
inconsistent with Article  2.1 of the TRIPS  Agreement  in conjunction with Article  6quinquies  A(1) of 
the Paris Convention  (1967) ".4093 
7.1763.   As described in greater detail above4094, the TPP measures  regulate the appearance of 
trademarks on tobacco retail packaging and products in various ways.4095 In respect of retail 
packaging of tobacco products, t he TPP measures  permit the use of word marks that denote the 
brand, business or company name, or the name of the product variant, provided that they appear 
in the form prescribed by the TPP Regulations . They prohibit the use of stylized word marks, 
composi te marks and figurative marks. In respect of tobacco products, the TPP measures  prohibit 
                                                
4087 Consistent with the past WTO jurisprudence, we understand the reference in Article  6quinquies A(1) 
of the Paris Convention  (1967) to the countries of the Paris Union in the context of the TRIPS Agreement to 
mean the Members of the WTO, and the reference to nationals of such countries to mean nationals of other 
WTO Members as defined in Article  1.3 of the TRIPS Agreement. See Appellate Body Report, US – Section 211 
Appropriations Act , para. 132. 
4088 Article  29(1)(c) of the Paris  Convention (1967) provides: "In case of differences of opinion on the 
interpretation of the various texts, the French text shall prevail."  
4089 Appellate Bo dy Report, US – Section 211 Appropriations Act , para. 130. 
4090 Appellate Body Report, US – Section 211 Appropriations Act , para. 132. 
4091 Appellate Body Report, US – Section 211 Appropriations Act , para. 134. 
4092 Panel Report, US – Section 211 Appropriations Act , para. 8.83. (emphasis added)  
4093 Appellate Body Report, US – Section 211 Appropriations Act , para. 148 (referring to Panel Report, 
US– Section 211 Appropriations Act , para. 8.89).  
4094 See section 2.1.2 above.  
4095 We note that the impact of the TPP measures  varies in respect of different types of trademarks or 
elements of which they are composed. For the purposes of their claims under various provisions of the TRIPS 
Agreement, the complainants (using somewhat different terminology) have generally divided tradema rks into 
the following categories: (i) word marks; (ii) figurative marks (or design marks, image marks, device marks); 
and (iii) composite marks (or combination marks, combined marks). We have used the same categories for the 
purposes of our analysis under  the relevant provisions of the TRIPS Agreement invoked by the complainants. 
These categories reflect general trademark practice, although terminology does vary, and views on the 
boundaries between them can also differ. A "word mark" is registered when the  textual content as such is 
considered eligible for trademark protection, and it is registered and protected regardless of the font or form of 
its presentation. Other trademarks may combine textual and graphic content. Hence a word mark, when 
presented in a distinctive stylized typeface, may also be considered distinctive on account of the additional 
figurative content ("stylized word mark"). This is why one may find separate registrations for a term as a pure 
word mark, and also for the textual material pr esented in the specific, distinctive typeface used by the owner 
of the trademark. A logo without textual context is a purely "figurative mark". A "composite mark" presents 
textual material together with figurative elements.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 595 - 
  the use of all trademarks on cigarettes. In respect of cigar bands, they permit the use of 
trademarks denoting the brand, business or company name, or the name of the product variant, 
as well as the country of origin, so long as they appear in the form prescribed by the 
TPP Regulations . 
7.1764.   We understand that Honduras, and Cuba, by reference, are not claiming that Australia 
fails to accept for filing "as is" every trademark  duly registered in the country of origin. Rather, 
their claims relate to what they perceive as being "the second aspect of this provision"4096, namely 
the obligation to protect such a trademark "as is".4097 Honduras asserts that the obligation to 
afford "protec tion", in the sense of Article  6quinquies  A(1), necessarily involves ensuring that 
trademark owners can use their trademarks.4098 Subsequently, Honduras clarified that it does not 
argue that the terms of Article  6quinquies  A(1) create a "right to use", but that the ability to use a 
trademark is an integral part of the availability, acquisition, scope, maintenance, and enforcement 
of trademark rights, and is, therefore, of crucial importance for the effective "protection" of  a 
trademark "as is".4099 Since the TPP measures  prohibit the use of composite and figurative 
trademarks on tobacco retail packaging and products in their original form, Honduras contends 
that Australia does not "protect" them "as is".4100 Australia responds tha t the term "protected" 
refers to the protection that "may or may not flow as a result of a trademark being registered in its 
original form". Article  6quinquies  A(1), continues Australia, "does not set out minimum standards 
with respect to the nature  of the  protection that may be conferred as a result of registration".4101 
7.1765.   We note that the obligation that a Member has pursuant to Article  6quinquies  A(1) is to 
"accept[] for filing and protect[] as is" every trademark duly registered in the country of origin. On 
the plain reading of the text, the obligation is to provide a way of obtaining trademark registration 
and the protection resulting from the registration. In our view, the text suggests that the term 
"protected" refers to the protection that flows from the registration of a sign as a trademark in that 
jurisdiction where the registration is obtained pursuant to the requirements of 
Article  6quinquies  A(1). We note that the term "protected" in Article  6quinquies  A(1) in itself does 
not provide any guidance as t o what the protection flowing from the registration under the 
domestic law should consist of. In particular, we do not find any support in the language of 
Article  6quinquies  A(1) for a substantive minimum standard of rights that WTO Members would be 
oblige d to make available to the owner of a trademark that has been registered pursuant to the 
requirements of Article  6quinquies  A(1).4102 
7.1766.   This interpretation is supported by the immediate context of Article  6quinquies  A(1). As 
described above, the Paris Conventio n (1967)  provides two ways in which a national of a country 
of the Paris Union may obtain registration of a trademark in a country of that Union other than the 
country of the applicant's origin: by registration under Article  6 of the Paris Convention  (1967 ) or 
by registration under Article  6quinquies  of that same Convention.4103 We also note that the 
obligation in the first sub -clause of Article  6quinquies  A(1) is "subject to the reservations indicated 
in this Article". Article  6quinquies  B provides various gr ounds on which a trademark covered by 
that Article  can be "denied registration" or "invalidated". Paragraphs C to F of Article  6quinquies  
also deal with various aspects of registration, such as the renewal of registration and priority. 
None of these reserv ations concern rights conferred on the owner of a trademark that has been 
registered pursuant to Article  6quinquies  A(1). 
7.1767.   Honduras contends that Australia's interpretation that "protection" within the meaning of 
Article  6quinquies (A)(1) "flows from the reg istration of a trademark" results in the redundancy or 
inutility of the terms "protected as is", and is, therefore, inconsistent with the principle of effective 
                                                
4096 Honduras's first written submi ssion, para. 263. 
4097 Honduras's second written submission, para. 377. 
4098 Honduras's first written submission, para. 266. 
4099 Honduras's second written submission, para. 378. 
4100 Honduras's first written submission, para. 267. 
4101 Australia's second written submission, para. 20. (emphasis original)  
4102 This understanding is consistent with the underlying approach of the Paris Convention  (1967) that 
does not itself define the scope of substantive protection of a trademark, except in a  few special cases. In this 
regard, we refer to our discussion in para. 7.1906  below.  
4103 Appellate Body Report, US – Section 211 Appropriations Act , para. 130. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 596 - 
  treaty interpretation.4104 We recall our above interpretation that the term "protected" in 
Article  6quinquies  (A)(1) refers to the protection under the domestic law that flows from the 
registration of a sign as a trademark. The terms "protected as is" thus make explicit that Members 
must not only accept such trademarks from other Members for reg istration under the conditions 
determined by the provision, but also must provide them the protection that flows from such 
registration under their domestic law. In our view, this understanding gives meaning and effect to 
the terms "protected as is" and do es not reduce them to redundancy or inutility, since it is the step 
of registration of a sign that forms the basis of its ensuing legal protection as a registered 
trademark.  
7.1768.   Our interpretation is also consistent with the object and purpose of Articles  6 and 
6quinquies  A(1) of the Paris Convention  (1967) , which is to provide, and thus secure, two ways of 
obtaining registration of a trademark in a country of the Paris Union.4105 
7.1769.   We find this interpretation to be consistent also with Honduras's own overall descri ption 
of the legal protection of trademarks under the TRIPS  Agreement , in which context it submits that 
"a number of developed countries considered the WIPO system to be imperfect, because, 
inter alia, the WIPO -administered treaties did not establish subst antive standards for the 
protection of intellectual property rights".4106  
7.1770.   In the context of this claim, however, Honduras, maintains that the Paris Convention  and 
the TRIPS  Agreement  are two distinct treaties that "have different administering bodies, contex ts, 
and object and purposes; their interpretation can, therefore, lead to different outcomes". Honduras 
submits that "[t]he fact that the link between 'use' and 'the minimum internationally -guaranteed 
level of protection of intellectual property rights' ma y have been weaker under the 
Paris Convention  does not mean that this link remains the same after the creation of the TRIPS 
framework. Clearly, with the introduction of the TRIPS  Agreement , the scope of the 
internationally -guaranteed intellectual property rights, namely trademark rights, has evolved."4107 
In this regard, Honduras argues that footnote 3 of the TRIPS  Agreement  serves as useful context 
for interpreting the term "protection" in Article  6quinquies  A(1) of the Paris Convention  (1967) . It 
asserts tha t the notions of availability, acquisition, scope, maintenance and enforcement 
mentioned in footnote 3 have one underlying common denominator, namely the "use" of a 
trademark. According to Honduras, "a measure that prohibits the use of trademarks cannot qu alify 
as a measure that protects  trademarks".4108 
7.1771.   Footnote 3 to the TRIPS  Agreement  reads as follows:  
For the purposes of Articles  3 and 4, "protection" shall include matters affecting the 
availability, acquisition, scope, maintenance and enforcement of intel lectual property 
rights as well as those matters affecting the use of intellectual property rights 
specifically addressed in this Agreement.  
7.1772.   By its own terms, footnote 3 defines the term "protection" for the purposes of the 
national and MFN treatment oblig ations under Articles  3 and 4 of the TRIPS  Agreement . The panel 
in Indonesia  – Autos  explained that "[a]s is made clear by the footnote to Article  3 of the 
TRIPS  Agreement , the national treatment rule set out in that Article  does not apply to use of 
intellectual property rights generally but only to 'those matters affecting the use of intellectual 
property rights specifically addressed in this Agreement'".4109 In its context, its express purpose is 
to define the scope of national and MFN treatment obligations relating to  IP right s, and not to 
define the scope of the rights as such. The substantive standards for rights accorded to trademark 
owners are defined elsewhere in the Agreement. We do not agree with Honduras that footnote 3 of 
the TRIPS  Agreement  should be interpreted to serve an additional function beyond this express 
purpose, and thus expand the meaning of the term "protected" in the Paris Convention  (1967)  to 
                                                
4104 Honduras's second written submission, para. 377. For a discussion of the principle of  effective treaty 
interpretation , see para. 7.2022  below.  
4105 See discussion in para. 7.1760  above.  
4106 Honduras's first written submission, para. 146. 
4107 Honduras's second written submission, para. 379. (footnote omitted)  
4108 Honduras's first written submission, para. 264. (emphasis original)  
4109 Panel Report, Indonesia  – Autos , para. 14.275.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 597 - 
  include substantive minimum rights that Members would be obliged to confer to the owne r of a 
trademark or, in particular, that  such minimum rights should include "some minimal use of 
trademarks" or "ability to use a trademark".4110 We see no basis for conflating the scope of the 
national and MFN treatment obligations with the separately define d scope of trademark rights 
afforded under the TRIPS  Agreement .  
7.1773.   Honduras suggests that the interpretation of Article  6quinquies  in the context of the 
Paris Convention  and as incorporated into the TRIPS  Agreement  "can … lead to different 
outcomes".4111 As reg ards the interpretation of the provisions of the pre -existing treaties 
incorporated by reference into the TRIPS  Agreement , we note that, as the panel in US – Section 
110(5) Copyright Act  observed, "it is a general principle of interpretation to adopt the m eaning 
that reconciles the texts of different treaties and avoids a conflict between them. Accordingly, one 
should avoid interpreting the TRIPS  Agreement  to mean something different than the Berne 
Convention except where this is explicitly provided for."4112 In our view, this statement, which was 
made in relation to the provisions of the Berne Convention (1971) as incorporated into the 
TRIPS  Agreement , applies equally to the interpretation of the provisions of the 
Paris Convention  (1967)  as incorporated into t he TRIPS  Agreement . Dispute settlement panels and 
the Appellate Body have consistently understood the meaning of relevant provisions of the Paris 
and Berne Conventions incorporated in the TRIPS  Agreement , and even certain provisions of the 
TRIPS  Agreement  itself4113, with reference to their meaning in these conventions.4114 There is no 
indication in the text of the TRIPS  Agreement  that negotiators wished to modify the contents of 
Article  6quinquies  of the Paris Convention  (1967)  by incorporating it by reference i nto the 
TRIPS  Agreement . In the absence of any indication to the contrary, we therefore have no basis to 
assume that the incorporation of this provision was intended to refer to anything other than its 
content as contained in the Paris Convention  (1967) . Accordingly, we also see no basis to interpret 
it to mean anything other than what it means in this Convention. It is notable that the Appellate 
Body, in its extensive review of Article  6quinquies4115, viewed this provision within its 
Paris Convention  context and cited a standard commentary on the Paris Convention4116 when 
establishing its scope. Against this background, we disagree with Honduras that the provisions of 
Article  6quinquies  should be interpreted differently as incorporated into the TRIPS  Agreement  than 
in the context of the Paris Convention  (1967) . 
7.1774.   We conclude that Honduras and Cuba have not demonstrated that, as a result of the 
TPP measures , Australia does not "accept[] for filing and protect[] as is" every trademark duly 
registered in the c ountry of origin within the meaning of Article  6quinquies  of the 
Paris Convention  (1967) . As regards the operation of the TPP Act, we note that, as explained in its 
Explanatory Memorandum, Section 28 of the TPP Act "preserves a trade mark owner's ability t o 
protect a trade mark, and to register and maintain registration of a trade mark".4117 As noted 
above, we understand that the complainants are not claiming that, as a result of the 
TPP measures , a national of another WTO Member could not obtain registration of a trademark in 
Australia under the conditions determined by Article  6quinquies .4118 As regards the meaning of the 
terms "protected as is", we recall our interpretation that these terms make explicit that Members 
must not only accept relevant trademarks fro m other Members for registration under the 
conditions determined by Article  6quinquies , but also must provide them the protection that flows 
from such registration under their domestic law.4119 The complainants have not shown that a 
                                                
4110 Honduras's second written submission, para. 374. 
4111 Honduras's second written submission, para. 379. (footnote omitted)  
4112 Panel Report, US – Section 110(5) Copyright Act , para. 6.66. 
4113 The panel in Canada  – Pharmaceutical Patents  noted that Article  30 of the TRIPS Agreement was 
based on the text of Article  9(2) of the Berne Convention (1971), and examined the draft ing history of the 
latter provision to confirm the panel's interpretation of the former provision. Panel Report, Canada  –
 Pharmaceutical Patents , paras.  7.70-7.72. See also paras.  7.1909 -7.1911  below, noting that Article  15.4 of 
the TRIPS Agreement is based on Article  7 of the Paris Convention  (1967).  
4114 See, e.g. Appellate Body Report, US – Section 211 Appropriations Act , paras.  145-146; Panel 
Report, US – Section 211 Appropriations Act , paras.  8.81-8.82; and Panel Report, US – Section 110(5) 
Copyright Act , paras.  6.48-6.59 and 6.72 -6.73. 
4115 Appellate Body Report, US – Section 211 Appropriations Act , paras.  122-148. 
4116 Appellate Body Report, US – Section 211 Appropriations Act , para. 138. The Appellate Body also 
cited a 1983 WIPO publication commenting on the negotiating history of the Paris Convention . Ibid. para. 146. 
4117 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 15. 
4118 See para. 7.1764  above.  
4119 See para. 7.1767  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 598 - 
  trademark registered in Au stralia pursuant to Article  6quinquies  would not be "protected as is" 
within the meaning of Article  6quinquies  A(1), namely that Australia would not provide such a 
trademark the protection that flows from the registration under its domestic law. We, 
conseq uently, also conclude that the TPP measures  do not constitute a violation of Australia's 
obligations under Article  6quinquies  A(1) to accept for filing and protect as is every trademark duly 
registered in the country of origin within the meaning of that pr ovision on the grounds that they 
restrict the use of certain trademarks on tobacco retail packaging and products.  
7.1775.   In light of the above, we find that Honduras and Cuba have not demonstrated that the 
TPP measures  are inconsistent with Australia's obligation s under Article  2.1 of the 
TRIPS  Agreement  in conjunction with Article  6quinquies  of the Paris Convention  (1967) .  
7.3.2   Article  15.4 of the TRIPS  Agreement  
7.1776.   We will now turn to the complainants' claims under Article  15.4 of the TRIPS  Agreement . 
Article  15.4 is c ontained within Section 2 of Part II of the TRIPS  Agreement  on trademarks, and is 
part of Article  15, entitled "Protectable Subject Matter".  
7.1777.   Article  15.4 reads as follows:  
The nature of the goods or services to which a trademark is to be applied shall in no 
case form an obstacle to registration of the trademark.  
7.1778.   Honduras, the Dominican Republic, Cuba, by reference4120, and Indonesia claim that the 
TPP measures  violate Article  15.4 of the TRIPS  Agreement  because they constitute an obstacle to 
the registration of trademarks based on the nature of the goods to which they would be applied.  
7.1779.   Australia asks the Panel to reject these claims in their entirety.  
7.1780.   We first provide an overview of the claims and arguments of the parties, and of the main 
arguments of the third parties, before defining our approach to the examination of these claims 
and addressing them.  
7.3.2.1   Main arguments by the parties  
7.1781.   Honduras  argues tha t if a Member requires use to register inherently non -distinctive 
signs, but, at the same time, restricts the ability of a trademark applicant to use that sign on a 
particular good (but not other goods), solely because of the nature of the good, the Member  has 
violated Article  15.4 of the TRIPS  Agreement , read in the context of Article  15.1.4121 In its view, in 
Australia the nature of the goods ( in casu tobacco products) is a key obstacle to registering a 
trademark, contrary to Article  15.4.4122 
7.1782.   Honduras notes that under the TPP measures , a non -inherently distinctive word -mark 
may be used on tobacco products so as to acquire distinctiveness through use. However, a 
non-inherently distinctive design mark, such as a logo, is not permitted to be used  on a tobacco 
product and therefore it will never be able to acquire distinctiveness through use.4123 Therefore, an 
applicant could not establish that a non -inherently distinctive non -word mark does in fact 
distinguish the product in the mind of consumers within the meaning of  Section 41  of the TM Act, 
and would not be permitted to register it as a trademark. This obstacle to registration is due solely 
to the nature of the goods, namely tobacco products.4124 
7.1783.   Honduras adds that it is important to note that Article  15.1, third sente nce, recognises 
that registrable signs can be either inherently distinctive or not inherently distinctive but capable 
                                                
4120 See fn 4054 above.  
4121 Honduras's first written submission,  para. 215; and second written submission, para. 239. 
4122 Honduras's second written submission, para. 239. 
4123 Honduras's comments on Pane l question No. 27. 
4124 Honduras's first written submission, para. 205. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 599 - 
  of acquiring distinctiveness through use. Honduras's claim under Article  15.4 concerns the 
obstacles imposed on the registration of trademarks that fall into the latter category of signs.4125 
7.1784.   Honduras further argues that Section 28 of the TPP Act did not remedy the negative 
effects of the TPP measures  on the ability of applicants to register non -distinctive trademarks.4126 
It argues that, wh ile Section 28 of the TPP Act mainly protects against the loss of registration or 
protection that could otherwise have been the consequence of the requirement of genuine use of 
the trademark for maintaining registration and protection4127, it does not address  the fundamental 
obligation under Australia's trademark law, namely Section 43(1) of the TM Act, that only signs 
that are distinctive merit trademark protection.4128 
7.1785.   The Dominican Republic  argues that where a Member, like Australia, requires use in order 
to register a non -inherently distinctive sign, but prevents or severely restricts use of that sign with 
respect to certain types of goods but not others, the Member creates "an obstacle to registration 
of" a trademark that is due to the "nature of the goods". Such a legal regime violates the principle 
of non -discrimination in Article  15.4 because, with respect to the registration of non -inherently 
distinctive signs, it discriminates based on the nature of the good.4129 
7.1786.   The Dominican Republic argues that Article  15.4 is a form of non -discrimination obligation 
that prevents Members, in registering trademarks, from discriminating based on the nature or type 
of good or service that the trademark will distinguish.4130 Under the TPP measures , the use of all 
signs on tobacco  products is prohibited or greatly restricted. As a result, there is no opportunity for 
a non -inherently distinctive sign for tobacco products to gain distinctiveness through use (with the 
exception of word marks) and, consequently, no possibility of regis tering such signs as trademarks 
for tobacco products.4131 The Dominican Republic argues that since this obstacle applies precisely 
because of the "nature" of the products as tobacco products4132, Australia has violated Article  15.4 
because the TPP measures  discriminate against trademark registration for non -inherently 
distinctive signs for tobacco products.4133 
7.1787.   Cuba, by reference, incorporates the arguments in respect of Article  15.4 made by 
Honduras, the Dominican Republic, Indonesia, and Ukraine.4134 Cuba argues, by reference to 
Ukraine 's first written submission, that  where a measure makes it impossible for non -inherently 
distinctive signs to acquire distinctiveness and thus to meet the basic requirement that conditions 
registration as a trademark be cause of the nature of the product, an obstacle to the registration of 
the trademark has been created in violation of Article  15.4 of the TRIPS  Agreement .4135 The 
TPP measures  thus act as an unlawful obstacle to registration and protection of non -word marks 
and stylized word marks that are to be applied to tobacco products.4136  
7.1788.   Cuba further argues that if the possibility for qualifying for protection under Article  16.1, 
or for extended protection under Article  16.3, is reduced, restricted, or removed by imposing  
constraints upon the use of the protected trademark based on the nature of the goods for which 
the trademark is to be used – notwithstanding that they continue to be goods of a nature which 
may lawfully be sold and supplied in the course of trade – the go verning principle of Article  15.4 of 
                                                
4125 Honduras's first written submission, para. 188. 
4126 Honduras's first written submission, para. 214. 
4127 Honduras's second written submission, para. 244. 
4128 Honduras's second written submissi on, para. 244. 
4129 Dominican  Republic 's first written submission, para. 283. 
4130 Dominican  Republic 's first written submission, para. 277.  
4131 Dominican  Republic 's second written submission, para. 52. 
4132 Dominican  Republic 's first written submission, para. 293. 
4133 Dominican  Republic 's first written submission, para. 294. 
4134 As noted in fn 4054 above, Cuba incorporates by reference the claims and arguments ad vanced by 
the Dominican  Republic , Honduras, Indonesia and Ukraine in their first written submissions. Cuba's first written 
submission, para. 428. Since we have described separately the other complainants' relevant arguments, in the 
following  two paragraphs  we will only summarize the main arguments incorporated from Ukraine . 
4135 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 201).  
4136 Cuba's first written submission, para. 428 (incorporating Ukraine's first wr itten submission, 
para. 188).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 600 - 
  the TRIPS  Agreement  has been violated.4137 In support, it elaborates that the term "registration" 
can also be read in a more substantive manner as necessarily encompassing the rights flowing 
from the administrative act of registration.4138 Article  15.4 confirms that trademarks must be 
examined and protected independently of the product or service to which they are to be 
applied4139, and prevents national laws from establishing a different system for the protection of 
trademarks f or tobacco products as compared to other products.4140 As a result of the 
TPP measures , Cuba argues, Australia provides lesser protection under Articles  16.1 and 16.3, as 
well as under its domestic law, which surpasses the minimum rights guaranteed under the 
TRIPS  Agreement , to tobacco -related marks as compared to non -tobacco related marks, solely 
because of the nature of the product. The TPP measures  thus act as an unlawful obstacle to 
registration and protection of non -word marks and stylized word marks that  are to be applied to 
tobacco products4141, in breach of Australia's obligation to confer trademark protections on the 
same terms and conditions notwithstanding the nature of the product.4142 
7.1789.   Indonesia  argues that w hen a Member requires prior use in order to reg ister 
non-inherently distinctive marks, as Australia has done, but at the same time restricts the ability 
of a trademark applicant to use a sign related to a particular class of goods in order to acquire 
distinctiveness, it violates Article  15.4 of the TRIPS Agreement .4143 Indonesia explains that, a side 
from simple word marks, marks for tobacco products that are not inherently distinctive are 
prevented by the TPP measures  from acquiring distinctiveness through use, which is expressly 
required for registration under Australian law. The registration of non -inherently distinctive marks 
in Australia, therefore, depends on the nature of the goods to which they will be applied4144, in 
violation of Article  15.4 of the TRIPS  Agreement .4145  
7.1790.   While agreeing that Article  15.4 d oes not create a right to use a trademark, Indonesia 
argues that when a Member elects to make registrability of trademarks depend upon use, it is 
bound by Article  15.4 to not prohibit the use of such trademarks based on the nature of the goods 
to which the y are applied. By Australia's own admission, the TPP measures  completely restrict the 
use of non -inherently distinctive trademarks on the basis of the nature of the goods to which they 
are applied, thereby preventing their ability to be registered as trade marks in violation of 
Article  15.4.4146 Indonesia notes that Section 28 of the TPP Act is not a remedy, as it does not offer 
non-inherently distinctive marks that are developed in the future an opportunity for 
registration.4147  
7.1791.   Australia  argues that Article  15 of the TRIPS  Agreement  provides certain limitations on a 
Member's ability to set eligibility requirements for the registration of a trademark in its territory. 
Article  15.4 makes clear, however, that a Member can regulate a product in a way that may 
restri ct or prohibit the use of a trademark in its territory, as long as a Member does not refuse to 
register a trademark base d on the nature of a product.4148 Australia submits that the complainants 
have failed to establish a prima facie  case of violation of Article  15.4, as they have not 
demonstrated that, under the TPP measures , Australia does not register trademarks based on the 
nature of the underlying product.4149 
                                                
4137 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 201).  
4138 Cuba's first written submission, para. 428 (emphasis added) (incorporating Ukraine's first written 
submission, para. 187).  
4139 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 179).  
4140 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 216).  
4141 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 188).  
4142 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 219).  
4143 Indonesia's second written submission, para. 61. 
4144 Indonesia's first written submission, para. 194. 
4145 Indonesia's first written submission, para. 200. 
4146 Indonesia's second written submission, para. 64. 
4147 Indonesia's first written submission, para. 199. 
4148 Australia's first written submission, paras.  298-299. 
4149 Australia's first written submission, para. 301. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 601 - 
  7.1792.   Australia notes the complainants' argument that by preventing the use of certain 
non-inherently  distinctive "signs", the TPP measures  prevent such signs from acquiring 
distinctiveness through use, and thereby constitute an "obstacle to registration" of these signs as 
trademarks. Australia claims that the complainants are confusing the concepts of "s igns" and 
"trademarks". As provided in Article  15.1, a sign must be capable of distinguishing between the 
goods and services of one undertaking from those of another undertaking in order to "constitute a 
trademark" (and therefore be eligible for registrati on). If a sign is non -inherently distinctive, and 
has not yet acquired distinctiveness through use (for whatever reason), it is simply not a 
"trademark"4150 and therefore not covered by the scope of Article  15.4. 
7.1793.   Australia argues that Article  15.4 provides th at Members may not refuse to register a 
trademark (which, by necessary implication, must already be capable of distinguishing goods) 
based on the nature of the underlying goods. The obligation is not, as the complainants suggest, 
to guarantee the use of al l non-inherently distinctive signs so that they may become distinctive in 
the future and therefore may constitute a trademark that is eligible for registration.4151  
7.1794.   Australia adds that Section 28 of the TPP Act ensures that the operation of the TPP Act 
does not prevent an owner from registering a trademark under the TM Act. Further, none of the 
complainants have provided any evidence to demonstrate that trademarks cannot be registered as 
a result of the TPP measures .4152 
7.1795.   Australia further notes that many signs a re non -distinctive in the absence of use, and 
that in practical terms, the complainants' interpretation would mean that Members must guarantee 
the right to sell and advertise products in their territory, regardless of the nature of those 
products, to allow  non-distinctive signs to acquire distinctiveness.4153 Australia considers the 
distinction made by the complainants between regulation of the product and regulation of use of 
the trademark to be "both disingenuous and false" because the TPP measures  were impl emented 
"in order to regulate a dangerous and addictive product by restricting its advertising and 
promotion".4154 
7.1796.   Australia notes Cuba's second claim, as articulated by Ukraine, that Article  15.4 prohibits 
a Member from providing lesser protection under Articles 16.1 and 16.3, or under domestic law, to 
certain trademarks based on the nature of the product to which the trademark is to be applied.4155 
Australia responds that the claim is based entirely on its assertion that despite its ordinary 
meaning, the term " registration" can also be read in a more substantive manner as necessarily 
referring to the rights flowing from registration. Article  15.4, however, provides only that Members 
may not refuse to register trademarks based on the nature of the underlying good s. Article  15.4 
says nothing about the nature of the protection that flows from registration. If Article  15.4 were 
intended to cover the nature of the protection afforded to trademarks as a result of registration, 
the drafters would have made this clear.4156  
7.1797.   Honduras  responds that Australia's distinction between the concepts of "trademarks" and 
"signs" in the context of Article  15 "is artificial"4157 and "based on circular reasoning and an overly 
formalistic interpretation of the terms in Article  15.4, isolated from their context".4158 It argues 
that Article  15.1 refers to distinctive signs that are capable of constituting trademarks. Those signs 
are eligible for registration as a trademark, as are non -inherently distinctive signs that, in several 
jurisdictions, inc luding Australia, acquire the required distinctiveness through use. Article  15 thus 
focuses on signs that either are distinctive or acquire distinctiveness through use and therefore 
can be registered as trademarks . Honduras submits that its focus on signs and whether they can 
be registered as trademarks, without the nature of the product to which they apply creating an 
                                                
4150 Australia's first written submission,  paras.  302-303. 
4151 Australia's first written submission,  para. 304. 
4152 Australia's first written submission,  para. 308. 
4153 Australia's first written sub mission,  para. 306. 
4154 Australia's first written submission, para. 307. 
4155 Australia's first written submission,  para. 309 fn 500. 
4156 Australia's first written submission, para. 309 fn 500.  
4157 Honduras's opening statement at the first meeting of the Panel, para. 30. 
4158 Honduras's second written submission, para. 239. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 602 - 
  obstacle to registration, is thus appropriate and consistent with the text and context of 
Article  15.4.4159  
7.1798.   The Dominican Republic  responds that Australia ignores the interpretative context of the 
definition of trademarks in Article  15.1, and reads the term "capable" out of this definition.4160 In 
view of the ordinary meaning of "capable", the Dominican Republic argues, non -inherently 
distinctive signs that have the capacity for "distinguishing the goods of one undertaking from those 
of other undertakings" qualify as "trademarks", as that term is defined in Article  15.1. Moreover, 
Article  15.1 states that Members may make the registrabil ity of non -inherently distinctive signs 
depend on distinctiveness acquired through use, thereby indicating that Members can also opt to 
register non -inherently distinctive signs as "trademarks" even without actual distinctiveness 
acquired through use.4161  
7.1799.   The Dominican Republic seeks further guidance from Article  6quinquies  B of the 
Paris Convention . It argues that since Article  6quinquies  B(2) refers to the possibility of denying 
registration to "trademarks" that are "devoid of any distinctive character"4162, the term 
"trademark" encompasses signs that are not inherently distinctive and that have not yet acquired 
distinctiveness through use.4163  
7.1800.   Indonesia  does not agree that acceptance of its position would force all WTO Members to 
permit advertising and sale of a ll products regardless of how dangerous or addictive those 
products might be. Since nothing in the TRIPS  Agreement  prevents the regulation of products, a 
Member would be free to ban the sale of tobacco if it wished to do so.4164 
7.3.2.2   Main arguments by the third pa rties  
7.1801.   Argentina  sees Article  15 of the TRIPS  Agreement  as establishing certain limitations in the 
ability of a Member to impose eligibility requirements for the registration of a trademark in its 
territory.4165 It notes that Article  15.4 does not refer to enj oyment of the rights, but merely to 
their availability4166, while Article  16 defines the exclusive rights of the trademark owner in 
negative terms (the right to exclude others).4167 In its view, therefore, Article  15.4 cannot be 
interpreted as preventing a Member from limiting or prohibiting the use of trademarks for the 
marketing of goods or services on the basis of public health, security, or other reasons.4168  
7.1802.   Argentina believes that the prohibition under Article  15.4 of the TRIPS  Agreement  refers 
to the re gistration of a trademark, while the TPP Act refers to the use of the registered 
trademark.4169 It acknowledges that use of the registered trademark is one of the main objectives 
of registration and notes that "distinctiveness only serves its purpose under a declarative 
registration system, because in such cases there is always prior use, so that the differentiation 
already exists. On the other hand, under a constitutive system, the distinctiveness will always be 
potential and will be examined with respect to the good or service to be distinguished." Argentina 
believes that the Panel should consider this difference between the two different trademark 
registration traditions, since in a constitutive system, distinctiveness will never exist until the 
trademark ha s actually been used.4170 
7.1803.   Canada  argues that Article  15.4 ensures that registration of a trademark is independent 
of both the category of goods/services and the legality of the goods/services in the jurisdiction 
(i.e. whether the goods/services are for legal sale).4171 In its view, the provision neither addresses 
                                                
4159 Honduras's second written submission, para. 239.  
4160 Dominican  Republic 's second written submission, para. 47. 
4161 Dominican  Republic 's first written submission, para. 280; and second written subm ission, para. 48. 
4162 Dominican  Republic 's second written submission, para. 49.  
4163 Dominican  Republic 's second written submission, para. 49. 
4164 Indonesia's second written submission, para. 65. 
4165 Argentina's third -party submission, para. 21. 
4166 Argentina's thir d-party submission, para. 22. 
4167 Argentina's third -party submission, para. 22. 
4168 Argentina's third -party submission, para. 22. 
4169 Argentina's third -party submission, para. 24. 
4170 Argentina's third -party submission, para. 25. 
4171 Canada's third -party submission,  para. 36. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 603 - 
  protections flowing from trademark registration, nor establishes a right to use a registered 
trademark, but simply and exclusively requires Members not to establish obstacles to registration 
based on the  nature of the goods/services. Therefore a measure will only violate Article  15.4 
where it is proven to be an obstacle to registration based on the nature of the product/services. It 
follows that where a measure restricts or prevents use of a trademark but  does not interfere with 
its registration, there will be no basis for a successful claim under Article  15.4.4172 
7.1804.   Canada further argues that Article  15.4 does not guarantee an opportunity, or grant a 
right, to acquire distinctiveness for non -inherently distinctive signs. This would create a right to 
use a sign if that sign has the potential to become a trademark, which is not a right protected 
under the TRIPS  Agreement . The complainants' arguments and examples demonstrate that it is 
the elemen t of the sign itself (that it is not distinctive), rather than a measure that prohibits use, 
that creates the obstacle to registration.4173 To read a right to use a sign or a trademark into the 
TRIPS  Agreement  would, Canada submits, create untenable results,4174 since such an 
interpretation would render redundant Articles  15.1 and 15.3, which establish that Members have 
the right to require use prior to registration.4175 Canada further argues that such an interpretation 
would prevent Members from banning any good or  service because a ban would necessarily result 
in preventing the use of signs and trademarks associated with the banned goods/services and a 
resulting inability for non -inherently distinctive signs to attain distinctiveness.4176  
7.1805.   In Canada's view, Members ha ve clearly and unequivocally preserved the freedom to 
regulate in the interest of protecting public health, as evident in Articles 7 and 8.1 of the TRIPS  
Agreement , and paragraph 4 of the Doha D eclaration on Public Health.4177 Article  15.4 must 
therefore be i nterpreted in a manner supportive of a Member's right to protect public health, and 
not so as to restrict a Member's ability to take measures to protect public health. 4178  
7.1806.   Guatemala  submits that, under the TPP measures  as challenged in Ukraine's first writt en 
submission, "the alleged obstacle to registration of a trademark would be the lack of use (pursuant 
to Article  15.3) but not necessarily the 'nature of the goods or services to which a trademark is to 
be applied' (in accordance with Article  15.4)".4179 Guatemala thus does not believe that the 
TPP measures  violate Article  15.4 of the TRIPS  Agreement .4180 
7.1807.   New Zealand  argues that Article  15.4 does not refer to the enjoyment of rights, but only 
to their availability4181, and cannot be interpreted as preventing a Member from limiting or 
prohibiting the use of trademarks for the commercialization of goods or services based on public 
health, security, or other reasons.4182 In its view, for there to be a violation of Article  15.4, the 
nature of the goods to which a trade mark applies (including whether the goods have a detrimental 
impact on health) must be an obstacle to the registration of the trademark.4183 New Zealand 
argues that the complainants ignore the ordinary meaning and effect of Section 28 of the 
TPP Act4184, which m akes it clear that the operation of the TPP Act does not prevent an owner from 
registering a trademark.4185 New Zealand also submits that the complainants conflate Article  15.1, 
which embodies a definition of what can constitute a trademark, with Article  15.4, which addresses 
the registration of trademarks.4186  
7.1808.   Nicaragua  argues that the TPP measures  violate Articles  15.1 and 15.4 of the 
TRIPS  Agreement  by preventing certain valid trademarks from being used to distinguish products 
                                                
4172 Canada's third -party submission, para. 37. 
4173 Canada's third -party submission, para. 39. 
4174 Canada's third -party submission, para. 40. 
4175 Canada's third -party submission, para. 40. 
4176 Canada's third -party submission, para. 41. 
4177 Canada's third -party submission, para. 42. 
4178 Canada's third -party submission, para. 42. 
4179 Guatemala's third -party submission, para. 30. 
4180 Guatemala's third -party submission, para. 31. 
4181 New Zealand's third -party submission, para. 22. 
4182 New Zealand's third -party submissio n, para. 22.  
4183 New Zealand's third -party submission, para. 23. 
4184 New Zealand's third -party submission, para. 23. 
4185 New Zealand's third -party submission, para. 24. 
4186 New Zealand's third -party submission, para. 24.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  without an individual assessment  of the nature of the trademark. "For figurative signs and 
non-inherently distinctive signs, the violation is clear as they cannot constitute a 'trademark' as 
properly defined and are barred from being registered because of the nature of the product 
respec tively."4187 Nicaragua further submits that the terms used and conditions imposed by the 
TRIPS  Agreement , including "capable of distinguishing", "capable of constituting a trademark", and 
"distinctiveness acquired through use", reflect the functional nature o f trademarks and must be 
given meaning. A formalistic approach to the interpretation of the TRIPS  Agreement  would 
effectively render inutile these terms and conditions and would thus not be consistent with the 
principle of effective treaty interpretation.4188 
7.1809.   Norway  argues that the text of Article  15.4 makes clear that it concerns limitations on 
Members as regards registration  of a trademark, rather than obstacles to use of a trademark. This 
understanding is supported by the fact that the wording is the same a s the wording of Article  7 of 
the Paris Convention , a provision that is understood to have "a rather narrow scope". It is of 
particular importance for the current dispute that WIPO has explained that "[i]f a national law does 
not exclude trademarks for cer tain kinds of products from registration, but only limits the use of 
such trademarks, this would not constitute a violation" of Article  7. In light of this, Norway submits 
that Article  15.4 only restricts the rights of Members to refuse registration . It do es not restrict – or 
indeed does not affect – Members' rights to limit the use of a trademark.4189 
7.1810.   Oman  supports the legal arguments of Australia4190 and submits that nothing in the 
TRIPS  Agreement  confers on owners of trade marks a positive right to use their t rade marks. 
Moreover, Article  8.1 of the TRIPS  Agreement  contemplates Members' right to formulate and 
amend their regulations for the protection of public health as long as they are consistent with the 
TRIPS  Agreement .4191 
7.1811.   Singapore  submits that Article  15.4 is inapplicable. By its terms, Article  15.4 applies to 
trademarks which, according to Article  15.1, are signs that are capable of distinguishing the goods 
or services of one undertaking from those of other undertakings, i.e. signs that are already 
distinctive. Read in conjunction with Article  15.1, signs that are inherently distinctive are capable 
of constituting a trademark and may not be refused registration on account of the nature of the 
goods or services to which the trademark is to be applied. Si gns that are non -inherently distinctive 
but which have acquired distinctiveness are also capable of constituting a trademark and may not 
be refused registration on account of the nature of the goods or services to which the trademark is 
to be applied. Howe ver, signs that are non -inherently distinctive and have not acquired 
distinctiveness are not capable of constituting trademarks; they are non -registrable per se and 
therefore a fortiori , there cannot be any "obstacle to registration" because of the nature of the 
goods or services involved.4192 
7.1812.   Singapore adds that the plain packaging measure does not prevent tobacco companies 
from registering or maintaining their trademarks through the operation of Section 28 of the 
TPP Act (whether they are signs that are inhe rently distinctive, or signs that have acquired 
distinctiveness). To the extent that Section 28 does not apply to signs that are not inherently 
distinctive and have not acquired distinctiveness through use, Singapore submits that Members 
are under no oblig ation to enable a sign to acquire distinctiveness.4193 It argues that no such 
obligation is expressed in Article  15.4 (or Article  7 of the Paris Convention ). Taking the 
complainants' arguments to their logical conclusion would mean that Members would not be a ble 
to ban the sale of products with non -distinctive signs which may become registrable through use. 
Product bans are not, however, prohibited if they accord with the applicable rules under the 
covered agreements. Implying such an obligation would also be contrary to the rationale behind 
Article  15.4 (and Article  7 of the Paris Convention ), which is to make protection independent of 
whether the goods in question may or may not be legally sold within the country. Therefore, 
                                                
4187 Nicaragua's third -party submission, para. 21. 
4188 Nicaragua's third -party submission, para. 23. 
4189 Norway's third -party submission, para. 30.  
4190 Oman's third -party statement, para. 4. 
4191 Oman's third -party statement, para. 4. 
4192 Singapore's third -party submission, para. 24. 
4193 Singapore's third -party submission, para. 25. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 605 - 
  Singapore concludes, the obligatio n under Article  15.4 is not intended to, and cannot extend to, 
ensuring that a non -inherently distinctive sign can acquire distinctiveness through use.4194 
7.1813.   Uruguay  submits that Article  15.4 restricts the capacity of Members to refuse registration 
of a tradema rk, but not the capacity to restrict or prohibit the use of the mark. The Australian 
measure does not prevent registration, nor does it constitute an obstacle to registration.4195 
7.1814.   Zimbabwe  argues that Australia has imposed a ban on trademarks without examining 
whether individual marks increase smoking rates or prevent existing smokers from quitting. This is 
contrary to the principle of "product independence" reflected in Article  15.4 of the  
TRIPS  Agreement , and cannot be justified.  4196 
7.3.2.3   Analysis by the Panel  
7.1815.   As described above4197, the TPP measures  regulate the appearance of trademarks4198 and 
"marks"4199 on tobacco retail packaging and products in various ways. In respect of retail 
packaging, the TPP measures  permit the use of word marks and marks that denote the brand, 
business or company name, or the name of the product variant, as long as these trademarks 
appear in the form prescribed by the TPP Regulations . They prohibit the use of stylized word 
marks, composite marks and figurative marks, as well as other decorative elements both on 
tobacco products and on their retail packaging.  
7.1816.   All complainants argue that, while Australian trademark law in general permits 
non-distinctive signs to acquire distincti veness through use to qualify for registration, the fact that 
non-word signs are prohibited from being used on tobacco products and packaging means that 
new non -word signs that are not inherently distinctive have no opportunity to acquire 
distinctiveness t hrough use on such products, and therefore face obstacles to registration based on 
the nature of the goods as tobacco products, in violation of Article  15.4.4200 Australia responds that 
a non -distinctive sign is not a "trademark" within the meaning of Article  15.4, and that therefore 
Article  15.4 does not contain any obligation for Members to permit the use of such a 
non-distinctive sign notwithstanding the nature of the goods or services on which it is to be 
used.4201 
7.1817.   The Dominican Republic and Honduras also arg ue that the TPP measures  are inconsistent 
with Article  15.4 in that a sign, which is not inherently distinctive and has not yet acquired 
distinctiveness through use, should, nonetheless, be eligible for registration to the extent that it is 
"capable of acq uiring distinctiveness through use".4202 Australia responds that the definition of 
what can constitute a "trademark" in Article  15.1 does not encompass a sign that is not inherently 
distinctive and has not yet acquired distinctiveness through use, and that th e obligation in 
Article  15.4 therefore does not extend to signs that may become distinctive in the future.4203 
7.1818.   In addition, Cuba, by reference, argues that the restriction on the use of signs under the 
TPP measures  reduces the protection Australia provides to  tobacco -related trademarks that flows 
from trademark registration, both under Article  16 and under domestic law, and thereby violates 
what it considers to be the governing principle of Article  15.4 to confer protection to trademarks 
on the same terms and conditions notwithstanding the nature of the product.4204 Australia 
                                                
4194 Singapore's third -party submission, para. 26.  
4195 Uruguay's third -party submission, para. 50. 
4196 Zimbabwe's third -party submission, para. 34. 
4197 See sections 2.1.2.3.3 and 2.1.2.4 above.  
4198 For an explanation of the terminology used  in these Reports for different types of trademarks, see 
fn 4095 above.  
4199 The definition of "mark" in Section 4 of the TPP Act reads as follows: "(a) includes (without 
limitation) any line, letters, numbers, symbol, graphic or image; but (b) (other than when referring to a trade 
mark) does not include a trade mark". TPP Act, (Exhibits AUS -1, JE-1), Section 4.  
4200 See paras.  7.1782 , 7.1786  and 7.1789 , and fn 4120, above.   
4201 See para. 7.1792  above.  
4202 Dominican  Republic 's second written submission, paras.  47-48; and Honduras's second written 
submission, paras.  239-241. 
4203 Australia's first written submission, paras.  302-304. 
4204 See para. 7.1788  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  responds that Article  15.4 only prohibits obstacles to the registration of trademarks and does not 
relate to the nature of the protection that flows from registration.4205 
7.1819.   The question before us  is, therefore, whether the TPP measures  amount to an obstacle to 
the registration of a trademark based on the nature of the goods or services to which the 
trademark is to be applied, within the meaning of Article  15.4, in that they:  
a. prevent registration of signs, which are not inherently distinctive and have not yet 
acquired distinctiveness through use, but which are "capable of acquiring distinctiveness 
through use";  
b. prevent new non -inherently distinctive non -word signs from acquiring distinctiveness 
through use and thereby becoming eligible for registration in relation to tobacco 
products; and  
c. reduce the protection flowing from registration for tobacco -related trademarks because 
of the nature of the product.  
7.1820.   The parties' differing views in respect of these questions result in part from their different 
interpretations of the terms of Article  15.4. We, therefore first consider the interpretation of 
Article  15.4, before turning to a consideration of whether the TPP measures  are inconsistent with 
its requi rements.  
7.3.2.3.1   Interpretation of Article  15.4  
7.1821.   We recall that Article  15.4 of the TRIPS  Agreement  reads as follows:  
The nature of the goods or services to which a trademark is to be applied shall in no 
case form an obstacle to registration of the trademark.  
7.1822.   In accordance with Article  3.2 of the DSU and the customary rules of interpretation 
reflected in Article  31 of the Vienna Convention4206, the terms of Article  15.4 must be given their 
ordinary meaning in their context and in light of the object and purpose of the  treaty.4207  
7.1823.   We note at the outset that, on a plain reading of the provision, for a violation of 
Article  15.4 to exist, the following elements must be established:  
a. the existence of an "obstacle to the registration of the trademark"; and  
b. that this obstacle is formed by "the nature of the goods or services to which a trademark 
is to be applied".  
7.1824.   Article  15.4, by its express terms, relates to an obstacle to "the registration of the 
trademark". In order to determine whether such an "obstacle " exists, therefore, we must first 
address the notion of "registration of the trademark" to which such an "obstacle" would relate. In 
this regard, we note that t he parties have different views on the meaning of the terms "trademark" 
and "registration of th e trademark", as used in Article  15.4, and consequently on the scope of the 
obligation under this provision and what may constitute an "obstacle" to the "registration" of a 
"trademark" in violation of Article  15.4. Accordingly, we first address the meaning  of the term 
"trademark" in Article  15.4.  
                                                
4205 See para. 7.1796  above.  
4206 Vienna Convention on the Law of Treaties,  done a t Vienna, 23 May 1969, UN Treaty Series, Vol. 
1155, p. 331.  
4207 See Appellate Body Report, US – Gasoline , p. 17, DSR 1996:I, 3, at pp. 15-16. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.2.3.1.1   The meaning of "trademark" in Article  15.4 
7.1825.   Article  15.4 forms part of Article  15 of the TRIPS  Agreement , entitled "Protectable Subject 
Matter".4208 This provision sets out a number of obligations for Members regarding  what shall be 
capable of constituting a "trademark" and in relation to the "registration" of a trademark.  
7.1826.   All parties refer to Article  15.1 of the TRIPS  Agreement  as describing, or providing a 
definition of, what must be capable of constituting a "tradem ark"4209, thus offering relevant context 
for the purpose of interpreting Article  15.4.4210 Article  15.1 reads as follows:  
Any sign, or any combination of signs, capable of distinguishing the goods or services 
of one undertaking from those of other undertakings, shall be capable of constituting 
a trademark. Such signs, in particular words including personal names, letters, 
numerals, figurative elements and combinations of colours as well as any combination 
of such signs, shall be eligible for registration as trade marks. Where signs are not 
inherently capable of distinguishing the relevant goods or services, Members may 
make registrability depend on distinctiveness acquired through use. Members may 
require, as a condition of registration, that signs be visually perc eptible.  
7.1827.   The first and second sentences of Article  15.1 thus define what signs Members must 
consider as being "capable of constituting a trademark" and set out an obligation for Members to 
consider such signs as "eligible for registration as trademarks".4211  
7.1828.   As described by the Appellate Body in US – Section 211 Appropriations Act : 
Article  15.1 defines which signs or combinations of signs are capable of constituting a 
trademark. These signs include words such as personal names, letters, numerals, 
figurative elements and combinations of colours, as well as any combination of such 
signs. This definition is based on the distinctiveness of signs as such, or o n their 
distinctiveness as acquired through use. If such signs are capable of distinguishing the 
goods or services of one undertaking from those of other undertakings, then they 
become eligible for  registration as trademarks. To us, the title of Article  15.1 – 
"Protectable Subject Matter" – indicates that Article  15.1 embodies a definition  of what 
can constitute a trademark. WTO Members are obliged under Article  15.1 to ensure 
that those signs or combinations of signs that meet the distinctiveness criteria set 
forth in Article  15.1 – and are, thus, capable of constituting a trademark  – are eligible 
for registration  as trademarks within their domestic legislation.4212  
7.1829.   The terms "trademark" and "registration as trademarks"4213 are also used in subsequent 
paragraphs  of Article  15, including Article  15.4, and, indeed, elsewhere in the TRIPS  Agreement . 
These terms must logically be given, in these other provisions, and specifically in Article  15.4, the 
meaning established in the first and second sentences of Article  15.1 determining the protectable 
subject matter.  
                                                
4208 See para. 7.1776  above.  
4209 Honduras's first written submission, para. 155; Dominican  Republic 's second written submission, 
paras.  44 and 47; Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 147); Indonesia's firs t written submission, para. 186; Indonesia's second written submission, paras.  22, 
58-59; Australia's response to Panel question No. 26, para. 89; and Australia's second written submission, 
para. 25. 
4210 See Honduras's first written submission, paras.  155-158; Honduras's second written submission, 
paras.  239 and 242; Dominican  Republic 's first written submission, para. 278; Dominican  Republic 's second 
written submission, paras.  44-47; Cuba's first written submission, para. 428 (incorporating by reference  
Ukraine's first written submission, paras.  183, 189 and 191); Indonesia's first written submission, para. 186. 
Australia's first written submission, para. 303; and Australia's second written submission, para. 25. 
4211 In accordance with Article  1.1 of the TRIPS  Agreement, "Members shall give effect to the provisions 
of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection 
than is required by this Agreement, provided that such protection does not contravene the  provisions of this 
Agreement."  
4212 Appellate Body Report, US – Section 211 Appropriations Act , para. 154. (emphasis original ; footnote 
omitted ) 
4213 This phrase is used with slightly different formulations throughout Article  15; see our discussion in 
para. 7.1835  below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1830.   The term "trademark" must therefore be understood, in Article  15.4, as referring to those 
signs that are "capable of constituting a trademark" within the meaning of Article  15.1. 
Specifically, as described by  the Appellate Body, the definition, in Article  15.1, of the signs or 
combinations of signs that are "capable of constituting a trademark" is based on their capacity to 
distinguish the relevant goods or services (or "distinctiveness", in the words of the A ppellate Body) 
either "as such" or "as acquired through use".  
7.1831.   In light of the above, we conclude that the term "trademark" in Article  15.4 refers to 
signs or combinations of signs that meet the distinctiveness requirement set out in Article  15.1, 
first se ntence, which Members are therefore under an obligation to consider as capable of 
constituting trademarks.  
7.1832.   We now consider the notion of "registration" of a trademark, which is also used in 
Article  15.4. 
7.3.2.3.1.2   The meaning of "registration of the trademark" in Article 15.4 
7.1833.   Having established the meaning of the term "trademark" in Article  15.4, we turn to the 
meaning of the phrase "registration of the trademark" in Article  15.4.  
7.1834.    Dictionary definitions of the term "registration" include "the action of registering or 
recording something; the process of being registered".4214 In the specific context of Article  15.4 of 
the TRIPS  Agreement , the "registration of the trademark" therefore refers to the "action of 
registering or recording" certain signs or combinations of sig ns "as trademarks".  
7.1835.   In the same way as for the term "trademark", we consider that the meaning of the term 
"registration of the trademark" in Article  15.4 must be established with reference to the same 
terms as used in other paragraphs of Article  15 that a lso refer to the registration of trademarks. 
The successive paragraphs of Article  15 use slightly different formulations: Article  15.1 refers to 
"registration as trademarks", Article  15.2 to "registration of a trademark" and Article  15.4 to 
"registration o f the trademark." However, these differences arise because these paragraphs refer 
to different aspects of registration, and not because the concepts of "trademark" or "registration" 
they discuss diverge. Taken together, these provisions define Members' obl igations under the 
TRIPS  Agreement  with respect to the registration of trademarks. They therefore provide important 
context for understanding the notion of "registration of a trademark" in Article  15.4.  
7.1836.   The text of Article  15.1 clearly distinguishes what must be capable of constituting a 
trademark , in the first sentence, from the obligation to consider such signs as eligible for 
registration  as trademarks, in the second sentence. As noted, in addition to defining which signs or 
combinations of signs shall be capable of constituting a trademark, Article  15.1, second sentence, 
further requires that such signs be eligible for "registration" as trademarks:  
Such signs, in particular words including personal names, letters, numerals, figurative 
elements and combi nations of colours as well as any combination of such signs, shall 
be eligible for registration as trademarks.  
7.1837.   As described above, Article  15.1 provides a definition of what signs must be capable of 
constituting a trademark and sets out an obligation for M embers to consider such signs as "eligible 
for registration" as a trademark. The obligation to consider as "eligible for registration" under 
Article  15.1, second sentence, thus extends to the very same signs that Members are obliged to 
consider "capable of constituting a trademark" under Article  15.1, first  sentence, namely those 
signs that fulfil the requirement of "distinctiveness" described above.  
7.1838.   Article  15 further defines the conditions that Members may place on the registration of 
signs or combinations of signs as trademarks, which provide relevant context for understanding 
the obligation in Article  15.4. In its third sentence, Article  15.1 thus expressly allows Members to 
make the registration of signs or combinations of signs that are not inherently capable of 
                                                
4214 Oxford English Dictionary online, definition of "registration",  available at: 
<http://www.oed.com/view/Entry/161313?redirectedFrom=registration#eid >, accessed  2 May 2017.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 609 - 
  distinguishing the relevant goods or services dependent on the acquisition of such distinctiveness 
through use. In its final sentence, Article 15.1 provides that Members may also require, as a 
condition of registration, that signs be visually perceptible.  
7.1839.   As described by the Appellate Body in US – Section 211 Appropriations Act : 
This Article  describes which trademarks are "capable of" regis tration. It does not say 
that all trademarks that are capable of registration "shall be registered". This 
Article  states that such signs or combinations of signs "shall be eligible  for 
registration" as trademarks. It does not say that they "shall be regist ered". To us, 
these are distinctions with a difference. And, as we have said, supporting these 
distinctions is the fact that the title of this Article  speaks of subject matter as 
"protectable", and not of subject matter "to be protected".4215  
7.1840.   This distinction between constituting a trademark and thus eligibility for registration, on 
one hand, and actual registration as a trademark to become a registered  trademark4216, on the 
other, is confirmed by other provisions, which further define the obligat ions of Members in respect 
of the conditions for eligibility for registration as a trademark, beyond the "distinctiveness" 
requirements of Article  15.1. Specifically, paragraphs 2 to 5 of Article  15 further define the 
obligations of Members in relation to the registration of trademarks. These paragraphs read as 
follows:  
2. Paragraph 1 shall not be understood to prevent a Member from denying 
registration of a trademark on other grounds, provided that they do not derogate from 
the provisions of the Paris Convention  (1967) . 
3. Members may make registrability depend on use. However, actual use of a 
trademark shall not be a condition for filing an application for registration. An 
application shall not be refused solely on the ground that intended use has not take n 
place before the expiry of a period of three years from the date of application.  
4. The nature of the goods or services to which a trademark is to be applied shall 
in no case form an obstacle to registration of the trademark.  
5. Members shall publish eac h trademark either before it is registered or promptly 
after it is registered and shall afford a reasonable opportunity for petitions to cancel 
the registration. In addition, Members may afford an opportunity for the registration 
of a trademark to be oppos ed. 
7.1841.   These provisions must be read together with the relevant provisions of the 
Paris Convention  (1967)  concerning the registration of trademarks that have been incorporated 
into the TRIPS  Agreement  through its Article  2.1.  
7.1842.   In this respect, the Appellate B ody, in US – Section 211 Appropriations Act , provided 
useful clarification of the overall structure and operation of these provisions, in combination with 
Article  6(1) of the Paris Convention  (1967) , which is incorporated into the TRIPS  Agreement  
through i ts Article  2.1:  
Article  6(1) states the general rule, namely, that each country of the Paris Union has 
the right to determine the conditions  for filing and registration of trademarks in its 
domestic legislation. This is a reservation of considerable discr etion to the countries of 
the Paris Union – and now, by incorporation, the Members of the WTO – to continue, 
in principle, to determine for themselves the conditions for filing and registration of 
trademarks. Thus, in our view, the general rule under the Paris Convention  (1967)  is 
that national laws apply with respect to trademark registrations within the territory  of 
each country of the Paris Union, subject to the requirements of other provisions of 
                                                
4215 Appellate Body Report, US – Section 211 Appropriations Act , para. 155. (em phasis original)  
4216 We note that the rights conferred in Article  16.1 are only available to the owners of registered  
trademarks.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  that Convention.4217 And, likewise, through incorporation, t his is also now the general 
rule for all WTO Members under the TRIPS Agreement .4218  
7.1843.   The "considerable discretion"4219 provided by this general rule is limited in Article  15 of 
the TRIPS  Agreement  by setting out specific options and limitations regarding the con ditions that 
Members may establish for the registration of trademarks in their national legislation.  
7.1844.   First, Article  15.1 limits Members' freedom to determine conditions for trademark 
registration with respect to "distinctiveness requirements":  
Article  15.1 of the TRIPS Agreement  limits the right of Members to determine the 
"conditions" for filing and registration of trademarks under their domestic legislation 
pursuant to Article  6(1) only as it relates to the distinctiveness requirements 
enunciated in Article 15.1.4220 
7.1845.   In addition, Article  15.2 confirms Members' discretion to set conditions with respect to 
"other grounds" – i.e. grounds other than those regulated in Article  15.1 – provided these do not 
derogate from the Paris Convention  (1967) : 
To us , the reference in Article  15.2 to Article  15.1 makes it clear that "other grounds" 
for denial of trademark registration are grounds different from those already 
mentioned in Article  15.1, such as lack of inherent distinctiveness of signs, lack of 
distinctiveness  acquired through use, or lack of visual perceptibility.4221  
7.1846.   Article  15.3, in its first sentence, further provides an explicit example of such "other 
grounds" mentioned in Article  15.2, namely refusal of registration if the trademark is not used. The 
second and third sentences of Article  15.3 then limit the extent to which Members can exercise 
their discretion to require use of a trademark as a condition for registration.4222 
7.1847.    It is in this context that Article  15.4 provides that "registration of the trademark" may 
not be refused on the basis of the nature of the goods or services to which the trademark is to be 
applied. This means that for a sign that is capable of constituting a trademark and eligible for 
registration, the nature of the goods or services to whi ch it is intended to be applied cannot be an 
obstacle to its registration.  
7.1848.   Article  6quinquies of the Paris Convention  (1967) , which is also incorporated by reference 
into the TRIPS  Agreement , further establishes an obligation with respect to the registrati on of 
trademarks that have been registered in the territory of other Members.4223 As discussed in detail 
above4224, this provision limits the freedom of Members, established in Article  6 of the 
                                                
4217 (footnote original) The discretion of countries of the Paris Union to legislate conditions for filing and 
registration is not unlimited. It is subject to the international minimum standard of trademark disciplines 
provided for in other articles of the Paris Convention  (1967). These include, for example, national treatment, 
as well as internationally agreed reasons for denying tra demark registration, such as those provided for in 
Article  6ter. The Paris Convention  (1967) limits also the legislative discretion of countries of the Union under 
Article  6(1) by setting out reasons that countries cannot invoke to deny trademark registrat ion, for example in 
Article  6(2). 
4218 Appellate Body Report, US – Section 211 Appropriations Act , para. 132. (emphasis original)  
4219 Appellate Body Report, US – Section 211 Appropriations Act , para. 132. 
4220 Appellate Body Report, US – Section 211 Appropriations  Act, para. 165. (emphasis original)  
4221 Appellate Body Report, US– Section 211 Appropriations Act , para. 158. (emphasis original)  
4222 Cf. Appellate Body Report, US – Section 211 Appropriations Act , para. 164. We note for clarity that 
Article  15.3 refers to "use" as a basis for registrability of a trademark by a particular applicant, while 
Article  15.1, third sentence, refers to "use" as a basis for signs which are not inherently distinctive to acquire 
distinctiveness and thus qualify as "prote ctable subject matter".  
4223 Article  6quinquies of the Paris Convention  (1967) refers to "countries of the Union". Through the 
incorporation of this provision into the TRIPS Agreement this has now become an obligation for WTO Members.  
"Thus, in our view, the general rule under the Paris Convention  (1967) is that national laws apply with respect 
to trademark registrations within the territory  of each country of the Paris Union, subject to the requirements 
of other provisions of that Convention.  And, likewise, t hrough incorporation, this is also now the general rule 
for all WTO Members under the TRIPS Agreement ." Appellate Body Report, US – Section 211 Appropriations 
Act, para. 132. (emphasis original; footnote omitted)  
4224 See paras.  7.1758  to 7.1762  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Paris Convention  (1967) , to set conditions for the registration of t rademarks by requiring, in its 
first paragraph, that:  
A. (1) Every trademark duly registered in the country of origin shall be accepted 
for filing and protected as is in the other countries of the Union, subject to the 
reservations indicated in this Articl e.4225  
7.1849.   Section B of Article  6quinquies further  provides that:  
B. Trademarks covered by this Article  may be neither denied registration nor 
invalidated except in the following cases:  
1. when they are of such a nature as to infringe rights acquired by third parti es in the 
country where protection is claimed;  
2. when they are devoid of any distinctive character, or consist exclusively of signs or 
indications which may serve, in trade, to designate the kind, quality, quantity, intended 
purpose, value, place of origin, of the goods, or the time of production, or have become 
customary in the current language or in the bona fide and established practices of the 
trade of the country where protection is claimed;  
3. when they are contrary to morality or public order and, in part icular, of such a nature as 
to deceive the public. It is understood that a mark may not be considered contrary to 
public order for the sole reason that it does not conform to a provision of the legislation 
on marks, except if such provision itself relates to public order.  
This provision is subject, however, to the application of Article  10bis. 
7.1850.   Article  6quinquies  thus formulates an obligation for Members4226 to accept for filing and 
"protect as is" a trademark, where protection is claimed in one Member on the b asis of a 
trademark that is duly registered in one of the other Members.  
7.1851.   Section B sets out the "reservations" referred to in Section A(1), first sentence, by listing 
the situations in which the Member where protection is claimed may nevertheless deny registration 
to "[t]rademarks covered by this Article" which it would otherwi se have to accept for filing and 
protection. The "[t]rademarks covered by this Article" referred to in Section B are those defined in 
Section A(1) as "trademark[s] duly registered in the country of origin". Section B thus allows a 
Member to deny registrati on to, or invalidate, trademarks that are duly registered in the country of 
origin (i.e. another Member), in specific circumstances, including, inter alia, when they are "devoid 
of any distinctive character".4227  
7.1852.   Taken together, these provisions thus define Members' obligations under the 
TRIPS  Agreement  with respect to the registration of trademarks. The notion of "registration of the 
trademark" in Article  15.4 must therefore be understood with reference to these p rovisions.  
7.1853.   Regarding the functional context of registration of the trademark, we further note that 
Article  16.1, entitled "Rights Conferred", obliges Members to provide the rights described therein 
to the owners of registered  trademarks. This means that t he registration  of the trademark, as 
governed by Article  15 in the manner described above, is a precondition for the availability of 
those minimum rights conferred on a trademark owner, the scope and content of which are 
governed by Article  16.1. 
                                                
4225 Article  6quinquies  A(1), first sentence.  
4226 Obligations on Paris Union Members deriving from provisions of the Paris Convention  (1967) that 
have been incorporated into the TRIPS Agreement by Article  2.1 have thus become obligations of WTO 
Members. See Appellate Body Report, US – Section 211 Appropria tions Act , para. 132. 
4227 Article  6quinquies  B(2). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.2.3.1.3   The meani ng of "obstacle" to the registration of a trademark in Article  15.4 
7.1854.   As discussed above, we consider that the terms of Article  15.4 must be read in 
accordance with, and in the context of, the whole of Article  15, which provides a definition of what 
can cons titute a "trademark", and what must thus be "eligible for registration" in its first 
paragraph.  
7.1855.   Articles  15.1 to 15.3, together with the relevant provisions of the Paris Convention  (1967)  
incorporated by reference, further clarify the conditions under whi ch Members must allow, or may 
deny, the registration of signs that constitute trademarks and are thus, in principle, eligible for 
registration. In that context, Article  15.4 provides that " [t]he nature of the goods or services to 
which the trademark is to be applied" may not "form an obstacle to registration of the trademark". 
This means that for a sign that is capable of constituting a trademark and otherwise eligible for 
registration, the nature of the goods or services to which it is intended to be appli ed cannot be an 
obstacle to its registration.  
7.1856.   We note that the ordinary meaning of the noun "obstacle" is "something that stands in 
the way or that obstructs progress ( lit. and fig.); a hindrance, impediment, or obstruction".4228 The 
parties are in general ag reement on this meaning of the term.4229 We also note that the object of 
the preposition "to" in "obstacle to" is "registration of the trademark". Also bearing in mind our 
above determinations of the meaning of the term "trademark" and the phrase "registratio n of the 
trademark", the phrase "obstacle to the registration of the trademark" in Article  15.4 thus refers to 
an impediment or hindrance to the registration of a sign, or combination of signs, that is otherwise 
capable of constituting a trademark, and thu s eligible for registration, within the meaning of 
Article  15.1. 
7.3.2.3.1.4   Conclusion  
7.1857.   Having established the meaning of the relevant terms, including the terms "trademark" 
and "registration of the trademark" in Article  15.4, we conclude that the obligation in Article 15.4 
for the "nature of the goods or services to which the trademark is to be applied" not to form an 
obstacle to its registration, should be understood to mean that signs or combinations of signs that 
are otherwise eligible for registration as a tradema rk may not be denied such registration on the 
basis of the "nature of the goods or services" to which the trademark is to be applied.  
7.1858.   Applying this interpretation, we will now consider whether, as the complainants argue, 
the TPP measures  are inconsistent with Article  15.4. 
7.3.2.3.2   Application to the TPP measures  
7.1859.   As described in para. 7.1819  above, the complainants consider that the TPP measures  are 
inconsistent with Article  15.4 of the TRIPS  Agreement , in that they:  
a. prevent registration of signs, which are not inherently distinctive and have not yet 
acquired distinctiveness through use, but which are "capable of acquiring distinctiveness 
throug h use";  
b. prevent new non -inherently distinctive non -word signs from acquiring distinctiveness 
through use and thereby becoming eligible for registration in relation to tobacco 
products; and  
                                                
4228 Oxford English Dictionary online, definition of "obstacle", available at: 
<http://www.oed.com/view/Entry/129940?rskey=Bqmihq&result=1&isAdvanced=false#eid >, accessed 2  May 
2017.  
4229 Honduras's first written submission, para. 187; Dominican  Republic 's first written submission, 
para. 276; Cuba's first written submission, para. 428 (i ncorporating Ukraine's first written submission, 
para. 186); and Indonesia's first written submission, para. 184. Australia agrees that "obstacle" means 
"hindrance" or "impediment" in the context of Article  2.2 of the TBT Agreement . See Australia's first w ritten 
submission, para. 525. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  c. reduce the protection flowing from registration for tobacco -relate d trademarks because 
of the nature of the product.4230 
7.1860.   We consider these aspects in turn.  
7.3.2.3.2.1   Whether the TPP measures  are inconsistent with Article  15.4 in that they 
operate to prevent the registration of signs that are capable of acquiring distinctiveness 
through use  
7.1861.   The Dominican Republic argues that the ordinary meaning of the term "capable" in the 
phrase "capable of distinguishing the goods or services of one undertaking from those of other 
undertakings" in Article  15.1, first sentence, indicates that the de finition of what must be capable 
of constituting a trademark includes signs that have not yet acquired distinctiveness through use 
but have "the 'capacity'" to do so in the future. Consequently, the Dominican Republic argues, the 
obligation in Article  15.4 not to refuse registration of trademarks on the basis of the nature of the 
goods extends to non -inherently distinctive signs that have not yet acquired distinctiveness but 
would acquire it through use in the marketplace.4231  
7.1862.   The Dominican Republic argues th at its interpretation is supported by the fact that 
Article  6quinquies (B)(ii) of the Paris Convention  (1967)  refers to "trademarks … devoid of any 
distinctive character".4232 
7.1863.   Australia considers that the definition in Article  15.1 excludes signs that are not  
inherently distinctive and have not yet acquired distinctiveness through use from the scope of the 
term "trademark", and that the obligation in Article  15.4 therefore does not extend to such 
signs.4233 
7.1864.   We note – as the Dominican Republic does4234 – that the ter m "capable" means "able to 
take in, receive, contain, or hold; having room or capacity for".4235 In the context of Article  15.1, 
as discussed above, the definition contained in the first sentence refers to signs that, at that 
particular moment, are capable of  distinguishing goods and services and that are, therefore, 
considered as capable of constituting a trademark. Pursuant to the second sentence, Members are 
obliged to consider such signs as eligible for registration as trademarks. This obligation does not,  
in our view, cover signs that only have the potential to develop this capacity  in the future. Rather, 
as the Appellate Body's description of the "distinctiveness criteria" highlights, the existence of a 
capacity to distinguish goods or services at the tim e of assessment is the very basis for the 
definition of the signs that must be eligible for registration. This capacity may exist either because 
the signs or combinations of signs at issue have "as such" the capacity to distinguish the relevant 
goods or se rvices or it may have been "acquired through use".  
7.1865.   In our view, this understanding is also consistent with the fact that Article  15.1, in its 
third sentence, expressly allows Members to make the registration of signs or combinations of 
signs that are not inherently capable of distinguishing the relevant goods or services dependent on 
the acquisition of such distinctiveness through use:  
Where signs are not inherently capable of distinguishing the relevant goods or 
services, Members may make registrability d epend on distinctiveness acquired 
through use.  
                                                
4230 This argument is made by Cuba only, through its incorporation of Ukraine's first written submission. 
See Cuba's first written submission, para. 428. 
4231 Dominican  Republic 's second written submission, paras.  47-48. See also Honduras's second written 
submission, paras.  239-241. 
4232 Dominican  Republic 's second written submission, para. 49. 
4233 Australia's first written submission, paras.  302-304. 
4234 Dominican  Republic 's second written submission, para. 48. 
4235 Oxford Engl ish Dictionary online, definition of "capable", available at: 
<http://www.oed.com/view/Entry/27354?redirectedFrom=capable& >, accessed  2 May 2017.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1866.   A contrario , this implies that Article  15.1 does not impose on Members an obligation to 
make eligible for registration signs or combinations of signs that are not inherently capable of 
distinguishing the relev ant goods and services and have not acquired this capacity through use.  
7.1867.   In this respect, we also note the Appellate Body's observation that "the reference in 
Article  15.2 to Article  15.1 makes it clear that 'other grounds' for denial of trademark registrat ion 
are grounds different from  those already mentioned in Article  15.1, such as lack of inherent 
distinctiveness of signs, lack of distinctiveness acquired through use…".4236 This description further 
confirms that, under Article  15.1, a "lack of distinctiveness" of the sign or combinations of signs at 
issue may constitute a valid ground for denial of registration as a trademark.  
7.1868.   We are therefore not persuaded that the use of the term "capable" in Article  15.1, first 
sentence, implies that the term "trademark" in Article  15.4 includes signs that are not inherently 
distinctive and have not yet acquired distinctiveness through use.4237  
7.1869.   We recall our finding in paragraph 7.1831  above that the term "trademark" in Article  15.4 
refers to signs or combinations of signs that meet the distinctiveness requirement set out in 
Article  15.1, first sentence, and which  Members are therefore under an obligation to consider as 
capable of constituting trademarks. Article  15.4 thus does not extend in scope to "signs" as such, 
and in particular, as discussed above, does not extend to signs that lack the capability to 
disting uish (even if they may be capable of subsequently acquiring distinctiveness over time and 
thus come to meet the standard of being capable of constituting a "trademark"). The drafters' 
choice to use term "trademark" and not "sign" in this provision is not, in our view, inadvertent. 
Rather, it reflects the intention that the obligation in Article  15.4 applies in respect of those signs 
that are capable of constituting a trademark, as defined in Article  15.1.  
7.1870.   Given the substantive distinction between a "sign" and a "trademark" in the context of 
Article  15, and the sequential distinction between the status of being capable of constituting a 
"trademark" and subsequently being registered as a trademark, there is, in our view, no circularity 
or terminological incon sistency – as implied by the complainants4238 – in Article  15.4 when it 
provides that the nature of the goods or services to which a trademark is to be applied cannot 
form an obstacle to "registration of the trademark".  
7.1871.   The Dominican Republic refers to Article 6quinquies  B of the Paris Convention  (1967)  in 
support of its interpretation, observing that this provision refers to the possibility of a trademark 
duly registered in another Member being "devoid of any distinctive character". It is clear, however, 
from the nature of the obligation, the structure of this provision, and its text, as described 
above4239, that the term "trademark" in Article  6quinquies B refers to a trademark "duly registered 
in the country of origin"4240 – i.e. in a Member different from the on e where protection is claimed. 
                                                
4236 Appellate Body Report, US – Section 211 Appropriations Act , para. 158. (emphasis original)  
4237 The use of the formulation " [a]ny sign … capable of  distinguishing", rather than " [a]ny sign … that 
distinguishes " in Article  15.1, first sentence, may be understood against the background of  the Articles' 
negotiating context. The defining obligation of what must be capable of constituting a trademark in the TRIPS 
Agreement accommodates the two main approaches to trademark registration salient at the time: (1) The 
first-to-use approach, mostly  employed in common law traditions, in which registration always depended on 
use, and trademarks therefore already distinguished goods and services in the market at the moment of 
applying for registration, and (2) the first-to-file approach, common in civi l law countries, where use was not a 
condition of registration, and distinctive signs could therefore be registered as trademarks even if they had 
never been used in the market. The formulation of the distinctiveness requirement chosen in Article  15.1, fir st 
sentence, covers both scenarios by requiring that signs are " capable  of distinguishing" goods or services from 
different undertakings if they were applied to goods and services in the market at that moment. In that 
respect, the TRIPS Agreement maintaine d the neutrality of the Paris Convention  (1967). See G.H.C. 
Bodenhausen, Guide to the Application of the Paris Convention  for the Protection of Industrial Property, as 
Revised at Stockholm in 1967  (WIPO, 1969), (Bodenhausen, Full text), (Exhibit DOM -79), p. 15 ("In the field 
of trademarks, the Convention does not prescribe whether the right to a trademark will be acquired either 
through registration or through use, or both.").  
4238 See paras.  7.1797  and 7.1798  above.  
4239 See para. 7.1848  above.  
4240 See Bodenhausen, Full text, (Exhibit DOM -79), p. 114 (" 'Trademarks covered by this Article ' are 
those trademarks which are duly registered in the country of origin and which, with re gard to the signs of 
which they are composed , must be accepted for filing and protected, subject to the provisions now to be 
examined." (emphasis original)).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  In contrast, the circumstances in which denial of registration or invalidation are permitted would 
have to be present in the Member where protection is claimed ,4241 and which is the addressee of 
the obligation in Article  6quinqu ies. In other words, in a situation where a trademark is duly 
registered in one Member, Article  6quinquies B(2) permits another Member to refuse its 
registration if it is devoid of any distinctive character , or descriptive , or a generic name4242, in its 
territory .4243 
7.1872.   We therefore  disagree with the Dominican Republic's argument that this provision 
supports a view that the term "trademark" in Article  15.1, first sentence, must include signs that 
are not inherently distinctive and have not yet acquired distinc tiveness through use. On the 
contrary, we find that, in safeguarding the right of Members to refuse  registration and protection 
on the grounds of lack of distinctiveness, even where another Member has registered a trademark 
in its jurisdiction, Article  6quinquies B(2) of the Paris Convention  (1967)  is fully consistent with a 
reading of Article  15.1 of the TRIPS  Agreement , first sentence, that does not require signs that are 
not distinctive to be considered capable of constituting a trademark. The fact that the term 
"trademark" is used in this context is appropriate, in our understanding, since the term 
"trademark" in the context of Article  6quinquies  B refers to a trademark already registered and 
recognized as such in its country of origin. Under Article  6quinquies  B, registered trademark status 
in the country of origin does not systematically translate into registrability in another jurisdiction.  
7.1873.   In light of the above, we conclude that the obligation for Members in Article  15.1, first 
sentence, to consider s igns that are "capable of distinguishing the goods or services of one 
undertaking from those of other undertakings" as being capable of constituting a trademark, does 
not require Members to make eligible for registration as trademarks signs that are not in herently 
distinctive and that have not yet acquired distinctiveness through use. As a consequence, the term 
"trademark" as used in Article  15.4 does not encompass signs that do not meet the 
"distinctiveness" requirement in Article  15. 
7.1874.   We therefore conclude  that the TPP measures , in operating to prevent the registration of 
certain non -inherently distinctive signs that have not yet acquired distinctiveness through use on 
tobacco products, do not violate the obligation in Article  15.4. 
7.3.2.3.2.2   Whether the TPP measures  are inconsistent with Article  15.4 in that they 
prevent certain signs from acquiring distinctiveness through use  
7.1875.   All complainants argue that, while Australian trademark law in general permits 
non-distinctive signs to acquire distinctiveness through use to  qualify for registration, the fact that 
non-word signs are prohibited from being used on tobacco products and packaging means that 
new non -word signs that are not inherently distinctive have no opportunity to acquire 
distinctiveness through use on such pr oducts and, therefore, face obstacles to registration based 
on the nature of the goods as tobacco products, in violation of Article  15.4. 
7.1876.   In support of their claim, the complainants argue that where a Member exercises the 
option under Article  15.1, third s entence, to make registrability of non -inherently distinctive signs 
depend on distinctiveness acquired through use, such a Member would violate Article  15.4, read in 
the light of Article  15.1, if, at the same time, it restricts  the ability of a trademark a pplicant to use 
the sign on a particular good in order to acquire distinctiveness solely because of the nature of the 
good.4244, 4245 
                                                
4241 See Bodenhausen, Full text, (Exhibit DOM -79), p. 115 ("The second permitted ground for refusal o r 
invalidation of trademarks covered by the Article  consists of three possibilities: it applies to any trademark 
which, in the country where protection is claimed , is (1) devoid of any distinctive character , or (2) descriptive , 
or (3) a generic name ." (italics original; underlin ing added)).  
4242 See Bodenhausen, Full text, (Exhibit DOM -79), p. 115. 
4243 Such a reading is further consistent with the territoriality of intellectual property rights and the 
principle of independence of protection enshrined in Article  6 of the Paris Convention  (1967). See Panel report, 
US – Section 211 Appropriations Act , para. 8.79. 
4244 Honduras's second written submission, para. 239. See Dominican  Republic 's first written 
submission, para. 283; Cuba's first written submission, para. 428 (incorporating Ukraine's first written 
submission, para. 183); and Indonesia's first written submission, paras.  188 and 190. Cf. Dominican  Republic 's 
second written submission, para. 48 (stating that Article  15.1 permits Members to condition the regist ration of 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.1877.   Australia responds that a non -distinctive sign is not included in the term "trademark" in 
Article  15.4. Furthermore, Article  15.4 does not contain any obligation for Members to permit the 
use of such non -distinctive signs so that they may become sufficiently distinctive so as to qualify 
as trademarks and be eligible for registration.4246 Australia considers that the "distinctivenes s" 
standard set in Article  15.1, first sentence, applies regardless of how distinctiveness is to be 
achieved, and that a sign that has not achieved distinctiveness "is simply not capable of 
constituting a 'trademark'".4247 If a sign indeed qualifies as a trad emark, even if it is for a tobacco 
product, that trademark will be registered in Australia.4248 
7.1878.   This aspect of the claim, which is common to all complainants, relates to the 
consequences of the prohibition, in the TPP measures , on the use of non -word signs on  tobacco 
retail packaging and products.4249  
7.1879.   We note that the TPP measures , as described above4250, prohibit the use of stylized word 
marks, and figurative and composite marks on tobacco retail packaging and products. The TM Act, 
for its part, provides that an a pplication to register a non -inherently distinctive sign as a trademark 
must be rejected if the sign has not acquired distinctiveness through use before the filing date.4251 
The complainants observe that, as a result of the combined effect of these provisions , it will not be 
possible for "new" signs that are not inherently distinctive to acquire such distinctiveness through 
use and thus be able to be registered in relation to tobacco products.4252 They also note that 
Section  28 of the TPP Act does not resolve thi s issue, since the legal fictions of use created by that 
provision do not cover the use necessary for non -inherently distinctive signs to acquire 
distinctiveness.4253  
7.1880.   While they acknowledge that Members may opt to make registrability of signs that are 
not in herently capable of distinguishing the relevant goods or services depend on distinctiveness 
acquired through use4254, the complainants consider it relevant that Australia – under its domestic 
law – "requires "4255 use to register non -inherently distinctive signs,  and provide evidence for the 
                                                                                                                                                  
non-inherently distinctive signs upon distinctiveness acquired through use, indicating that Members can also 
opt to register non -inherently distinctive signs as trademarks without actual distinctiveness acquired through 
use).  
4245 We note that Hond uras formulated its argument in its first written submission as follows:  
 
When a Member requires use to register inherently non -distinctive signs, but at the same time, 
restricts the ability of a trademark applicant to use that trademark  on a particular go od in order 
to acquire distinctiveness solely because of the nature of the good (in casu tobacco products), 
this would violate Article  15.4 of the TRIPS Agreement, in the light of Article  15.1. 
 
Honduras's first written submission, para. 193 (emphasis adde d). This formulation suggests an argument that 
non-distinctive signs, that are yet to acquire distinctiveness through use, are themselves trademarks and their 
exclusion from use is therefore a violation of Article  15.4. Honduras clarified in its second wri tten submission 
that its argument under Article  15.4 focuses upon whether signs  can be registered as trademarks, "without the 
nature of the product to which they apply being an obstacle to eventual registration". Honduras's second 
written submission, para. 240. 
4246 Australia's first written submission, paras.  302-304. 
4247 Australia's second written submission, para. 25. See also first written submission, para. 303; and 
response to Panel question No. 27, para. 94. 
4248 Australia's second written submission, para. 27. 
4249 For a brief summary of the operation of the TPP measures , please see para. 7.1815  above.  
4250 For a more detailed description of Section 28 of the TPP measures  see section 2.1.2.5 above  
4251 TM Act, (Exhibit JE -6), Sections 41(2) and 41(6).  
4252 Honduras's comment s on Australia's response to Panel question No. 27; Honduras's second written 
submission, para. 245 ; Dominican  Republic 's second written submission, para. 52; Cuba's first written 
submission, para. 428 (incorporating Ukraine's first written submission, para. 201); and Indo nesia's first 
written submission, para. 200. 
4253 Honduras's second written submission, para. 245; Cuba's first written submission, para. 428 
(incorporating Ukraine's first written submission, para. 214); and Indonesia's first written submission, 
para. 199. 
4254 Honduras's first written submission, para. 192; Dominican  Republic 's first written submission, 
para. 284; Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 190); and Indonesia's first written submission, para. 188. 
4255 Honduras's first written submission, paras.  192-193. See also Dominican  Republic 's first written 
submission, para. 283; Cuba's first written submission, para. 428 (incorporating Ukraine's first written 
submission, para. 183); and Indonesia's op ening statement at the first meeting of the Panel, para. 55. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  extent to which "use is a key factor for the registration of marks that are not inherently distinctive 
under Australian trademark law".4256  
7.1881.   Australia has confirmed that "non -inherently distinctive signs which have not yet acquir ed 
distinctiveness through use and which are unable to be used due to the operation of the TPP Act, 
will not acquire distinctiveness through use and will not be eligible for registration because they do 
not meet the definition of a 'trademark'". In its ass essment, "[t]his result is consistent with the 
TRIPS  Agreement , because Members are not obligated under the provisions of that Agreement to 
ensure that signs may be used so that they may become sufficiently distinctive so as to qualify as 
trademarks and be  eligible for registration".4257 
7.1882.   Honduras submits certain correspondence relating to an unsuccessful attempt to register 
the word mark "PLAIN PACKAGE" as a trademark in Australia to demonstrate that non-inherently 
distinctive marks cannot be registered as a result of the TPP measures .4258 This correspondence, 
however, merely demonstrates that the Australian trademark authorities refuse registration of 
signs that are not inherently distinctive, in the absence  of evidence that the sign has acquired 
distinctiveness through use. Furthermore, since the material relates to the treatment of an 
application for a word mark, it is of limited relevance in support for a claim that relates to 
non-word marks. Honduras itse lf concedes that, since the use of a word mark such as "PLAIN 
PACKAGE" on tobacco products is not prohibited by the TPP measures , the applicant could in fact 
use this sign on tobacco products and thus in time accumulate evidence of acquired distinctiveness  
for this word sign to become eligible for registration.4259 
7.1883.   We recall our finding that the scope of the prohibition in Article  15.4 is defined by the 
meaning of the terms "trademark" and "registration of a trademark", which must be read in 
accordance with th e definitions in Article  15.1. We have established in the previous section that 
Members' obligation under Article  15.1 of what to consider as "capable of constituting a 
trademark" does not include signs that are not inherently distinctive and that have not  yet 
acquired distinctiveness through use, and that therefore the prohibition in Article  15.4 does not 
extend to such signs.  
7.1884.   As discussed above, the first and second sentences of Article  15.1, respectively, establish 
an obligation for Members to consider distinctive signs as capable of constituting trademarks, and 
to consider such signs as eligible for registration. Article  15.1, third sentence, in contrast, provides 
Members with an option  to make the registrability of signs that are not inherently  distinc tive, 
depend on distinctiveness acquired through use.  
7.1885.   We find no support in the text of Article  15.1 for the complainants' assertion that 
exercising the option of Article  15.1, third  sentence, would modify the scope of the definition of 
"trademark" and thu s extend the scope of the prohibition in Article  15.4, for the relevant Member, 
so as to include signs that are not inherently distinctive and which have not yet acquired 
distinctiveness through use.  
7.1886.   We recall that Article  15.1, first sentence, provides a definition of what must be capable 
of constituting a trademark by setting out the condition that signs must meet the "distinctiveness" 
requirement, i.e. the requirement that the signs or combinations of signs at issue be capable of 
distinguishing the relev ant goods or  services .4260 By permitting Members to make registrability 
dependent on distinctiveness acquired by use , the text of Article  15.1, third sentence, does not 
indicate a modification to the concept of distinctiveness  itself, but merely points out a particular 
                                                
4256 Honduras's first written submission, paras.  195-207. See also Dominican  Republic 's first written 
submission, paras.  284-288; Cuba's first written submission, para. 428 (incorporating arguments with respect 
to Article  15.4 made in the first written submissions of Honduras and the Dominican  Republic , among others); 
Indonesia's first written submission, paras.  192-193; and Indonesia's second written submission, para. 68. 
4257 Australia's response to Panel question No. 27, para. 94. 
4258 Honduras's first written submission, paras.  201-203 ( referring to  S. Lester International Economic 
Law and Policy Blog , (Exhibit HND -47)). Honduras has also submitted Australia's response to th is trademark 
application as an exhibit. See IP Australia Letter , (Exhibit HND -110).   
4259 Honduras's first written submission, para. 204; and comment s on Australia's response to Panel 
question No. 27, p. 13. 
4260 See para. 7.1829  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  manner  in which the condition for constituting a trademark, namely complying with the 
distinctiveness criterion defined in the first sentence of Article  15.1, may be fulfilled.  
7.1887.   We note, in particular, that, in describing the distinctiveness on w hich Members may 
choose to make registrability depend, the third sentence of Article  15.1 employs the adjective 
"acquired  through use". The term "acquired" means "gained; obtained or secured, esp. through 
concerted effort or over a period of time".4261 A plai n reading of the text therefore indicates that 
Members may make registrability depend on distinctiveness that has been acquired , or obtained  
through use prior to registration. This formulation does not provide support for an interpretation 
that would inclu de signs that are only "capable of acquiring distinctiveness through use"4262 in the 
future.  
7.1888.   As described above, the "distinctiveness" requirement set out in the first sentence is the 
basis for the definition of the "p rotectable subject matter"  established i n Article  15.1:  
Article  15.1 defines which signs or combinations of signs are capable of  constituting a 
trademark . … This definition is based on the distinctiveness of signs as such, or on 
their distinctiveness as acquired through use. If such signs are capable of 
distinguishing the goods or services of one undertaking from those of other 
undertakings, then they becom e eligible for  registration as trademarks.4263  
7.1889.   In light of the above, we find that the scope of the obligation under Article  15.1, first 
sentence, as determined in section 7.3.2.3.1.1  above, and thus the scope of the obligation under 
Article  15.4 with regard to "trademark s", are  not affected or modified by a Member's domestic 
practice, including whether it chooses to exercise the option in Article  15.1, third sentence, to 
make registrability of non -inherently distinctive signs dependent on distinctiveness acquired 
through use.  
7.1890.   The complainants' argument that the prohibition on the use of non -word signs operates 
as an obstacle to their registration as tr ademarks implies that obstacles to achieving 
distinctiveness through use  should be covered by the prohibition on obstacles to the registration of 
the trademark , which is established in Article  15.4.  
7.1891.   This would require an interpretation of the term "obstac le" to include not only hindrances 
and impediments to the act of registration of the trademark itself, but also hindrances or 
impediments that stand in the way of non -distinctive signs – signs that are not required to be 
eligible for registration as tradem arks – acquiring distinctiveness through use to fulfil the criteria or 
other preconditions for being capable of constituting a trademark and thus subsequently becoming 
eligible for trademark registration.  
7.1892.   In assessing this question, we recall the grammatic al structure of Article  15.4, namely 
that the object of the preposition "to" in "obstacle to" is "registration of the trademark". We note 
first that interpreting the term "obstacle" to refer, not only to the "registration of the trademark", 
but also to the  use of non -distinctive signs would undermine the precise meaning of the terms and 
the grammatical structure used in framing the object of the prohibition in Article  15.4. We have 
established that the meaning of the terms "trademark" and "registration of t he trademark" define s 
the scope of the prohibition in Article  15.4. While the term s "trademark" and "registration of the 
trademark" imply obligations only with respect to signs already registrable as trademarks as per 
Article  15.1, first sentence, the inte rpretation suggested by the complainants would create an 
obligation for Members to permit the use of signs that are not inherently distinctive and have not 
acquired distinctiveness, equally on all types of goods or services, in order to allow such signs to  
acquire distinctiveness through use.  
                                                
4261 Oxford English Dictionary online, definition of "acquired", available at: 
<http://www.oed.com/view/Entry/1732?redirectedFrom=acquired#eid >, accessed  2 May 2017.  
4262 Honduras's first written submission, para. 188. 
4263 Appellate Body Report, US – Section 211 Appropriations Act , para. 154. (emphasis original ; footnote 
omitted ) WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 619 - 
  7.1893.   We have found4264 that Article  15 contains interrelated provisions that, together with 
Article  6(1) of the Paris Convention  (1967) , as incorporated by reference into the 
TRIPS  Agreement , define Members' obligations in rel ation to the conditions for  the filing and 
registration of trademarks. Further, we have found4265 that a Member's exercise of the option to 
permit registration on the basis of distinctiveness acquired through use does not modify the 
distinctiveness standard a nd thus the scope of the obligation regarding the registration of signs of 
Article  15.1, second sentence.  
7.1894.   In light of our earlier findings, it is clear to us that the object and purpose of Article  15.4, 
read in the context of Article  15.1, is to regulate Members' obligations regarding the registration of 
distinctive signs as trademarks. It is not within the object and purpose of Article  15.4 to regulate 
the use of signs that do not already have the capability of distinguishing goods or services in the 
sense of Article  15.1. In our view, therefore, interpreting Article  15.4 as obliging Members to 
permit use of non -distinctive signs to allow them to acquire distin ctiveness irrespective of the 
products or services to which they are to be applied is not compatible with the language of 
Article  15.4, nor with its object and purpose, as read in the context of Article  15.1.  
7.1895.   The fact that Australia allows, under its dome stic law, the registration of signs that are 
not inherently distinctive, provided that they have acquired distinctiveness through use, cannot 
imply that, under the TRIPS  Agreement , the use of such signs is required to be permitted on all 
goods and services , irrespective of the nature of the goods and services at issue. A contrary 
reading would imply that, whenever a Member exercises the option of enabling registration of 
non-inherently distinctive signs on the basis of distinctiveness acquired through use, as 
Article  15.1 expressly permits it to do, it would deprive itself of the possibility of determining the 
conditions under which signs or combinations of signs may or may not be used in relation to 
specific categories of goods or services. This is what is implied by Indonesia when it argues that 
Members should resort to product regulation – such as banning the product – in order to regulate 
dangerous or addictive products.4266 
7.1896.   Adopting the interpretation suggested by the complainants would also lead to the ill ogical 
result that non -distinctive signs, i.e. signs that may or may not become capable of constituting a 
trademark through use, and with respect to which the TRIPS  Agreement  formulates no explicit 
obligation, would enjoy a right to use irrespective of the  products or services to which they are to 
be applied, while registered trademarks, which are the central object of regulation of the TRIPS 
trademark provisions and to whose owners Article  16 explicitly accords exclusive rights, enjoy no 
such right to use.4267 Further, by this logic, the right to use an unregistered mark would lapse 
upon its registration, just when its distinctiveness in the marketplace has been confirmed.  
7.1897.   This view is further consistent with the approach widely reflected in the TRIPS  Agreemen t 
and the Paris Convention  (1967)  that it is usually the responsibility of private parties, i.e. 
applicants or right holders in the context of the varying market conditions, to fulfil the criteria 
required for registration, protection and enforcement of  IP rights.4268 Outside the scope of express 
obligations set out in the TRIPS  Agreement , the Agreement does not in our view oblige Members 
to ensure that private parties are in a position to fulfil such criteria, or to refrain from regulations 
otherwise not inco nsistent with the covered agreements that may affect the market conditions that 
determine how easy or difficult it is for private parties to comply with the distinctiveness 
requirements as a condition for trademark registration.  
                                                
4264 Paras. 7.1835  to 7.1847  above.  
4265 Para. 7.1889  above.  
4266 Indonesia's second written submission, paras.  64-65. 
4267 For discussion on rights conferred under Article  16.1 of the TRIPS Agreement and a "right to use", 
see paras.  7.1971 -7.1978  below.  
4268 This is reflected in various provisions of the Paris Convention  (1967) and the TRIPS Agreement 
which require an "application" (e.g. Art icle 6 of the Paris Convention  (1967), and Art icles 15.3, 51, 52, and 59 
of the TRIPS Agreement) or a "request" (Art icle 6bis of the Paris Convention  (1967), and Art icles 22.3, 23.2, 
and 46 of the TRIPS Agreement).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.2.3.2.3   Whether the TPP measures  are inconsistent with Article  15.4 in that they 
reduce the protection flowing from registration for tobacco -related trademarks because 
of the nature of the product  
7.1898.   Cuba, by incorporating Ukraine's arguments regarding Article  15.44269, further argues 
that the te rm "registration" in Article  15.4, in the "holistic context" of Articles  15 and 16, 
"necessarily encompasses the rights flowing from the administrative act of registration"4270 and 
that the prohibition of obstacles based on the nature of the goods and service s to which a 
trademark is to be applied therefore extends beyond the act of registration to the entire concept of 
trademark protection, thus establishing a general obligation "to confer protection on the same 
terms and conditions in relation to trademarks notwithstanding the nature of the product".4271  
7.1899.   Cuba thus claims that Article  15.4 requires that national laws cannot establish a different 
system for the protection of trademarks for tobacco products as compared to other products4272, 
and submits that this gen eral obligation also applies to rights that Members make available beyond 
the minimum standards provided by the TRIPS  Agreement  in accordance with Article  1.1.4273 It 
argues that since the TPP measures  prohibit the use of tobacco -related non -word trademarks, the 
protection of such tobacco -related trademarks is reduced in comparison to other trademarks that 
can continue to be used, both with respect to the minimum rights required under Article  16.1 and 
with respect to additional rights that Australia's TM Act makes available beyond the level required 
by the TRIPS  Agreement .4274 It claims that, since this alleged reduction in the scope of protection 
is based solely on the nature of the product, this constitutes a violation of Article  15.4.4275 
7.1900.   Australia responds that Article 15.4 only prohibits obstacles to the registration of 
trademarks and does not relate to the nature of the protection that flows from registration. It 
argues that if Article  15.4 were intended to cover the nature of the protection afforded to 
trademar ks as a result of registration, the drafters would have made this clear.4276 
7.1901.   We note that, unlike the two aspects discussed above, this aspect of Cuba's claim is not 
based on an allegation that the TPP measures  create illegitimate obstacles to registration as  such, 
but that the level of protection provided to registered trademarks under the TPP measures  violates 
Article  15.4. The question raised by this argument is therefore essentially whether Article  15.4 
prohibits any obstacles based on the nature of goods or services not only with respect to the 
specific act of registration  of a trademark, but also contains a more general obligation for Members 
not to discriminate on the basis of the nature of the goods or services to which trademarks are 
applied with respe ct to the scope of protection  they provide to registered trademarks under their 
national law.  
7.1902.   In assessing this question we first recall our preliminary observation in para. 7.1853  
above that Article  15 governs the conditions under which Members may deny, or must permit, the 
registration of the trademark, which is the precondition for the availability of minimum rights 
under Article  16.1. The scope and extent of these rights, and thus the protection of the trademark, 
are governed by the provisions in Article  16.  
7.1903.   We further recall our earlier finding that the phrase "registration of the trademark" in 
Article  15.4 should be informed by the obligation,  in Article  15.1, second sentence, to consider 
                                                
4269 Cuba's first written submission, para. 428; and second written submission, para. 414. 
4270 Cuba's first written submi ssion, para. 428 (incorporating Ukraine's first written submission, 
para. 187).  
4271 Cuba's first written submission, para. 428 (incorporating  Ukraine's first written submission, 
para. 219).  
4272 Cuba's first written submission, para. 428 (incorporating Ukraine' s first written submission, 
para. 216).  
4273 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  201 and 219).  
4274 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  209-211).  
4275 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 217).  
4276 Australia's first written submission, para. 309 fn 500. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 621 - 
  eligible for "registration as trademarks" signs that are capable of constituting trademarks.4277 The 
term "registration" means "the action of registering or recording something; the process of being 
registered".4278 On its face, the texts of Article  15.4 and Article  15.1, second sentence, provide no 
indication that the term "registration" could refer to anything other than the "action of registering" 
a trademark. Cuba, by reference to Ukraine's submission, does not a dvance any supporting 
argument for its claim other than the assertion that "the term 'registration' can also be read in a 
more substantive manner as referring to the rights flowing from registration".4279  
7.1904.   The context provided by Article  15, and the trademark  provisions in the 
Paris Convention  (1967)  on which it builds, confirm, in our view, this ordinary meaning of 
"registration" in Article  15.4. As discussed above, and as reflected in the Appellate Body's 
assessment in US – Section 211 Appropriations Act , Article  15.4 is one of several provisions in 
Article  15 which, taken together and in conjunction with Article  6(1) of the 
Paris Convention  (1967) , as incorporated into the TRIPS  Agreement , define the terms upon which 
Members may set conditions on the filin g and registration of trademarks. Again, the use of this 
term in these provisions is not, in our view, inadvertent. Rather, it reflects the fact that these 
provisions relate to the conditions under which Members may or may not deny the act of 
registration of specific signs "as a trademark". This question is distinct, in our view, from the 
question of the extent of the rights that would flow from such registration, once granted.  
7.1905.   This interpretation is confirmed by the title of Article  15, "Protectable Subje ct Matter"4280, 
which can be contrasted with the scope of substantive protection afforded to a registered 
trademark, which is addressed separately under the heading of "Rights Conferred" in Article  16. 
While we agree with Cuba that registration is the "gatewa y to substantive protection" of a 
trademark, as it is the condition for the rights defined in Article  16 to be accorded to the owner of 
a registered trademark4281, this does not imply that the obligation in Article  15.4 in relation to the 
conditions for "regi stration" of a trademark should be read to apply more generally to substantive 
protection of a trademark once it is registered. The terms " registration"  and " protection"  are not 
synonymous in the context of the TRIPS  Agreement .  
7.1906.   This understanding is consi stent with the underlying approach of the 
Paris Convention  (1967) . That Convention does not itself define the scope of substantive 
protection of a trademark, except in a few special cases.4282 Instead, it focuses on requiring the 
application of the substantiv e domestic law of member States to all nationals from countries of the 
Paris Union4283 by requiring national treatment4284, and by limiting the grounds for refusal of 
procedural trademark registration for such nationals in Articles  6 and 6 quinquies of the 
Paris Convention  (1967) , on which Article  15 of the TRIPS  Agreement  builds in the manner 
described in paragraphs 7.1841 -7.1855  above. While the provisions governing the procedural step 
                                                
4277 See para. 7.1852  above.  
4278 Oxford English Dictionary online, definition of "registration",  available at: 
<http://www.oed.com/view /Entry/161313?redirectedFrom=registration#eid >, accessed  2 May 2017.  
4279 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 187).  
4280 See Appellate Body Report, US – Section 211 Appropriations Act , para. 155 ("[ S]upporting these 
distinctions is the fact that the title of this Article  speaks of subject matter as 'protectable', and not of subject 
matter 'to be protected'. In this way, the title of Article  15 expresses the notion that the subject matter 
covered by t he provision is subject matter that qualifies  for, but is not necessarily entitled to , protection." 
(emphasis original)).  
4281 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 199). See also Canada's third -party submission, para. 38. 
4282 See Bodenhausen, Full text, (Exhibit DOM -79), p. 15 ("Neither is the scope of protection of a 
trademark defined in the Convention, except in a few special cases.").  
4283 Nationals of non -member States who are domiciled or who have real and effective industrial or 
commercial establishments in the territory of one of the countries of the Union must be treated in the same 
manner as nationals of the countries of the Union. Paris Convention  (1967), Article  3. 
4284 See Bodenhausen, Full text, (Exhibit DOM -79), p. 12 ("Under this category comes the very 
important basic rule of the Convention, that nationals of each member State shall, as regards the protection of 
industrial property, enjoy in all oth er member States the advantages that their respective laws grant, or may 
grant in the future, to nationals of these latter member States ( Article  2).").  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 622 - 
  of registration are therefore relevant for the availability  of protection4285, the scope and content of 
the substantive protection itself, once granted, are governed by other provisions, including 
Article  16 of the TRIPS  Agreement  and, to the extent that they offer enhanced protection within 
their jurisdiction, the domestic laws of  WTO Members.  
7.1907.   We note in this regard that, while a Members' failure to provide the minimum rights 
required under Article  16 to the holders of all registered trademarks would constitute a violation of 
said provision of the TRIPS  Agreement4286, more extensive t rademark protection beyond the TRIPS 
requirements is permitted by Article  1.1 at the discretion of Members, provided that such 
protection does not contravene the provisions of the TRIPS  Agreement .4287  
7.1908.   In light of the above, and recalling our earlier findings4288, we find that Article  15.4 limits 
the grounds for refusal of the step of registering a trademark, which Members are, as a rule, 
required to make available for eligible signs under Article  15.1, second sentence. Article  15.4 does 
not, however, stipulate a n obligation that the scope and content of trademark protection that flows 
from such registration has to be the same notwithstanding the nature of the goods or services to 
which trademarks are or may be applied.  
7.1909.   This interpretation is confirmed by the neg otiating history of Article  7 of the 
Paris Convention  (1967) , on which Article  15.4 is based.4289 Article  7 provides an identical 
obligation, limited to goods. Article  15.4 extends the provision to services. Article  7 of the 
Paris Convention  (1967)  reads:  
The nature of the goods to which a trademark is to be applied shall in no case form an 
obstacle to the registration of the mark.  
7.1910.   Article  15.4 of the TRIPS  Agreement  extends the application of the rule in Article  7 of the 
Paris Convention  (1967)  to trademarks that are applied to services, in addition to those applied to 
goods, by the insertion of the words "or services".  
7.1911.   While the initial version of Article  7 in the Paris Act (1883) of the Paris Convention  
prohibited the nature of the goods from forming an obst acle "au dépôt de la marque "4290, the 
current wording "registration of the mark" was adopted at the 1925 Hague Revision Conference4291 
with the explanation that countries with examination procedures might otherwise refuse 
registration, even if the filing of an a pplication was accepted.4292 At the 1958 Lisbon Revision 
Conference a proposal to extend the scope of the prohibition to the renewal of trademarks, and to 
                                                
4285 See C. Correa, Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS 
Agree ment (Oxford University Press, 2007), p p. 175-176, 182, 186, 223 and 388, ( Correa's Commentary on 
the TRIPS Agreement), ( Exhibit AUS -242), p. 182. 
4286 The complainants' claims under Articles  16.1 and 16.3 of the TRIPS Agreement are addressed in 
sections 7.3.3 and 7.3.4 below, respectively.  
4287 Article  1.1, second sentence, provides that " Members may, but shall not be obliged to, implement in 
their law more extensive protection than is required by this Agreeme nt, provided that such protection does not 
contravene the provisions of this Agreement."  
4288 Paras. 7.1837 , 7.1852  and 7.1856 . 
4289 All parties refer to Article  7 of the Paris Convention  (1967 ), the predecessor of Article  15.4 of the 
TRIPS Agreement. See Honduras's first written submission, para. 186; Dominican  Republic 's first written 
submission, para. 273 fn 246; Dominican  Republic 's response to Panel question No. 93, para. 38; Cuba's first 
written submission, para. 428 (incorporating Ukraine's first written submission, para. 179); Indonesia's first 
written submission, para. 183; and Australia's first written submission, para. 299. 
4290 The original text of this version of the Convention is in French. The relevant provision reads, in full: 
"La nature du produit sur lequel la marque de fabrique ou de commerce doit être apposée ne peut, dans aucun 
cas, faire obstacle au dépôt de la marque ." Paris Act (1883), Art icle 7. See also Bodenhausen, Full text, 
(Exhibit DOM -79), p. 128 (refer ring to this language as follows: "This Article  already appeared in the original 
text of the Convention of 1883, although it then referred to the filing and not to the registration of a 
trademark. The provision was modified in this latter respect by the Revision Conference of The Hague.").  
4291 WIPO's communication to the Panel of 5 October 2015 in response to the Panel's request for factual 
information, Annex 4, Exc erpts from the Records of the Hague Revision Conference (1925), Second plenary 
session, p. 577. 
4292 WIPO's communication to the Panel of 5 October 2015 in response to the Panel's request for factual 
information, Annex 4, Excerpts from the Records of the Hagu e Revision Conference (1925), Report of drafting 
committee, p. 545. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 623 - 
  introduce a reference to an exclusive right to use the trademark, was rejected as some wished to 
preserv e the ability to regulate trademarks for certain products differently.4293 Both the change 
from "filing" to "registration" at the Hague Conference, and the unsuccessful proposals to include 
"renewal" at the Lisbon Conference underline the specifically procedu ral meaning that Paris Union 
Members attached to the terms employed in the provision. The refusal to include "renewals" 
confirms that the current formulation of Article  7 of the Paris Convention  (1967)  – which has been 
reproduced in Article  15.4 in relevant part – has a narrow scope4294 and is restricted to the act of 
registration  of the mark and not the subsequent fate of the trademark.4295 
7.1912.   We conclude therefore that any consequences that the restrictions on the use of certain 
signs on tobacco products un der the TPP measure s may have for the scope and content of the 
substantive protection accorded to affected tobacco -related trademarks do not constitute a 
violation of Article  15.4, which relates only to registration, and thus the availability of protection  
through the act of registration, which remains available for tobacco -related trademarks under the 
disputed measures.4296 
7.3.2.3.3   Overall conclusion  
7.1913.    In light of the above, including our findings in paras.  7.1831 , 7.1857 , 7.1873 , 7.1874 , 
7.1894 , and 7.1908  above, we conclude that the complainants have not demonstrated that the 
TPP measures  are inconsistent with Australia's obligations under Article  15.4 of the 
TRIPS  Agreement . 
7.3.3   Article  16.1 of t he TRIPS  Agreement  
7.3.3.1   Introduction  
7.1914.   We will now turn to the complainants' claims relating to those provisions of the 
TRIPS  Agreement  that address rights conferred to the owner of a trademark, which are addressed 
in Article  16. We will first address the claims under paragraph 1 of Article  16 and then the claims 
under paragraph 3 of that Article.  
7.1915.   Paragraph 1 of Article  16 of the TRIPS  Agreement , entitled "Rights Conferred" reads as 
follows:  
The owner of a registered trademark shall have the exclusive right to prevent all third 
parties not having the owner's consent from using in the course of trade identical or 
similar signs for goods or services which are identical or similar to those in respect of 
which the trademark is registered where such use would result in a likelihood of 
confusion. In case of the use of an identical sign for identical goods or services, a 
likelihood of confusion shall be presumed. The rights described above shall not 
prejudice any existing prior rights, nor shall they affect the possibil ity of Members 
making rights available on the basis of use.  
7.1916.   The complainants claim that the TPP measures  violate Article  16.1 because the 
prohibition on the use of certain tobacco -related trademarks reduces the distinctiveness of these 
trademarks, thus red ucing the ability to demonstrate "a likelihood of confusion" with other marks, 
and impacting the ability of the right owner to exercise its right to prevent unauthorized use. 
                                                
4293 WIPO's communication to the Panel of 5 October 2015 in response to the Panel's request for factual 
information, Annex 6, Excerpts from the Records of the Lisbon Revision Conference (1958 ), Report of drafting 
committee, p p. 694-703. See, e.g. ibid. p. 703 (" La Délégation du Danemark  déclara ne pas pouvoir appuyer 
cette proposition, car elle désirait que l'on réservât le droit de réglementer les marques concernant les produits 
pharmaceutiqu es.").  
4294 See Bodenhausen, Full text, (Exhibit DOM -79), p. 128 ("The Article  under consideration has a rather 
narrow scope, as became clear when attempts failed at the Revision Conference of Lisbon in 1958 to give it a 
wider application, namely, to extend it to renewals of registrations and to the duration of the exclusive right to 
use the trademark.").  
4295 This view is also consistent with the content of Letter from L. Baeumer , WIPO , (Exhibit AUS -235), 
referred to by Australia, and referenced above at fn 4066. 
4296 As discussed earlier in this section, other provisions of Part II of the TRIPS Agreement address the 
content of the protection required to be accorded to registered trademarks.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 624 - 
  Cuba, by reference, further argues that the TPP measures  violate Article  16.1 by eroding the 
distinctiveness of non -inherently distinctive trademarks and thus making them liable to 
cancellation procedures. Indonesia, and Cuba by reference, also argue that the TPP measures  
violate Article  16.1 because they require the use of deceptively  similar marks on identical 
products, thereby eroding a trademark owner's right to prevent use that is likely to result in 
confusion.  
7.1917.   Australia asks the Panel to reject these claims in their entirety.  
7.3.3.2   Main arguments of the parties  
7.1918.   Honduras  argues that the TPP measures violate Article  16.1 of the TRIPS  Agreement  by 
reducing the scope of protection of the trademark below the minimum level guaranteed under 
Article  16.1.4297 It argues that t he scope of protection guaranteed under Article  16.1 depends on 
the owner 's ability to use its mark and the resulting strength of the mark in the marketplace. The 
more intensive use is made of the mark, the stronger the mark; and the stronger the mark, the 
greater its scope of protection vis -à-vis unauthorized third -party uses.4298 Honduras submits that 
the plain packaging tr ademark restrictions erode the "exclusive rights"  of the trademark owner 
that Australia undertook to protect under Article  16.1 by constraining the ability of the owners of 
such trademarks to prevent third part ies from using similar marks on similar goods in a manner 
that creates a likelihood of confusion.4299  
7.1919.   Honduras argues that the loss of distinctiveness will eventually diminish the scope of 
protection and turn the original trademark into a mere paper right, w ithout any commercial 
value.4300 In support, it submits that the link between use and distinctiveness/scope of protection 
of a trademark was explicitly acknowledged by the panel in EC – Trademarks and Geographical 
Indications (Australia) .4301 It argues that as  the distinctiveness of a trademark recedes, the 
universe of similar trademarks that a consumer could confuse with the original trademark also 
shrinks. This, in turn, means that the trademark owner will have fewer opportunities to exercise its 
right to prote ct its trademark against uses that cause a "likelihood of confusion". Over time, the 
trademark owner will not be able to protect against the encroachment of other trademarks onto its 
trademark's scope of protection, because these other trademarks will no l onger be considered 
similar to its original trademark. This erosion of trademark protection will occur more quickly for 
trademarks that are inherently non -distinctive  (e.g. single colours or combination of colours), 
whose distinctiveness depends entirely o n use.4302 Honduras refers to the conclusions of an expert  
relied upon by complainants , Professor Dinwoodie, on the importance of distinctiveness, 
maintained through use, for the purposes of enforcing trademark rights in different legal 
systems.4303 Honduras further argues that this view is consistent with the explanation of the test of 
the "confusing similarity of trademarks" in the WIPO Intellectual Property Handbook, which notes 
that "[i] ntensive use increases the distinctiveness of the mark ".4304  
7.1920.   Honduras explains that its claim relates specifically to the use of similar  signs on similar  
goods. Honduras submits that the TPP measures have the most detrimental impact on design (or 
image) marks and composite marks, which include design elements and col ours or the 
combination of colours,  which, absent use, will inevitably lose their distinctiveness in the eyes of 
consumers, and, therefore, lose the strength of their protection.4305 Honduras does not rule out 
that there could be a violation of this provision  in respect of the use of identical signs on similar 
                                                
4297 Honduras's second written submission, para. 250. 
4298 Honduras's second writte n submission, para. 250. 
4299 Honduras's first written submission, para. 217. 
4300 Honduras's first written submission, para. 239. 
4301 Honduras's first written submission, para. 241 ( referring to  Panel Report, EC – Trademarks and 
Geographical Indications (Australi a), para. 7.664).  
4302 Honduras's first written submission, para. 243. See also Honduras's second written submission, 
para. 261.  
4303 Honduras's first written submission, para. 244 (referring to Dinwoodie Report , (Exhibit UKR -1), 
paras.  61-71). 
4304 Honduras's firs t written submission, para. 245. 
4305 Honduras's response to Panel question No. 29. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 625 - 
  goods, or other scenarios, but does not consider it necessary to base its claim under Article  16.1 
on all relevant scenarios outlined in this provision.4306 
7.1921.   Honduras elaborates that with the introduction of  the TPP Act, consumers will no longer 
recall the original mark, as it is no longer being used. Consequently, it becomes significantly easier 
for the usurper to satisfy the requirements of Section 120(2), since no confusion in the eyes of 
consumers can exi st a priori .4307 Honduras contends that Section 28 of the TPP Act does not 
address the erosion of distinctiveness, and consequently the scope of protection, of registered 
tobacco -related trademarks resulting from the operation of the TPP Act, and does not reg ulate the 
maintenance of protection of tobacco -related marks vis -à-vis their potential use by third 
parties.4308 
7.1922.   Honduras elaborates that it has not argued that WTO Members cannot adopt a general 
regulatory measure, such as a product ban or advertisement ban,  simply because that ban could 
have some incidental effect on the associated trademark.4309 The regulation of advertising 
(including of tobacco products) does not significantly affect the distinctiveness of the mark and 
enforcement of rights because the trade mark owner is still able to use its trademark on products 
and thus is able to maintain the distinctiveness and reputation of the trademark in the course of 
trade. According to Honduras, there is no violation of Article  16 of the TRIPS  Agreement  in such a 
situation.4310 
7.1923.   Honduras also states that it has not claimed that there is a positive right to use a 
trademark that results from registration.4311 As to the question of " whether registration of a 
trademark gives one a right to use that trademark, including a right  to object to any regulation or 
restriction on the sale of the product to which the trademark is to be applied",4312 Honduras states 
that "[t]here is indeed no such 'absolute' right to use the trademark".4313 Honduras accepts that 
Article  16.1 is triggered by ce rtain situations in which a third party uses an identical or similar 
trademark on certain goods without the trademark owner's consent. The central point of 
Honduras's claim is that the TPP measures  curtail a trademark owner's ability to assert that right. 
The TPP measures lead to a loss of distinctive power of the trademark. This erodes the ability of 
the trademark owner to assert his or her rights, and shrinks the universe of potential Article  16.1 
actions that the owner can bring against the use of a simi lar or identical trademark by an 
unauthorized third party.4314  
7.1924.   Honduras argues that Article  16 imposes an obligation on Members to guarantee a 
minimum level of private rights to trademark owners that allows them to successfully protect the 
distinctiveness an d source -indicating function of their marks in the context of infringement 
proceedings. Although those rights are to be enforced vis -à-vis private third parties, the WTO 
Member's obligation under the TRIPS  Agreement  is to guarantee that the registered trad emark 
owner will be able to successfully do so, if he so wishes. According to Honduras, Members violate 
this obligation if through their actions or omissions they fail to ensure that trademark owners can 
assert their rights, as is the case for Australia as  a result of the TPP measures .4315 
7.1925.   Honduras argues further that the TPP measures  cannot be justified under Article  17 of the 
TRIPS  Agreement .4316 In Honduras's view, the measures at issue result in a significant diminution 
of rights conferred by Article  16.1, and have a broad scope of application. They cannot, therefore, 
be considered as "limited exceptions" within the meaning of Article  17.4317 It adds that the 
TPP measures  fail to take into account the legitimate interests of the owners of tobacco -related 
                                                
4306 Honduras's second written submission, para. 251. 
4307 Honduras's first written submission, para. 248. 
4308 Honduras's first written submission, para. 250. 
4309 Honduras's response to Panel question No. 95. 
4310 Honduras's response to Panel question No. 95. 
4311 Honduras's response to Panel question No. 96. 
4312 Honduras's response to Panel question No. 96. 
4313 Honduras's response to Panel question No. 96. 
4314 Honduras's response to Panel question No. 96. 
4315 Honduras's second written submission, para. 258. 
4316 Honduras's first written submission, para. 252. 
4317 Honduras's first written submission, para. 255. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 626 - 
  trademarks,  which include the use of the owner's original trademark in connection with the 
relevant goods.4318 
7.1926.   The Dominican Republic  argues that by severely restricting the use of trademarks in 
commerce, the TPP measures  diminish, and in some instances remov e, the ability of trademark 
owners to exercise the exclusive rights guaranteed by Article  16.1, including the right to prevent 
third parties from using similar or identical signs in a manner that creates a likelihood of 
confusion.4319  
7.1927.   In its view, Article  16.1 specifies both the obligation of WTO Members – to afford an 
exclusive right to registered trademark owners to prevent unauthorized use – as well as a 
condition precedent that must be satisfied (i.e. a likelihood of confusion) to trigger a WTO 
Member's o bligation to allow a trademark owner to prevent certain third -party uses.4320 It submits 
that with respect to the condition precedent, Article  16.1 states that the use of identical or similar 
signs on identical or similar goods must be such that a "likelihood  of confusion" arises.4321 It 
argues that severe restrictions on a trademark owner's ability to use its sign in the course of trade 
will, over time, disrupt and destroy the ability of the condition precedent to arise.4322  
7.1928.   The Dominican Republic elaborates that the ability to demonstrate confusion among 
consumers under Article  16.1, and thereby prevent unauthorized use, depends on the 
distinctiveness of a trademark. As explained in the WIPO Handbook, "highly distinctive marks … 
are more likely to be confused than  marks with associative meanings in relation to the goods for 
which they are registered". The distinctiveness of a trademark depends, in turn, on the use of the 
mark. Through use in commerce, consumers learn to associate the trademark with the product for 
which it was registered, enhancing the knowledge and distinctiveness of the mark. Thus, the WIPO 
IP Handbook states that: "If the infringed trademark is being used, the extent of the use can 
influence the test of confusing similarity".4323 The Dominican Repub lic submits, with reference to 
the panel report in EC – Trademarks and Geographical Indications , that "a trademark owner's use 
of 'its own trademark in connection with the relevant goods and services of its own and authorized 
undertakings' is necessary for  'preserving the distinctiveness' of the trademark 'so that it can 
perform' its function".4324 It further adds that the Full Federal Court of Australia has held that, 
where an element of a registered trademark has developed a strong reputation, this heightens  the 
possibility that infringement will be found when a similar sign is used. Hence, actual use in the 
marketplace has a material impact on the possibility to show successfully a likelihood of confusion 
under Australian law.4325 
7.1929.   The Dominican Republic argues that when a trademark no longer can distinguish the 
goods or services with which it is associated, the ability to demonstrate a "likelihood of confusion" 
caused by use of similar signs on similar goods, i.e. the core right of Article  16.1 of the 
TRIPS  Agreement , drastically diminishes or disappears. With the loss of the ability to demonstrate 
this condition precedent (i.e. "likelihood of confusion"), the trademark owner, in turn, loses the 
ability to exercise its exclusive right to prevent the use of those similar signs on similar goods.4326 
The Dominican Republic further elaborates in its second written submission that its claims under 
Article  16.1 focus primarily on the following scenarios: (a) use of an identical sign on a good which 
is similar to that in respect of which the trademark is registered; and (b) use of a similar sign on a 
good which is similar to that in respect of which the trademark is registered.4327 
                                                
4318 Honduras's first written submission, para. 256. (footnot e omitted)  
4319 Dominican  Republic 's first written submission, para. 295. 
4320 Dominican  Republic 's first written submission, para. 299. 
4321 Dominican  Republic 's first written submission, para. 300. 
4322 Dominican  Republic 's first written submission, para. 300. 
4323 Dominican  Republic 's first written submission, para. 307 (quoting WIPO IP Handbook, Full Text, 
(Exhibit DOM -65), para. 2.484).  
4324 Dominican  Republic 's first written submission, para. 303 (quoting Panel Report, EC – Trademarks 
and Geographical Indications (A ustralia) , para. 7.664).  
4325 Dominican  Republic 's first written submission, para. 308 ( referring to  Crazy Ron  v. Mobileworld, 
(Exhibits DOM -72, IDN -103); and Louis Vuitton  v. Sonya, (Exhibit DOM -73)). 
4326 Dominican  Republic 's first written submission, para. 302. 
4327 Dominican  Republic 's second written submission, fn 62. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 627 - 
  7.1930.   According to the Dominican Republic, a "destruction" of the rights accorded by 
Article  16.1 occ urs through the TPP measures  in the following manner:  
(1) less or no use leads to reduced distinctiveness, or a total absence of 
distinctiveness (which would normally lead to cancellation of the trademark, absent 
the "legal fictions" of the TPP Act); 
(2) with reduced or no distinctiveness, consumers no longer associate the 
registered trademark with the product for which it was registered; and  
(3) when consumers no longer associate a registered trademark with the trademark 
owner's products, it becomes diffic ult, if not impossible, for the trademark owner to 
demonstrate confusion in the case of use of an identical or similar sign on similar 
goods.4328 
7.1931.   In this way, the Dominican Republic argues, through Australia's own legislative conduct, 
the protection under Article 16.1 of trademarks on tobacco products in Australia is diminished, and 
possibly even lost entirely. For example, in the absence of the TPP measures , a person that owns a 
registered trademark for cigarettes would be able to prevent the use of a sign th at is "substantially 
identical with, or deceptively similar to" that trademark in relation to goods "of the same 
description" or "closely related to" cigarettes, such as lighters or matches.4329 Yet, it argues, as a 
result of the TPP measures , the ability of owners of trademarks for tobacco products to protect 
their trademarks will be reduced, maybe lost, through the mechanism detailed above, in violation 
of Article  16.1. Thus, Australia diminishes or eliminates the protection of trademarks, preventing a 
trade mark owner from satisfying the condition relating to confusion.4330 
7.1932.   The Dominican Republic explains that its "claims under Article  16.1 of the 
TRIPS  Agreement  relate equally to both inherently and non -inherently distinctive trademarks. 
Through the prohibition  on use, both types of trademarks lose their ability to distinguish, such that 
the respective trademark owners ultimately can no longer exercise the minimum level of rights 
that must be accorded pursuant to Article  16.1."4331 According to the Dominican Republ ic, 
non-inherently distinctive trademarks provide an example of how this violation may arise in 
practice. For those non -inherently distinctive signs for tobacco products that were registered prior 
to the enactment of the TPP measures  and that are currently  registered trademarks in Australia, 
the restricted use of those trademarks serves to eliminate the distinctiveness previously acquired 
through use, acquired distinctiveness that allowed them to be registered as trademarks in the first 
place.4332 
7.1933.   The Dominica n Republic further argues that Australia has preserved the formal status of 
certain signs as trademarks registered for tobacco products by virtue of legal fictions made under 
Section 28 of the TPP Act. Yet, while these fictions maintain the formal status o f the signs, they fail 
to maintain the substantive rights to be accorded to such trademarks.4333 It argues that if a 
trademark, through lack of use, can no longer serve the function of "distinguishing the goods and 
services of one undertaking from those of ot her undertakings", then the rights conferred on that 
trademark under Article  16.1 drastically diminish or are rendered inutile.4334 When such 
distinctiveness is eliminated, claims the Dominican Republic, the registration of such marks 
becomes entirely meaning less, not only because such signs cannot be used by the trademark 
owner in the marketplace, but also because unauthorized third -party use cannot be excluded.4335 
It argues that "these registered trademarks are simply empty shells denuded of the functional 
attributes of trademarks".4336 
                                                
4328 Dominican  Republic 's first written submission, para. 310. 
4329 Dominican  Republic 's first written submission, para. 311.  
4330 Dominican  Republic 's first written submission, para. 312. 
4331 Dominican  Republic's response to Panel question No. 30, para. 140. 
4332 Dominican  Republic 's first written submission, para. 313. 
4333 Dominican  Republic 's first written submission, para. 304. 
4334 Dominican  Republic 's first written submission, para. 301. 
4335 Dominican  Republic 's first written submission, para. 313. 
4336 Dominican  Republic 's first written submission, para. 303. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 628 - 
  7.1934.   The Dominican Republic clarifies that it does not  argue that Article  16.1 establishes a 
positive right to use4337 nor that Article  16.1 imposes an obligation on Members to adopt  measures 
that ensure a mark maintains or strengthens  its distinctiveness. Rather, the Dominican Republic 
argues that Article  16.1 imposes an obligation on Members not to adopt  measures that undermine 
or eliminate a trademark owner's right to exclude under Article  16.1 by preventing a mark for 
lawfully traded  goods from acquiring or maintaining distinctiveness.4338 It argues that " there is an 
obligation to refrain from engaging in regulatory conduct that undermines or eliminates the 
distinctiveness essential to exercise of the right to exclude".4339 Its arguments, t he Dominican 
Republic explains, are about Australia's obligation to refrain from adopting restrictions on the use 
of trademarks that are so extreme that they ultimately deny a trademark owner the rights to 
which they are entitled under Article  16.1.4340 Refer encing the Panel Report in Mexico  – Telecoms , 
it argues that " Article  16.1 cannot be interpreted in such a manner that Members may, through 
their own conduct, evade their obligation to provide the exclusive rights that must be accorded 
pursuant to that pro vision ".4341 
7.1935.   The Dominican Republic also notes that, under its arguments, " the TRIPS Agreement  
would not interfere with the ability of a Member to regulate or ban the availability of, or trade in, a 
particular good or service"4342 because, it argues, "regulatio n of the availability of a good or 
service is outside the scope of the TRIPS  Agreement ".4343 This, it explains, is also the reason why 
its arguments about the importance of "use" under Articles  15 and 16 are restricted to use on 
legally traded products.4344  
7.1936.   Cuba, by reference, incorporates the arguments in respect of Article  16.1 made by 
Honduras, the Dominican Republic, Indonesia, and Ukraine in their first written submissions, as 
well as the arguments made by Honduras, the Dominican Republic, and Indonesia in their second 
written submissions.4345 Cuba argues, by reference to Ukraine's first written submission, that the 
TPP measures , by preventing any opportunity to use validly registered trademarks on lawfully 
available products, violates Article  16.1 in two wa ys. First, the TPP measures  eliminate the 
possibility of preventing the use of similar signs on similar products given the adverse impact of 
the measures on the strength of the mark and on the ability to demonstrate confusion that 
conditions the exercise o f the rights under Article  16.1 of the TRIPS  Agreement . Second, the 
TPP measures  lead to the loss of distinctiveness of non -inherently distinctive signs, which in turn 
will lead to their invalidation and thus elimination of protection under Article  16.1.4346 
7.1937.   With respect to the first argument, Cuba, by reference, argues that the scope of 
protection of a trademark is determined by the strength of the mark, which depends on the extent 
of its use over time. "Marketplace strength is thus crucial in establishing in fringement, and hence 
to the scope of protection". The stronger the mark, the greater its scope of protection.4347 Cuba 
argues that, by standardiz ing the appearance of word marks or trademarks, the TPP measures  
reduce the distinctiveness of the marks, thus co mpromising the owner's right to exercise his right 
of exclusion under Article  16.1.4348 Cuba, by reference, explains that a fter the introduction of plain 
packaging, the trademark's strength will become very weak given that consumers will no longer 
see the mar k. The holistic assessment of the reputation and strength of the mark that is crucial to 
a likelihood of confusion and similarity analysis will be reduced to a mere registration -based formal 
                                                
4337 Dominican  Republic 's response to Panel question No. 94, para. 44. 
4338 Dominican  Republic 's response to Panel question No. 94, para. 47. 
4339 Dominican  Republic 's response to Panel question No. 94, para. 48. (emphasis original)  
4340 Dominican  Republic 's response to Panel question No. 96, para. 58. 
4341 Dominican  Republic 's second written submission, para. 71 (referring to  Panel Report, Mexico  –
 Telecoms , paras.  7.241 -7.2444. (The P anel understands that, while citing the Panel Report in Mexico  –
 Telecoms, the Dominican  Republic  was referring to paras.  7.241 -7.244) ). 
4342 Dominican  Republic 's response to Panel question No. 95, para. 51. 
4343 Dominican  Republic 's response to Panel question No. 95, para. 51. (footnote omitted)  
4344 Dominican  Republic 's response to Panel question No. 95, para. 51. 
4345 See fn 4054 above. Since we have described separately the other complainants' relevant 
arguments, in the following section we will only summarize Ukraine's main arguments.  
4346 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submiss ion, 
para. 278). See also Cuba's response to Panel question No. 94. 
4347 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 279, which quotes Dinwoodie Report , (Exhibit UKR -1), para. 64). 
4348 Cuba's response to P anel question No. 29 (annexed to its response to Panel question No. 138) and 
No. 96. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 629 - 
  comparison in respect of a weak mark. The possibility of preventing use of similar signs on similar 
goods will thus be significantly reduced to quasi -identical signs on quasi -identical goods.4349  
7.1938.   Cuba, by reference, argues that the scope of the rights conferred and the specific 
conditions imposed by Article  16 reflect the intrinsic and direct relationship between the use of the 
trademark by its owner and the scope of the rights conferred. The required effective treaty 
interpretation of the text of Article  16 thus confirms that without a minimum opportunity to  use 
the trademark on the good to which it is to be applied, the minimum level of guaranteed rights 
conferred by Article  16 is no longer guaranteed.4350 Cuba, by reference, submits that " an 
interpretation of the relevant provisions of the TRIPS  Agreement  as a whole and of Article  16 in 
particular to provide only a negative right to prevent third parties from using signs similar to the 
trademarked sign is unsustainable".4351 According to Cuba, Article  16 recognizes a right to use and 
protects the use of trademarks .4352  
7.1939.   Cuba, by reference, concludes that the TPP measures  reduce the scope of all registered 
trademark rights, effectively preventing owners from objecting to the use of similar signs on 
similar goods, in violation of the minimum level of rights to be guaran teed by Australia under 
Article  16.1 of the TRIPS  Agreement .4353 
7.1940.   With respect to the second argument, Cuba, by reference, explains that, because 
non-inherently distinctive signs cannot be registered, and their registration can be invalidated for 
lack of disti nctiveness unless they are used in a particular context4354, which the TPP measures  
prohibit, there is no basis for certain figurative non -inherently distinctive marks to obtain or 
maintain trademark status. Thus, they will automatically be "genericized".4355 It argues further 
that neither Section 28 of the TPP Act nor the TMA Act resolve this matter, as they do not allow 
non-inherently distinctive trademarks to obtain or maintain protection guaranteed under the 
TRIPS  Agreement .4356 Therefore, the owners of trademarks that were previously protected and 
used, and that enjoyed the minimum level of protection guaranteed by Article  16.1, will lose or 
have already lost that protection.4357 Cuba contends, by reference, that "[b]y denying these 
minimum ex clusive rights to trademark owners of non -inherently distinctive signs, Australia 
violates its obligation under Article  16.1 of the TRIPS  Agreement ".4358 
7.1941.   Indonesia  argues that Australia has violated Article  16.1 of the TRIPS  Agreement  in two 
ways: (1) the TPP Act requires the use of deceptively similar marks on identical products as 
defined under Australian law, thereby eroding a trademark owner's right to prevent use that is 
likely to result in confusion; and (2) the TPP Act prevents validly registered marks from 
maintaining their distinctiveness, thereby diminishing (and, eventually, extinguishing) the ability of 
the owner of a validly registered mark to prevent unauthorized third -party use of similar marks on 
similar goods not covered by the TPP Act.4359 
7.1942.   With r espect to the first argument, Indonesia acknowledges that prior to the 
implementation of plain packaging, Australia's trademark regime fulfilled Australia's obligations 
                                                
4349 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 280).  
4350 Cuba's first written submission, para. 428 (incorporating Ukr aine's first written submission, 
para. 274).  
4351 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 228, which quotes from the Schwebel Report, (Exhibit UKR -2), para. 3). 
4352 Cuba's response to Panel question No. 99. 
4353 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 294).  
4354 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 285).  
4355 Cuba's first written submissio n, para. 428 (incorporating Ukraine's first written submission, 
para. 288).  
4356 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 289).  
4357 Cuba's first written submission, para. 428 (incorporating Ukraine's fi rst written submission, 
para. 292).  
4358 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 293).  
4359 Indonesia's first written submission, para. 213. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 630 - 
  under TRIPS Article  16.1 to provide trademark owners the exclusive right to prevent una uthorized 
third parties from using identical or similar signs for identical or similar goods or services where 
such use would result in a likelihood of confusion4360 through Section 120 of the TM Act. It argues 
that after the implementation of the TPP measure s, owners of registered trademarks relating to 
tobacco products "find themselves in the bizarre scenario of being legally required  to present their 
trademarks in a manner that is 'deceptively similar' to those of other tobacco brands, and being 
hampered in  their ability to prevent  third parties from using marks that are deceptively similar to 
their own products".4361 Indonesia f urther argues that "because Australia's [T]PP measures are 
mandatory, Australia has left trademark owners with no remedy".4362 "Because o f the mandatory 
nature of this measure, Australia has deprived trademark owners of the right to exclude uses of 
similar marks where such uses are likely to cause confusion in direct conflict with its obligation 
under Article  16.1 of the TRIPS  Agreement ."4363 
7.1943.   Indonesia argues that t rademarks, including trademarked colors, designs, and images, 
are essential for the establishment and maintenance of brands. These non -word marks enhance 
the distinctiveness of a brand's trademark.  This is especially true, according to Indonesia, when all 
products are similar or identical, as is the case with cigarettes.4364 Referring to a list of registered 
word marks relating to tobacco products in Australia that use the word "gold"4365, Indonesia 
argues that they could be easily confused  with the word mark "Indonesian Gold" in the absence of 
any distinguishing typeface, symbols or colors. The word marks themselves are, in many cases, 
insufficient to differentiate one brand from another. This is especially true, claims Indonesia, under 
the TPP measures , where all word marks must be in a prescribed format (typeface, size, colour, 
etc.). "By stripping trademarks of all of their distinguishing characteristics but one, Australia has 
rendered meaningless the right conferred by Article  16.1. Unde r [the TPP measures ], the owner of 
a tobacco -related trademark is forced to become both the perpetrator and victim of deceptively 
similar marks on identical goods. In this regard, PP distorts the very purpose of intellectual 
property rights."4366 
7.1944.   Indonesia fu rther argues that by amending the TM Act and introducing Section 231A, "the 
Australian government acknowledges that plain packaging conflicts with the normal operation of 
trademark law and provides for the proliferation of regulations to further contravene  the ordinary 
function of trademarks".4367  
7.1945.   Indonesia concludes that Australia has violated Article  16.1 of the TRIPS  Agreement  by 
undermining the ability of a trademark owner to prevent a "likelihood of confusion" with nearly 
identical trademarks. "If marks on identical tobacco products are required to appear in a manner 
that is virtually identical, as is the case under PP, it will be significantly more difficult for trademark 
owners to exercise their rights under Australian law to prevent use that is likely to cause confusion 
– a right Australia must guarantee to trademark owners under Article  16.1."4368 
7.1946.   In response to Australia's argument that the TPP measures  do not require certain word 
marks to appear in a confusing manner because registration of these marks shows that they have 
been deemed capable of distinguishing the goods of the trademark applicant from the goods of 
other persons, Indonesia argues that " the mere fact that a trademark is registered does not mean 
that it can never be used in a manner that mi ght result in a likelihood of confusion with another 
registered trademark. Indeed, the [ TM Act] provides the Registrar with the authority to revoke the 
registration of a trademark if 'it is reasonable to revoke the registration, taking account of all the 
circumstances'. These circumstances include 'any use that has been made of the trade mark' as 
well as 'any past, current or proposed legal proceedings relating to the trade mark'." Thus, 
                                                
4360 Indonesia's first written submission, para. 214. 
4361 Indonesi a's first written submission, para. 214. (emphasis original)  
4362 Indonesia's second written submission, para. 93. See also Indonesia's second written submission, 
para. 101. 
4363 Indonesia's second written submission, para. 101. 
4364 Indonesia's first written submi ssion, para. 216. Indonesia adds that "studies indicate that 'many 
smokers are unable to distinguish between similar cigarettes' in the absence of trademarks". Ibid.  
4365 See Indonesia's first written submission, Table V.1.  
4366 Indonesia's first written submiss ion, para. 217. 
4367 Indonesia's first written submission, para. 218. 
4368 Indonesia's first written submission, para. 219. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 631 - 
  Indonesia claims, the mere fact of registration does not preclude the possibility of later revocation 
based on confusing use of the trademark.4369 
7.1947.   With respect to the second argument, Indonesia argues that " [i]n addition  to requiring 
marks on identical products to appear deceptively similar", the TPP measures  diminish the overall 
distinctiveness of marks over time. The strength of a trademark is inextricably linked to its ability 
to distinguish goods, which is a function of use. Highly distinctive marks are more easily confused 
with similar or identical marks on similar or identical goods, which triggers the owner's right to 
prevent such marks accorded by Article  16.1. It follows that less distinctive marks are less likely to 
be confused with other marks, meaning their owners will be less able to prevent simila r or identical 
marks on similar or identical goods.4370 Indonesia further argues that the panel in EC –
 Trademarks and Geographical Indications (Australia)  "observed [that] use of a trademark is 
necessary for the preservation of its distinctiveness".4371  
7.1948.   Indone sia argues that the TPP measures  will inevitably result in the loss of distinctiveness 
for trademarks related to tobacco products because they restrict the use of such marks in the 
normal course of trade. The loss of distinctiveness, claims Indonesia, will  result in owners being 
unable to demonstrate a likelihood of confusion with increasingly similar marks on increasingly 
similar goods, defeating the rights guaranteed by Article  16.1.4372 As a result, according to 
Indonesia, there are many related products th at are not covered by the TPP measures , which can 
now display similar or identical marks as registered tobacco marks without the authorization of the 
trademark owner.4373  
7.1949.   Indonesia concludes that "[t]he gradual erosion of the strength of trademarks is an 
unacceptable destruction of intellectual property, and entirely contrary to the purpose of the 
TRIPS  Agreement . The fact that marks will lose their distinctiveness as a direct result of Australia's 
internal law is tantamount to Australia's outright denial of rights to distinctive marks in violation of 
its obligations. Thus, Australia has violated Article  16.1 of the TRIPS  Agreement  by impairing the 
distinctiveness of marks and, therefore, the ability of mark owners to prevent the use of similar or 
identical ma rks on similar or identical goods."4374  
7.1950.   In response to Australia's argument that there is no "positive right to use", Indonesia 
argues that t he TRIPS  Agreement  contemplates a minimum opportunity to use a registered 
trademark in connection with the relevant g oods or services.4375 It adds that any derogation from 
that norm must be a limited exception that takes account of the legitimate interests of trademark 
owners and third parties (e.g. consumers) in the use of trademarks.4376 Indonesia explains that 
the minimum o pportunity of trademark use contemplated by the TRIPS  Agreement  is not an 
unfettered right to use. However, when one considers that the value of trademarks is derived 
solely from private trademark owners' ability to use those marks to distinguish their goo ds and 
services in the course of trade, it is only logical that the provisions of the TRIPS  Agreement  
relevant to trademarks would also protect trademark owners' minimum opportunity to use their 
marks.4377 It further claims that even in markets where no "right to use" is established, trademark 
use is a critical factor influencing arbitrators of infringement claims.4378 Indonesia counsels that a 
trademark owner's legitimate interest in using  its mark, and the importance of use for the 
realization of the benef its conferred by trademark registration, while critical in this dispute, should 
not be conflated with a "positive right of use" or "absolute right of use". While Members may take 
a variety of regulatory actions that impact use of a trademark, whether direc ted toward a 
                                                
4369 Indonesia's second written submission, para. 96 (quoting TM Act, (Exhibit JE -6), Sections  84(1)(b) 
and 84(3)(a) -84(3)(b), p p. 83-84).  
4370 Indonesia's first written submission, para. 220. 
4371 Indonesia's second written submission, para. 90 (referring to  Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , para. 7.664). See also Indonesia's first writt en submission, para. 222. 
4372 Indonesia's first written submission, para. 222. 
4373 Indonesia's first written submission, para. 223 ( referring to  ATMOSS search results, (Exhibit 
IDN-62)). 
4374 Indonesia's first written submission, para. 223. 
4375 Indonesia's second w ritten submission, para. 72. 
4376 Indonesia's second written submission, para. 72 (referring to  Article  17 of the TRIPS Agreement and 
Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.664).  
4377 Indonesia's second written submission , para. 14. 
4378 Indonesia's second written submission, para. 74. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 632 - 
  trademark or the underlying goods and services, "it cannot be true", according to Indonesia, "that 
the rights and obligations conferred by the TRIPS  Agreement  are not implicated or impaired by an 
unjustified prohibition on the use of trademark s in connection with an entire category of 
products".4379 
7.1951.   Referring to domestic Australian trademark jurisprudence, Indonesia argues that 
Australian law recognizes that trademark use is an essential factor in any infringement proceeding. 
Therefore, if use is critical to proving trademark infringement in Australia (a market with no 
positive right to use a trademark), it is equally correct, according to Indonesia, to find that 
prohibiting use "guts" the protections afforded under Article  16.1 of the TRIPS  Agreem ent.4380 
Indonesia further argues that Section 28 of the TPP Act does not remedy the loss of distinctiveness 
and, therefore, the loss of protection accorded to trademarks under Article  16.1 as a result of the 
TPP measures4381, as it deals only with maintaining t rademark registrations on the Registrar that 
fall into disuse as a result of the TPP measures .4382 
7.1952.   Indonesia explains that it is not claiming that Members are required under Article  16.1 to 
take affirmative steps to ensure the distinctiveness of marks. It is the responsibility of the 
trademark owner to exercise its "general market freedom" to strengthen and maintain its mark 
through use in the marketplace. However, according to Indonesia, Article  16.1 obligates Members 
to refrain from taking regulatory action that impairs the ability of trademark owners to exercise 
their right to prevent the use of similar or identical signs on similar or identical goods or services 
that are likely to result in confusion. Australia's TPP measures , Indonesia argues, do exactly t he 
opposite by severely curtailing the distinctiveness of tobacco trademarks by prohibiting use in the 
market, which damages the ability of trademark owners to bring successful infringement actions 
under Australian trademark law. Registration alone, Indone sia asserts, is insufficient to safeguard 
the distinctiveness of trademarks.4383  
7.1953.   Indonesia further argues that the manner and context in which trademarks are used, 
including their trade dress, is an important element of trademark infringement actions in 
Australia4384, and under Australia's "imperfect recollection" test, courts draw conclusions about 
what a consumer would recall about marks and compare how marks are used or intended to be 
used in the marketplace.4385 Indonesia argues that, while word marks may have been registered 
without any color or figurative elements, they are seldom used in the plain format in which they 
are registered4386, people often do not read words carefully or pronounce them distinctly4387, and 
studies have found that the effect of label design  on perceived similarity is over seven times larger 
than the effect of brand name.4388 Indonesia argues that, therefore, it is not difficult to 
demonstrate that the TPP measures  are likely to increase the risk of confusion. In the present 
dispute, the word ma rks that are permitted on tobacco packaging are required to be displayed in 
identical trade dress. Without any other distinguishing features, the word marks' ability to 
distinguish products is severely diminished.4389 
7.1954.   Australia  argues that the TPP measures  are not inconsistent with Article  16.1, properly 
interpreted.4390 Australia explains that on the basis of the ordinary meaning of the terms of 
Article  16.1, the right accorded to the owners of registered trademarks is a negative right – that 
is, the right to st op or hinder third parties from using identical or similar signs on identical or 
similar goods, up to and during the point of sale, where such use would cause or would be likely to 
                                                
4379 Indonesia's response to Panel question No. 94, para. 16.  
4380 Indonesia's second written submission, para. 89. 
4381 Indonesia's second written submission, para. 92. 
4382 Indonesia's second written submission, para. 92. 
4383 Indonesia's second written submission, para. 91. See also Indonesia's response to Panel question 
No. 95, para. 19 ("It is clear from the text of this provision that the Member  is not obligated to preserve  or 
strengthen the mark. That is the sole responsibility of the trademark owner.") (emphasis original)  
4384 Indonesia's second written submission, para. 97. 
4385 Indonesia's second written submission, para. 97. 
4386 Indonesia's second written submission, para. 100. 
4387 Indonesia's second written submission, para. 97 (referring to Tivo  v. Vivo, (Exhibit IDN -101), 
para. 165). 
4388 Indonesia's second written submission, para. 99 (referring to  Aribarg et al. 2014, (Exhibit 
DOM-224), p. 663).  
4389 Indonesia's second written subm ission, para. 98.  
4390 Australia's first written submission, para. 317. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 633 - 
  cause confusion.4391 It adds that this understanding of the negative  nature of  the right conferred in 
Article  16.1 is consistent with the context and object and purpose of the TRIPS  Agreement4392, 
prior panel and Appellate Body reports4393, and the views of leading commentators.4394 The right 
conferred under Article  16.1, claims Australia, i s not a positive right to use a trademark.4395  
7.1955.   Australia agrees with the panel in EC – Trademarks and Geographical Indications  
(Australia) that a trademark owner has a "legitimate interest" in using its trademarks to 
distinguish its goods or services from those of other undertakings in the course of trade.4396 It 
argues that a trademark owner's "legitimate interest" in using its trademarks must be contrasted 
with the "rights conferred by a trademark", as set forth in Article  16 of the TRIPS  Agreement . The 
"legitimate interests" of trademark owners cannot be raised to the level of the "rights conferred by 
a trademark".4397 Australia concludes that the ability to use a trademark is a general market 
freedom and is not a "right" that is protected under the TRIPS  Agree ment.4398 Australia submits 
that whether the complainants frame Article  16.1 as imposing a positive obligation on Members to 
guarantee the use of a trademark to ensure that a likelihood of confusion arises, or as a negative 
obligation on Members not to preven t the use of a trademark so that the likelihood of confusion 
may arise, their arguments cannot be reconciled with their admission that Article  16.1 obliges 
Members to confer only negative rights of exclusion on trademark owners.4399  
7.1956.   Against this background, Australia argues that t he basis of the complainants' claims is 
that if a trademark is not used, the "likelihood of confusion" is reduced, and so the right to prevent 
third parties from using similar or identical trademarks on similar or identical goods is 
diminished.4400 This argument, it submits, is "implausible"4401 since Article  16.1 does not require 
Members to ensure that a likelihood of confusion arises so that trademark owners will be able to 
prevent confusion. There is no "right of confusion" under Article  16.1, according to Australia.4402  
7.1957.   With respect to the argument that the principle of effective treaty interpretation means 
that the minimum level of rights required by Article  16 is not respected without a minimum 
opportunity to use a trademark,  Australia s ubmits that "[t]he principle of effet utile means that a 
treaty interpreter cannot adopt an interpretation that renders parts of the treaty legally 
redundant".4403 It claims that the substance of the right in Article  16.1 is to provide that trademark 
owners can prevent the unauthorized use in the course of trade of similar or identical signs where 
such use would result in a likelihood of confusion. This right protects the position of trademark 
owners in relation to other traders in the market.4404 Australia adds  that the TPP measures  operate 
to ensure that the protections accorded under the TM Act to owners of registered trademarks, 
                                                
4391 Australia's first written submission, para. 312. 
4392 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.246.  
4393 Panel Report, EC – Trademarks and Geographical  Indications (Australia) , para. 7.611 fn 564 
("Article  16.1 of the TRIPS Agreement only provides for a negative right to prevent all third parties from using 
signs in certain circumstances."). See also Appellate Body Report, US – Section 211 Appropriations  Act, 
para. 186. 
4394 See, e.g. Correa's Commentary on the TRIPS Agreement, (Exhibit AUS -242), p. 186 (" Article  16.1 
alludes to the right to exclude the use under certain conditions. It is clearly provided for as a negative right, 
not as the right to use the trademark."); Carvalho 3rd edn, AUS excerpts, (Exhibit AUS -236), p. 249 ( "Like all 
other industrial property rights dealt with by the TRIPS Agreement, trademark rights are also primarily 
described in a negative manner. Trade mark rights are rights to exclu de, rather than to use."); and J. Malbon, 
C. Lawson, and M. Davison, The WTO Agreement  on Trade -Related Aspects of Intellectual Property Rights: A 
Commentary (Edward Elgar, 2014), (Exhibit AUS -246), p. 294 ("There is no positive right given to the 
register ed owner to use the trademark. Consequently, Members may impose onerous conditions on the sale of 
the trademark -related products which may, in effect, prevent the use of the registered trademark or severely 
limit its use. For example, restrictions on the s ale of tobacco products could restrict the use of advertising 
involving the trademark for the product.").  
4395 Australia's first written submission, para. 312.  
4396 Australia's response to Panel question No. 99, para. 42.  
4397 Australia's response to Panel questi on No. 99, para. 42. (footnote omitted)  
4398 Australia's response to Panel question No. 90, para. 23. 
4399 Australia's second written submission, para. 30.  
4400 Australia's first written submission, para. 314. 
4401 Australia's first written submission, para. 315. 
4402 Australia's first written submission, para. 315. (emphasis original)  
4403 Australia's response to Panel question No. 37, para. 99. (emphasis original)  
4404 Australia's response to Panel question No. 37, para. 101. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 634 - 
  including the right to prevent infringement, are completely preserved.4405 It further argues that 
even if some trademark owners may, as  a matter of fact, exercise their rights of exclusion more 
often than other trademark owners, this does not mean that the legal effect of Article  16 of the 
TRIPS  Agreement  is rendered "redundant". The fact that there may be fewer opportunities for 
confusio n as a result of the TPP measure s does not render the rights under Article  16 inutile.4406 
7.1958.   With respect to the complainants argument that the TPP measures  could not be justified 
under Article  17, Australia argues that TPP measures  do not create any exceptions  to the rights 
conferred by a trademark, which are negative rights of exclusion, and do not include a right to use 
a trademark. Article  17, concludes Australia, is therefore not engaged by the measure at issue.4407 
7.1959.   With respect to Indonesia's claim that the TPP measures  require trademark owners to 
present their trademarks in a deceptively similar manner, Australia argues that " if the brand and 
variant names at issue have all been registered, the Registrar has determined that these word 
trademarks are in fact c apable of distinguishing the goods of the trademark applicant from the 
goods of other undertakings.4408 Further, Indonesia fails to recognise that, if  it were the case that 
a competitor used a word on a tobacco product that was identical or similar to an existing 
registered trademark such as to create a likelihood of confusion (for example, if a competitor 
attempted to sell cigarettes under the brand name 'Marb lerow'), then the trademark owner would 
be able to exercise its negative rights of exclusion in accordance with Article  16.1."4409 
7.1960.   With respect to the claim that the TPP measures  lead to the loss of distinctiveness of 
non-inherently distinctive signs, which i n turn will lead to their invalidation and thus elimination of 
protection under Article  16.1, Australia submits that S ection 28 of the TPP Act provides that the 
operation of the TPP Act does not prevent the registration of a trademark or the maintenance of  
registration. By ensuring that trademarks can be registered and remain on the register, Australia 
claims, the TPP measures  do not have any impact on the ability of owners of registered 
trademarks to exercise the rights granted under the TM Act to seek rel ief in the event that a third 
party uses an identical or similar sign in the course of trade where such use creates a likelihood of 
confusion.4410  
7.3.3.3   Main arguments of the third parties  
7.1961.   Canada  argues that the right conferred by Article  16.1 consists only  of the  trademark 
owner's entitlement to prevent third parties  from unauthorized use of identical or similar signs on 
identical or similar goods or services where such use would result in a likelihood of confusion.4411 
According to Canada, the negotiating history of  Article  16.1 reveals that the text did not include an 
owner's right to use the trademark.4412 Canada submits that WTO Members are not obliged under 
Article  16.1, or elsewhere in the TRIPS  Agreement , to preserve or strengthen either the trademark 
or the owner's ability to successfully demonstrate a "likelihood of confusion". Such an obligation 
would effectively make Members responsible for private interests that they cannot control, as the 
strength of a mark is ultimately dependent upon its user and marke t forces, including consumer 
perception.4413 Adopting the complainants' interpretation, Canada argues, would mean that 
Members would retain little flexibility to regulate as many measures, such as banning or restricting 
product advertising, could have the eff ect of reducing the strength of the mark.4414 
7.1962.   Nicaragua  argues that by prohibiting the use of trademarks and permitting only certain 
word marks in a standardized form and font, the TPP measures  "necessarily violate[] the 
                                                
4405 Australia's first written submission, para. 318.  
4406 Australia's response to Panel question No. 37, para. 103. 
4407 Australia's response to Panel question No. 90, para. 43. 
4408 (footnote original) If any person were to disagree with the decision of the Registrar to register the 
trademark, it can either opp ose registration or seek removal from the register in accordance with the TM Act. 
See Australia's first written submission, Annexure D, paras.  3-7. 
4409 Australia's second written submission, para. 31. (emphasis original)  
4410 Australia's first written submissio n, para. 317. See also Australia's explanation of the operation of 
Section 28 of the TPP Act in Australia's first written submission, paras.  267-271. 
4411 Canada's third -party submission, para. 46. 
4412 Canada's third -party submission, para. 47. 
4413 Canada's third -party submission, para. 48. 
4414 Canada's third -party submission, para. 49. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 635 - 
  TRIPS  Agreement  on the protection of i ntellectual property rights, like trademarks".4415 It submits 
that the rights under Article  16 "do not make sense" and are "hollow" if they are not accompanied 
by a meaningful opportunity to use the trademark. The principle of effective treaty interpretation,  
claims Nicaragua, does not support Australia's reading of this provision.4416 
7.1963.   Norway  argues that the plain text of Article  16.1 makes clear that the right conferred to 
owners of trademarks under the TRIPS  Agreement  is not a right to use, but an exclusive rig ht to 
prevent  certain uses by third parties.4417 Acknowledging that trademark owners may have a 
legitimate interest in using their trademark, as confirmed by the panel in EC – Trademarks and 
Geographical Indications , Norway submits that this does not mean, ho wever, that this interest is 
included in the rights set out in Article  16.1. It submits that, to the contrary, the panel in EC –
 Trademarks and Geographical Indications (Australia) stated that "[g]iven that Article  17 creates 
an exception to the rights con ferred by a trademark, the 'legitimate interests' of the trademark 
owner must be something different than full enjoyment of those legal rights".4418 
7.1964.   New Zealand  argues that the complainants' claims that the TPP measures  reduce the 
exclusive rights of trademar k owners under Article  16.1 are misconceived. It submits that 
Article  16.1 does not provide a right to use the trademark in the course of trade as the owner sees 
fit, or provide a positive right such that a WTO Member is obliged to allow the trademark owne r to 
use its trademark.4419 In New Zealand's view, the Panel ought to reject the complainants' claims in 
relation to Article  16.1.4420 
7.1965.   Singapore  argues that the complainants proposition that the erosion or, in some cases, 
loss of a trademark owner's ability to prevent the unauthorized use of certain signs because of the 
loss of distinctiveness that might result from the TPP measures  violates Article 16.1 is 
untenable.4421 According to Singapore, the argument is not supported by the ordinary meaning of 
Article  16.14422 and erroneously conflates the legitimate interest of owners to preserve the 
distinctiveness of their trademarks with the right conferred b y Article  16.1.4423 
7.3.3.4   Analysis by the Panel  
7.1966.   The complainants argue  that a trademark owner's ability to demonstrate  confusion in the 
market, and thus infringement, correlates with the degree of distinctiveness, or "strength" of the 
trademark which, they argue, i s intrinsically linked to the trademark owner's ability to use it.4424 
According to the complainants, the TPP measures ' prohibition of certain uses of certain 
tobacco -related trademarks results in a reduction in the trademarks' distinctiveness, eroding the 
trademark owners' ability to prevent third parties from using similar or identical marks on similar 
goods in a manner that creates a "likelihood of confusion".4425 Honduras submits that Article  16 
obliges Members to guarantee a minimum level of private rights t o trademark owners that allows 
them to successfully protect the distinctiveness and source -indicating function of their marks in 
infringement proceedings.4426 The Dominican Republic, Cuba, by reference, and Indonesia argue 
                                                
4415 Nicaragua's third -party submission, para. 19. 
4416 Nicaragua's third -party submission, para. 25. 
4417 Norway's third -party submission, para. 32. 
4418 Norway's third -party submission, para. 33 (quoting EC – Trademarks and Geographical Indications 
(Australia) , para. 7.662 ). 
4419 New Zealand's third -party submission, para. 32. 
4420 New Zealand's third -party submission, para. 33. 
4421 Singapore's third -party submission, para. 28. 
4422 Singapore's third -party submission, para. 29. 
4423 Singapore's third -party submission, para. 30. 
4424 See Honduras's second written submission, para. 259. See also Honduras's first written submission, 
paras.  171-172, 217, and 239 -240; Dominican  Republic 's first written submission, paras.  306-307; Cuba's first 
written submission, para. 428 (incorporating Ukraine's first written submission, paras.  264-265); and 
Indonesia's first written submission, para. 220. 
4425 See Honduras's first written submission, paras.  239-243; Domincan Republic 's first written 
submission, para. 295; Cuba's first written submission, para. 428 (incorporating Ukraine's first written 
submission, para. 278); and Indonesia's first written submission, paras.  220 and 222.  
4426 Honduras's second written submission, para. 258. See also Cuba's first written submission, 
para. 428 (incorporating Ukraine's first written submission, para. 294, which in turn notes Australia's "positive 
obligation" to protect the minimum rights conferred on trademark owners by Article  16.1); and Ind onesia's 
response to Panel question No. 95 (asserting that Members are obligated to create a "legal or regulatory 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 636 - 
  that Article  16.1 obliges Members to refrain from regulatory conduct that undermines or eliminates  
the distinctiveness essential to exercising trademark rights.4427 Honduras, the Dominican Republic, 
and Indonesia submit that a trademark owner's interest in using the trade mark is an important 
consideration with respect to claims under Article  16.1, but do not argue that Article  16.1 confers a 
"right to use".4428 Cuba argues, by reference, that the principle of effective treaty interpretation 
requires Members to provide a minim um opportunity to use a trademark, as otherwise the 
minimum rights conferred by Article  16.1 are not guaranteed.4429  
7.1967.   In addition, Cuba, by reference, argues that the TPP measures  eliminate protection 
required under Article  16.1 for those non -inherently disti nctive trademarks that previously 
acquired distinctiveness by use. The prohibition of certain uses of certain tobacco -related 
trademarks will, according to Cuba, cause registered non -inherently distinctive signs to lose their 
distinctiveness and become sub ject to cancellation procedures.4430  
7.1968.   Finally, Indonesia, and Cuba, by reference, argue that by standardizing the appearance of 
tobacco packaging and products, the TPP measures  require the use of deceptively "similar marks" 
on "identical products" while depri ving owners of a remedy, thereby eroding a trademark owner's 
right under Article  16.1 to prevent use that is likely to result in confusion.4431 
7.1969.   We will first consider the scope of the obligation under Article  16.1 relevant to the 
complainants' claims and then  address these three sets of arguments in turn.  
7.3.3.4.1   The scope of the obligation in Article  16.1 
7.1970.   We recall that Article  16.1 of the TRIPS  Agreement , entitled "Rights Conferred", reads:  
The owner of a registered trademark shall have the exclusive right to preven t all third 
parties not having the owner's consent from using in the course of trade identical or 
similar signs for goods or services which are identical or similar to those in respect of 
which the trademark is registered where such use would result in a l ikelihood of 
confusion. In case of the use of an identical sign for identical goods or services, a 
likelihood of confusion shall be presumed. The rights described above shall not 
prejudice any existing prior rights, nor shall they affect the possibility of  Members 
making rights available on the basis of use.  
7.1971.   The parties agree that the language in the first sentence of Article  16.1 formulates a 
trademark owner's "exclusive" right to prevent certain uses by third parties.4432 Certain 
                                                                                                                                                  
regime in which a trademark owner can prevent  third parties from using identical or similar signs on identical 
or similar goods where such use  would result in a likelihood of confusion").  
4427 Dominican  Republic 's response to Panel question No. 94, paras.  44-45 and 47 -48; 
Dominican  Republic 's second written submission, para. 65; and Cuba's second written submission, para. 414 
(incorporating the arguments made in the Dominican  Republic 's second written submission). See also 
Indonesia's second written submission, para. 91. 
4428 Honduras's response to Panel question No. 99; Dominican  Republic 's response to Panel question 
Nos. 94 and 96; and Indonesia's response to Panel question No. 94. But see Indonesia's first written 
submission, paras.  71-72 and 75 (indicating that the TRIPS Agreement contemplates a "minimum opportunity 
to use", even if no absolute right to use exists). Cuba en dorses and incorporates the claims, arguments and 
evidence of its other complainants (see fn 4345 above) with respect to this point. See also, however, Cuba's 
response to Panel question No. 99 (suggesting that Article  16 recognizes a right to use a trademark ). 
4429 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submissi on, 
para. 274). See also Indonesia's first written submission, paras.  71-72 and 75 (indicating that the TRIPS 
Agreement contemplates a "minimum opportunity to use", even if no absolute right to use exists).  
4430 Cuba's first written submission, para. 428 (inc orporating Ukraine's first written submission, 
paras.  285-293).  
4431 Indonesia's first written submission, para. 213; and Cuba's first written submission, para. 428 
(incorporating by reference Indonesia's first written submission, with respect to arguments re lated to its claim 
under Article  16.1).  
4432 Honduras's first written submission, paras.  171 and 218 -229; Dominican  Republic 's first written 
submission, para. 299; Cuba's first written submission, para. 428 ( incorporating Ukraine's first written 
submission, para. 261); Cuba's response to Panel question No. 96; Indonesia's first written submission, 
para. 214; and Australia's first written submission, para. 311. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 637 - 
  complainants do not contest Australia's assertion that this exclusive right is a "negative" right4433, 
and all have indicated that they are not claiming that the language in the first sentence of 
Article  16.1 formulates a trademark owners' "positive" right to use its registered trademar k.4434 
However, some complainants have challenged the utility and consequences of applying a "positive" 
versus "negative" label to the rights associated with Article  16.1.4435 Honduras conceives of 
Article  16.1 as requiring Members to guarantee a minimum level of private rights that allows 
trademark owners to exercise the right to exclude.4436 The Dominican Republic, Cuba, by 
reference, and Indonesia argue that Article  16.1 obliges Members to refrain from regulatory 
conduct that undermines or eliminates the distinc tiveness of registered trademarks.4437 According 
to the complainants, distinctiveness, and thus the scope of protection available under Article  16.1, 
is linked to use.4438 By prohibiting the use of certain tobacco -related trademarks on tobacco 
packaging and toba cco products, the TPP measures , argue the complainants, erode their 
distinctiveness, constraining trademark owners' ability to exercise their rights under 
Article  16.1.4439 
7.1972.   This argument hinges on whether a reduction in the distinctiveness of a registered 
trademark affects the rights that Members must provide to the trademark owner under 
Article  16.1. We must therefore first determine the content of those rights, and then assess 
whether their exercise would be affected by a reduction in distinctiveness.  
7.1973.   Return ing, therefore, to the text of Article  16.1, we note that the ordinary meaning of the 
verb "prevent" is "to preclude, stop, or hinder", or "to stop, keep, or hinder (a person or thing) 
from doing something".4440 We note further that the object of the principa l verb "to prevent" in the 
first sentence of Article  16.1 is "all third parties not having the owner's consent from using 
identical or similar signs for goods or services which are identical or similar to those in respect of 
which the trademark is register ed where such use would result in a likelihood of confusion".  
7.1974.   Upon a plain reading of the text, therefore, the provision formulates an obligation on 
Members to provide to the owner of a registered trademark the right to "stop, or hinder" all those 
                                                
4433 Dominican  Republic 's second written submission, para. 58; Dominican  Republic 's response to Panel 
question No. 94, para. 44; Indonesia's response to Panel question No. 94, para. 15; and Australia's first 
written submission, para. 312. 
4434 Honduras's second written submission, para. 257; Honduras's response to Panel question No. 96; 
Dominican  Republic 's response to Panel question No. 94, para. 44; Dominican  Republic 's second written 
submission, para. 63; Indonesia's response to Panel question No. 94, paras.  15-16. Cuba endorses and 
incorporates the claims, arguments and evidence of oth er complainants (see fn 4345 above) with respect to 
this point.  See also, however, Cuba's responses to Panel question Nos. 94 and 99 (stating that  Article  16.1 
recognizes a "right to use"); and Cuba's response to Panel question No. 96. See also Australia's first written 
submission, para. 312. 
4435 See Honduras's second written submission, paras.  257-258; Honduras's response to Panel question 
No. 96; Cu ba's response to Panel question No. 96; and Indonesia's response to Panel question No. 96, 
para. 23. 
4436 Honduras's second written submission, para. 258. See also Cuba's first written submission, 
para. 428 (incorporating Ukraine's first written submission, para. 259, which states that "the total prohibition 
on the possibility to use the trademark … eliminates the possibility of exercising the private rights conferred by 
Article  16 and necessarily reduces the level of protection below the minimum guaranteed l evel").  
4437 Dominican  Republic 's response to Panel question No. 94, para. 48 ("there is an obligation to refrain 
from engaging in regulatory conduct that undermines or eliminates the distinctiveness essential to exercise of 
the right to exclude"  (emphasis or iginal) ); Cuba's first written submission, para. 428 (incorporating Ukraine's 
first written submission, para. 223, which states, "[th]e minimum level of protection that Members must confer 
under Article  16 is to allow trademark owners to enforce their exis ting private rights and to maintain the 
distinctiveness of their trademarks"); Indonesia's  second written submission, para. 91 ("Article  16.1 obligates 
Members to refrain from taking regulatory action that impairs the ability of trademark owners to exercis e their 
right to prevent the use of similar or identical signs on similar or identical goods or services that are likely to 
result in confusion"); and Indonesia's first written submission, paras.  204 and 213.  
4438 Honduras's first written submission, paras.  239-246. See also Dominican  Republic 's first written 
submission, para. 301; Cuba's first written submission, para. 428 (incorporating Ukraine's first written 
submission, paras.  234-235); and Indonesia's first written submission, para. 204. 
4439 Honduras's firs t written submission, paras.  239-240; Dominican  Republic 's first written submission, 
para. 306; Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  279-284); and Indonesia's first written submission, para. 222. 
4440 Oxford English Dictionary online, definition of "prevent", available at: 
<http://www.oed.com/view/Entry/151073?rskey=CZwcU6&result=2#eid >, accessed  2 May 2017.  (emph asis 
original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 638 - 
  not havi ng the owner's consent from using certain signs on certain goods or services, where such 
use would result in a likelihood of confusion.4441 The text of the provision does not formulate any 
other right of the trademark owner, nor does it mention the use of the  registered trademark by its 
owner.  
7.1975.   The panel in EC – Trademarks and Geographical Indications (Australia) , when interpreting 
the principles set out in Article  8 of the TRIPS  Agreement , found that:  
These principles reflect the fact that the agreement does  not generally provide for the 
grant of positive rights to exploit or use certain subject matter, but rather provides for 
the grant of negative rights to prevent certain acts. This fundamental feature of 
intellectual property protection inherently grants M embers freedom to pursue 
legitimate public policy objectives since many measures to attain those public policy 
objectives lie outside the scope of intellectual property rights and do not require an 
exception under the TRIPS  Agreement .4442  
7.1976.   With respect to Article  16.1, in particular, the panel found that:  
Article  16.1 of the TRIPS  Agreement  only provides for a negative right to prevent all 
third parties from using signs in certain circumstances.4443 
7.1977.   The Appellate Body in US – Section 211 Appropriations Act  found, with respect to 
Article  16.1:  
As we read it, Article  16 confers on the owner  of a registered trademark an 
internationally agreed minimum level of "exclusive rights" that all WTO Members must 
guarantee in their domestic legislation. These exclusive rig hts protect the owner 
against infringement of the registered trademark by unauthorized third parties.4444  
7.1978.   In light of the ordinary meaning of the text and consistently with prior rulings4445, we 
agree with the parties4446 that Article  16.1 does not establish a tra demark owner's right to use its 
registered trademark. Rather, Article  16.1 only provides for a registered trademark owner's right 
to prevent certain activities by unauthorized third parties under the conditions set out in the first 
sentence of Article  16.1.  
7.1979.   With respect to the scope of the right that Members are obliged to confer on owners of 
registered trademarks under Article  16.1, we note that the trademark owner must have the 
exclusive right to prevent:  
a. all third parties not having the owner's consent;   
b. from using in the course of trade identical or similar signs for goods or services which 
are identical or similar to those in respect of which the trademark is registered;  
c. where such use would result in a likelihood of confusion.  
7.1980.   By setting out the condi tions under which the trademark owner must be able to prevent 
third parties' activities, the provision simultaneously defines what must, at a minimum, constitute 
an infringement of a registered trademark. If the activities of an unauthorized third party me et the 
conditions set out in the first sentence of Article  16.1, then the trademark owner must have the 
right under a Member 's domestic law to prevent them. If the activities of that third party do not 
                                                
4441 The second sentence of Article  16.1 adds the condition that a likelihood of confusion shall be 
presumed in case of the use of an identical sign for identical goods or services.  
4442 Panel Report, EC – Trademarks and Geographical Indications ( Australia) , para. 7.246.  
4443 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.611 fn 564. 
4444 Appellate Body Report, US – Section 211 Appropriations Act , para. 186. (emphasis original; footnote 
omitted)  
4445 See Appellate Body Repor t, US – Section 211 Appropriations Act , para. 186; and Panel Report, EC –
 Trademarks and Geographical Indications (Australia) , para. 7.611 fn 564. 
4446 See fn 4428 above, noting Cuba's contradictory statements.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 639 - 
  meet these conditions, then they lie outside the scope  of the trademark owner's "right to prevent" 
that Members are to provide pursuant to Article  16.1. The essence of the Article  16.1 obligation is 
to ensure that rights are available to obtain relief against such infringing acts. It follows that, in 
order to  show that the TPP measures  violate Australia's obligation under Article  16.1, the 
complainants would have to demonstrate that, under Australia's domestic law4447, the trademark 
owner does not have the right to prevent third -party activities that meet the con ditions set out in 
that provision.  
7.1981.   With these preliminary observations in mind, we now turn to the complainants' 
arguments in support of their claims that the TPP measures  violate article 16.1.  
7.3.3.4.2   Whether the TPP measures  violate Article  16.1, because the prohibition on use 
of certain trademarks reduces their distinctiveness and thus the trademark owner's 
ability to demonstrate  a likelihood of confusion  
7.1982.   The complainants argue that by prohibiting the use of non -word trademarks on tobacco 
products, the TPP measures  will reduce the distinctiveness of registered non -word trademarks 
since consumers will no longer associate these trademarks with the products for which they were 
registered. This reduction of distinctiveness, they argue, will redu ce the ability of the right owner 
to demonstrate a "likelihood of confusion", a "condition precedent" for exercising rights under 
Article  16.14448, and thus to prevent unauthorized use of similar or identical signs on similar 
products4449 in the market.  
7.1983.   As expr essed by Honduras, signs that would once have been considered similar to those 
registered tobacco -related trademarks could now be used on similar products – such as tobacco 
accessories like lighters, matches, cigarette cases, or humidors4450 – without the trademark owner 
being able to prevent their unauthorized use, because such use is no longer likely to cause 
confusion with the original mark among consumers, and, therefore, no longer constitutes an 
infringement of these marks .4451 As summarize d by the Dominican Republic, "[b]y severely 
restricting the use of trademarks in commerce, the [TPP] measures diminish, and in some 
instances remove, … the right to prevent third parties from using similar or identical signs in a 
manner that creates a like lihood of confusion".4452 Therefore, it argues, the TPP measures  diminish 
                                                
4447 Under Article  1.1 of the TRIPS Agreement, Members have the obligation to "give effect to the 
provisions of this Agreement".   
4448 Dominican  Republic 's first written submission, para. 299; and Honduras's first written submission, 
para. 226. See also Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 278, which notes that the ability to demonstrate confusion conditions the exercise of righ ts under 
Article  16.1).  The Panel also notes Honduras's second written submission, para. 259 (referring to the 
"likelihood of confusion" as a "normative assessment" that must always be demonstrated by the trademark 
owner in the context of an infringement p roceeding), and Honduras's response to Panel question No. 168 
(referring to it as "a legal construct for determining the scope of protection to be afforded to trademark 
owners" and pointing out that "actual confusion" is not the test).  
4449 See paras.  7.1937 , 7.1918 , 7.1929 , 7.1936 -7.1939 , and 7.1947 -7.1949  above. The complainants 
mostly focus their claims on the purported effect the above mechanism would have on the ability to show 
confusion in cases where identical or similar signs are used on  similar  products. Dominican  Republic 's first 
written submission, para. 310; Dominican  Republic 's response to Panel question No. 32; Cuba's first written 
submission, para. 428 (incorporating Ukraine's first written submission, paras.  263-265 and 280); and Cuba's 
response to Panel question No. 32 (annexed to its response to Panel question No. 138) (endorsing the 
response of the Dominican  Republic ). See also Honduras's first written submission, paras.  239 and 248 -249; 
Honduras's response to Panel question No. 35 (indicating that its claim under Article  16.1 refers specifically to 
the use of similar signs on similar products, but that it does not rule out the possibility of a violation involving 
the use of an identical sign on a similar product or a similar sig n on an identical product); Indonesia's first 
written submission, para. 220; and Indonesia's response to Panel question No. 29, paras.  31-33 (claiming that 
the TPP measures  "impair the distinguishability of similar word marks on identical goods", "impair t he ability of 
right holders from preventing the use of identical word marks on similar goods" and "create confusion between 
similar word marks on similar goods that is unpreventable by owners of registered trademarks").  
4450 Indonesia's response to Panel ques tion No. 29, para. 32 fn 28; and Honduras's first written 
submission, paras.  235-236 and 249. See also Dominican  Republic 's first written submission, para. 311; and 
Dominican  Republic 's response to Panel question No. 32, para. 148. 
4451 Honduras's response to Panel question No. 29; first written submission, paras.  234-236, 243 and 
249; and second written submission, para. 260. 
4452 Dominican  Republic 's first written submission, para. 295. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 640 - 
  or eliminate the protection of trademarks by preventing a trademark owner from satisfying the 
condition relating to confusion.4453 
7.1984.   Australia argues that, while the right owner has a legiti mate interest to use its trademark, 
the ability to use the mark is a general market freedom and not a right protected by 
Article  16.1.4454 It argues further that Article  16.1 does not contain a "right to confusion" that 
would require Members to ensure that a likelihood of confusion arises so that trademark owners 
would be able to prevent use of similar signs.4455 It submits that the TPP measures  are therefore 
not inconsistent with Article  16.1. 
7.1985.   With regard to the claimed impact of the TPP measures  on the trademar k owner's ability 
to demonstrate  a "likelihood of confusion" we note that the complainants are not challenging how 
the criteria for trademark infringement are defined in Australia's domestic legislation, and are not 
arguing that the TPP measures  have affec ted how the Australian legal system assesses whether a 
"likelihood of confusion" exists.4456 The complainants have also not claimed that the TPP measures  
affect the procedural or evidentiary means available to right holders in infringement procedures to 
demon strate that the infringement criteria are indeed fulfilled, and they also appear to accept that, 
when  these infringement criteria are fulfilled, a trademark owner is entitled to take legal action in 
Australia.  
7.1986.   Rather, they argue that the TPP measures  reduce the effective scope of the right in 
violation of Article  16.1 in two ways: first, the diminished distinctiveness of affected trademarks 
reduces the universe of signs that are considered "similar" to certain registered tobacco -related 
trademarks4457; and se cond, the diminished distinctiveness makes it more difficult for owners of 
certain registered tobacco -related trademarks to establish a "likelihood of confusion" than before 
the introduction of the measures.4458 In other words, the complainants contend that u nder the 
TPP measures , the factual situation of trademark infringement set forth in the first sentence of 
Article  16.1, will occur less frequently and with respect to fewer signs than before, and that this 
constitutes a reduction of the trademark owner's r ight in violation of Article  16.1.4459  
7.1987.   We note therefore, for the sake of clarity, that the situation that the complainants 
describe as the basis for their claim is not so much a reduction in the trademark owners' ability to 
demonstrate  a "likelihood of conf usion", but rather a reduction of the instances in which "likelihood 
of confusion" would arise in the market with respect to tobacco -related trademarks whose use is 
affected by the TPP measures .  
7.1988.   In light of the above, we note at the outset of our analysis  that this argument consists of 
two parts, namely: (i) the factual allegation that the TPP measures ' prohibition of use of certain 
registered trademarks will result in a situation where these marks will lose their distinctiveness 
                                                
4453 Dominican  Republic 's first written submission, para. 312. 
4454 Australia's response to Panel question No. 90, para. 23. 
4455 Australia's first written submission, para. 315. 
4456 See Dominican  Republic 's first written submission, para. 305 (acknowledging that "[a]s a general 
matter, for non -tobacco trademarks, which are not affected by the [T]PP measures, Australia appears to satisfy 
its obligation under Article  16.1 of the TRIPS Agreement for registered trademarks through the Trade Marks 
Act 1995 . In particular, Section 120 of the Trade Mark s Act 1995 provides …"); and Indonesia's second written 
submission, para. 89 (acknowledging that " Section 120 of Australia's Trade Mark Law 1995 implements 
Article  16 of the TRIPS Agreement"). See also Honduras's first written submission, para. 248; and Cu ba's first 
written submission, para. 428 (incorporating Ukraine's first written submission , para. 264).  
4457 See Honduras's first written submission, paras.  170 and 243; and second written submission, 
para. 260. See also Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  280-281).  
4458 Honduras's first written submission, paras.  239 and 248 -249; Dominican  Republic 's first written 
submission, para. 310; Cuba's first written submission, para. 428 (incorporating  Ukraine's first written 
submission, paras.  263-265 and 280); and Indonesia's first written submission, para. 220. 
4459 See Honduras's first written submission, paras.  170 and 243 -244; and second written submission, 
para. 260. See also Honduras's second writt en submission, para. 263 (referring to MARQUES's amicus curiae 
submission, (Exhibit DOM/HND/IDN -1), paras. 4.5 -4.6 (arguing that a "measure that prevents the mark from 
maintaining its scope of protection or from growing its notoriety and strength through u se as intended is thus 
inconsistent with the rights conferred on registered trademark owners under Article  16.1 TRIPS")); and Cuba's 
first written submission, para. 428 (incorporating by reference Ukraine's first written submission, 
paras.  280-281).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 641 - 
  and thus reduce the occurr ence of situations in which right owners can show a "likelihood of 
confusion" between the registered trademarks and similar or identical signs on similar products; 
and (ii) the assertion that this factual consequence of the TPP measures  reduces or eliminat es the 
exclusive rights that the trademark owner is to enjoy under Australia's domestic law pursuant to 
Article  16.1.  
7.1989.   With regard to the first part, namely the factual allegation underlying this claim, it is 
helpful to review the linkage between different forms of trademark usage and the acquisition and 
maintenance of distinctiveness, and the consequences of reduced disti nctiveness for the 
occurrence of "likelihood of confusion". The "use" of a trademark that is in principle relevant for 
the acquisition and maintenance of distinctiveness is not limited to use on packaging of a product, 
but rather extends to a wider range o f commercial, advertising, and promotion activities. The 
TPP measures  constrain or prohibit the use of certain registered trademarks as applied to tobacco 
retail packaging and products, but do not constrain other uses of trademarks, such as advertising 
and promotion, also relevant for acquiring and maintaining distinctiveness.4460 While the uses 
affected by the TPP measures  are not normally the sole means of establishing and maintaining 
distinctiveness through use, in the Australian context, other measures, no t at issue in these 
proceedings, limit or prohibit advertising and promotion of tobacco products. Any assessment of 
the impact of the regulation of packaging on a reduced likelihood of confusion would need to take 
place against this factual context.  
7.1990.   We al so note that the connection between distinctiveness and confusion is far from 
straightforward for any individual trademark and situation. As is noted in a court decision cited by 
one of the complainants' experts, Professor Dinwoodie4461, "[w]hether the public  is likely to 
confuse two products is a question that is not easily answered".4462 Professor Dinwoodie further 
notes that:  
Drawing with any precision the scope of rights protected by a particular trade mark is 
a very difficult task. The metes and bounds of t he trade mark depend upon a number 
of factors. Although courts have sought to objectivize and render somewhat more 
mechanical the process, it remains the case that the outer boundaries of protection 
are blurred. This is a pervasive challenge in trade mark law.4463  
7.1991.   We further note that, as described in more detail above,4464 Article  16.1 provides 
protection against trademark infringement, i.e. situations in which unauthorized use of "similar or 
identical signs" on similar or identical products would result in a " likelihood of confusion". The 
"similarity of signs" is relevant for the comparison between a sign used by unauthorized third 
parties and the registered trademark. Only if a similar or identical sign is used on goods or 
services which fulfil the additional criterion of being "similar or identical" to those for which the 
trademark is registered, does it establish use that falls within the scope of Article  16.1. It is only 
when such use is of a nature that it "would result in a likelihood of confusion", that i nfringement is 
established. While the "similarity of signs", therefore, describes the single dimension of 
comparison between two signs, the criterion of "likelihood of confusion" is more multi -faceted, 
depending, in addition, on the "similarity of goods an d services" and on the specific nature of the 
use. The two criteria of "similarity of signs" and of "likelihood of confusion" are therefore not 
identical. In light of the above, and in the absence of further explanations from the complainants 
                                                
4460 See, e.g. WIPO IP Handbook, Full Text, (Exhibit DOM -65), paras.  2.339 -2.351.  
4461 The Dinwoodie Report , (Exhibit UKR -1), is relied upon by Honduras, the Dominican  Republic , and 
Indonesia. See Honduras's communication to the Panel of 8 July 2015; Dominican  Republi c's responses to 
Panel questions following the first substantive meeting, para. 1; and Indonesia's communication to the Panel of 
8 July 2015. Cuba has further incorporated by reference all "of the claims, arguments and evidence advanced 
in their first writ ten submissions by the Dominican  Republic , Honduras, Indonesia and Ukraine". See fn 4345 
above.  
4462 Dinwoodie Report , (Exhibit UKR -1), para. 74 fn 148 ( referring to  US Court of Appeals, Bristol -Myers 
Squibb Co. v. McNeil -P.P.C., Inc ., 973 F.2d 1033, 1043 (2d Cir. 1992)).  
4463 Dinwoodie Report , (Exhibit UKR -1), para.  74. (footnote omitted)  See also i bid. para. 76, arguing 
that "prohibiting the use of a t rade mark will thus ensure that a certain group  of third party conduct will fall 
beyond the scope of protection currently guaranteed to that mark  under the TRIPS Agreement " while 
acknowledging that "[g]iven the uncertainty regarding the precise scope of pr otection afforded to marks, it is  
impossible to determine in the abstract quite which specific third party uses will now be allowed  to encroach 
upon the mark owner's rights. ").  
4464 See paras.  7.1979 -7.1980 . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 642 - 
  in this respe ct, it is not obvious to us how these two distinct criteria would be affected individually, 
and we are not convinced that their respective occurrence in the market would necessarily be 
affected in an identical manner by the prohibition of use of certain to bacco -related trademarks.  
7.1992.   An assessment of the "likelihood of confusion" in respect of a given trademark in a given 
situation is therefore a factual assessment that will involve a consideration of the specific 
circumstances at issue, including the manner i n which the potential for confusion arises in the 
specific market at issue. Multiple factors may be involved in this assessment. Against this 
background, it is not self -evident how the operation of the TPP measures  – which apply in an 
identical manner to a ll tobacco products – may affect the likelihood of confusion arising in respect 
of use of signs similar to the trademarks concerned for identical or similar goods (including those 
that are, themselves, subject to the requirements of the TPP measures ), and how this would be 
assessed in a given instance.  
7.1993.   We are therefore not persuaded that the operation of the TPP measures  would necessarily 
have the impact that the complainants allege on the existence of a "likelihood of confusion", or 
how this would be asse ssed in relation to a specific trademark. We note, in any event, that we will 
only need to examine the causality between the TPP measures  and this claimed consequence if we 
find that such a result would indeed lead to a violation of Article  16.1. We will t herefore begin our 
analysis with the second aspect of the argument, i.e. whether reducing the instances in which a 
trademark owner would be able to prevent the unauthorized use  of similar or identical trademarks 
in the market , because such use is no longer  likely to cause a "likelihood of confusion", leads to a 
violation of Article  16.1. We address the claimants' arguments in that regard in the next three 
subsections. We will return to the factual allegation underlying the argument only if necessary on 
the basis of that analysis.  
Whether causing the instances in which "likelihood of confusion" may arise to be reduced 
constitutes a violation of Article  16.1 
 
7.1994.   As described above, the complainants argue that when a trademark no longer can 
distinguish the goods or services with which it is associated, the ability to demonstrate a 
"likelihood of confusion" caused by use of similar signs on similar goods "drastically diminishes or 
disappears"4465. With the loss of the ability to demonstrate "likelihood of confusion", the trademark 
owner, in turn, loses the ability to exercise its exclusive right to prevent the use of those similar 
signs on similar goods.4466 In essence, therefore, the complainants' argument rests on the 
assumption that trademark infringement with respect to tobacco -related trademarks affected by 
the TPP measures  will occur less frequently and with respect to fewer signs than before, and that 
this constitutes a reduction of the trademark owner's right in violation of Article  16.1, because it 
reduces the range of similar signs that the trademark owner can prevent unauthorized third 
parties from using in the course of trade.  
7.1995.   Australia argues that Article  16.1 does not require Members to ensure  that a "likelihood of 
confusion" arises in order to enable the t rademark owner to prevent uses of similar signs. It 
argues that there is no positive right to be able to establish a likelihood of confusion under 
Article  16.1.4467 Honduras and the Dominican Republic object to this characterization of their 
arguments.4468  
7.1996.   In assessing whether causing the instances in which a likelihood of confusion will arise, 
i.e. the instances in which an infringement criterion will be fulfilled, to be reduced constitutes a 
violation of Article  16.1, we first recall4469 that the first sentence o f Article  16.1 formulates an 
obligation for Members to confer upon owners of registered trademarks the exclusive right to 
prevent:  
a. all third parties not having the owner's consent;  
                                                
4465 Dominican  Republic 's first written submission, para. 302. 
4466 Dominican  Republic 's first written submission, para. 302. 
4467 Australia's first written submission, para. 315. 
4468 Honduras's second  written submission, para. 259; and Dominican  Republic 's second written 
submission, para. 64. 
4469 Paras. 7.1979  and 7.1980 . WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 643 - 
  b. from using in the course of trade identical or similar signs for goods or services which 
are identical or similar to those in respect of which the trademark is registered;  
c. where such use would result in a likelihood of confusion.  
7.1997.   On a plain reading, the first sentence of Article  16.1 obliges Members to provide the 
owner of a reg istered trademark with the "exclusive right to prevent" the occurrence of those 
activities that fall under the criteria subsequently laid out. The first criterion specifies the actors  
who are the object of the right to prevent as "all third parties not hav ing the owner's consent". The 
second criterion specifies the activity  of those actors that is the object of the right to prevent, as 
"using in the course of trade identical or similar signs for goods or services which are identical or 
similar to those in r espect of which the trademark is registered". The third criterion specifies that 
the "right to prevent" extends to the specified activity by the identified actors only "where such 
use would result in a likelihood of confusion".  
7.1998.   It is clear from the struct ure of the text that these criteria are cumulative , and thus all 
need to be fulfilled to establish the factual circumstances in which the right owner must have the 
exclusive right to "stop" or "hinder". If one of these criteria is not fulfilled, the situat ion falls 
outside the scope of the "right to prevent" required by Article  16.1 and need not constitute an 
infringement of the registered trademark under a Member 's TRIPS obligations. For instance, the 
right required under Article  16.1 does not extend to pr eventing use outside the course of trade, 
use on goods or services that are not similar, or use that would not result in a likelihood of 
confusion.  
7.1999.   In sum4470, Members comply with the obligation under Article  16.1 if their domestic 
legislation provides owner s of registered trademarks with the exclusive right to prevent the 
activities by third parties that fall under these criteria. The exercise of this private right depends, 
in practice, on an assessment of the nature of the marketplace at the relevant time t o determine 
whether the relevant factual circumstances exist, especially in assessing the likelihood of 
confusion. However, the obligation on Members to provide this right under their legal systems 
should be distinguished from the scope of activities under taken by commercial actors in their 
domestic markets. The object of the obligation in Article  16.1 is to permit right holders to protect 
themselves against certain actions by third parties in the course of trade, if a likelihood of 
confusion would arise fr om such actions. As described above, and as correctly described by 
Honduras, this right arises "whenever a third -party without authorization uses the trademark on 
similar or identical goods and, as a result of such use, a "likelihood" of confusion between different 
goods or services exists" .4471 If, as the complainants' claim, the TPP measures  result in situations 
where such 'likelihood of confusion' no longer occurs with respect to certain tobacco -related 
trademarks, then the circumstances foreseen in Article  16.1, and against which Members must 
provide protection under this provision, have not arisen.  
7.2000.   There is nothing in the text of the first sentence of Article  16.1 to suggest – as the 
complainants imply – an obligation by Members not only to provide protection where likelihood of 
confusion does arise but also to maintain market conditions that would enable the circumstances 
set out in this provision, including a  likelihood of confusion, to actually occur in any particular 
situation. Rather, Members must ensure that in the event that these circumstances do arise, a 
right to prevent such use is provided. Members can thus comply with this obligation regardless of 
whether any infringement activities actually occur in the market, or whether and when right 
owners actually choose to exercise this exclusive and private4472 right that is at their disposal. In 
other words, whether unauthorized third parties actually use simila r or identical signs on similar 
goods or services in the market, and whether such use actually does or does not result in a 
"likelihood of confusion" among consumers, is immaterial to the assessment of whether a Member 
ensures that a trademark owner has at  its disposal the right to prevent such acts by third parties, 
in compliance with Article  16.1. 
                                                
4470 As observed in para. 7.1980  above.  
4471 Honduras's first written submission, para. 159. See also Honduras's response to Panel question 
No. 168 (referring to "likelihood of confusion" as "a legal construct for determining the scope of protection to 
be afforded to trademark owners" and pointing o ut that "actual confusion" is not the test).  
4472 The preamble of the TRIPS Agreement recognizes "that intellectual property rights are private 
rights". See also para. 7.1897  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 644 - 
  7.2001.    In light of this understanding, we are not persuaded that causing the instances in which 
a "likelihood of confusion" may arise to be reduced constitutes a viol ation of the trademark owner's 
right to prevent such infringements by third parties, as mandated by the text of Article  16.1, first 
sentence. This understanding is consistent with the purpose of the exclusive rights conferred by 
Article  16.1, which is to p rotect the right owner against infringements4473 of its registered 
trademarks.  
7.2002.   To conclude otherwise would effectively broaden the scope of Article  16.1 to encompass 
an additional right to protect against reduction of distinctiveness of a trademark, or even a right to 
protect against lesser awareness of a trademark among consumers. For the reasons discussed 
below, we are not persuaded that Article  16.1 gives rise to such rights.  
Whether the TPP measures  violate Article  16.1 by impairing the distinctiveness of 
tobacco -related registered trademarks  
 
7.2003.   The Dominican Republic, Cuba, by reference, and Indonesia further argue that, because 
of the importance of distinctiveness for the strength of a trademark and its successful enforcement 
in the market4474, Article  16.1 protects a trademark owner's ability to develop and maintain4475 the 
distinctiveness of a trademark by means additional to third -party infringement actions. 
Specifically, the Dominican Republic, Cuba, by reference, and Indonesia claim that Article  16.1 
contains a general obligation for Members to refrain from adopting measures that would 
undermine or eliminate the distinctiveness of trademarks and thus impair or eliminate the 
possibility to exercise the right to exclude guaranteed under Article  16.1.4476 In sup port of this 
argument, the Dominican Republic and Indonesia reference4477 a finding of the panel in EC –
 Trademarks and Geographical Indications (Australia) :  
The function of trademarks can be understood by reference to Article  15.1 as 
distinguishing goods an d services of undertakings in the course of trade. Every 
trademark owner has a legitimate interest in preserving the distinctiveness, or 
capacity to distinguish, of its trademark so that it can perform that function. This 
includes its interest in using its  own trademark in connection with the relevant goods 
and services of its own and authorized undertakings.4478 
7.2004.   Australia responds that "the only 'rights conferred' with respect to trademark owners are 
the negative rights of exclusion provided in Article  16, wh ich protect the position of trademark 
owners in relation to other traders in the market", and adds that "these negative rights  do not 
delimit the public regulatory relationship between owners of trademarks and sovereign 
governments".4479 Australia  further arg ues that "legitimate interests" of trademark owners cannot 
be raised to the level of the "rights conferred by a trademark".4480  
7.2005.   We recall our finding above that Article  16.1 does not contain a right to use a trademark, 
and that Members comply with the obliga tion in Article  16.1, first sentence, by providing to the 
owner of a registered trademark the exclusive right to prevent trademark infringements as 
                                                
4473 Appellate Body Report, US – Section 211 Appropriations Act , para. 186. 
4474 Dominican  Republic 's first written submission, para. 311 (quoting Dinwoodie Report , (Exhibit 
UKR-1), para. 61); Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 226, quoting Dinwoodie Report , (Exhibit UKR -1), paras.  55 and 57 -58). See also Dominican  Republic 's 
first written submission, para. 310 (outlining the mechanism by which, it claims, the reducti on of 
distinctiveness through lack of use under the TPP measures  causes "the destruction of rights accorded by 
Article  16.1 of the TRIPS Agreement ").  
4475 Dominican  Republic 's response to Panel question No. 94, para. 47; Cuba's first written submission, 
para. 428 (incorporating by reference Ukraine's first written submission, para. 223); and Indonesia's first 
written submission, para. 213. 
4476 Dominican  Republic 's response to Panel question No. 94, para. 48; second written submission, 
para. 65; Cuba's secon d written submission, para. 414 (incorporating by reference the arguments made by the 
Dominican  Republic  in its second written submission with respect to the claim under Article  16.1); and 
Indonesia's second written submission, para. 91. 
4477 Dominican  Republ ic's first written submission, para. 301; and Indonesia's first written submission, 
para. 222. See also Honduras's first written submission, para. 241. 
4478 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.664.  
4479 Australia's fir st written submission, para. 228. 
4480 Australia's response to Panel question No. 99, para. 42. (footnote omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 645 - 
  described by the criteria set out therein. We further recall that compliance with this obligation is 
indepen dent of whether trademark infringements actually occur in the market, or whether the 
right owners actually choose to exercise the right to prevent available to them. Against this 
background, we find no indication in the text of Article  16.1, first sentence , of an obligation on 
Members to maintain the distinctiveness of registered trademarks, or to refrain from regulatory 
conduct that might negatively affect the distinctiveness of such trademarks through use. If it is the 
case that a trademark's distinctiven ess is diminished, as a factual matter, this could mean that 
actionable confusion is less likely to occur. If it occurs, however, Article  16.1 rights are available, 
and the obligation upon Members under that provision is to make those rights available.  
7.2006.   This assessment is not inconsistent with the finding by the panel in EC – Trademarks and 
Geographical Indications (Australia) , that the owner's legitimate interest in preserving the 
distinctiveness of its trademark includes the interest in using the trademark in connection with the 
relevant goods and services of its own or authorized undertakings. We recall that the panel made 
that finding in the context of Article  17 when examining what constitutes "legitimate interests" that 
need to be taken into account to justify a limited exception under that provision. In that regard the 
panel clarified that:  
Given that Article  17 creates an exception to the rights conferred by a trademark, the 
"legitimate interests" of the trademark owner must be something different from full 
enjoyment of those legal rights.4481  
7.2007.   The panel found further support  for its finding that "legitimate interests" are different 
from the enjoyment of legal rights from the text of Article  17:  
This is confirmed by the use of the verb "take account of", which is less than 
"protect".4482 
7.2008.   In light of the above, we understand the finding of the panel in EC – Trademarks and 
Geogr aphical Indications (Australia)  cited by the Dominican Republic and Indonesia4483 as simply 
confirming that the trademark owner's interest in preserving the distinctiveness of its trademark 
includes its interest in using its trademark in relation to the relev ant goods or services, and that 
these interests need to be taken into account – not protected  as a right – when considering 
whether an exception in a Member's domestic law to the exclusive right to prevent  conferred by 
Article  16.1 meets the criteria for p ermissible exceptions as contained in Article  17. The panel did 
not, as Indonesia claims, "observe[] [that] use of a trademark is necessary for the preservation of 
its distinctiveness".4484 In any event , such an observation would not establish a positive righ t to 
use that could in turn shape an expansive reading of Article  16.1. The panel's finding in EC –
 Trademarks and Geographical Indications (Australia) , therefore, does not support the Dominican 
Republic, Cuba, by reference, and Indonesia's argument that t he trademark owner's interest in 
preserving the distinctiveness of a registered trademark, and its interest in using the trademark to 
that end, creates a general obligation under Article  16.1 for Members to refrain from adopting 
measures that would undermi ne or eliminate the distinctiveness of trademarks.  
7.2009.   The above assessment is further consistent with the context of Article  16 as provided by 
the other provisions in Part II, Section 2 of the TRIPS  Agreement  and, in particular, the relevance 
of the distincti veness of signs in these obligations for Members. As we have elaborated in detail in 
section 7.3.2.3.1  above, Article  15 formulates Members' obligations with respect to the registration 
of trademarks.4485 However, the obligation in Article  15.1 to consider distinctive signs as 
                                                
4481 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.662.  
4482 Panel Report, EC – Trademarks and Geographical Indicati ons (Australia) , para. 7.662.  
4483 Dominican  Republic 's first written submission, para. 301; and Indonesia's first written submission, 
para. 222. 
4484 Indonesia's second written submission, para. 90. See also Dominican  Republic 's first written 
submission, para. 301; and Indonesia's first written submission, para. 222. 
4485 We recall that Article  15.1, first sentence, provides a definition of what must be capable of 
constituting a trademark by setting out the condition that signs must meet the "distinctiveness" requi rement, 
i.e. the requirement that the signs or combinations of signs at issue be capable of distinguishing the relevant 
goods or  services . By permitting Members to make registrability dependent on distinctiveness acquired by use , 
the text of Article  15.1, third sentence, points out a particular manner  in which the condition for constituting a 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 646 - 
  registrable does not imply that Members have the responsibility to permit non -distinctive signs to 
acquire or maintain dis tinctiveness, or create a "right to distinctiveness" for trademark owners. It 
is the responsibility of applicants to choose, or – if permitted4486 – to develop through use, signs 
that fulfil the condition of distinctiveness in the context of variable market c onditions,  in order to 
trigger Members' obligation to consider them for registration as trademarks under Article  15.1. We 
further recall our finding in that context that, outside the scope of express obligations set out in 
the TRIPS  Agreement , the Agreemen t does not in our view oblige Members to ensure that private 
parties are in a position to fulfil the criteria under Article  15.1, or to refrain from regulations 
otherwise not inconsistent with the covered agreements that may affect relevant market 
conditio ns.4487 
7.2010.   The same considerations apply to our assessment of Article  16.1. A registered trademark 
is likely to be distinctive in the relevant jurisdiction, as distinctiveness is a condition for registration 
under Article  15.1. The decision to register a tradema rk is generally based on a finding under 
domestic law that it was (or has become) distinctive in that jurisdiction at the time of that 
determination. As the text of Article  16.1 refers only to "owners of the registered trademark", 
rights under that provisi on become available upon registration.  It is thus clear that Article  16.1 
does not relate to the acquisition of distinctiveness through use as a prerequisite for registration. 
As concerns registered trademarks, Article  16.1 itself does not mention distinct iveness, but 
identifies "likelihood of confusion" as one of the infringement criteria. As under Article  15, a 
Member's obligation under Article  16.1 is to provide a right for the trademark owner to prevent 
situations that fulfil the infringement criteria. Article  16.1 does not make Members responsible for 
the conditions in which those infringement criteria, such as a "likelihood of confusion", can be 
fulfilled, let alone obligated to refrain from regulatory conduct that might impair a trademark 
owner's abil ity to maintain the distinctiveness of a sign in order to satisfy the "likelihood of 
confusion" criteria.  
7.2011.   The focus of the trademark owner's right conferred by Article  16.1 is on preventing use 
by third parties that results in a "likelihood of confusion" in the market. Its formulation reflects the 
purpose of Article  16, which is to enable action against actual infringements by third parties where 
the factual criteria of Article  16.1, first sentence, are fulfilled in a given market situation. 
Article  16.1 can therefore protect the source -identifying function of a registered trademark against 
specific infringing actions by third parties. It is not intended to protect that function against waning 
distinctiveness due to other reasons, such as changing market c onditions, inaction of the right 
owner, or changing consumer perception. The trademark owner's commercial interest in a market 
situation in which its registered trademark can be successfully used to stop as many signs as 
possible from being used on similar  or identical goods or services, and the corresponding interest 
in using its trademark, including for the purpose of maintaining or further strengthening its 
distinctiveness, is not a right  under Article  16.1. It is, however, recognized by the 
TRIPS  Agreem ent as a legitimate interest  that needs to be taken into account in considering the 
permissibility of domestic exceptions to the exclusive rights under Article  17. In Section 7.3.5 
below we will also consider its relevance for assessing whether the use of a trademark in the 
course of trade is unjustifiably encumbered by special requirements within the meaning of 
Article  20. 
7.2012.   We note that the distinctiv eness of registered trademarks, and thus the instances in 
which a "likelihood of confusion" with similar signs may occur in the market, may legitimately vary 
according to a variety of factors. In that regard, one of the complainants' experts, 
Professor  Dinwoodie4488, points out that:  
The scope of protection afforded a mark does not have to be static. Clearly, because it 
is anticipated that the distinctiveness of marks may vary over time as a result of 
legitimate social and market conditions, the scope of prote ction will inevitably vary. 
Likewise, a mark may lose its distinctiveness or its well -known status as a result of 
                                                                                                                                                  
trademark, namely complying with the distinctiveness criterion defined in the first sentence of Article  15.1, 
may be fulfilled. See para. 7.1886  above.  
4486 "Where signs are not inherently capable of distinguishing the relevant goods or services, Members 
may make registrability depend on distinctiveness acquired thr ough use." Article  15.1, third sentence.  
4487 See para. 7.1897  above.  
4488 For an explanation of how the complainants rely on this expert report, origina lly submitted by 
Ukraine, see fn 4461 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 647 - 
  changing marketplace understandings. The TRIPS  Agreement  should not be read to 
preclude any of these evolutions.4489 
7.2013.   Indonesia has stated that it  is not the obligation of a Member to preserve or strengthen 
the mark, but the "sole responsibility" of the trademark owner to exercise his "general market 
freedom" to strengthen and maintain the mark through use in the marketplace.4490 In our view, 
this resp onsibility also includes exercising Article  16.1 rights by taking prompt action against 
potentially infringing use of identical or similar marks for similar goods, which is the most direct 
means of defending a trademark against loss of distinctiveness agai nst competitors' rivalrous use 
of signs. The complainants also accept that Members can legitimately take a variety of regulatory 
actions that have an "incidental" or "indirect" impact on the use of a trademark, such as product 
bans or advertising bans.4491 However, the Dominican Republic, Cuba, by reference, and Indonesia 
argue that, with respect to measures specifically aimed at  regulating trademarks, Members are 
under an obligation by virtue of Article  16.1 not to impair or eliminate the right owner's ability to 
"exercise the right" to exclude by reducing the distinctiveness of trademarks.4492  
7.2014.   We recall our above finding that a reduction in the occurrence of infringement through 
reduced distinctiveness would not constitute a reduction in the right to prev ent such infringements 
required under Article  16.1. We further recall our assessment that Article  16.1 does not imply that 
Members have a general obligation not to undermine the distinctiveness of registered trademarks 
through regulatory measures. Against that background, we also find no support for a distinction in 
the TRIPS  Agreement  between regulatory measures that affect trademarks incidentally, that would 
be permitted, and those that do so directly, and would therefore be subject to a stricter test.  
7.2015.   We note in that regard that the passage from the panel report in EC – Trademarks and 
Geographical Indications (Australia)  cited by the Dominican Republic in support of such a 
distinction does not corroborate the claimed "shared view" that "the use of intell ectual property 
rights may be incidentally burdened by legitimate regulatory measures which 'lie outside the scope 
of intellectual property rights'".4493 Rather, the cited passage states that, because the 
TRIPS  Agreement  "provides for the grant of negative ri ghts to prevent certain acts" rather than 
"positive rights to exploit or use", "many measures to attain … public policy objectives lie outside 
                                                
4489 Dinwoodie Report , (Exhibit UKR -1), para.  117. Professor Dinwoodie adds that "these are  different 
propositions than the one being considered in this Report and in Australia -Plain Packaging. Here, the scope of 
certain trademark rights will contract, and well-known mark  status  be lost, not because of the operation of the 
market but because of national legislation seeking  to effect those results ." Ibid.  
4490 Indonesia's second written submission, para. 91; and response to Panel question No. 95, para. 19. 
4491 Honduras's responses to Panel question Nos. 38, 40, 95, and 172; Dominican  Republic 's respons es 
to Panel question Nos. 95, 96, 172, paras.  51, 59 and 197 -198 respectively; Cuba's first written submission, 
para. 428 (incorporating Ukraine's first written submission, para. 259); Cuba's responses to Panel question 
Nos. 95 and 172; Indonesia's respons es to Panel question Nos. 95, 172, paras.  21 and 35 -36 respectively.  
4492 The complainants use variations of this formulation: " That is the obligation that Members violate if 
through their actions or omissions they fail to ensure that trademark owners can ass ert their rights as is the 
case for Australia as a result of  the plain packaging measures."  (Honduras's second written submission, 
para. 258); "[H]owever, there is an obligation to refrain from engaging in regulatory conduct that undermines 
or eliminates the distinctiveness essential to ex ercise of the right to exclude"  (Dominican  Republic 's response 
to Panel question No. 94, para. 48 (emphasis original)) ; "However, Article  16.1 obligates Members to refrain 
from taking regulatory action that impairs the ab ility of trademark owners to exercise their right to prevent the 
use of similar or identical signs on similar or identical goods or services that are likely to result in confusion."  
(Indonesia's second written submission, para. 91); and "However, the total  prohibition on the possibility to use 
the trademark as a mark on the product to which it is to be applied and which is lawfully available eliminates 
the possibility of exercising the private rights conferred by Article  16 and necessarily reduces the level  of 
protection below the minimum guaranteed level." (Cuba's first written submission, para. 428 (incorporating 
Ukraine's first written submission, para. 259)). 
4493 Dominican  Republic 's response to Panel question No. 96, para. 59 and fn  62, referring to  EC –
 Trademarks and Geographical Indications (Australia) , para. 7.246:  
 
These principles reflect the fact that the agreement does not generally provide for the grant of 
positive rights to exploit or use certain subject matter, but rather provides for the grant  of 
negative rights to prevent certain acts.  This fundamental feature of intellectual property 
protection inherently grants Members freedom to pursue legitimate public policy objectives since 
many measures to attain those public policy objectives lie outsi de the scope of intellectual 
property rights and do not require an exception under the TRIPS Agreement.  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 648 - 
  the scope of intellectual property rights and do not require an exception under the 
TRIPS  Agreement ".4494 This confi rms our view that, in the absence of a positive right to use a 
trademark, regulatory measures that do not affect the negative right to prevent infringing uses are 
not prohibited by Article  16. Conversely, measures that do constrain the right to prevent pro vided 
in Article  16.1 do violate  the Agreement – whether they do so incidentally or directly. However, 
the negative Article  16.1 right to prevent infringing uses does not extend to an entitlement to 
maintain or extend the distinctiveness of an individual t rademark, which inevitably fluctuates 
according to market conditions and the impact of regulatory measures on those market conditions.  
7.2016.   This view is further confirmed by the context of Article  16.1. Article  19 expressly 
contemplates government measures tha t can constitute an obstacle to trademark use4495, and 
Article  20 permits certain encumbrances on trademark use by special requirements.4496 Neither of 
these provisions distinguishes between measures that affect trademark use incidentally or directly. 
In light o f the above, we disagree with the claim that Article  16.1 contains a general obligation on 
Members to refrain from regulatory measures that can negatively affect distinctiveness of 
individual registered trademarks, whether such measures affect trademarks i ncidentally or directly.  
7.2017.   In light of our earlier findings we do not agree with the Dominican Republic that Australia 
is "evad[ing] [its] obligation" under Article  16.1.4497 
7.2018.   Since the TPP measures  have not been found to be in violation of Article  16.1, the 
question raised by Honduras and Indonesia4498 of whether they are permissible as "limited 
exceptions" under Article  17 does not arise.  
Whether Article  16.1 obliges Members to provide a minimum opportunity to use trademarks  
 
7.2019.   Cuba, by reference, further argues that, since maintaining distinctiveness  is the rationale 
for the minimum rights conferred by Article  16,4499 the principle of effective treaty interpretation 
requires that Members must provide a minimum opportunity to use trademarks as otherwise the 
minimum rights required by Article  16.1 are not guaranteed.4500 It argues that "the principle  of 
                                                
4494 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.246.  
4495 Article  19.1 provides:  
 
If use is required to maintain a regis tration, the registration may be cancelled only after an 
uninterrupted period of at least three years of non -use, unless valid reasons based on the 
existence of obstacles to such use are shown by the trademark owner. Circumstances arising 
independently of the will of the owner of the trademark which constitute an obstacle to the use of 
the trademark, such as import restrictions on or other government requirements for goods or 
services protected by the trademark, shall be recognized as valid reasons for non -use. 
 
4496 Article  20, first sentence, provides:  
 
The use of a trademark in the course of trade shall not be unjustifiably encumbered by special 
requirements, such as use with another trademark, use in a special form or use in a manner 
detrimental to its cap ability to distinguish the goods or services of one undertaking from those of 
other undertakings.  
 
4497 Dominican  Republic 's second written submission, para. 71 (referring to  Panel Report, Mexico  –
 Telecoms , paras.  7.241 -7.2444. (The P anel understands that, w hile citing the Panel Report in Mexico  –
 Telecoms, the Dominican  Republic  was referring to paras.  7.241 -7.244) ). 
4498 Honduras's first written submission, para. 252; and Indonesia's second written submission, 
para. 72. 
4499 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 223). (emphasis added)  
4500 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  259 and 274). While only Cuba expressly invokes the principle o f effective treaty interpretation, other 
complainants make similar arguments when highlighting the importance of use for the distinctiveness of 
registered trademarks. Honduras's first written submission, para. 239 ( "Moreover, […] the loss of 
distinctivenes s (inter alia , because of non -use of the original tobacco -related trademark) will eventually 
diminish the scope of protection and turn the original trademark into a mere paper right, without any 
commercial value.");  Dominican  Republic 's first written submi ssion, para. 303 ("By severely restricting the use 
of registered trademarks, the [T]PP measures create a class of trademarks in Australia that, over time, is 
emptied of all substantive rights, including the rights guaranteed by Article  16.1 to prevent othe rs from using 
similar signs on similar goods or services. Rather, these registered trademarks are simply empty shells 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 649 - 
  effective treaty int erpretation (' effet utile' ) supports the conclusion that the rights conferred are 
not respected when the very substance of the right (i.e. distinguishing products) is impaired, such 
as when normal usage is no longer possible".4501 
7.2020.   Australia argues that "the ' very substance' of the right in Article  16.1 is to provide that 
trademark owners can prevent the unauthorised use in the course of trade of similar or identical 
signs where such use would result in a likelihood of confusion"4502 and that the TPP measures  
"operate[] to ensure that the protections accorded under the Trade Marks Act  to owners of 
registered trademarks, including the right to prevent infringement, are completely preserved".4503 
It adds that, " even if some trademark owners may, as a matter of fact , exercise their rights of 
exclusion more often than other trademark owners, this does not mean that the legal effect of 
Article  16 of the TRIPS  Agreement  is rendered 'redundant'. The fact that there may be fewer 
opportunities for confusion as a result of the t obacco plain packaging measure does not render the 
rights under Article  16 inutile ."4504 
7.2021.   We note that Cuba does not offer, or refer to, more details as to what in its 
understanding is required by the principle of effective treaty interpretation. Australia ref ers to the 
Appellate Body Report in Canada  – Dairy .4505  
7.2022.   The principle of effective treaty interpretation or effet utile, which has been applied in 
WTO dispute settlement rulings in a number of cases, guides the treaty interpreter to give a legally 
operative  meaning to all applicable provisions harmoniously4506, in a manner that does not reduce 
whole clauses or paragraphs of a treaty to redundancy or inutility.4507 
7.2023.   In assessing this argument, we first note that the provisions of the TRIPS  Agreement  set 
out minimum s tandards4508 for the protection of trademarks and other  IP right s, to which Members 
are obliged to give effect. Article  16 forms part of the seven articles contained in Section 2 of Part 
II of the TRIPS  Agreement  entitled "Trademarks", which – together with the relevant provisions of 
the Paris Convention  (1967) , as incorporated by Article  2.1 – govern Members obligations 
concerning trademarks.  
7.2024.   As set out above, Article  16.1 contains an obligation for Members to p rovide the owners 
of registered trademarks with the exclusive right to prevent use of identical or similar signs on 
identical or similar goods or services by unauthorized third parties, where such use would result in 
a likelihood of confusion.4509 We have fur ther established that, while registered trademarks are 
likely to be distinctive – since the trademark registrar would normally have deemed that they are 
either inherently distinctive or have acquired distinctiveness through use in the relevant 
jurisdiction  at the time of registration4510 – Article  16.1 itself does not refer to distinctiveness, but 
merely sets out the factual criteria that constitute trademark infringement, which the trademark 
owner must have the right to prevent.4511 We have further noted that Me mbers compliance with 
                                                                                                                                                  
denuded of the functional attributes of trademarks."); and Indonesia's first written submission, para. 204 ("In 
the absence of affirmative  use of a trademark by its owner (or parties that have the owner's consent), the right 
to prevent third -party use that would result in a likelihood of confusion is meaningless.").  
4501 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 259).  
4502 Australia's response to Panel question No. 37, para. 101. 
4503 Australia's first written submission, para. 318. (footnote omitted)  
4504 Australia's response to Panel question No. 37, para. 103. (emphasis original)  
4505 Australia's response to Panel question No. 37, para. 99. 
4506 Appellate Body Report, Argentina  – Footwear (EC) , para. 81. 
4507 Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, 3,  p. 21. See also Appellate Body Report, 
Canada  – Dairy , para. 133. 
4508 Article 1.1, first and second sentence, provides that "Members shall give effect to the provisions of 
this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection 
than is required by this Agreement, provided that suc h protection does not contravene the provisions of this 
Agreement."  
4509 See para. 7.1978  above.  
4510 See section 7.3.2.3.2.1  relating the claims under Article  15.4. 
4511 See para. 7.2010  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 650 - 
  this obligation is independent of whether trademark infringement actually occurs in the market, or 
whether or when the right owners actually choose to exercise this right available to them.4512  
7.2025.   While the TRIPS  Agreement  recognizes the r ight owner's legitimate interest in using the 
registered trademark4513 we note that the legal operation of the "right to prevent" in Article  16.1 
does not per se require use of the registered trademark itself. Article  16.1, second sentence, 
facilitates the ap plication of this right – independently of use to buttress the distinctiveness of the 
registered mark – by establishing a presumption of likelihood of confusion in cases of so -called 
double identity, i.e. the use of identical signs on identical goods or se rvices. Other TRIPS 
provisions permit Members to require use of the registered trademark as a condition of 
maintaining registration4514, but this is not an obligation, and the requirement is conditioned on 
permitting a certain period of non -use before cancell ation.4515 This means that, even where 
Members have chosen to require use to maintain trademark registration, the rights under 
Article  16.1 must be available in the absence of use for a certain period of time. Article  19.1 
further recognizes that Members cann ot cancel trademark registrations on the grounds of non -use 
beyond this period if there are "valid reasons based on the existence of obstacles to such use".4516  
7.2026.   The above assessment indicates, in our view, that while use of the registered trademark 
may be th e typical scenario anticipated by the TRIPS provisions, an absence of such use does not 
render the right to exclude provided by Article  16.1 "legally inoperative" or redundant. As 
described above, the purpose of Article  16.1 is to provide the essential mea ns for owners of 
registered – and thus already distinctive – trademarks to prevent infringement by unauthorized 
third parties.4517 While preventing such infringements may also help defend the distinctiveness of 
the registered trademark, we do not agree with C uba's claim that the right provided in Article  16.1 
has as its "very substance" a general responsibility to maintain distinctiveness of the 
trademark.4518 Considering that trademark distinctiveness varies according to a variety of market 
factors4519 – including those beyond the control of Members' governments or trademark owners – 
it is not plausible to assume that Members would have taken on such a general responsibility.  
7.2027.   Other provisions in Section 2 of Part II address the use of registered trademarks. Among 
those is Article  19, which expressly contemplates that obstacles to the use of trademarks may 
arise independently of the will of the trademark owner, including on the basis of government 
requirements. Article  20 prohibits special requirements that unjustifia bly encumber use of a 
trademark in the course of trade, which – inversely – permits the encumbrance of use of a 
trademark in certain circumstances.4520 We further note that the trademark owners' interest in 
using its trademark in relation to the relevant good s or services has been recognised as part of its 
legitimate interest in preserving the distinctiveness of its trademark in the context of Article  17, 
and which thus needs to be taken into account when assessing the legitimacy of exceptions to the 
exclusive rights provided by Article  16.1.4521 
7.2028.   In adopting the trademark provisions in Section 2 of Part II, Members have therefore 
committed to providing a m inimum right to prevent third -party infringement to owners of signs 
that comply with the distinctiveness requirement of Article  15.1, and that have not been refused 
registration by Members on any of the various grounds available to them under Article  15 an d the 
relevant provisions incorporated from the Paris Convention  (1967) .4522 Members have not taken on 
                                                
4512 See para. 7.2005  above.  
4513 See para. 7.2011  above.  
4514 TRIPS Agreement, Article  19. 
4515 TRIPS Agreement, Article  19. 
4516 Such "valid reasons for non -use" are deemed to include "[c]ircumstances arising independently of 
the will of the owner of the trademark which constitute an obstacle to the use of the trademark, such as import 
restrictions on or other government requirements for goods or services prot ected by the trademark". 
Article  19.1, second sentence.  
4517 Appellate Body Report, US – Section 211 Appropriations Act , para. 186. 
4518 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 259).  
4519 See para. 7.2012  above.  
4520 See section 7.3.5 below on Article 20. 
4521 See para. 7.2008  above.  
4522 For a detailed assessment of Members ' obligations with respect to trademark registration contained 
in the prov isions of the TRIPS Agreement and those incorporated f rom the Paris Convention  (1967), see 
section 7.3.2.3.1.2  on the claims under Article  15.4. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 651 - 
  a general responsibility for safeguarding the distinctiveness of signs, either before or after such 
signs have been registered as trademarks. The importance  of use of a trademark is recognized in 
the TRIPS  Agreement  by conditioning measures that encumber such use in the context of 
Article  20, and by recognizing the right owner's interest in using the trademark to maintain 
distinctiveness as a factor in determ ining permissible exceptions in the context of Article  17. At the 
same time, it is clear that obstacles to trademark use can and do legitimately exist, and that 
Members retain the authority to encumber the use of trademarks under certain conditions.  
7.2029.   Adopti ng an interpretation of Article  16 that would require Members to safeguard a 
minimum opportunity to use the registered trademark is therefore not only without basis in the 
text of the provision itself, but would also create disharmony with those provisions  of the 
trademark section that (a) expressly provide for conditions under which use can be encumbered 
(Article  20); and (b) address the consequences of obstacles to use ( Article  19). These provisions 
clearly foresee potential regulatory prevention of use. Further, to read Article  16 as imposing upon 
Members limitations on regulations regarding trademark use could potentially render Article  20 
itself, which addresses this point directly, inutile . 
7.2030.   In light of the above, we find that the obligation to give a l egally operative meaning to all 
the provisions in Section 2 of Part II of the TRIPS  Agreement  harmoniously, without reducing any 
of them to redundancy, as required by the principle of effective treaty interpretation, does not 
support an interpretation of t he minimum rights in Article  16 as requiring Members to provide a 
minimum opportunity to use a registered trademark.  
Conclusion  
 
7.2031.   Recalling our findings in paras.  7.2000 , 7.2010 , and 7.2030  above, we therefore conclude 
that the possibility of a reduced occurrence of a "likelihood of confusion" in the market does not, in 
itself, constitute a violation of Article  16.1, because Mem bers' compliance with the obligation to 
provide the right to prevent trademark infringements under Article  16.1 is independent of whether 
such infringements actually occur in the market. Article  16.1 does not require Members to refrain 
from regulatory meas ures that may affect the ability to maintain distinctiveness of individual 
trademarks or to provide a "minimum opportunity" to use a trademark to protect such 
distinctiveness.  
7.2032.   In light of these findings, and as we have indicated above4523, we see no need to e xamine 
further the complainants' factual allegation that the TPP measures ' prohibition on the use of 
certain tobacco -related trademarks will in fact reduce the distinctiveness of such trademarks, and 
lead to a situation where a "likelihood of confusion" wi th respect to these trademarks is less likely 
to arise in the market.  
7.3.3.4.3   Whether the TPP measures  violate Article  16 because they make 
non-inherently distinctive signs subject to cancellation procedures  
7.2033.   Cuba, by reference, argues that the prohibition on use o f non -word signs in the 
TPP measures  causes the loss of distinctiveness of registered trademarks that consist of 
non-inherently distinctive signs that had previously acquired distinctiveness by use. Cuba submits 
that neither Section 28 of the TPP Act nor the TMA Act resolves this matter4524, and that there " is 
no basis for certain non -inherently distinctive marks like colors or certain shapes to obtain or 
maintain trademark status, and they will automatically be 'genericized'".4525 Because such 
trademarks can be invalidated for lack of distinctiveness, and thus owners of trademarks that were 
previously protected and used could lose the minimum level of protection guaranteed by 
Article  16, the TPP measures , according to Cuba, violate Article  16.1.4526  
                                                
4523 See para. 7.1993  above.  
4524 Cuba's first written  submission, para. 428 (incorporating Ukraine's first written submission, 
paras.  289-291).  
4525 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 288).  
4526 Cuba's first written submission, para. 428 (incorporati ng Ukraine's first written submission, 
paras.  285 and 292-293). See para. 7.1940  above for a more detailed summary of Cuba's arguments.  The 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 652 - 
  7.2034.   Australia responds that S ection 28 of the TPP Act provides that the operation of the 
TPP Act does not prevent the registration of a trademark or the maintenance of registration, and 
that b y ensuring that trademarks can be registered and remain on the regis ter, the TPP measures  
do not have any impact on the ability of owners of registered trademarks to exercise the rights 
granted under the TM Act to seek relief in the event that a third party uses an identical or similar 
sign in the course of trade where suc h use creates a likelihood of confusion.4527  
7.2035.   In assessing this argument, we note that Section 28(3) of the TPP Act sets forth 
provisions regarding the revocation of registered trademarks  under Section 84A(1) of the TM Act. 
Under these procedures, the Trade M arks Registrar may revoke the registration of a trademark if 
the trademark should not have been registered, taking account of all the circumstances that 
existed when the trademark became registered.4528 Australia explains that Section 28(3) of the 
TPP Act ensures that the operation of the TPP Act or "the circumstance that a person is prevented, 
by or under this Act, from using a trade mark on or in relation to the retail packaging of tobacco 
products, or on tobacco products"4529 does not mean that it is "reasonab le or appropriate" to 
revoke the registration of the trademark.4530  
7.2036.   We further note that Section 28(4) of the TPP Act contains provisions regarding the 
trademark owners' ability to oppose an application for removal of its registered trademark on the 
grounds of non -use under Section 100(1)(c) of the TM Act. Australia explains that Section 28(4) 
ensures that " if there is an application to remove a trademark from the register on the basis of 
non-use, an opponent to that application is taken to have rebutted the application if the opponent 
establishes that the registered owner would have used the trademark, but for the operation of the 
TPP Act".4531  
7.2037.   While the above described operation of Section 28 o f the TPP Act, in the absence of a 
specific challenge from the complainants, can be taken to ensure that the operation of the 
TPP measures  does not lead to the cancellation of an existing trademark registration under these 
two procedures, these arguments, in our view, do not address the claim raised by Cuba. Cuba's 
claim does not concern revocation of registrations due to reasons already present at the time of 
registration , covered by revocation under Section 84A of the TM Act, or applications for removal o f 
a registration on the ground of non -use, to which the procedures in Sections 100(1)(c) of the 
TM Act are relevant. Rather, Cuba's claim relates to cancellation procedures aiming to cancel 
registered trademarks because they have lost distinctiveness throu gh the alleged operation of the 
TPP measures . 
7.2038.   We recall our findings above that Article  16.1 does not imply a trademark owner's right to 
maintain or develop distinctiveness of a trademark or constitute a general obligation for Members 
to refrain from takin g regulatory measures that may negatively affect the distinctiveness of 
trademarks. With regard to the elements of this specific claim by Cuba, we further note that 
Article  15.5 of the TRIPS  Agreement  expressly provides that Members "shall provide a reason able 
opportunity for petitions to cancel the registration".4532  
                                                                                                                                                  
complain ants' arguments on whether the TPP measures violate Article 16.1 because the prohibition on use of 
certain trademarks reduces their distinctiveness and thus the trademark owner's ability to demonstrate a 
likelihood of confusion are addressed in section 7.3.3.4.2  above.  
4527 See para. 7.1960  above for a more detailed summary of Australia's arguments.  
4528 Section 84A(1) of the TM Act, (Exhibit JE -6), provides:  
 
The Registrar may revoke the registration of a trade mark if he or she is satisfied that: the trade 
mark should not have been registere d, taking account of all the circumstances that existed when 
the trade mark became registered (whether or not the Registrar knew then of their existence); 
and it is reasonable to revoke the registration, taking account of all the circumstances.  (emphasis 
added)  
 
4529 TPP Act, (Exhibits AUS -1, JE-1), Section 28(3)(b).  
4530 Australia's first written submission, para. 269. 
4531 Australia's first written submission, para. 270. 
4532 Article  15.5 provides: "Members shall publish each trademark either before it is registered or 
promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. 
In addition, Members may afford an opportunity for the registration of a trademark to be opposed."  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 653 - 
  7.2039.   Cuba has not provided, or referred to, further arguments or details on how, in its view, 
registered trademarks that may have lost distinctiveness through the operation of the 
TPP measures  it alleges, might be removed from the register under Australian trademark law. We 
also note that beyond the arguments relating to the claims already disposed of in the previous 
section, Cuba has also not provided any specific arguments why cancellation – a proce dure that 
must be available under Article  15.5 – of a trademark that may have lost distinctiveness through 
the application of a measure otherwise not prohibited by the TRIPS  Agreement  would constitute a 
violation of Article  16.1. 
7.2040.    In light of our interpret ation of Article  16.1 in the previous sections, we consider that 
Cuba has not explained how the cancellation of a registered trademark that consists of 
non-inherently distinctive non -word signs and that may have lost distinctiveness due to the 
application of the TPP measures , constitutes a violation of Article  16.1.  
7.3.3.4.4   Whether the TPP measures  erode a trademark owner's right to prevent use 
that is likely to result in confusion by requiring the use of "deceptively similar" marks on 
identical products  
7.2041.   Indonesia, and Cuba (by reference), argue that, by standardizing the appearance of 
tobacco packaging and products, the TPP measures  require the use of deceptively "similar marks" 
on "identical products" while at the same time depriving owners of a remedy, thereby eroding a 
trademark owner's right under Article  16.1 to prevent use that is likely to result in confusion.4533 
7.2042.   Indonesia argues that non -word marks like colours, designs and images are essential for 
the establishment and maintenance of a brand and enh ance the distinctiveness of a brand's 
trademark, especially when all products are similar or identical, as is the case with cigarettes.4534 
Therefore, Indonesia submits, word marks themselves are, in many cases, insufficient to 
differentiate one brand from an other in the absence of any distinguishing typeface, symbols or 
colors.4535 Since under the TPP measures  all word marks must be presented in a prescribed format 
(typeface, size, colour, etc.), Indonesia argues that owners of registered trademarks relating to 
tobacco products are legally required by the TPP measures  to present their trademarks in a 
manner that is "deceptively similar" to those of other tobacco brands.4536 It adds that,  because 
Australia's TPP measures  are mandatory, Australia has left trademark ow ners with no remedy and 
has thus deprived trademark owners of the right to exclude uses of similar marks where such uses 
are likely to cause confusion in direct conflict with its obligation under Article  16.1 of the 
TRIPS  Agreement .4537 
7.2043.   Indonesia concludes th at "Australia has violated Article  16.1 of the TRIPS  Agreement  by 
undermining the ability of a trademark owner to prevent a 'likelihood of confusion' with nearly 
identical trademarks. If marks on identical tobacco products are required to appear in a manne r 
that is virtually identical, as is the case under [the TPP measures ], it will be significantly more 
difficult for trademark owners to exercise their rights under Australian law to prevent use that is 
likely to cause confusion – a right Australia must guarantee to trademark owners under 
Article  16.1."4538 
7.2044.   Australia responds that if the brand and variant names at issue have all been registered, 
the Registrar has determined that these word trademarks are in fact capable of distinguishing the 
goods of the tradem ark applicant from the goods of other undertakings. It submits further that the 
negative rights of exclusion in accordance with Article  16.1 remain available under the 
TPP measures , and that the owner of a registered trademark could therefore continue to p revent a 
                                                
4533 See Cuba's first written submission,  para. 428 (incorporating arguments with respect to Article  16.1 
made in Indonesia's first written submission); and Cuba's second written submission, para. 414 (incorporating 
arguments with respect to Article  16.1 made in Indonesia's second written submiss ion). 
4534 Indonesia's first written submission, para. 216. Indonesia also notes that "studies indicate that 
'many smokers are unable to distinguish between similar cigarettes' in the absence of trademarks".  
4535 Indonesia's first written submission, para. 217. 
4536 Indonesia's first written submission, paras.  214-215. 
4537 See Indonesia's second written submission, para. 93. See also paras.  7.1942 -7.1945  above for a 
more detailed summary of Indonesia's arguments under this claim.  
4538 Indonesia's first written submission, para. 219. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 654 - 
  competitor from using a word on a tobacco product that was identical or similar to an existing 
registered trademark such as to create a "likelihood of confusion".4539 
7.2045.   Indonesia replies that the mere fact that a trademark is registered does not mean that it 
can never be used in a manner that might result in a likelihood of confusion with another 
registered trademark, and thus does not preclude the possibility of later revocation based on 
confu sing use of the trademark.4540  
7.2046.   We recall that the TPP measures  prohibit the use of trademarks and other marks on 
tobacco packaging and tobacco products, with the exception of a brand, business, or variant name, 
which may appear in a prescribed location in a specified size, font, and colour.4541 Design features 
of trademarks and other signs such as colours, graphic content, fanciful fonts, and symbols are 
prohibited. Hence virtually all aspects of the presentation and appearance of tobacco products and 
packaging are determined by the provisions of the TPP Act and TPP Regulations . The area of 
influence of tobacco companies on the appearance of the tobacco packaging and products is 
limited to choosing the brand and variant name. The TPP measures  apply equally to own ers of 
word trademarks as well as to companies using potentially similar words to identify their products. 
The TPP measures  do not require the brand name and variant which tobacco companies are 
permitted to choose for appearance on their tobacco packaging to be registered trademarks. The 
TPP measures  therefore do not require competitors to use a particular trademark or require or 
determine that the brand and variant name that one tobacco company chooses must be similar – 
or deceptively similar – to those of  other tobacco companies. In light of these observations we do 
not agree with Indonesia's characterization that the TPP measures  "require[]  the use of 
deceptively similar marks on identical products".4542  
7.2047.   We further note that while the TPP measures  create a situation where the overall 
appearance of tobacco packaging for tobacco products of the same type (e.g. cigarette packs) will 
be virtually identical, except for the brand name and variant, this prescribed similarity of 
appearance of competing products in t he market is not the standard on which a "likelihood of 
confusion" is assessed in the context of trademark infringement under Article  16.1. Rather, 
Article  16.1 requires that right owners must be able to prevent unauthorized use of signs that are 
similar o r identical to their registered trademarks, where such use creates a "likelihood of 
confusion". The assessment under Article  16.1 of whether the offending brand name or variant is 
similar or identical to a word trademark as it is registered , and causes a l ikelihood of confusion, is 
not in principle affected by the introduction of a requirement that the registered word trademark 
itself can now only be used in the same type face and on identically designed packaging as the 
offending sign. In other words, the fact that all brand name and variant words on tobacco products 
have to be used in the same typeface and on identical products does not in itself lead to the 
conclusion that the words themselves are similar, and that there is a likelihood of confusion 
betwe en them. Against that background, we are not persuaded by Indonesia's assertions that the 
TPP measures  would necessarily lead to a situation where there is a likelihood of confusion 
between "nearly identical" trademarks in violation of Article  16.1.4543 
7.2048.   This assessment is not changed by Indonesia's argument that word marks alone, in the 
absence of distinguishing typefaces, symbols, or colors,  are insufficient to differentiate between 
otherwise identical tobacco products, and that the TPP measures , in standardi zing their 
appearance, undermine the right of a trademark owner, under Article  16.1, to prevent use that is 
likely to cause confusion.4544 We note in this regard that the question of whether a word by itself is 
capable of distinguishing the tobacco products o f one undertaking from those of other 
undertakings is determinative under Article  15.1 of whether this word can by itself be eligible for 
registration as a trademark for tobacco products and thus enjoy the protection required under 
Article  16.1.4545 If words without additional design features are not distinctive for tobacco 
products, as Indonesia seems to argue, then these signs are not eligible to become registered 
                                                
4539 See para. 7.1959  above for a more detailed summary of Australia's arguments in this regard.  
4540 Indonesia's second written submission, para. 96. 
4541 See sections 2.1.2.3.3 and 2.1.2.4 above.  
4542 Indonesia's first written submission, para. 213. 
4543 See Indonesia's first written submission, para. 219. 
4544 See Indonesia's first written submission, paras.  216-217 and 219.  
4545 For a detailed assessment of the operat ion of the distinctiveness requirement see section 
7.3.2.3.1.1  above relating to the claims under Article  15.4. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 655 - 
  trademarks, and Members are therefore under no obligation to provide their owners with the righ t 
to prevent unauthorized use of similar or identical signs that causes a likelihood of confusion.  
7.2049.   We note finally that, while the TPP measures  introduce mandatory design features with 
respect to the appearance of tobacco products and packaging, the right  to prevent trademark 
infringements remains available to owners of registered tobacco trademarks in Australia. This 
means that the use as brand name or variant of words that are identical or similar to an existing 
registered trademark in a manner that crea tes a likelihood of confusion can continue to be 
prevented by the trademark owner. We therefore disagree that the mandatory nature of the 
TPP measures  has left trademark owners " with no remedy"4546 and has thus deprived trademark 
owners of the right to prevent uses of similar marks where such use would result in a likelihood of 
confusion. Indonesia does not explain how its reference to the possibility of trademark revocation 
under the TM Act, which it has raised in response to Australia's arguments, is relevant to this 
assessment.  
7.2050.   Finally, we recall our observation above4547 that, in order to demonstrate that the 
TPP measures  violate Australia's obligation under Article  16.1, the complainants would have  to 
demonstrate that, under Australian national law, the trademark owner does not have the right to 
prevent third -party activities that meet the conditions set out in that provision. In light of the 
above observations, we consider that Indonesia, and Cuba,  by reference, have not made a prima 
facie case that the TPP measures  erode a trademark owner's right under Article  16.1 by requiring 
the use of deceptively similar marks on identical products and at the same time depriving owners 
of the remedy to prevent uses of similar signs that create a "likelihood of confusion".  
7.3.3.4.5   Overall conclusion  
7.2051.   In light of the above, including our findings in paras.  7.2031 , 7.2040  and 7.2050 , we 
conclude that the c omplainants have not demonstrated that the TPP measures  are inconsistent 
with Australia's obligations under Article  16.1 of the TRIPS  Agreement . 
7.3.4   Article  16.3 of the TRIPS  Agreement  
7.3.4.1   Introduction  
7.2052.   We will now turn to the claims by Cuba and Indonesia under paragraph 3 of Article  16 of 
the TRIPS  Agreement , entitled "Rights Conferred". It reads as follows:  
Article  6bis of the Paris Convention  (1967)  shall apply, mutatis  mutandis , to goods or 
services w hich are not similar to those in respect of which a trademark is registered, 
provided that use of that trademark in relation to those goods or services would 
indicate a connection between those goods or services and the owner of the registered 
trademark an d provided that the interests of the owner of the registered trademark 
are likely to be damaged by such use.  
7.2053.   Article  6bis of the Paris Convention  (1967)  reads as follows:  
(1) The countries of the Union undertake, ex officio if their legislation so permits,  or at 
the request of an interested party, to refuse or to cancel the registration, and to 
prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a 
translation, liable to create confusion, of a mark considered by the competent 
authority of the country of registration or use to be well known in that country as 
being already the mark of a person entitled to the benefits of this Convention and 
used for identical or similar goods. These provisions shall also apply when the 
essential  part of the mark constitutes a reproduction of any such well -known mark or 
an imitation liable to create confusion therewith.  
                                                
4546 Indonesia's second written submiss ion, para. 93. See also ibid. para. 101. 
4547 See para. 7.1980  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 656 - 
  (2) A period of at least five years from the date of registration shall be allowed for 
requesting the cancellation of such a mar k. The countries of the Union may provide for 
a period within which the prohibition of use must be requested.  
(3) No time limit shall be fixed for requesting the cancellation or the prohibition of the 
use of marks registered or used in bad faith.  
7.2054.   Cuba an d Indonesia claim that the TPP measures  violate Article  16.3 because they 
prevent existing well -known tobacco trademarks from maintaining their well -known trademark 
status and because they prevent other registered tobacco trademarks from attaining well -known 
trademark status through use.  
7.2055.   Australia responds that it is not obligated under Article  16.3 to grant a right to a 
trademark owner to use its trademark so that it may maintain or acquire well -known status and 
asks the Panel to reject these claims in th eir entirety.  
7.3.4.2   Main arguments of the parties  
7.2056.   Cuba incorporates, by reference, the arguments in respect of Article  16.3 made by 
Indonesia, Ukraine, and those made by the Dominican Republic as a third party.4548  
7.2057.   Cuba argues that the TPP measures  violate Article 16.3 in two independent, but related, 
manners. First, the measures remove the ability of tobacco -related trademarks that enjoyed 
well -known  status prior to their imposition to maintain that status and continue to enjoy the rights 
that must be accorded by  Australia pursuant to Article  16.3. Second , the TPP measures  remove 
the ability of tra demarks to acquire the status of a well -known mark, such that they simply cannot 
be accorded the protections under Article  16.3.4549 
7.2058.   Cuba argues that "use of a trademark is critically important in order to acquire  and 
maintain  the status of a well -known trademark."4550 In support, it cites4551 the Joint 
Recommendation Concerning Provisions on the Protection of Well -Known Marks  adopted by the 
WIPO General Assembly and the Paris Union Assembly in 1999, which provide s that in determining 
whether a mark is a well -known mark :  
[T]he competent authority shall consider information submitted to it with respect to 
factors from which it may be inferred that the mark is, or is not, well known, 
including, but not limited to, information concerning the following … (2) the duration, 
extent and geographical area of any use of the mark ; (3) the duration, extent and 
geographical area of any promotion of the mar k, including advertising or publicity and 
the presentation, at fairs or exhibitions, of the goods and/or services to which the 
mark applies; (4) the duration and geographical area of any registrations, and/or any 
applications for registration, of the mark,  to the extent that they reflect use or 
recognition of the mark .4552 
7.2059.   Therefore, it argues, the ability of a registered trademark to be "well -known", and 
thereby benefit from the rights that must be accorded pursuant to Article  16.3 of the TRIPS 
Agreement , is dependent on the use of that trademark. Absence of use can prevent a registered 
                                                
4548 See fn 4054 above. Since Indonesia's arguments are summarized below under its own claim, we 
only summarize here the arguments of the Dominican  Republic  and Ukraine incorporated by reference by 
Cuba.  See also Dominican Republic's first written submission, para. 316 and second written submission, para. 
74. 
4549 Cuba's first written submission, para.  428 (incorporating Dominican  Republic 's first written 
submission, para. 315). 
4550 Cuba's first written submission,  para. 428 (incorporating Dominican  Republic 's first written 
submission, para. 331 (emphasis original) ). See also ibid. (incorporating Ukraine's first written submission, 
para. 305).  
4551 Cuba's first written submission, para. 428 (incorporating Dominican  Republic's first written 
submission, para. 325). See also ibid.(incorporating Ukraine's first written submission, para. 305).  
4552 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 305, quoting WIPO Joint Recomme ndation, (Exhibits DOM -78, IDN -76), Article  2 (emphasis added by 
Ukraine) ). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 657 - 
  trademark that would have otherwise become "well -known" from achieving that status, and lack of 
use can result in a well -known mark losing its well -known status.4553 It submi ts that Australia's 
legislation has made it impossible for trademarks on tobacco products to satisfy the conditions 
necessary to acquire or maintain protection as well -known trademarks.4554 
7.2060.   Cuba explains, by reference, that with respect to the claimed loss of  rights for existing 
well-known tobacco marks, the mechanism works in the following manner:  
(1) Lack of use  of the well -known tobacco mark, or use in a special format , leads to a 
decrease in the knowledge of the trademark in the relevant sector of the public, within 
the meaning of Article  16.2 of the TRIPS  Agreement  and Section 120(4) of the 
Trade  Marks Act 1995 ; 
 
(2) With reduced knowledge  of the mark, the mark, over time, loses its status  as a 
"well-known" mark under Australian law; and  
 
(3) With the loss of "well kn own" status  necessarily comes the loss of the protection  that 
must be accorded that status, pursuant to Article  16.3 of the TRIPS  Agreement , and 
that had previously been accorded pursuant to Section 120(3) of the Trade Marks Act 
1995.4555  
 
7.2061.   It argues further that the owner of a well -known trademark will no longer be able to 
demonstrate that the use of a similar sign on dissimilar goods suggests a "connection" and affects 
his "interests" as required by Article  16.3, if the public no longer sees the well -known sign on the 
relevant goods and thus cannot make the connection with the well -known sign.4556 Similarly, the 
trademark owner's interest in protecting the reputation of the mark will be impossible to 
demonstrate if the signs cannot be used and its reputation be comes extinct.4557 
7.2062.   Under Article  16.3 of the TRIPS  Agreement , Cuba submits, WTO Members committed to 
protect well -known marks from "dilution" which protects against "gradual whittling away" of the 
identity of the mark.4558 Members have a positive obligation unde r Article  16.3 of the 
TRIPS  Agreement  to provide effective protection to trademarks in general and well -known marks 
in particular.4559  
7.2063.   Cuba elaborates, by reference, that with respect to the acquisition of the status of 
well-known mark, the mechanism works i n the following manner:  
(1) Lack of use  of the tobacco mark, or use in a special format , prevents knowledge of the 
trademark in the relevant sector of the public, within the meaning of Article  16.2 of the 
TRIPS  Agreement  and Section 120(4) of the Trade Marks Act 1995; 
 
                                                
4553 Cuba's first written submission, para. 428 (incorporating Dominican  Republic 's first written 
submission, para. 328). 
4554 Cuba's first written submission, para. 428 (incorporating  Dominican  Republic 's first written 
submission, paras.  337 and 340 ). Similarly, Cuba argues that " Australia 's plain packaging measure makes it 
impossible to demonstrate the conditions that give rise to the additional protection that Australia is required to  
guarantee. Thus, Australia violates the guaranteed minimum level of rights conferred on owners of well -known 
trademarks under Article  16.3 of the TRIPS Agreement." Ibid. (incorporating Ukraine's first written submission, 
para. 312).  
4555 Cuba's first written  submission, para. 428 (incorporating  Dominican  Republic 's first written 
submission, para. 336 (emphasis original) ). Similarly, Cuba argues that "[t]he lack of visibility and use of the 
once well -known trademark as a result of the plain packaging measure w ill therefore lead to the loss of the 
additional scope of protection for well -known marks against use of similar signs on dissimilar goods under 
Article  16.3 of the TRIPS Agreement." Ibid. (incorporating Ukraine's first written submission, para. 307).  
4556 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 309).  
4557 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 309).  
4558 Dinwoodie Report , (Exhibit UKR -1), paras. 20-21. 
4559 Cuba's first written submission, para. 428 (incorporating Ukraine's first written submission, 
para. 310).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 658 - 
  (2) Without adequate knowledge  of the mark, the mark cannot acquire status  as a 
"well-known" mark under Australian law; and  
 
(3) Without the "well known" status , the mark can never secure the protection  that must be 
accorded with that status, pursuant to Article  16.3 of the TRIPS  Agreement  and 
Section  120(3) of the Trade Marks Act 1995.4560 
 
7.2064.   Cuba concludes, by reference, that the severe restrictions on use of registered 
trademarks imposed by Australia 's TPP measures  result in a violation of Australia 's obligations 
under Article  16.3, because they (i) remove the "negative rights" previously accorded to marks 
that achieved well -known status prior to their imposition and (ii) render it impossible for any other 
registered trademarks on tobacco products to acquire that status going forward, and to thereby 
exercise the rights accorded by Article  16.3.4561 
7.2065.   In response to Australia's argument that the complainants' interpretation would require 
Members to guarantee the u se of trademarks and preclude Members from imposing legitimate 
regulations, Cuba clarifies, by reference, that it agrees with the characterization of Article  16.3 as 
conferring negative rights,4562 and that it "does not argue that limitations on the sale or 
advertising of harmful products are prohibited by Article  16.3. Rather, [its] position is that a 
Member may not, through its own conduct, render Article  16.3 meaningless, with respect to 
trademar ks on legally traded products , by implementing a measure making it impossible for 
trademark owners to have recourse to the rights that must be accorded pursuant to that 
provision."4563 
7.2066.   In response to Australia's argument that Article  16.3 is only concerned wi th conferring 
negative rights with respect to well -known marks, and not with the acquisition and maintenance of 
well-known status, Cuba argues, by reference, that " [b]ecause the protections that must be 
accorded pursuant to Article  16.3 are premised on the  determination that a given trademark is 
"well-known" within the meaning of Article  16.2 (and Article  6bis of the Paris Convention ), 
Members cannot take measures that would prevent trademarks on legally traded products from 
becoming (or remaining) well -known. Article  16.3 thus cannot be interpreted in a manner that 
would grant Members the ability to nullify completely the bargained -for protections for well -known 
marks. Had the negotiators of the TRIPS  Agreement  (and the Paris Convention ) intended to allow 
governments to have unfettered discretion to prevent trademarks from becoming (or remaining) 
well-known, as Australia suggests, there would have been no reason to impose obligations with 
respect to well -known marks. Under Australia's interpretation, a Membe r could simply opt out of 
those obligations by taking measures to ensure that disfavoured marks never acquired or 
maintained well -known status."4564 This "would effectively and impermissibly allow this provision to 
be read out of the TRIPS  Agreement , at the whim of individual Members" who would therefore be 
"free to divest any trademark of its well -known status, as well as prevent any other trademarks 
from acquiring well -known status, without implicating Article  16.3 whatsoever"4565 
7.2067.   Indonesia  argues that Austral ia's TPP measures  violate Article  16.3 because (i) they 
diminish the strength of well -known tobacco trademarks over time, such that they will lose their 
well-known distinction and special rights of exclusion accorded thereto; and (ii) they prevent 
                                                
4560 Cuba's first written submission, para. 428 (incorporating  Dominican  Republic 's first written 
submission, para. 339 (emphasis original)) . 
4561 Cuba's second written submission, para.  414 (incorporating  Dominican  Republic 's second written 
submission, para. 83). See also Cuba's first written submission, para. 428 (incorporating Ukraine's first written 
submission, para. 331).  
4562 Cuba's second writ ten submission, para.  414 (incorporating  Dominican  Republic 's second written 
submission, para. 83). 
4563 Cuba's second written submission, para.  414 (incorporating  Dominican  Republic 's second written 
submission, para. 85 (emphasis original) ). 
4564 Cuba's second written submission, para.  414 (incorporating  Dominican  Republic 's second written 
submission, para. 87). 
4565 Cuba's second written submission, para.  414 (incorporating  Dominican  Republic 's second written 
submission, para. 88). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 659 - 
  tobacco trademarks from becoming well -known and, therefore, preclude their eligibility for the 
rights accorded to well -known marks.4566 
7.2068.   Indonesia submits that the purpose of Article  16.3 is to preserve the commercial value of 
a well -known mark in connection with a particular good or service. This is often thought of as 
protection against dilution of well -known marks ( i.e. use of a mark in a manner detrimental to its 
reputation). Dilution of a well -known mark usually results in "depreciation of the goodwill attached 
to it, even in cases where there is no likelihood of confusion".4567  
7.2069.   Indonesia submits that use is the sole means by which a tobacco mark may become 
well-known and by which a well -known mark may retain its special rights as a well -known mark 
(i.e. the abilit y of mark owners to prevent use that is likely to result in confusion on unrelated  
goods or services). "Well -known", Indonesia argues, is not a static designation. It requires 
continuous use over time. When a well -known mark falls into disuse, it is only a  matter of time 
before it ceases to be well -known within the relevant sectors of the public.4568 
7.2070.   Against that background, Indonesia argues that "[i]t is common sense that a mark not 
well-known prior to the implementation of PP will be severely impaired in its  ability to achieve 
well-known status in the absence of use in the Australian market. By preventing the owners of 
validly registered marks from qualifying for well -known status, PP violates Australia's obligation to 
extend protection under Article  16.3 of the TRIPS  Agreement  to tobacco products."4569 
7.2071.   Indonesia argues that while the TPP measures  require Australia to preserve the 
registration of well -known marks pursuant to Section  28(3) of the TPP Act, they do not prevent a 
third party in the future from claimi ng that a trademark owner has lost the exclusive right to its 
mark because the mark is no longer well known. As such, plain packaging violates Article  16.3 of 
the TRIPS  Agreement  "because it fails to afford trademark owners of well -known marks a private 
right of action against infringement."4570  
7.2072.   Indonesia submits further that Article  27 of the Vienna Convention prevents Australia 
from using its own law to avoid fulfilling its obligations under the TRIPS  Agreement .4571 It argues 
that with the TPP measures , "Austr alia's actions have preempted the conditions that give rise to its 
obligations under Article  16.3. Such actions constitute an impermissible failure to perform its 
obligations under the TRIPS  Agreement  that cannot be justified based on Australia's internal 
laws."4572  
7.2073.   In response to Australia's arguments that Article  16.3 provides for "negative" rights only, 
Indonesia submits that "[w]hile it is true that the TRIPS  Agreement  does not expressly provide for 
a 'positive right of use ' or an 'absolute right of use ', it does contemplate a minimum opportunity to 
use a trademark within the bounds of Article  17 and Article  20. Indeed, Australia's own legal 
regime demonstrates the importance of use in the adjudication of infringement claims despite the 
                                                
4566 Indonesia's second written sub mission, para. 102. 
4567 Indonesia's first written submission, para. 229. (footnote omitted)  
4568 Indonesia's first written submission, para. 237. See also Indonesia's first written submission, 
para. 228 (" Prior to the implementation of plain packaging, use was the primary means  by which tobacco 
trademarks could become well known as advertising and POSD of tobacco products are banned.").  
4569 Indonesia's first written submission, para. 236. 
4570 Indonesia's first written submission, para. 238. 
4571 Indonesia's first written submission, para. 240. In support, Indonesia refers to the Appellate Body 
findings in Korea  – Alcoholic Beverages , arguing that : 
 
In that case, Korea argued that the panel erred in assessing potential competition when 
evaluating "directly competitive or substitutable products" within the meaning of GATT 
Article  III:2. However, the Appellate Body found that, because Korea's actions disturbed the 
normal conditions of competition, the panel was correct to evaluate both current and po tential 
market conditions. It reasoned that "{i}f reliance could be placed only on current instances of 
substitution, the object and purpose of Article  III:2 could be defeated by the protective taxation 
that the provision aims to prohibit".  
 
Ibid. para. 241 (referring to  Appellate Body Report, Korea  – Alcoholic Beverages , para. 120).  
4572 Indonesia's first written submission, para. 242. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 660 - 
  fact that Australia  is not a 'right to use ' jurisdiction."4573 Indonesia  elaborates that "the 
TRIPS  Agreement  assumes that the owners of registered trademarks will be able to use those 
marks in connection with their goods and services in the cou rse of trade subject to Members  
implementing measures that 'provide limited  exceptions to the rights conferred by a 
trademark'.4574 These limited exceptions, however, must (i) 'take account of the legitimate interest 
of the owner of the trademark'4575; and (ii) not create 'unjustifiable' encumbrances in the form of 
special requirements.4576 Contrary to Australia's assertions, it is clear that this interpretation would 
not prevent Members from implementing measures in furtherance of a legitimate public policy 
objective, 'provided that such mea sures are consistent with the provisions of {the TRIPS} 
Agreement'.4577"4578  
7.2074.   Indonesia concludes that "Australia's [T]PP measures undermine the rights conferred by 
Article  16.3 of the TRIPS  Agreement  by ensuring that well -known tobacco trademarks lose their 
protected status, as defined by Australian jurisprudence, and by preventing other tobacco 
trademarks from attaining the recognition necessary to achieve the heightened level of protection 
accorded to well -known marks."4579 
7.2075.   Australia  argues that a s with Article  16.1, the rights conferred under Article  16.3 of the 
TRIPS  Agreement  (and Article  6bis of the Paris Convention ) are negative rights.4580 This is clear 
from the ordinary meaning of the terms in these provisions, interpreted in their context and in 
light of the object and purpose of the relevant treaties. Article  6bis requires Members ( ex officio  if 
their legislation so permits, or at the request of an interested party) to "refuse or to cancel the 
registration and to prohibit the use" of an offending trademark. " The ordinary meaning of these 
terms ( 'refuse ',4581 'cancel ',4582 'prohibit '4583) makes clear that these provisions confer a negative 
right on owners of registered well known trademarks to prevent or stop certain actions."4584 
7.2076.   Australia submits that " Article  16.3 does not grant a positive right to owners of registered 
well known trademarks to use their trademarks, or a positive right to use a trademark to the point 
that it becomes  well known."4585 The ability to use a trademark, including to the extent it becomes 
well know n, is a general market freedom – it is not an intellectual property right.4586 Australia 
argues that the subject matter protected under Article  16.3 is well -known  registered trademarks – 
not trademarks that may become well known in the future or trademarks th at were once well 
known. Accordingly, in order to establish a prima facie case of violation under Article  16.3, the 
complainants would need to demonstrate that, in relation to current registered well -known  
                                                
4573 Indonesia's second written submission, para. 104 (footnotes omitted). See also Indonesia's opening 
statement at the first m eeting of the Panel, para. 44. 
4574 (footnote original) TRIPS Agreement , Article 17  (emphasis  supplied ). 
4575 (footnote original) TRIPS Agreement, Article  17. 
4576 (footnote original) TRIPS Agreement, Article  20. 
4577 (footnote original) TRIPS Agreement, Article  8.1. 
4578 Indonesia's second written submission, para. 105. (emphasis added by Indonesia ) 
4579 Indonesia's second written submission, para. 106. 
4580 See Correa Report, (Exhibit AUS -16), para. 18 ("[A]rticle  16.3 confirms and extends the protection 
conferred by the Paris Convention  against the use by third parties  of well -known trademarks. This right to 
exclude can only be transformed into a (positive) right to use enforceable against the State  by speculative 
thinking."  (emphasis original) ). 
4581 (footnote original) The  dictionary definition of "refuse" is, in relevant part, "decline acceptance or 
compliance; withhold permission." ( The Shorter Oxford English Dictionary, 6th ed., L. Brown (ed.) (Oxford 
University Press, 2007), Vol. 2, Exhibit AUS -245, p. 2509).  
4582 (footnot e original) The dictionary definition of "cancel" is, in relevant part, "…revoke an order or 
arrangements…" ( The Shorter Oxford English Dictionary , 6th ed., L. Brown (ed.) (Oxford University Press, 
2007), Vol.1,  Exhibit AUS -243, p. 336).  
4583 (footnote origin al) The dictionary definition of "prohibit" is, in relevant part, "[f]orbid (a thing) as by 
a command…[p]revent or hinder…" ( The Shorter Oxford English Dictionary, 6th ed., L. Brown (ed.) (Oxford 
University Press, 2007), Vol. 2, Exhibit AUS -245, p. 2363).  
4584 Australia's first written submission, para. 324. See also Australia's second written submission, 
para. 34. 
4585 Australia's first written submission, para. 325 (emphasis original). See also Australia's second 
written submission, paras.  35-36. 
4586 Australia's first written submission, para. 328.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 661 - 
  trademarks, the TPP measure s prevent  Australia fro m refusing, cancelling, or prohibiting the use of 
a trademark in the circumstances outlined in Article  6bis of the Paris Convention .4587 
7.2077.   Australia argues that the complainants' interpretation of Article  16.3 is not supported by a 
good faith interpretation of the text and that "requiring Members to guarantee that all trademarks 
may be used so that they may eventually become 'well known ' would impose an impossible burden 
on Members"4588 and prevent them from imposing regulations that limit the opportunities to 
become well known (for example, bans on the use of, or the advertising and promotion of, 
dangerous products).4589 
7.2078.   Australia further argues that n othing in the TPP measure s prevent  a trademark owner 
from availing itself of the protections that are afforded to owners of registered well -known  
trademarks under Article  16.3, and none of the complainants has provided any evidence to the 
contrary. Although the use of certain appealing signs a nd trademarks is prohibited under 
Australia's measure, this is not relevant under Article  16.3. Australia is not obligated under 
Article  16.3 to grant a right to a trademark owner to use its well -known trademark so that it may 
maintain its well -known statu s, nor is it obliged to grant the owner of a trademark the right to use 
its trademark so that it may become well known.4590 
7.2079.   Australia submits that the complainants have failed to establish a prima facie  case under 
a proper interpretation of this provision.4591  
7.3.4.3   Main arguments by the third parties  
7.2080.   Argentina  argues that "[a]s regards Articles  16.1 and 16.3, […] as the Appellate Body has 
pointed out, […] the rights conferred by those paragraphs are rights of exclusion granted to the 
owner of the trademark "to preven t third parties from using in the course of trade identical or 
similar signs", and these rights have less to do with the owner's right to use the trademark than 
with the right to prevent illegitimate use by someone other than the owner. Argentina recalls t hat 
the purposes of trademark registration include preventing a third party either from registering or 
using them, and it is to these exclusive rights to trademarks that the Articles  in question refer."4592 
It submits that "for the purposes of determining the  scope of this right of exclusion, we should be 
asking ourselves whether as of the entry into force of the new regime the trademarks concerned 
are protected as registered, as well as in the format in which their use has been permitted, for 
example, in resp ect of other products in the case of well -known trademarks."4593 
7.2081.   Canada  argues that " Article  16.3 does not establish a right to use a mark. It follows from 
this that the provision also does not protect a mark's status or ability to acquire status as a 
'well-known'  mark. As articulated with respect to Articles  15 and 16.1 above, a finding of a right to 
'use' under Article  16.1 would effectively remove the regulatory flexibility that Members 
purposefully negotiated and preserved under the TRIPS  Agreement . It would also ignore the text 
of that provision, the express intent in TRIPS Articles  7 and 8.1, and the direction set out in 
paragraph 4 of the Doha Declaration  on Public Health."4594 
7.2082.   Canada elaborates that "[i]t is clear that a Member will only violate Article 16.3 where it 
fails to protect registered ' well-known'  trademarks from unauthorized use on dissimilar goods or 
services where the use by others would cause harm to the owner of such trademarks. A measure 
                                                
4587 Australia's first written submission, para. 325. See also Australia's second written submission, 
paras.  35-36. 
4588 Australia's first written submission, para. 329. 
4589 Australia's first written submission, para. 329. 
4590 Australia's first written submission, para. 331. See also Australia's second written submission, 
para. 36. 
4591 Australia's first written submission, para. 331. 
4592 Argentina's third -party submission, para. 26. (footnote omitted)  
4593 Argentina's third -party submission, para. 27. 
4594 Canada's third -party submission, para. 55. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 662 - 
  that prevents or restricts the  owner from usin g a registered ' well-known'  trademark is not a 
measure that violates Article  16.3."4595  
7.2083.   China  submits that the questions to be addressed by the Panel are (i) whether a right to 
use can be inferred from Article  16.3; (ii) whether the protection under Article  16.3 would extend 
to the acquirement and maintaining of the well -known trademark status; (iii) whether use is a 
necessary condition to acquire and maintain the well -known trademark status.4596  
7.2084.   The Dominican Republic 's arguments that it has made as a third pa rty pursuant to 
paragraph 20 of the Panel's Working Procedures have been summarized above in the context of 
Cuba's arguments under this claim .4597 
7.2085.   New Zealand  argues that "[t] he complainants' claims under Article  16.3, just as those 
under Article  16.1, are mi sconceived. There is no obligation on a Member to provide a trademark 
owner with the right to use a trademark so that it acquires or maintains its status as well known. 
As Australia 's TM Act protects well known trademarks against dilution only if they are registered, 
and the TPP Act ensures the owner of tobacco products can register its tobacco trademark, there is 
no violation of Article  16.3 of the TRIPS  Agreement . For the reasons set out above, the 
complainants have not established a prima facie case of a violation of Article  16.3 of the 
TRIPS  Agreement  and therefore the Panel ought to reject the complainants' claims in relation to 
that provision."4598 
7.2086.   Nicaragua  argues that by preventing the use of a trademark, the TPP measure so 
weakens the mark tha t it reduces the level of protection below the minimum level guaranteed by 
Article  16.1 and 16.3 of the TRIPS  Agreement .4599 It disagrees that plain packaging does not affect 
the rights conferred by Articles  16.1 and 16.3 on trademark owners because the trade mark 
remains registered in Australia and submits that t he rights under Article  16 of the 
TRIPS  Agreement  do not make sense and are hollow if they are not accompanied by a meaningful 
opportunity to use the trademark.4600  
7.2087.   Singapore  argues that Article  16.3 tak es its reference from Article  6bis of the 
Paris Convention  (1967) , whose rights " consist of negative rights to refuse or cancel registration, 
or prohibit use. They do not include the right to use a registered well -known trademark. The plain 
packaging measure does not prevent the owner of a registered well -known mark from exercising 
those negative rights guaranteed by Article  16.3."4601 Singapore elaborates that "[a]ssuming, 
arguendo , that the plain packaging measure might affect the ability of a trademark  to maintain its 
well-known status, Article  16.3 does not impose on Members an obligation to enable an owner to 
maintain the well -known status of a trademark. Likewise, Article  16.3 does not oblige Members to 
permit the use of a trademark in order to enabl e it to acquire well -known status. To interpret 
otherwise is to ignore the ordinary meaning of Article  16.3 and Article  6bis of the 
Paris Convention ."4602 
7.3.4.4   Analysis by the Panel  
7.2088.   As described above, Cuba and Indonesia advance essentially two reasons for which t he 
TPP measures  are inconsistent with Australia's obligations under Article  16.3.  
7.2089.   First, they argue that the ability of a registered trademark to remain  "well-known", and 
thereby benefit from the rights that must be accorded pursuant to Article  16.3, is d ependent on 
the use of that trademark. As advertising and most other forms of promotion are prohibited in 
Australia, they argue, use on the product and packaging is the sole means by which a well -known 
mark may retain its special rights as a well -known mar k. They submit that the TPP measures ' 
                                                
4595 Canada's third -party submission, para. 56. 
4596 China's third-party submission, paras.  30-33. 
4597 See para. 7.2056  and fn 4548 above.  
4598 New Zealand's third -party submission, paras.  38-39.  
4599 Nicaragua's third -party submission, para. 15. 
4600 Nicaragua's third -party submission, paras.  24-25. 
4601 Singapore's third -party submission, para. 33. 
4602 Singapore's third -party submission, para. 34. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 663 - 
  prohibition of certain uses of certain well -known tobacco -related trademarks will reduce knowledge 
of the marks and thus lead to the loss of their status as well -known trademark s, and of the 
associated protection under Article  16.3, that Australia therefore fails to afford the owners of such 
trademarks.  
7.2090.   Second, the complainants argue that, for the same reasons, the TPP measures ' 
prohibition of certain uses of certain tobacco -related trademarks violates Article  16.3 because it 
removes the ability of such trademarks to ever acquire  the status of well -known trademark, such 
that they cannot be accorded the protections under Article  16.3.  
7.2091.   Australia responds that it is not obligated un der Article  16.3 to grant a right to a 
trademark owner to use its well -known trademark so that it may maintain its well -known status, 
or to grant the owner of a trademark the right to use its trademark so that it may become well 
known.  
7.2092.   We first examine the  scope of the obligation under Article  16.3 relevant to the 
complainants' claims and then address the two aspects of these claims in turn.  
7.3.4.4.1   Interpretation of Article  16.3 
7.2093.   We recall that paragraph 3 of Article  16 of the TRIPS  Agreement , entitled "Rights 
Conferred" reads as follows:  
Article  6bis of the Paris Convention  (1967)  shall apply, mutatis  mutandis , to goods or 
services which are not similar to those in respect of which a trademark is registered, 
provided that use of that trademark in relation to th ose goods or services would 
indicate a connection between those goods or services and the owner of the registered 
trademark and provided that the interests of the owner of the registered trademark 
are likely to be damaged by such use.  
7.2094.   Article  6bis of the Paris Convention  (1967)  reads as follows:  
(1) The countries of the Union undertake, ex officio if their legislation so permits, or at 
the request of an interested party, to refuse or to cancel the registration, and to 
prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a 
translation, liable to create confusion, of a mark considered by the competent 
authority of the country of registration or use to be well known in that country as 
being already the mark of a person entitled to  the benefits of this Convention and 
used for identical or similar goods. These provisions shall also apply when the 
essential part of the mark constitutes a reproduction of any such well -known mark or 
an imitation liable to create confusion therewith.  
(2) A period of at least five years from the date of registration shall be allowed for 
requesting the cancellation of such a mark. The countries of the Union may provide for 
a period within which the prohibition of use must be requested.  
(3) No time limit s hall be fixed for requesting the cancellation or the prohibition of the 
use of marks registered or used in bad faith.  
7.2095.   We note at the outset that Article  16.3 formulates an obligation on Members4603 to apply 
Article  6bis of the Paris Convention  (1967)  mutatis  mutandis  to an extended set of circumstances. 
It is Article  6bis, which by virtue of its incorporation into the TRIPS  Agreement  by its Article  2.1, 
formulates in its first paragraph an obligation for Members to refuse or cancel a registration, and 
to prohi bit the use, of a trademark which constitutes a reproduction, an imitation, or a translation 
liable to cause confusion with a well -known mark used for identical or similar goods. A well -known 
                                                
4603 Consistent with the past WTO jurisprudence, we understand the ref erence in Article  6quinquies A(1) 
of the Paris Convention  (1967) to the countries of the Paris Union in the context of the TRIPS Agreement to 
mean the Members of the WTO, and the reference to nationals of such countries to mean nationals of other 
WTO Membe rs as defined in Article  1.3 of the TRIPS Agreement. See Appellate Body Report, US – Section 211 
Appropriations Act , para. 132. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 664 - 
  mark is defined as "a mark considered by the competent authority of the country of registration or 
use to be well known in that country as being already the mark of a person entitled to the benefits 
of this Convention". This obligation - to cancel or refus e the registration, and prohibit the use of 
such a conflicting mark – is to be carried out by Members either " ex officio , if their legislation so 
permits" or "at the request of an interested party".  
7.2096.   Article  16.3 builds on Article  6bis of the Paris Conventi on (1967)  and obliges WTO 
Members to apply the same obligation mutatis  mutandis  to goods or services4604 not similar  to 
those in respect of which a well -known trademark is registered. The ordinary meaning of 
"mutatis  mutandis " is "with the necessary changes; with due alteration of details".4605 Article  16.3, 
therefore, contains an obligation for Members to apply the obligation in Article  6bis, with the 
necessary changes, to non -similar goods if two cumulative conditions are fulfilled: (a) use of that 
trademark in  relation to those goods or services would indicate a connection between those goods 
or services and the owner of the registered trademark, and (b) the interests of the owner of the 
registered trademark are likely to be damaged by such use. Article  16.3, w hich Cuba and 
Indonesia claim is violated by the TPP measures , does not itself contain the definition of a 
well-known mark, or the basic undertaking of Members to protect well -known marks. Rather, the 
specific obligation formulated by Article  16.3 is for M embers to also refuse or cancel the 
registration, and prohibit the use of trademarks conflicting with a well -known trademark under 
Article  6bis, if they are used on non-similar  goods and services, in cases where the well -known 
trademark is registered4606, and  the two cumulative conditions mentioned in Article  16.3 are 
fulfilled.  
7.2097.   The parties agree that the rights formulated by Article  16.3 of the TRIPS  Agreement  and 
Article  6bis of the Paris Convention  (1967)  are "negative rights", i.e. rights to prevent  certain 
actions or situations.4607 We note first that, in contrast to the obligation in Article  16.14608, the 
obligations in Article  6bis, first paragraph, Paris Convention  (1967)  and in Article  16.3 are not 
formulated as rights of trademark owners, but as undertakings by Members that are to be either 
carried out ex officio , or triggered by a request of an interested party. The operative terms in the 
obligation in Article  6bis are to "refuse or ca ncel", or to "prohibit" – relating to the objects of "the 
registratio n" and "the use" of a trademark , respectively. The ordinary meaning of these terms is to 
"decline to do something, to reject"4609, "to annul, repeal, render void"4610 and "to forbid (an 
action,  event, commodity, etc.) by a command, statute, law, or other authority; to interdict"4611, 
respectively. The text of Article  6bis, first paragraph, therefore contains an undertaking by WTO 
Members to decline or annul the registration, and to forbid the use, of a trademark that conflicts 
with a well -known trademark in the manner set out in that paragraph. Article  16.3 obliges 
Members to extend this obligation mutatis  mutandis  to those conflicting trademarks that are used 
for non-similar  goods and services unde r the conditions set out in Article  16.3. 
7.2098.   In light of the ordinary meaning of the text of Article  6bis of the Paris Convention  (1967)  
and Article  16.3, therefore, we agree with the parties4612 that Article  16.3 does not establish a 
                                                
4604 Article  16.2 of the TRIPS Agreement provides for a mutatis mutandis  application of Article  6bis of 
the Paris Convention  (1967) to services.  
4605 Oxford English Dictionary online, definition of " mutatis mutandis ", available at: 
<http://www.oed.com/view/Entry/124299?redirectedFrom=muta tis+mutandis#eid >, accessed  2 May 2017.  
4606 We note that the obligation in Article  6bis of the Paris  Convention  (1967) does not require the 
well-known trademark to be registered in the country where protection is claimed.  
4607 Dominican  Republic 's second writte n submission, para. 83; Cuba's second written submission, 
para. 414 (incorporating by reference all the claims, arguments and evidence submitted in the second written 
submissions of the Dominican  Republic , Honduras and Indonesia  on Article  16.3); Indonesia 's second written 
submission, para. 104; and Australia's first written submission, para. 324. See also Australia's second written 
submission, para. 34. 
4608 See above section 7.3.3 (Article  16.1 of the TRIPS Agreement).  
4609 Oxford English Dictionary online, definition of "refuse", available at: 
<http://www.oed.com/view/Entry/161141?rskey=5G0anZ&result=3# >, accessed  2 May 2017.  
4610 Oxford English Dictionary online, definition of "cancel", available at: 
<http://www.oed.com/view/ Entry/26916?rskey=fuNgAO&result=2# >, accessed  2 May 2017.  
4611 Oxford English Dictionary online, definition of "prohibit", available at: 
<http://www.oed.com/view/Entry/152255?rskey=w1i 2rm&result=2# >, accessed  2 May 2017.  
4612 Dominican  Republic 's second written submission, para. 83; Cuba's second written submission, 
para. 414 (incorporating by reference all the claims, arguments and evidence submitted in the second written 
submissions of t he Dominican  Republic , Honduras and Indonesia on Article  16.3); Indonesia's second written 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 665 - 
  positive right to use a wel l-known trademark, and only provides for an undertaking by Members to 
refuse or cancel a registration, and to prohibit the use, of a trademark conflicting with a registered 
well-known trademark that is used on non -similar goods and services where (a) use o f that 
trademark in relation to those goods or services would indicate a connection between those goods 
or services and the owner of the registered trademark, and (b) the interests of the owner of the 
registered trademark are likely to be damaged by such u se. 
7.2099.   Article  16.3 of the TRIPS  Agreement , together with Article  6bis of the 
Paris Convention  (1967) , therefore sets out a specific dimension of protection for well -known 
trademarks by defining the factual circumstances that trigger Members' undertaking to r efuse or 
cancel a registration, and to prohibit the use, of a conflicting trademark. If these factual 
circumstances are present, Members must react in the prescribed manner either ex officio , or at 
the request of an interested party. Therefore, in order to  show that the TPP measures  violate 
Australia's obligation under Article  16.3, Indonesia and Cuba would have to demonstrate that 
Australia, under its domestic law4613, in this instance under the TPP measures , does not provide for 
the refusal or cancellation of the registration, and the prohibition of use, of a trademark that 
conflicts with a well -known mark where the conditions set out in Article  6bis and Article  16.3 are 
met. 
7.2100.   With these preliminary observations in mind, we turn to the arguments by the 
compla inants.  
7.3.4.4.2   Whether the TPP measures  are inconsistent with Article  16.3 because they 
prevent the maintenance of well -known status for certain tobacco -related trademarks  
7.2101.   Cuba, by reference, and Indonesia argue that by prohibiting the use of well -known 
tobacco trademarks, or by prescribing use in a special format, the TPP measures  will reduce the 
knowledge of these well -known trademarks in the relevant sector of the public. They argue that 
this will impair the ability of owners of well -known trademarks to demons trate that use of the 
conflicting mark on non -similar goods and services indicates a connection  to them, or that their 
interests are likely to be damaged by such use. They further argue that such reduced knowledge of 
a mark in the relevant market sector wi ll lead, over time, to the loss of its status as a well -known 
trademark under Australian law, which in turn leads to the loss of the protection that must be 
accorded to that status under Article  16.3. Thus, the complainants conclude that, by pre -empting 
"the conditions that give rise to its obligations under Article  16.3"4614, the TPP measures  remove 
the ability of tobacco -related trademarks that enjoyed well -known status prior to the imposition of 
plain packaging to maintain that status and continue to enjoy the rights that must be accorded by 
Australia pursuant to Article  16.3.  
7.2102.   Australia argues that the ability to use a trademark, including to the extent it becomes 
well known, is a general market freedom , not an  IP right . It also submits that the subject mat ter 
protected under Article  16.3 is well -known registered trademarks – not trademarks that may 
become well known in the future , or trademarks that were once well known. It argues that 
well-known trademark protection remains available after the introduction  of the TPP measures , 
and that it is not obligated under Article  16.3 to grant a right to a trademark owner to use its 
well-known trademark so that it may maintain its well -known status. Australia submits that the 
complainants have not established a prima facie case of violation under Article  16.3, since they 
have not demonstrated that, in relation to current registered well -known trademarks, the 
                                                                                                                                                  
submission, para. 104; and Australia's first written submission, para. 324. See also Australia's second written 
submission, para. 34. 
4613 Under Article  1.1 of the TRIP S Agreement, Members have the obligation to "give effect to the 
provisions of this Agreement".   
4614 Indonesia's first written submission, para. 242. See also Dominican  Republic 's first written 
submission, paras.  337 and 340. Similarly, Cuba argues that " Australia 's plain packaging measure makes it 
impossible to demonstrate the conditions that give rise to the additional protection that Australia is required to 
guarantee. Thus, Australia violates the guaranteed minimum level of rights conferred on owners o f well -known 
trademarks under Article  16.3 of the TRIPS Agreement." Cuba's first written submission, para. 428 
(incorporating  Ukraine's first written submission, para. 312).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 666 - 
  TPP measures  prevent Australia from refusing, cancelling, or prohibiting the use of a trademark in 
the circumstances outlined in Article  6bis of the Paris Convention .4615 
7.2103.   We note at the outset that, similar to the claim under Article  16.1 addressed in the 
previous sectio n4616, this argument consists of two parts, namely: (i) a factual allegation that the 
TPP measures ' prohibition of use of certain well -known registered trademarks will result in a 
reduction of knowledge of the marks to a point where these marks no longer qual ify as 
well-known , and (ii) the assertion that this alleged factual consequence of the TPP measures  – 
impairment or loss of well -known status itself – constitutes a violation of Australia's obligations 
under Article  16.3. 
7.2104.   We recall that, as described above4617, the TPP measures  regulate the appearance of 
trademarks and "marks"4618 on tobacco retail packaging and products in various ways. In respect 
of retail packaging, the TPP measures  permit the use of word marks and marks that denote the 
brand, business or comp any name, or the name of the product variant, provided that they appear 
in the form prescribed by the TPP Regulations . They prohibit the use of stylized word marks, 
composite marks and figurative marks, as well as other decorative elements both on tobacco 
products and on their retail packaging.4619 
7.2105.   With regard to the factual allegation underlying this aspect of the claim, and as a 
preliminary point, we refer to our discussion of the relationship between different forms of 
trademark usage and the acquisition an d maintenance of distinctiveness under Article  16.14620, 
which we consider to be also relevant here. With respect to the complainants' assumed linkage 
between trademark use on the packaging of a product and maintaining or acquiring the status as a 
well-known trademark, we note that Article  6bis of the Paris Convention  (1967) , first paragraph, 
does not expressly refer to use as part of the definition of a well -known trademark, but requires 
that the mark be  "considered  by the competent authority of the country of registration or use to 
be well known in that country as being already the mark of a person entitled to the benefits of this 
Convention ". 
7.2106.   The wording of this provision indicates that it is the degree of knowledg e – in a particular 
Member – of the mark as already belonging to a person or enterprise in a WTO Member4621, that 
determines its well -known status in that Member. Article  6bis does not indicate how this degree of 
                                                
4615 Australia's first written submission, para. 325. See also Australia's second wri tten submission, 
paras.  35-36. 
4616 See para. 7.1988  above.  
4617 See sections 2.1.2.3.3 and 2.1.2.4 above.  
4618 The definition of "mark" in Section 4 of the  TPP Act reads as follows: "(a) includes (without 
limitation) any line, letters, numbers, symbol, graphic or image; but (b) (other than when referring to a trade 
mark) does not include a trade mark."  
4619 For the purposes of their TRIPS claims, the complainan ts (using somewhat different terminology) 
divide trademarks into the following categories: (i) word marks; (ii) figurative marks (or design (or image) 
marks, image marks); and (iii) composite marks (or combination marks, combined marks). We have followed 
the same categorization in our analysis. In general, these categories reflect general trademark practice, 
although terminology does vary, and views on the boundaries between them can also differ. A "word mark" is 
registered when the textual content as such is considered eligible for trademark protection, and it is registered 
and protected regardless of the font or form of its presentation. The term "Coca -Cola" is an example of such a 
word mark. Other trademarks may combine textual and graphic content. Hence "Coca -Cola", when presented 
in a distinctive stylized typeface, may also be considered distinctive on account of the additional figurative 
content. This is why one finds separate registrations for "Coca -Cola" as a pure word mark, and also for the 
textual m aterial presented in the specific, distinctive typeface used by that firm. The Nike "swoosh" logo is an 
example of a purely figurative ("image" or "device") trademark (i.e. one without textual content). The 
"Starbucks Coffee" logo is an example of a compos ite mark that presents textual material together with 
figurative elements.  
4620 See paras.  7.1989 -7.1993  of the section on Article  16.1 above.  
4621 While Article  6bis provides that the mark must be well -known "as being already the mark of a 
person entitled to the benefits of this Convention", we no te that in the view of Bodenhausen , "it will be 
sufficient if the mark concerned is well known in commerce  in the country concerned as a mark belonging to a 
certain enterprise, without its being necessary that it also be known that such enterprise is entit led to the 
benefits of the Convention." See Bodenhausen, Full Text, (Exhibit DOM -79), p. 92 (emphasis original) . We 
consider that, since the complainants' arguments under this claim do not relate to this nuance, it is not 
necessary for us to make a finding  on whether the required knowledge would need to include knowledge of 
whether the person or enterprise is entitled to the "benefits of the Convention".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 667 - 
  knowledge is to be obtained. We note that Article 16.2 of the TRIPS  Agreement , second sentence, 
provides further guidance in that regard, indicating that knowledge in the relevant sector of the 
public, including knowledge obtained as a result of promotion of the trademark, shall be taken into 
account.4622  
7.2107.   While, as a factual matter, all types of use will in principle be able to contribute to such 
knowledge, none of these provisions identifies any particular type of use that would be a 
prerequisite for obtaining well -known trademark status in a particular  country. In particular, it 
does not exclude that a trademark could be well known in a country on the basis of publicity or use 
on product and packaging in other  countries, before it is registered or even used on a product or 
packaging in the country in wh ich the recognition of its well -known status is sought.4623  
7.2108.   Australia has indicated that under its national law on the protection of well -known 
trademarks , "[i]t is possible that a trademark may be 'well known in Australia'  under the Trade 
Marks Act 1995 (Cth) without it having been used in Australia. For example, it may be well known 
in Australia on the basis of use overseas. "4624 
7.2109.    This suggests that, if a trademark can acquire well -known trademark status in Australia 
without registration or use in that country , trademarks that are already well known and registered 
in Australia – which are the object of this aspect of the claim – may be able to maintain that status 
on the basis of use abroad, even if their use on products and packaging is constrained or 
prohibit ed in Australia. We are therefore not persuaded that the operation of the TPP measures  
would necessarily have the impact that the complainants assume on the degree of knowledge of 
existing well -known trademarks, or on how this would be assessed in relation  to a specific 
trademark.  
7.2110.   We note, in any event, that we will only need to examine further the factual allegation 
that the TPP measures  cause the impairment or loss of well -known trademark status if we find that 
such impairment or loss would indeed consti tute a violation of Article  16.3. As in the previous 
section on Article  16.1, we will therefore first consider whether impairment, as a result of the 
TPP measures , of the well -known status of a trademark would constitute a violation of Article  16.3. 
We wil l return to the factual allegation underlying this argument only if necessary on the basis of 
that analysis.   
7.2111.   In addressing this question, we recall that Article  16.3, together with Article  6bis of the 
Paris Convention  (1967)  as incorporated into the TRIPS  Agreement  by Article  2.1, formulates an 
obligation on Members to refuse or cancel a registration, and to prohibit the use, of a trademark 
conflicting with a registered well -known trademark that is used on non -similar goods and services 
where (a) use of th at trademark in relation to those goods or services would indicate a connection 
between those goods or services and the owner of the registered trademark, and (b) the interests 
of the owner of the registered trademark are likely to be damaged by such use.  
7.2112.   These provisions therefore set out the criteria under which Members have agreed to 
provide additional protection to trademarks – namely against use or registration of conflicting 
                                                
4622 Article  16.2, second sentence provides: "In determining whether a trademark is well -known, 
Members sha ll take account of the knowledge of the trademark in the relevant sector of the public, including 
knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark."  
4623 See Bodenhausen, Full Text, (Exhibit DOM -79), p. 91:  
 
A trademark may be well known  in a country before its registration there and, in view of the 
possible repercussions of publicity in other countries, even before it is used in such country. 
Whether  a trademark is well known in a country will be determi ned by its competent 
administrative or judicial authorities. The Revision Conference of Lisbon in 1958 rejected a 
proposal according to which use of a well -known mark in the country in which its protection is 
claimed would not be necessary for such protect ion. This means that a member State is not 
obliged  to protect well -known trademarks which have not been used on its territory, but it will be 
free to do so. In view of the vote taken at the Lisbon Conference, the great majority of the 
member States will pr obably adopt this attitude. (footnotes omitted; emphasis original)  
 
4624 Australia's first written submission, Annexure D, para. 17 fn 1260 (referring to ConAgra  v. McCain , 
(Exhibits AUS -489, CUB -89)). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 668 - 
  marks on non-similar  goods and services – over and above the rights provided  by Article  16.1, 
which protects only against use on identical or similar  goods or services. Reading Article  6bis and 
Article  16.3 together, these provisions establish that Members are obliged to refuse or to cancel 
the registration, and to prohibit the us e, of a trademark used for non -similar goods or services, if:  
a. that trademark conflicts4625 with a mark considered by the competent authority of the 
country of registration or use to be well known in that country as being already the mark 
of a person entitled to the benefits of this Convention; and  
b. use of that trademark in relation to those good s or services would indicate a connection 
between those goods or services and the owner of the registered trademark; and  
c. the interests of the owner of the registered trademark are likely to be damaged by such 
use. 
7.2113.   It is clear from the interaction of the p rovisions and the structure of the text that these 
three criteria are cumulative , and thus all need to be present to establish the circumstances in 
which the obligation of Members is triggered, either ex officio , or at the request of an interested 
party. I f these factual circumstances do not exist, it falls outside the scope of the obligation 
formulated by Article  16.3 and does not trigger the protection that Members have undertaken 
therein.  
7.2114.   As with Article  16.14626, Members comply with the obligation under Article 16.3 by 
providing in their national legislation for the possibility of refusing or cancelling the registration, 
and of prohibiting the use, of a trademark where these conditions are fulfilled. Whether this 
protection is triggered, be it ex officio  or at the request of an interested party, depends, in 
practice, on an assessment of the nature of the marketplace at the relevant time to determine 
whether all the factual criteria that trigger the obligation are met. The obligation on Members to 
provide this protection under their legal systems must be distinguished from the scope of activities 
undertaken by commercial actors in their domestic markets. Nothing in the text of Article  16.3 or 
Article  6bis suggests – as the complainants imply – an obligation  by Members to permit or 
maintain the occurrence of the factual circumstances described in these provisions. Whether any 
individual marks actually are considered to be well known by the competent authority, and 
whether any use of conflicting marks on non -similar goods or services actually does or does not 
indicate a connection to the owner of a registered well -known trademark, is immaterial to the 
assessment of whether a Member ensures that, if these circumstances exist, the registration of 
such trademarks can be refused or cancelled, and their use prohibited, in compliance with 
Article  16.3. 
7.2115.   We note that the complainants are not challenging how the criteria for well -known 
trademark protection are defined in Australia's domestic legislation, and are not argu ing that the 
TPP measures  have affected how the Australian legal system assesses whether a trademark is 
well-known. They also appear to accept that, when the criteria are fulfilled, well -known trademark 
protection is available under the TM Act.4627 However, t he complainants argue that reduced 
knowledge in the market of existing registered well -known trademarks as a consequence of the 
TPP measures  will result in a situation in which owners of well -known trademarks will no longer be 
able to demonstrate that use of conflicting signs on non -similar products indicates a connection to 
them, or is likely to damage their interests, and in which previously well -known trademarks may 
no longer be considered well -known. In other words, the complainants claim that the conse quence 
of the TPP measures  we are assuming arguendo , namely that the factual situation triggering 
well-known trademark protection described by the criteria set out in Article  16.3 and Article  6bis 
                                                
4625 It is not necessary, for the purpose of resolving the present dispute s, to make a finding on whether 
the "necessary changes" implied by the mutatis mutandis  application of Article  6bis under Article  16.3 means 
that the requirement "liable to create confusion" in Article  6bis is replaced  by the requirement of "indicate a 
connection" in Article  16.3, or whether both need to be present to trigger the obligation in Article  16.3. 
4626 See paras.  7.1999 -7.2000  of the section on Article  16.1 above.  
4627 Indonesia acknowledges that " Section 120 of Australia's Trade Mark Law 1995 implements Article  16 
of the TRIPS Agreement." Indonesia's second written submission, para. 89. See also Cuba's first written 
submission, para. 428 (incorporating  Ukraine's first written submission , paras.  299-302).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 669 - 
  will occur less frequently and with respect to fewer signs than before, constitutes a reduction of 
well-known trademark protection in violation of Article  16.3. 
7.2116.   We recall our assessment above that Article  16.3, together with Article  6bis of the 
Paris Convention  (1967) , formulates an obligation for Members to refus e or cancel a registration 
and to prohibit the use of a trademark conflicting with a registered well -known trademark that is 
used on non -similar goods and services under certain factual conditions. We also recall that 
Members' compliance with this obligati on is independent of the actual occurrence of these factual 
conditions in the market. In light of this understanding, and in line with our assessment under 
Article  16.1 above4628, we disagree that a reduction in the factual occurrence  in the marketplace of 
the situations that would trigger well -known trademark protection constitutes a reduction in the 
availability  of such protection mandated by Article  16.3 of the TRIPS  Agreement  and Article  6bis of 
the Paris Convention  (1967) . In other words, while Article  16.3 and Article  6bis oblige Members to 
protect currently well -known trademarks in the manner specified in these provisions, they do not 
require Members to provide such protection for  trademarks that do not, or do no longer, fulfil 
these criteria – and not  doing so is therefore not a violation of Article  16.3.  
7.2117.    Accepting the complainants' contrary interpretation would effectively constitute an 
obligation on Members to ensure means to maintain the status of existing well -known trademarks 
in the market, an o bligation that would not only be irreconcilable with bans on marketing and 
advertising4629, but also potentially impossible to comply with in light of the multitude of factors 
that can affect the public perception – and thus knowledge of a trademark in the ma rket.4630  
7.2118.   Indonesia also argues that the TRIPS  Agreement  contemplates a minimum opportunity to 
use a trademark within the bounds of Article  17 and Article  20.4631 With respect to this argument 
we recall our finding above that the obligation to give a legally op erative meaning to all the 
provisions in Section 2 of Part II of the TRIPS  Agreement  harmoniously, without reducing any of 
them to redundancy, as required by the principle of effective treaty interpretation, does not 
compel an interpretation of the minimum  rights in Article  16 as requiring Members to provide a 
minimum opportunity to use a registered trademark.4632 This finding equally applies to 
Article  16.3. 
7.2119.   Cuba also argues, by reference, that a Member may not, through its own conduct, render 
Article  16.3 me aningless, by implementing a measure making it impossible for trademark owners 
to have recourse to the rights that must be accorded pursuant to that provision.4633 In this regard 
we recall our previous findings4634 and consider that, in the same way that the obl igation in 
Article  16.1, to provide a right for the trademark owner to prevent infringement, does not make 
Members responsible  for maintaining the distinctiveness of individual signs as a precondition for 
infringement to occur4635, in the same way, the obligation in Article  16.3 to provide protection for 
well-known trademarks against certain uses does not make Members responsible  for maintaining 
the well -known status of individual trademarks in order for that additional protection t o apply.  
7.2120.   The trademark owner's commercial interest in a market situation in which its trademark 
qualifies for well -known trademark protection, and the corresponding interest in using its 
trademark, including for the purpose of maintaining or further stren gthening the level of 
knowledge of the trademark in the market, is recognized by the TRIPS  Agreement  as a legitimate 
interest  that needs to be taken into account in considering the permissibility of domestic 
exceptions to the exclusive rights under Article  17. In Section 7.3.5 below, we will also consider its 
                                                
4628 See para. 7.2001  of the section on Article  16.1 above.  
4629 Note that Cuba and Indonesia both accept that bans on advertising are not a violation of 
Articles  16.1 and 16.3. See Cuba's first written submissio n, para. 428 (incorporating Ukraine's first written 
submission, para. 259); Indonesia's response to Panel question No. 95, para. 21; and Indonesia's response to 
Panel question No. 172, paras.  35-36.  
4630 See the considerations at paras.  7.2002  and 7.2026  of the section on Article  16.1 above, which we 
consider relevant also with respect to the variation of the level of knowledge of a trademark in the market.  
4631 Indonesia's second written submis sion, para. 104. See also Indonesia's opening statement at the 
first meeting of the Panel, para. 44. 
4632 See para. 7.2030  of the section on Article  16.1 above.  
4633 Dominican  Republic 's second written submission, paras.  85-88. 
4634 See para . 7.2116  and paras.  7.2005  -7.2011  of the section on Article  16.1 above.  
4635 See para. 7.2005  of the section on Article  16.1 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 670 - 
  relevance for assessing whether the use of a trademark in the course of trade is unjustifiab ly 
encumbered by special requirements within the meaning of Article  20. The interest in using the 
trademark is, however, not a right  that is protected under Article  16.3.  
7.2121.   We therefore conclude also in the context of Article  16.3, that outside the scope of  
express obligations set out in the TRIPS  Agreement , the Agreement does not in our view oblige 
Members to ensure that private parties are in position to fulfil such criteria, or to refrain from 
regulations otherwise not inconsistent with the covered agreem ents that may affect the market 
conditions that determine how easy or difficult it is for private parties to comply with such criteria.  
7.2122.   Indonesia raises the argument that Article  27 of the Vienna Convention prevents Australia 
from using its own law to avoi d fulfilling its obligations under the TRIPS  Agreement .4636 In view of 
our findings we are not persuaded that Australia – as suggested by Indonesia – is avoiding its 
treaty obligations under the TRIPS  Agreement .  
7.2123.   Recalling our findings in paras.  7.2116 , 7.2118  and 7.2121  above, we conclude that the 
possibility of a reduced knowledge of previously well -known trademarks in the market does not, in 
itself, constitute a violation of Article 16.3, because Members' compliance with the obligation to 
provide well -known trademark protection under Article  16.3 of the TRIPS  Agreement  and 
Article  6bis of the Paris Convention  (1967)  is independent of whether well -known trademarks 
actually exist  in the market. Outside its express obligation, Article  16.3 does not require Members 
to refrain from taking measures that may affect the ability of right owners to maintain the 
well-known trademark status of individual trademarks, or to provide a "minimum  opportunity" to 
use a trademark in the market.  
7.2124.   In light of these findings, we need not examine further the complainants' factual 
allegation that the TPP measures ' prohibition on the use of certain tobacco -related trademarks will 
in fact reduce the knowled ge of well -known trademark in the market, and lead to the impairment 
or loss of well -known trademark status in the manner that the complainants allege.  
7.3.4.4.3   Whether the TPP measures  are inconsistent with Article  16.3 in that they 
prevent certain tobacco -related trademarks from acquiring well -known trademark 
status through use  
7.2125.   Cuba, by reference, and Indonesia argue that since use is the sole means by which a 
tobacco mark may become well -known in Australia, the TPP measures ' prohibition of certain uses 
of certain tobacco -related trademarks violates Article  16.3 because it removes the ability of such 
trademarks to ever acquire the status of well -known trademarks such that they cannot be 
accorded the protections under Article  16.3. By preventing the owners of  validly registered marks 
from qualifying for well -known status, the TPP measures  violate Australia's obligation to extend 
protection under Article  16.3 of the TRIPS  Agreement  to tobacco products.4637 
7.2126.   Australia responds that it is not obligated under Article  16.3 to grant a right to a 
trademark owner to use its well -known trademark so that it may maintain its well -known status, 
nor is it obliged to grant the owner of a trademark the right to use its trademark so that it may 
become well known.4638 
7.2127.   We recall Austra lia's indication4639 that a trademark can attain well -known trademark 
status in Australia on the basis of overseas use alone, without having been used in Australia at all. 
In this context, to the extent that the acquisition of well -known status in Australia i s not 
dependent on use within Australia, it is not clear to us that the trademark use restrictions 
                                                
4636 Indonesia's first written submission, paras.  240-241 ( referring to  Article  27 of the Vienna 
Convention; and Appellate Body Re port, Korea  – Alcoholic Beverages , para. 120).  
4637 Indonesia's first written submission, para. 236. 
4638 Australia's first written submission, para. 331. See also Australia's second written submission, 
para. 36. 
4639 See paras.  7.2108 - 7.2109  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 671 - 
  contained in the TPP measures  remove the ability of tobacco -related trademarks to acquire 
well-known trademark status in Australia as alleged by the complain ants.4640  
7.2128.   We also recall our finding above4641 that Article  16.3 only provides for an undertaking by 
Members to refuse or cancel a registration, and to prohibit the use, of a trademark conflicting with 
a registered well -known trademark that is used on non -similar goods and services where: (a) use 
of that trademark in relation to those goods or services would indicate a connection between those 
goods or services and the owner of the registered trademark; and (b) the interests of the owner of 
the registered tradem ark are likely to be damaged by such use. As described above, this does not 
amount to an obligation for Members to permit or maintain the occurrence of the factual criteria 
set out in these provisions,4642 and the obligation in Article  16.3 to provide protect ion for 
well-known trademarks against certain uses does not require Members to maintain the well -known 
status of individual trademarks in order for that additional protection to apply.4643  
7.2129.   We further recall our finding that, outside the scope of express obli gations set out in the 
TRIPS  Agreement , the Agreement does not oblige Members to ensure that private parties are in a 
position to fulfil such criteria, or to refrain from regulations otherwise not inconsistent with the 
covered agreements that may affect th e market conditions that determine how easy or difficult it 
is for private parties to meet such criteria. In our view, these findings apply equally in the context 
of the present claim. We therefore conclude that, even assuming that the operation of the 
TPP measures  results in situations in which certain registered trademarks may be less likely to 
acquire well -known trademark status, this would not constitute a violation by Australia of 
Article  16.3.  
7.3.4.4.4   Overall Conclusion  
7.2130.   In light of the above, including our f indings in paras.  7.2123  and 7.2129  above, we 
conclude that Cuba and Indonesia have not demonstrated that t he TPP measures  are inconsistent 
with Australia's obligations under Article  16.3 of the TRIPS  Agreement . 
7.3.5   Article  20 of the TRIPS  Agreement  
7.2131.   We will now turn to the complainants' claims under Article  20 of the TRIPS  Agreement , 
entitled "Other Requirements". It reads as follows:  
The use of a trademark in the course of trade shall not be unjustifiably encumbered by 
special requirements, such as use with another trademark, use in a special form or 
use in a manner detrimental to its capability to distinguish the goods or services of 
one undertaking from those of other undertakings. This will not preclude a 
requirement prescribing the use of the trademark identifying the undertaking 
producing the goods or services along with, but without linking it to, the trademar k 
distinguishing the specific goods or services in question of that undertaking.  
 
7.2132.   Honduras, the Dominican Republic, Cuba,  and Indonesia claim that the TPP measures  are 
inconsistent with Article  20 because they impose "special requirements", which "encumber " the 
"use" of trademarks "in the course of trade"; furthermore, such use is encumbered "unjustifiably".  
7.2133.   Australia  asks the Panel to reject these claims in their entirety.  
7.3.5.1   Overview of the claims  
7.2134.   Honduras  submits that the following elements need to be esta blished in order to 
determine whether a measure is inconsistent with Article  20 (first sentence): (a) the measures at 
issue constitute special requirements, which (b) unjustifiably (c) encumber (d) the use of a 
                                                
4640 Dominican  Republ ic's second written submission, para. 83. See also Cuba's first written submission, 
para. 428 (incorporating Ukraine's first written submission, para. 331); and Indonesia's second written 
submission, paras.  102 and 106.  
4641 See para. 7.2098  above.  
4642 See para. 7.2114  above.  
4643 See para. 7.2119  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 672 - 
  trademark (e) in the course of trade.4644 In its  view, the TPP measures  are special requirements 
that encumber the use of trademarks in the course of trade. Furthermore, the measures at issue 
are, by their very nature, unjustifiable given that they restrict trademarks in a "particularly 
pervasive and se vere fashion".4645 In the alternative, should the Panel disagree with Honduras's 
view that the measures at issue are unjustifiable by their very nature, Honduras considers that it is 
incumbent upon Australia to demonstrate that its measures are justifiable.4646 
7.2135.   The Dominican Republic  submits that "[i]n terms of structure, Article  20 is formulated as 
a prohibition against encumbrances on the use of a trademark (' use … shall not  be … encumbered 
by special requirements '), with that prohibitive aspect subject to an exception or qualification 
through the word 'unjustifiably'".4647 The prohibitive aspect of the provision establishes a 
presumption in favour of the unencumbered use of a trademark through special requirements. If a 
Member encumbers the use of a trademark thr ough the imposition of special requirements, it 
triggers the obligation to ensure that any such encumbrance is justifiable.4648 The Dominican 
Republic argues that "Australia has departed from the presumption in favour of the use of 
trademarks". In its view, " the departure is radical and extreme, with severe encumbrances 
imposed on the use of all trademarks for an entire class of goods", and "Australia has no basis to 
avail itself of the exception or qualification it enjoys through the word 'unjustifiably'".4649 The 
Dominican Republic submits that the TPP measures  do not comply with the prohibitive aspect of 
Article  20 because they "encumber" the "use" of a trademark "in the course of trade" through 
"special requirements", and that the encumbrances are "unjustifiab le".4650 
7.2136.   Cuba submits that the trademark restrictions contained in Australia's TPP measures  
impose "special requirements" which "encumber" the "use of trademarks" "in the course of trade", 
and that those special requirements are "unjustifiable".4651 
7.2137.   Indonesia  submits that to demonstrate a violation of Article  20 of the TRIPS  Agreement , 
complainants must show that a Member has adopted "special requirements" that "encumber" the 
use of a trademark "in the course of trade" without justification.4652 It asserts that the 
TPP measures  are "special requirements", falling within the illustrative list in Article  20, that 
"encumber the use of a trademark in the course of trade" and that they are unjustified.4653 
7.2138.   Australia  argues that to establish a violation of Article  20, a compl ainant must 
demonstrate that the "use" of a trademark "in the course of trade" has been "unjustifiably" 
"encumbered by special requirements". It notes that there is no dispute that the TPP measures  
impose special requirements on the use of trademarks, at l east in some respects. In its view, the 
                                                
4644 Honduras's first written submission, para. 276. 
4645 Honduras's first written submission, para. 643. Honduras adds that this is because the TPP 
measures (i) are a blanket restriction on the use of trademarks and (ii) defeat the core function of trademarks 
to distinguish the goods of different undertakings. Ibid. In its second written submission, Honduras  
characterizes the TPP measures as being the "ultimate encumbrance", and submits that they are unjustifiable 
by their very nature due to lack of individual assessment. Honduras's second written submission, paras.  269-
270. 
4646 Honduras's first written submiss ion, paras.  643-644. 
4647 Dominican  Republic 's first written submission, para. 343. (emphasis added  by the 
Dominican  Republic ) 
4648 Dominican  Republic 's first written submission, paras.  344-345. The Panel asked the 
Dominican  Republic  to clarify its argument on t he structure of Article  20 cited above, in particular whether the 
term "shall not" refers to "be … encumbered" or to "be unjustifiably encumbered", and whether this has any 
implications as to the substantive content of Article  20 or the burden of proof. Th e Dominican  Republic  
responded that the argument in question relates to its position on the burden of proof, and does not affect the 
substantive content of Article  20. As to the grammatical structure of Article  20, the Dominican  Republic  argues 
that "the t reaty interpreter cannot stop the process of interpretation by concluding that, from a grammatical 
perspective, the words 'shall not' refer to 'unjustifiably encumbered', and not 'encumbered' alone. Although 
this structural point is one relevant considerat ion in discerning the burden of proof, the treaty interpreter must 
also consider other elements of the text, context, and object and purpose." See Dominican  Republic 's response 
to Panel question No. 104, paras.  108 and 113.  
4649 Dominican  Republic 's first wri tten submission, para. 346. 
4650 Dominican  Republic 's first written submission, paras.  347-832. 
4651 Cuba's first written submission, para. 363. See also ibid. paras.  298 and 313.  
4652 Indonesia's first written submission, para. 248. See also Indonesia's second written submission, 
para. 111. 
4653 Indonesia's first written submission, paras.  249-363. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 673 - 
  issues before the Panel are: (1) the scope of the "special requirements" at issue; (2) whether the 
complainants have established that those special requirements "encumber" the "use" of a 
trademark "in the course of t rade"; and (3) to the extent that the complainants have established 
the existence of any such encumbrance, whether the complainants have further established that 
the TPP measures  impose this encumbrance "unjustifiably".4654 
7.3.5.2   Overall approach of the Panel  
7.2139.   We fi rst determine our overall approach to the examination of the complainants' claims, 
including the allocation of burden of proof under Article  20 of the TRIPS  Agreement , in respect of 
which the parties have different views.  
7.3.5.2.1   Main arguments of the parties  
7.2140.   Honduras argues that "[t]he text and structure of Article  20 demonstrate that 
unencumbered use of a trademark is the normal default situation under the TRIPS  Agreement ".4655 
According to Honduras, where a WTO Member wishes to change the default situation of unimp eded 
use, through special requirements that encumber the use of a trademark in the course of trade, it 
is incumbent upon that Member to ensure that this encumbrance is justifiable.4656 Honduras 
submits that, in exceptional circumstances and based on the asses sment of each trademark on its 
own merits, a Member can encumber the use of an individual trademark.4657 It adds that "[t]he 
burden of showing that a measure is 'justifiable' necessarily rests with the Member deviating from 
the default situation under the TRIPS Agreement  which, in the context of a WTO dispute, is the 
responding Member".4658 Honduras considers that this view is consistent with the ordinary meaning 
of the term "justifiable", which means "defensible" (i.e. "capable of giving protective defence"), 
because the ordinary meaning of this term suggests that it is the defendant who bears the burden 
of "justifying" a measure that falls within the examples of "special requirements" listed in 
Article  20".4659 Honduras adds that the negotiating history of Article  20 "indicates that the very 
raison d'être  of the term 'unjustifiably' was to provide an exceptional right  to Members, enabling 
them to pursue public policy objectives".4660 According to Honduras, it is a well -known principle of 
public international law and WTO law that the burden of proving an exception rests upon the 
Member invoking that exception.4661 Honduras  furthermore submits  that, "where a measure's 
restrictiveness is particularly severe and pervasive", that measure must be considered unjustifiable 
witho ut any further consideration of other factors. In its view, by their very nature, the TPP 
measures undermine the key principles of the TRIPS Agreement and, therefore, cannot be deemed 
as justifiable within the meaning of Article  20.4662 
7.2141.   The Dominican Republic  argues that "[i]n terms of structure, Article  20 is formulated as a 
prohibition against encumbrances on the use of a trademark (' use … shall not  be … encumbered by 
special requirements' ), with that prohibitive aspect subject to an exception or qualificati on through 
the word 'unjustifiably'".4663 The Dominican Republic considers that the burden of proof under 
                                                
4654 Australia's first written submission, para. 336. 
4655 Honduras's first written submission, para. 272. 
4656 Honduras's first written submissi on, para. 273. 
4657 Honduras's first written submission, para. 317. See also Honduras's further arguments on whether 
the unjustifiability of requirements should be assessed in respect of individual trademarks summarized in 
paras. 7.2443- 7.2449  below.  
4658 Honduras's first written submission , para. 318. 
4659 Honduras's first written s ubmission , para. 319 ( referring to  Oxford Dictionaries online, British and 
World English, definitions of "acquire", "by", "confusion", "course", "develop", "encumber", "identical", 
"justifiable", "likelihood", "nature", "necessary", "obstacle", "reasonable", "requirement", "right", "similar", and 
"trade", <www.oxforddictionaries.com>, accessed 29 September 2014 or 3 October 2014, (Oxford Dictionaries 
online, HND excerpts) , (Exhibit HND -31)). (footnotes omitted)  
4660 Honduras's first written submission, para. 320. (emphasis original)  
4661 Honduras's first written submission,  para. 320 (referring to Appellate Body Report, US – Wool Shirts 
and Blouses , p. 14, DSR 1997:I, p. 323). 
4662 Honduras's first written submission, para. 321.  See also Honduras's further arguments on the 
severe nature of the restrictions summarized in para. 7.2436  below.  
4663 Dominican  Republic 's first written submission, para. 343 (emphasis added by the Dominican 
Republic) . In response to Panel question No. 40, Honduras and Indonesia indicate that they agree with the 
Dominican  Republic 's arguments distinguishing between "prohi bitive" and "exception/qualification" elements in 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 674 - 
  Article  20 operates similarly to those under Article  XX of the GATT 1994, Article  XVI of the General 
Agreement on Trade in Services (GATS), and Article  3.1(a) of the SCM Agreement: the 
complainant bears the initial burden of demonstrating the prohibitive aspect of the provision (i.e. 
that a measure involves an encumbrance on use by special requirements); thereafter, the burden 
of demonstrating that the enc umbrance is justifiable shifts to the respondent.4664 In its view, 
Article  2.2 of the TBT Agreement  is different: a Member's right to adopt a trade -restrictive 
technical regulation is a "starting presumption", whereas the starting presumption under Article  20 
of the TRIPS  Agreement  is that a trademark may be used, unencumbered by special requirements, 
to allow the trademark to fulfil its basic function of distinguishing goods in the marketplace.4665 
Furthermore, a Member should not be entitled to impose the burde n on other Members to prove 
the negative proposition that there are no grounds to justify the encumbrance it imposes.4666 
7.2142.   Cuba submits that once it is established that a measure imposes special requirements 
constraining trademark use, the burden of justifying  those special requirements shifts to the 
implementing WTO Member. This allocation of the burden of proof is appropriate for several 
reasons: (i)  encumbrances on trademark use should only be permitted in exceptional 
circumstances; and (ii) it is inappropri ate to require a complainant to identify and refute a 
justification which it may be unaware of or which it may not be able to particularise.4667 
7.2143.   Cuba adds that " Article  20 is not a provision establishing an exception. … Article  20 
imposes a positive obligatio n not to encumber unjustifiably the use of a trademark through special 
requirements ." This means, Cuba argues, that no requirement should be justified provisionally, but 
the complainant must establish that the encumbrance is disproportionate, not limited, and 
therefore unduly restrictive. In this sense, Article  20 combines the positive ob ligation of refraining 
from imposing special requirements with the possibility of the existence of a limited exception for a 
provision, but imposes the burden of proof for both on the complainant.4668 
7.2144.   Indonesia  is of the view that it is the party imposing an encumbrance that must supply 
the justification. It submits that "[t]his view reflects an understanding that Article  20 represents a 
general prohibition on the use of special requirements that encumber the use of a trademark, and 
specifically prohibits the three types of special requirements listed in the obligation". It adds that 
the view is supported by decisions of prior WTO panels that a party invoking an exception or an 
affirmative defence bears the burden of proof. It also follows logically that the pa rty imposing the 
encumbrance is the party who has access to the information and evidence that formed the basis 
for the justification.4669 
7.2145.   Australia  submits that the burden of proof rests upon the party, whether complaining or 
defending, who asserts the affirm ative of a particular claim or defence.4670 It argues that 
Article  20, in contrast to Article  17, does not concern derogations from the exclusive rights that 
Members are required to provide to trademark owners under Article  16. Rather, it concerns 
external re quirements that Members impose upon the use of trademarks in furtherance of public 
policy. Nothing in the TRIPS  Agreement  requires Members to confer a general "right of use" upon 
trademark owners.4671 Australia considers that Article  20 is not an exception fo r measures that are 
otherwise inconsistent with relevant provisions of the TRIPS  Agreement . It further argues that the 
first sentence cannot be interpreted, as the Dominican Republic suggests, as establishing a 
prohibition that is then subject to an except ion by virtue of the word "unjustifiably". Rather, the 
first sentence of Article  20 establishes a single, affirmative obligation: "[t]he use of a trademark in 
the course of trade shall not be unjustifiably encumbered by special requirements". An 
                                                                                                                                                  
Article  20 and the implications of such a distinction on the allocation of burden of proof under Article  20. See 
also the Dominican  Republic 's response to Panel question No. 104, cited in footnote 4648 above.  
4664 Dominican  Republic 's first written submission, paras.  369-372. 
4665 Dominican  Republic 's first written submission, para. 374 and fn  305. 
4666 Dominican  Republic 's first written submission,  para. 375. 
4667 Cuba's first written submission, para. 322. 
4668 Cuba's second written submission, paras.  102-103. 
4669 Indonesia's first written submission, paras.  289-291 (referring to Panel Report, 
Dominican  Republic  – Import and Sale of Cigarettes ; and Appella te Body Report, US – Gasoline , p. 22, DSR 
1996:I, 3 ). 
4670 Australia's first written submission, para. 428 ( referring to  Appellate Body Report, US – Wool Shirts 
and Blouses , p. 14, DSR 1997:I, p. 323). 
4671 Australia's first written submission, para. 406. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 675 - 
  encumbranc e upon the use of a trademark in the course of trade is inconsistent with Article  20 
only if that encumbrance is shown to be unjustifiable. Establishing that an encumbrance is 
"unjustifiable" is therefore an element of the prima facie  case that a complaina nt must establish in 
order to prove a violation of this provision.4672 
7.2146.   In Australia's view, Article  20 is similar to other provisions of the covered agreements 
that require a complainant to establish that some threshold has been crossed (however that 
threshol d might be defined). Article  20 does not prohibit all measures that impose encumbrances 
upon the use of a trademark in the course of trade, but only those measures that "unjustifiably 
encumber" the use of a trademark in the course of trade. Just as a compl ainant must demonstrate 
under Annex C(1)(a) of the SPS Agreement that a delay is "undue", a complainant must 
demonstrate under Article  20 of the TRIPS  Agreement  that an encumbrance is "unjustifiable".4673 A 
complainant's obligation to establish a prima facie  case of unjustifiability is all the more evident 
where, as here, the measure at issue provides a justification for the encumbrance on the face of 
the measure itself.4674 
7.3.5.2.2   Main arguments of the third parties  
7.2147.   Brazil  submits that, if a WTO Member believes that an other Member has adopted a 
measure inconsistent with the obligation under Article  20, it would have to adduce evidence in its 
favour, whereas the respondent would still need to demonstrate otherwise.4675 
7.2148.   Canada  argues that the construction of Article  20 is su ch that it establishes an affirmative 
obligation on Members not to impose special requirements that unjustifiably encumber the use of a 
trademark. The word "unjustifiably" in the text does not create an exception (unlike Article  17 of 
the TRIPS  Agreement  or Article  XX of the GATT 1994), but rather comprises a component of the 
obligation. Canada therefore disagrees with the complainants that the burden shifts to the 
defending Member to prove that a measure is "justifiable". As identified in a note by the WTO  
Secretariat, when "necessity tests" are included in an obligation provision, the burden of proof is 
on the complaining party to show that the measure at issue does not meet the necessity 
requirement. The same holds true in the case of Article  20 and the e lement of "unjustifiably". That 
is, the complainants must show, as part of its prima facie  case, that the measure in question is 
"unjustifiable". Once that prima facie  case is established, then it is up to the respondent to 
advance sufficient argument and evidence to rebut such a case.4676 
7.2149.   The European Union  argues that, as regards the allocation of the burden of proof, 
splitting up the obligation in Article  20 seems artificial insofar as the obligation  "[t]he use of a 
trademark in the course of trade shall not be unjustifiably encumbered by special requirements"  is 
concerned . According to the Appellate Body, "[t]he burden of proof rests upon the party, whether 
complaining or defending, who asserts the affirmative of a particular claim or defence". It is thus  
up to the complainant to establish a prima facie  case that the respondent has breached its 
obligation that "[t]he use of a trademark in the course of trade shall not be unjustifiably 
encumbered by special requirements".4677 
7.2150.   New Zealand  submits that a complainant must show each of the following elements in 
order to establish a violation of Article  20: the measure at issue imposes special requirements  on 
the use of trademarks; the special requirements encumber  the use of a trademark in the course of 
trade ; and the measure at issue imposes the encumbrance unjustifiably .4678 
                                                
4672 Australia's first written submission,  para. 428. See also Australia's second written submission, 
para. 179. 
4673 Australia's first written submission, paras.  429-430. 
4674 Australia's first written submission, para. 431. 
4675 Brazil's third -party submission, para. 34. See also ibid. para. 49. 
4676 Canada's third -party submission, para. 75 (referring to  Working Party on Domestic Regulation, 
"Necessity Tests in the WTO", Note by the Secretariat, S/WPDR/W/27/Add.1, 18 January 2011, paras.  6-7 
(updating S/WPDR/W/27, 2 Dece mber 2003, and as corrected by S/WPDR/W/27/Add.1/Corr. 1, 15 February 
2011)).  
4677 The European Union's third -party submission, para. 37 (quoting Appellate Body Report, US – Wool 
Shirts and Blouses,  p. 14, DSR 1997:I, p. 323). 
4678 New Zealand's third -party submission, para. 44. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 676 - 
  7.2151.   Norway  argues that the TRIPS  Agreement  does not provide for a right to use a 
trademark, and that use and exploitation of IP right s are largely left to Members to regulate 
domestically. Thus, "'use" is not a fundamental principle of the TRIPS  Agreement , and there is no 
"presumption of use under the TRIPS  Agreement ".4679 In light of this, Article  20 is not formulated, 
and does not function, as an exception to any "right of use". Moreover, contrary to what the 
Dominican Republic argues, Article  20 is not structured as a prohibition with an inbuilt 
exception.4680 Rather, Norway agrees with Australia's position that Article  20 is best characterized 
as "a single affirmative obligation" i n the same way as Annex C(1)(a) of the SPS Agreement.4681 
Based on this, Norway submits that the burden of proof under Article  20 rests on the 
complainants, including establishing a prima facie  case encompassing all the elements of the legal 
standard relating  to the term "unjustifiably".4682 
7.2152.   Singapore  submits that it is well -established that the burden of proof rests upon the 
party, whether complaining or defending, who asserts the affirmative of a particular claim or 
defence. In this connection, Article  20 is a provision imposing an affirmative obligation – to not 
unjustifiably encumber the use of a trademark by special requirement – rather than an exception 
that may be invoked to defend against a claim of violation. Although the standard "unjustifiably" is 
referred to in the Article, it does not follow, as the complainants suggest, that the burden is shifted 
to the respondent to justify the measure when the other elements of the claim of Article  20 
violation are established. The initial burden is on the complaina nts to establish all the elements of 
the claim of Article  20 violation on a prima facie  basis, including that the measure is an 
unjustifiable encumbrance. It is only when this is done that the presumption arises that what is 
claimed is true and the onus sh ifts to the respondent to rebut that presumption. A presumption 
does not arise if only some of the elements of the claim are established by the complainants.4683 
7.2153.   Turkey  considers that the obligation in Article  20 is of an affirmative nature rather than 
except ional one. The use of the word "unjustifiably" in Article  20 does not change the affirmative 
nature of the obligation. Turkey believes that the logic in Article  2.2 of the TBT Agreement  can 
similarly apply to Article  20 of the TRIPS  Agreement . The panel in US – Clove Cigarettes  
established that the burden of proof rests upon the party alleging violation of Article  2.2 of the 
TBT Agreement . Turkey believes that this approach sheds light on the determination of the burden 
of proof under Article  20 of the TRIPS  Agreement .4684 Turkey also underlines that, as noted by the 
panel in Argentina  – Import Measures , "[c]ollaboration from parties to a dispute is essential for a 
panel to be able to discharge its function of making 'an objective assessment of th e matter before 
it'".4685 
7.3.5.2.3   Analysis by the Panel  
7.2154.   We recall that Article  20 of the TRIPS  Agreement  reads as follows:  
The use of a trademark in the course of trade shall not be unjustifiably encumbered by 
special requirements, such as use with another trademark,  use in a special form or 
use in a manner detrimental to its capability to distinguish the goods or services of 
one undertaking from those of other undertakings. This will not preclude a 
requirement prescribing the use of the trademark identifying the unde rtaking 
producing the goods or services along with, but without linking it to, the trademark 
distinguishing the specific goods or services in question of that undertaking.  
                                                
4679 Norway's third -party submission, para. 70 (quoting Honduras's first written submission, para. 316).  
4680 Norway's third -party submission , para. 71 (referring to Dominican  Republic 's first written 
submission, para. 343).  
4681 Norway's third -party submission , para. 72 (referring to Australia's first written submission, 
paras.  428-430).  
4682 Norway's third -party submission , para. 73. 
4683 Singapore's third -party submission, para. 38 (referring to Appellate Body Report, US – Wool Shirts 
and Blouses , p. 14, DSR 1997:I, p. 323). 
4684 Turkey's third -party submission, paras.  24-25 (referring to Panel Report, US – Clove Cigarettes , 
para. 7.381).  
4685 Turkey's third -party submission, para. 27 (quoting Panel Reports, Argentina  – Import Measures , 
para. 6.31).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 677 - 
  7.2155.   We read the two sentences of Article  20 as expressing a single obligation. The core of this 
obligation is expressed in its first sentence, which disallows special requirements that "unjustifiably 
encumber" the use of a trademark in the course of trade. This obligation is qualified by the second 
sentence, which identifies a type of require ment that is to be considered permissible.  
7.2156.   On a plain reading of its terms, the following elements would need to be established in 
order to find a violation of the core obligation contained in the first sentence of Article  20:  
a. the existence of "special r equirements";  
b. that such special requirements "encumber " "[t]he use of a trademark in the course of 
trade"; and  
c. that they do so "unjustifiably".  
7.2157.   We shall explore all three aspects in detail further below. Before doing so, however, we 
address the burden of proof under Article  20. 
7.2158.   In line with the practice of various international tribunals, the Appellate  Body has 
endorsed the principle that the party asserting a fact, whether complainant or respondent, is 
responsible for providing proof thereof. The burden o f proof rests upon the party, whether 
complaining or defending, who asserts the affirmative of a particular claim or defence.4686 
Likewise, the party invoking, in its defence, a provision that is an exception to the allegedly 
violated obligation (i.e.  the res pondent) bears the burden of proving that the conditions set out in 
the exception are met.4687 
7.2159.   As regards the required level of proof, the Appellate  Body has clarified that the party 
bearing the burden of proof must put forward evidence sufficient to make a prima facie  case that 
what is claimed is true. For the Appellate  Body, a prima facie  case is "one  which, in the absence of 
effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour 
of the complaining party presenti ng the prima facie  case".4688 Once that prima facie  case is made, 
the onus shifts to the other party, which will fail unless it submits sufficient evidence to disprove 
the claim, thus rebutting the presumption.4689 A panel's task therefore will be to consider al l 
evidence on record and decide whether the complainant, as the party bearing the burden of proof, 
has convinced it of the validity of its claims to the point of establishing a prima facie  case, and 
whether the respondent has sufficiently rebutted such a prima facie case.4690 
7.2160.   Precisely how much and what kind of evidence will be required to establish a presumption 
that what is claimed is true (i.e.  what is required to establish a prima facie  case) varies from 
measure to measure, provision to provision, and case  to case.4691 The Appellate  Body has 
explained that "[a] prima facie  case must be based on 'evidence and legal argument' put forward 
by the complaining party in relation to each of the elements of the claim". This means that a 
"complaining party may not simply submit evidence and expect the panel to divine from it a claim 
of WTO -inconsistency. Nor may a complaining party simply allege facts without relating them to its 
legal arguments."4692 
                                                
4686 Appellate  Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 , p. 335 . 
4687 Appellate  Body Report, US – Wool Shirts and Blouses , pp. 15-16, DSR 1997:I, 323 , p. 337 . 
4688 Appellate  Body Report, EC – Hormones , para. 104. This was confirmed by the Appellate  Body in 
Japan  – Agricultural Products II , paras.  121-122; and Japan  – Apples , para. 159. 
4689 Appellate  Body Reports, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 , p. 335 ; Japan  –
 Agricultural Products II , paras.  121-122; and Panel Report, US – Section 301 Trade Act , para. 7.14. 
4690 Panel Report, US – Section 301 Trade Act , paras.  7.14-7.15. 
4691 Appellate  Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 , p. 335 . See also 
Appellate Body Reports, Korea  – Dairy , paras.  143-145; and Thailand  – H-Beams , para. 132 (noting the 
absence of a provision in the DSU that would require a panel to make an explicit ruling on whether the  
complainant has established a prima facie case of violation prior to examini ng the respondent's defense and 
evidence).  
4692 Appellate  Body Report, US – Gambling , para. 140. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2161.   In line with these general principles of burden of proof, the partie s agree that it is for the 
complainants to make a prima facie  case that the TPP measures  amount to special requirements 
that encumber the use of trademarks in the course of trade within the meaning of Article  20.4693  
7.2162.   However, the parties disagree as to which  party bears the burden of proof in respect of 
whether such use is encumbered "unjustifiably". The complainants take the view that, once they 
have established that the TPP measures  amount to special requirements that encumber the use of 
trademarks in the c ourse of trade within the meaning of Article  20, the burden of proof shifts to 
the respondent to show that the encumbrance is justifiable.4694 The Dominican Republic and 
Indonesia consider that Article  20 establishes a general prohibition against encumbrances  on the 
use of a trademark, which is then subject to an exception through the use of the term 
"unjustifiably". The Dominican Republic argues that this follows from the grammatical structure of 
the language in Article  20, which provides "shall not be … encu mbered".4695 The Dominican 
Republic further argues that the "prohibitive aspect" of Article  20 establishes a "presumption" in 
favour of unencumbered use of a trademark, triggering an obligation to ensure that any 
encumbrance is justifiable.4696 In a similar vein , Honduras argues that, if a Member wishes to 
change the "default situation of unimpeded use", it is incumbent upon it to ensure that this 
encumbrance is justifiable.4697  
7.2163.   We are not persuaded that the language of Article  20 implies that the burden should shi ft 
to the respondent to demonstrate the "justifiability" of encumbrances falling within the scope of 
this provision. We do not find any indication in the text, including its grammatical structure, for the 
existence of a "presumption" or "default situation"  of unencumbered use, or for the existence of a 
"prohibition" and "exception" relationship between a principle of unencumbered use and an 
exception for "justifiable" encumbrances, as suggested by the complainants.  
7.2164.   Article  20, on its face, does not prohibi t as a matter of principle all measures that impose 
encumbrances upon the use of a trademark in the course of trade. Rather, it disallows only those 
special requirements that "unjustifiably encumber" the use of a trademark in the course of 
trade.4698 The stru cture of the first sentence of Article  20 suggests that it establishes a single 
obligation, rather than an obligation and exception thereto: "[t]he use of a trademark in the 
course of trade shall not be unjustifiably encumbered by special requirements". Ha d the drafters 
intended to establish a general prohibition on encumbrances and an exception for justifiable ones, 
it seems to us that they could have, for example, drafted the obligation as follows: the use of a 
trademark in the course of trade shall not b e encumbered by special requirements, unless such 
encumbrance is justifiable. The commitment that Members have undertaken under the terms of 
Article  20 is thus to not "unjustifiably encumber[] by special requirements" the use of a trademark 
in the course o f trade. The second part of the sentence, introduced by the term "such as", 
identifies three examples of specific situations covered by this provision, namely "use with another 
trademark, use in a special form or use in a manner detrimental to its capabili ty to distinguish the 
goods or services of one undertaking from those of other undertakings".4699  
7.2165.   The fact that the obligation is formulated partly through the use of the negative term 
"unjustifiably" (emphasis added) does not, in our view, modify this concl usion. We note in this 
respect that other provisions of the covered agreements resort to such "negative" formulations, 
without this necessarily implying a shift in the burden of proof in dispute settlement proceedings. 
For instance, in its first sentence, Article  2.2 of the TBT Agreement  provides that: "Members shall 
ensure that technical regulations are not prepared, adopted or applied with a view to or with the 
effect of creating unnecessary  obstacles to international trade" (emphasis added). Despite the use 
of the term "unnecessary" in this sentence, the Appellate Body did not consider that the initial 
                                                
4693 See paras.  7.2141 -7.2142  and 7.2145  above; Indonesia's response to Panel question No. 40; and 
Honduras's response to Panel question No. 40. 
4694 See paras.  7.2140 -7.2142  and 7.2144 -7.2145  above.  
4695 See paras.  7.2141  and 7.2144  above.  
4696 Dominican  Republic 's first written submission, paras.  344-345. 
4697 See para. 7.2140  above.  
4698 We also note that the TRIPS Agreement itself, when it seeks to establish a presumption, does so 
expressly. See Article  16.1 of the TRIPS Agreement and Articles  7(3), 15(2) and 15(4)(a) of the Berne 
Convention as incorporated into the TRIP S Agreement by means of reference in its Article  9.1. 
4699 The immediate context provided by the second sentence of Article  20 also suggests that Article  20 
establishes a single obligation, referred to as "[t]his" in the second sentence.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 679 - 
  burden of demonstrating this element of a violation rests with the defendant.4700 We note that the 
Appellate Body has similarly considered Article  2.4 of the TBT Agreement , which contains language 
akin to an exception (using the phrase "except when"), as a single obligation.4701 
7.2166.   Honduras also seeks support for its position from the ordinary meaning of the term 
"justifiable". In its view, the term means "defensible ", which suggests to Honduras that the 
defendant bears the burden of "justifying" a measure that falls within the examples listed in 
Article  20.4702 The Dominican Republic argues that the burden should not be on the complainant to 
prove the negative – that is , that there are no grounds to justify the encumbrances imposed by 
the respondent.4703 Cuba contends that it would be inappropriate to require a complainant to 
identify and refute a justification which it may be unaware of or which it may not be able to 
particularize.4704 Indonesia submits that the respondent would be in a better position to provide 
information and evidence that formed the basis for the justification.4705 
7.2167.   As noted above, the commitment that Members have undertaken under the terms of 
Article  20 is no t to "unjustifiably encumber[]". While this formulation does, in our view, imply that 
there will be circumstances in which an "encumbrance" within the meaning of Article  20 will be 
"justifiable", and the respondent, as the Member having taken the measures,  may be in a 
privileged position to explain, in response to a possible prima facie  demonstration of violation, why 
a specific encumbrance is justifiable, this circumstance is not in itself dispositive of the initial 
allocation of the burden of proof in dis pute settlement proceedings.4706  
7.2168.   We note that similar considerations have been discussed in the context of other covered 
agreements. In the context of the SPS Agreement, in which WTO Members undertake to comply 
with a number of specific obligations with resp ect to the adoption and application of sanitary and 
phytosanitary measures, the Appellate  Body considered that a panel erred in allocating the burden 
of proof generally to the Member imposing the measures at issue.4707 In doing so, the 
Appellate  Body reiterated that it was the complainant's task to present evidence and legal 
arguments sufficient to demonstrate a violation of the obligations contained in each specific 
relevant provision of the SPS  Agreement.4708 Similarly, the second sentence of Article  2.2 of the 
TBT Agreement , also invoked in the present dispute s, provides that "[f]or this purpose, technical 
regulations shall not be more trade -restrictive than necessary to fulfil a legitimate  objective, taking 
account of t he risks non -fulfilment would create" (emphasis  added). Notwithstanding the fact that 
the "legitimate objective" at issue is the objective pursued by the Member having adopted the 
challenged measure, the burden of establishing a prima facie  violation on th e basis of all relevant 
elements of the provision rests on the complaining Member. The  Appellate  Body confirmed this 
position, when it expressed concern in a subsequent dispute that "although the Panel recognized, 
at the outset of its analysis, that the bu rden of proving that an objective is not legitimate lay with 
the complainants, its reasoning at times suggests that it, instead, placed on [the respondent] the 
burden of proving that its objective was legitimate".4709 
7.2169.   In conclusion, in line with the general p rinciples on burden of proof in WTO dispute 
settlement as confirmed by the Appellate Body on a number of occasions, the initial burden of 
proof is not borne by the respondent to show that any encumbrances it has adopted are justifiable. 
We conclude, theref ore, that it is for the complainants to present a prima facie  case that the 
                                                
4700 Appellate  Body Repo rts, US – COOL , para. 379; and US – Tuna II (Mexico) , para. 323. See also 
Panel Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 7.434. As we noted in para. 7.27 above, 
it is undisputed that the burden of establishing that the TPP measures  are inconsistent with Article  2.2 of the 
TBT Agreement  rests on the complainants.  
4701 See Appellate Body Report, EC – Sardines , paras.  274-275, also cited in Panel Report, US – Tuna II 
(Mexico) , para . 7.628. Articles  3.1 and 3.3 of the SPS Agreement have been interpreted similarly. Appellate 
Body Report, EC – Hormones , para. 104. 
4702 See para. 7.2140  above.  
4703 See para. 7.2141  above.  
4704 See para. 7.2142  above.  
4705 See para. 7.2144  above.  
4706 See Appellate Body Report, EC – Sardines , paras.  276-281. 
4707 Appellate Body Report, EC – Hormones , para. 109 fn 71. 
4708 Appellate  Body Report, EC – Hormones , para. 109. 
4709 Appellate  Body Reports, US – COOL , para. 449. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  TPP measures  amount to special requirements and that the use of a trademark in the course of 
trade is unjustifiably encumbered by these requirements.  
7.2170.   We are mindful that this allo cation of the initial burden of proof does not address the 
standard of proof required to make a prima facie  case, nor does it exhaust the respective 
responsibilities of the parties in the production of proof and evidence in the course of the 
proceedings. A s observed by the Appellate Body, the application of the rules on the allocation of 
the burden of proof should not lead to "a mechanistic articulation of the function of the burden of 
proof" or to "an improper conflation of the burden and the standard of p roof".4710  
7.2171.   As regards the Dominican Republic's concern that the burden should not be on the 
complainant to prove the negative – that is, that there are no grounds to justify the encumbrances 
imposed by the respondent, we note that the fact that the complaina nts are required to make a 
prima facie  case in respect of all elements of an alleged Article  20 violation does not necessarily 
imply that they would need to demonstrate that there are no grounds to justify an encumbrance. 
Rather, it would be for the compla inants to make a prima facie  case that the encumbrance is 
imposed "unjustifiably"; once that has been done, the onus would shift to the respondent to prove 
the contrary by submitting sufficient arguments and evidence to this effect. In line with the 
genera l principles of burden of proof discussed in paragraphs 7.2158 -7.2160  above, it is for each 
party alleging a particular fact to present the arguments and evidence in support of that assertion. 
To the extent, therefore, that the respondent considers that, contrary to the complainants' 
assertions , any encumbrances arising under the challenged measures are not "unjustifiable", it will 
be incumbent upon it to present the arguments and evidence sufficient to disprove any prima facie  
case established by the complainants in this respect. In sum, the co mplainants have advanced the 
positive claim that the TPP measures  are inconsistent with Article  20, and with each of its 
elements, and must establish this claim in its entirety, rather than establishing a claim concerning 
selected elements of Article  20. 
7.2172.   In light of these preliminary determinations, we now consider in turn:  
a. whether the TPP measures  involve "special requirements" that "encumber" the use of a 
trademark within the meaning of Article  20; and if so,  
b. whether such requirements encumber the "use o f a trademark" "in the course of trade" 
within the meaning of Article  20; and, if so,  
c. whether they do so "unjustifiably".  
7.3.5.3   Whether the TPP measures  involve "special requirements" that "encumber" the 
use of a trademark  
7.2173.   As noted above, the complainants  claim that the TPP measures  impose "special 
requirements" that "encumber" the use of trademarks in the course of trade.4711 In particular, in 
their view, the term "special requirements" covers prohibitions on use and the term "encumber" is 
broad enough to en compass any extent of restrictiveness, including prohibitions on use.4712 
7.2174.   Australia  agrees that the TPP measures  impose "special requirements" on the use of 
trademarks, insofar as they require that any word trademark used on tobacco products and their 
retail packaging must appear in certain form. However, it considers that the term "special 
requirements" in Article  20 does not encompass those aspects of the TPP measures  that prohibit  
the use of certain trademarks on tobacco retail packaging and products.  
7.2175.   We re call that the first sentence of Article  20 refers to "special requirements" that 
"encumber" "the use of a trademark in the course of trade". The parties base their views on the 
scope of Article  20, in particular whether it covers prohibitions on use, on th eir understanding of 
the terms "special requirements" and "encumber". We first summarize the parties' relevant 
                                                
4710 See Appellate Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  7.34. 
4711 See para. 7.2132  above.  
4712 See section 7.3.5.3.1.1  below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 681 - 
  arguments. We then consider, first, the meaning of the term "special requirements" and, second, 
the meaning of the term "encumber" in the context  of Article  20, and, finally, whether the 
TPP measures  involve "special requirements" that "encumber" the use of trademarks. We will turn 
to the phrase "the use of a trademark in the course of trade" in the subsequent section.  
7.3.5.3.1   Meaning of the terms "special  requirements" and "encumbered" in Article  20 
7.3.5.3.1.1   Main arguments of the parties  
7.2176.   Honduras  argues that the ordinary meaning of the word "requirement" is a "'[a] thing 
that is compulsory ', 'something that is needed or that must be done'".4713 In WTO jurisprudence, 
this term has been interpreted to cover "prohibitions".4714 The ordinary meaning of "special", 
Honduras continues, has been interpreted in the context of Article  13 of the TRIPS  Agreement  by 
the panel in US – Section 110(5) Copyright Act  as meaning something t hat is "exceptional, 
distinctive or limited in its application".4715 The "special requirements" disciplined by Article  20 are 
therefore "measures of a compulsory nature that are exceptional, address distinctive elements of a 
trademark, or are limited in their  application to particular aspects of trademarks or their use".4716  
7.2177.   The term "encumber" means "'[to] [r]estrict or impede (someone or something) in such a 
way that free action or movement is difficult'; and 'to impede or hamper the function or activity'". 
Thus, Article  20 regulates a Member's rights to restrict, impede or hamper the function of "[t]he 
use of a trademark in the course of trade". Honduras adds that the key function of the use of 
trademarks is to differentiate and distinguish the goods of the tr ademark owner. This function is 
encumbered when the use of a trademark is restricted, impeded or hampered.4717 Article  20 is 
silent as to the extent or nature of "encumbrances" that fall within its scope. The ordinary meaning 
of the term "encumber" is therefo re broad enough to encompass any type of restriction, "ranging 
from a partial restriction to a total prohibition on use".4718 
7.2178.   Honduras draws an analogy with the reasoning of the Appellate Body in US – Gambling . 
In that case, the United States argued that Article XVI of the GATS (entitled "Market Access") 
regulates only precisely defined quantitative limitations and does not extend to a general 
prohibition on the supply of a service.4719 This argument was dismissed by both the panel and the 
Appellate Body on the grounds that the nature and effects of both types of measures are not 
substantially different.4720 According to Honduras, this case confirms its view that the term 
"encumber" in Article 20 captures complete prohibitions of a trademark as well as partial 
restrictions.4721 
7.2179.   The Dominican Republic  argues that a "special requirement" refers to a condition 
mandated by a government (the "requirement") that is "unusual" or "out of the ordinary" 
("special"), either because (i) it prescribes "use" of a trademark in a manner that departs from the 
                                                
4713 Honduras's first written submission, para. 277 (emphasis added  by Honduras) ( quoting Oxford 
Dictionaries online, HND excerpts, (Exhibit HND -31); and Merriam -Webster Dictionary online, HND excerpts , 
(Exhibit HND -48)). See also  Honduras's second written submission, para. 280. 
4714 Honduras's second written submission, paras.  280-281 (referring to Panel Reports, EC – Approval of 
Marketing of Biotech Products ; US – Continued Suspension ; and Canada  – Continued Suspension ). Although 
the cited reports interpreted "requirements" in the context of the SPS Agreement, Honduras argues that they 
support Honduras's understanding of the scope of the term "special requirements" under Article  20 of the 
TRIPS Agreement. Ibid. para. 281. 
4715 Honduras's first written submission, para. 278 ( referring to  Panel Report, US – Section 110(5) 
Copyright Act , para. 6.109).  
4716 Honduras's first written submission, paras.  278 and 282.  
4717 Honduras's first written submission, para. 283 ( referring to  Oxford Dictionaries online, HND 
excerpts, (Exhibit HND -31), definition of "encumber"; and Merriam -Webster Dictionary onl ine, HND excerpts, 
(Exhibit HND -48), definition of "encumber").  
4718 Honduras's first written submission, para. 285. 
4719 Honduras's first written submission, para. 286 (referring to Appellate Body Report, US – Gambling,  
paras.  222 and 224).  
4720 Honduras's first written submission, para. 286 (referring to Panel Report, US – Gambling,  
paras.  6.331 -6.332; and Appellate Body Report, US – Gambling,  paras.  232-238).  
4721 Honduras's first written submission, para. 286.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 682 - 
  usual treatment of a trademark; or (ii) it applies to trademarks used in connection with a 
particular type of good or service;  or (iii) both.4722  
7.2180.   The meaning  of the verb "encumber" is to "hamper … burden" or to "act as a … restraint". 
Encumbrances, therefore, include any measures that burden, hamper, or restrain the ability to use 
a trademark as registered (or, if not registered, as the owner would otherwise u se it).4723 The 
severity of an encumbrance must be assessed in light of the extent to which the encumbrance 
interferes with the ability of a trademark, as a whole, to perform its distinguishing function. An 
encumbrance may fall within a spectrum, ranging from  an insignificant encumbrance to a total 
encumbrance.4724  
7.2181.   Cuba argues that the ordinary meaning of the term "requirement" is "[s]omething called 
for or demanded; a condition which must be complied with". The TPP measures  contain 
"requirements" by imposing a set of conditions with which commercial actors involved in the 
manufacture and distribution of tobacco products in Australia must comply. These requirements 
are "special" because they affect only trademarks used on tobacco products.4725 Sections 20(1) 
and 26( 2) of the TPP Act make it clear that Australia seeks specifically to regulate "the use of" 
trademarks on retail packaging, on cigar bands and on tobacco products themselves.  
7.2182.   The relevant ordinary meaning of the term " encumber " is "to hamper, impede … act as a 
check or restraint on ". These restrictions on the use of trademarks may properly be described as 
"encumbrances " since they involve " impediments ", "checks " and " restraints " on the use and 
display of trademarks by trademark owners and they limit the cap acity of trademarks to 
distinguish specific tobacco products from other tobacco products. A prohibition is also a " restraint " 
or "impediment " on the use of a trademark; indeed it is the most severe restraint or impediment 
that can be imposed on the use of a trademark.4726 
7.2183.   Indonesia  argues that "special requirements"  are "mandated requirements that: 1) apply 
to a limited product class; 2) apply only for a particular purpose; or 3) are distinct from those that 
apply generally or 'usually'".4727 The TPP measures  fall within the scope of the second and third 
examples of the illustrative list in the first sentence of Article  20.4728  
7.2184.   To "encumber" means "[t]o burden with duties, obligations, or responsibilities". The 
special requirements with which Article  20 is concerned  must impose a burden on the use of a 
trademark in the course of trade.4729 Where the TPP measures  prevent use of trademarks all 
together, such measures are also encumbrances within the meaning of Article  20. In its view, they 
are an "encumbrance" in the most  extreme form and, therefore, cannot be justified in light of the 
object and purpose of the TRIPS  Agreement  and the context of Article  20.4730 
7.2185.   Australia  submits that the ordinary meaning of the term "use", in the context of 
Article  20, is to "'make use of (a thing), esp. for a particular end or purpose; utilize, turn to 
account". It argues that, if domestic law prohibits the "use" of certain trademarks altogether, then 
those trademarks are not being "use[d] … in the course of trade" and Article  20 is therefore not 
engaged. Moreover, each of the examples of a "special requirement" contained in the first and 
second sentences of Article  20 refers to " how a trademark may be used when it is used , not to 
whether it can be used".4731 
                                                
4722 Dominican  Republic 's first written  submission, para. 348. 
4723 Dominican  Republic 's first written submission, para. 349. 
4724 Dominican  Republic 's first written submission, paras.  351-352. 
4725 Cuba's first written submission, paras.  300-301 (quoting Shorter Oxford English Dictionary , 6th edn, 
A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, (Exhibit CUB -44), p. 2541).  
4726 Cuba's first written submission, para. 310 (quoting Shorter Oxford English Dictionary , 6th edn, A. 
Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, (Exhibit CUB -48), p. 827) (emphasis added by Cuba ). 
4727 Indonesia's first written submission, para. 250. 
4728 Indonesia's first written submission, para. 257. 
4729 Indonesia's first written submission, para. 269 ( referring to  The Compact Oxford English Dictionary , 
2nd edn, J.A . Simpson and E.S.C. Weiner (eds.) (Oxford University Press, 2000), p. 512).  
4730 Indonesia's first written submission, para. 277. 
4731 Australia's first written submission, para. 340 ( referring to  Shorter Oxford English Dictionary , 6th 
edn, A.  Stevenson (ed.) ( Oxford University Press, 2007), Vol. 2, pp. 1974, 2341, 2363, 2509, 2541, 3312, 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2186.   Australia submits that the verb "encumber" is defined, in relevant part, to mean 
"[h]amper, impede …; act as a check or restraint on". According to Australia, it is evident from the 
structure of the phrase "encumbered by special requirements" and, in particular, its  use of the 
preposition "by", that the relevant encumbrance under the first sentence of Article  20 is the 
encumbrance (if any) that arises from the special requirements imposed by the measure at issue. 
In other words, the encumbrance is a consequence or re sult of the special requirements.4732 
7.2187.   Australia argues that Article  19, entitled "Requirements of Use", specifically contemplates 
that "government requirements" may prohibit the use of a trademark altogether. It recognizes that 
circumstances "independent[] of  the will of the owner of trademark", including exogenous 
"government requirements", may prevent "the use of a trademark". According to Australia, the 
point of Article  19 is that any involuntary "non -use" of this type is a "valid reason" for opposing the 
cancellation of the registration of a trademark on the grounds of non -use. In Australia's view, this 
context supports the interpretation that Article  20 (entitled "Other Requirements") is concerned 
with special requirements imposed upon the use of a tradema rk when "government requirements" 
do not otherwise prohibit its use.4733 
7.2188.   Australia further argues that the object and purpose of the TRIPS  Agreement  is to ensure 
the adequate and effective protection of the IP right s that Members are required to confer under 
the Agreement. The rights that Members are required to confer under the TRIPS  Agreement  are 
negative rights of exclusion. Nothing in the TRIPS  Agreement  requires Members to confer a "right 
of use" upon owners of IP, it being understood that issues relating  to the use and exploitation of IP 
are largely matters of domestic law. In light of the object and purpose of the TRIPS  Agreement , 
Article  20 is best interpreted as imposing a discipline on how a Member may encumber the use of 
a trademark in the course of trade when its domestic laws and regulations otherwise do not 
prohibit the use of that trademark.4734 
7.2189.   In Australia's view, the implications of a contrary interpretation of Article  20 would be 
profound. Under the interpretation proposed by the complainants, a prohibition on tobacco 
advertising in print or broadcast media or a prohibition on the display of advertising and 
promotional material, including trademarks at the point of sale – measures that they do not 
challenge in these proceedings – would fall within  the scope of Article  20. Given that these are 
tobacco control policies in common use among WTO Members, the implications of a finding that 
these types of measures fall within the scope of Article  20 would be deeply troubling and should be 
of concern to al l WTO Members. "[S]uch an interpretation runs the risk of sweeping into Article  20 
a wide array of public policy measures that, in Australia's view, Article  20 was never meant to 
address."4735 
7.2190.   With regard to Australia's argument that each of the examples of " special requirements" 
contained in Article  20 refers to how a trademark may be used when it is used, Honduras  responds 
that the "special requirements" listed in Article  20 do not refer exclusively to restrictions, but may 
also refer to the ultimate restric tion, namely, a total prohibition on use. Moreover, it notes that the 
list of "special requirements" is not exhaustive. The provision may in principle encompass other 
measures with a higher degree of restrictiveness.4736 
7.2191.   With regard to Australia's reliance on  Article  19 as context to support its arguments under 
Article  20, Honduras takes the view that " Article  19.1 does not permit government actions 
                                                                                                                                                  
3445, and 3485, (Shorter Oxford English Dictionary, Vol. 2 AUS excerpts), (Exhibit AUS -245), p. 3485) 
(emphasis original) . 
4732 Australia's first written submission, para. 347 ( referring to  Shorter Oxford English Dictionary , 6th 
edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p p. 22, 56, 336, 341, 470, 489, 500, 542, 
827, 888, 1252, 1271, 1364, 1412, and 1799, (Shorter Oxford English Dictionary, Vol. 1 AUS excerpts , Part 1 ), 
(Exhibit AUS -243),  p. 827). We will consider the parties' arguments on the scope of the term "in the course of 
trade" and relevant uses of a trademark in sections 7.3.5.4.1.1  and 7.3.5.4.2.1 . 
4733 Australia's first written submission, para. 341. 
4734 Australia's f irst written submission, para. 342. 
4735 Australia's first written submission, paras.  343 and 345.  
4736 Honduras's second written submission, para. 284. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 684 - 
  encroaching on trademark  rights as such, but rather serves to protect trademark rights, when they 
are incidentally  affected by measures regulating goods".4737 
7.2192.   Regarding Australia's arguments relating to the nature of rights provided under the 
TRIPS  Agreement , Honduras responds that "[t]he fact that (negative) enforcement rights are 
established by other provisions of the TRIPS  Agreement , such as Article  16.1, does not determine 
the scope of the obligation under Article  20. Article  20 is an independent provisio n, which does not 
refer to (negative) enforcement rights, but protects the distinctiveness of trademarks by 
disciplining a broad range of special government requirements that encumber unjustifiably the use 
of a trademark."4738 
7.2193.   In response to Australia's conce rns about broader systemic implications, Honduras argues 
that "[a] general regulatory measure, such as an advertising ban, is not a ' special  requirement' on 
the use of a trademark, as it does not address distinctive elements of a trademark, and its 
applica tion is not limited to a particular aspect of trademarks". The term "special" highlights that 
Article  20 is concerned with trademark requirements that "specifically" impact the conditions for 
the use of the trademark, by imposing requirements on the commer cial use of the trademark. 
Requirements that incidentally affect the use of a trademark but are unrelated to the mark and its 
functions, such as general advertising bans, are not "special requirements" for the purpose of 
Article  20. Nor would this general measure fall under any of the examples of special requirements 
set out in Article  20.4739 
7.2194.   The Dominican Republic  responds that t here is no language in Article  20 that requires the 
treaty interpreter to ask, as a threshold matter, whether a trademark is being used. Rather, the 
text asks whether " [t]he use  of a trademark [is being ] encumbered ". The Dominican Republic 
submits that a prohibition on the use of a trademark plainly hampers, impedes, restrains, and 
obstructs the act of putting a trademark to work, or employing and applying it. Furthermore, the 
three examples serve merely to illustrate the scope of Article  20; they do not define the provision 
exhaustively. It adds that "it would be an odd interpretive outcome were a Member required to 
justify a weak form of encumbrance that interfered with the ability of a trademark to fulfill its 
function, but at the same time was liberated from any discipline under Article  20 for a severe  form 
of encumbrance that defeated a trademark's function".4740 
7.2195.   As regards Article  19, the Dominican Republic argues that Article  19 merely addresses the 
consequences for registration of involuntary non -use of the trademark and says nothing about the 
need to justify a different requirement (i.e. a requirement other than a requirement of us e to 
maintain registration) that encumbers the use of a trademark.4741 
7.2196.   As regards Australia's concern that including a prohibition on use within the scope of 
Article  20 would subject to scrutiny a Member's decision to ban advertising for particular products, 
the Dominican Republic responds that " Article  20 does not cover measures that incidentally impact  
trademarks, and 'that are otherwise unrelated to the trademark and their function ', such as 
advertising bans or restrictions on the availability of a product".4742 Under the text, Article  20 does 
not apply to every encumbrance on the use of a trademark. Rather, it applies only to those 
encumbrances that arise from a "special requirement". The term "special requirement" refers to 
measures that establish leg al conditions directly regulating the trademark itself. For example, a 
measure that regulates a good or a service – as opposed to a trademark used on those products – 
does not impose a "special requirement" on trademarks, even if the measure has incidental  effects 
on the use of a trademark.4743 
7.2197.   Cuba responds that the ordinary meaning of the term "requirement" includes a 
requirement not to do something or, in other words, includes a "prohibition". A "requirement" may 
                                                
4737 Honduras's second written submission, para. 285. (emphasis original)  
4738 Honduras's second written submission , para. 286. 
4739 Honduras's second written submission, para. 295. (emphasis original)  
4740 Dominican  Republic 's second written submission, paras.  102-106. (emphasis original)  
4741 Dominican  Republic 's second written submission, para. 107. 
4742 Dominican  Republic 's second written submission, para. 108 ( referring to  European Union's 
third-party submission, para. 15). (emphasis original)  
4743 Dominican  Republic 's second written submission, para. 110. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 685 - 
  be expressed in a positive or negative form and, therefore, includes measures prohibiting 
trademark use. Thus, the term "requirement" is broader than the term "prohibition", but 
unquestionably also includes prohibitions. "To prohibit" is nothing other than "to require, 
negatively" that something be done or not done. Furthermore, the TPP measures  impose both 
negative and positive requirements through the prohibition on use of all trademarks, and by 
requiring, for example, the use of trade names in a specific format and typeface. Accordingly, the 
TPP measures  establish a series of positive and negative requirements on trademark use.4744 
7.2198.   Cuba invokes as relevant context Article  XI of the GATT 1994, which eliminates import 
"prohibitions or restrictions", and has been interpreted as referring to "limiting con ditions" or 
requirements on importation, with prohibition being the utmost requirement of restriction or 
limitation.4745 
7.2199.   Cuba adds that it is not any requirement, even remotely related to trademark use in the 
course of trade, that would be covered by the subj ect matter of Article  20, as Australia wrongly 
suggests. The relevant trademark requirements and corresponding provisions of the TPP Act are 
directly and specifically related to trademark use, and impose both negative and positive "special" 
requirements on  trademark use. Accordingly, they are sufficiently "special" to be covered by 
Article  20 of the TRIPS  Agreement .4746 
7.2200.   Indonesia  responds that Australia "creates a circular argument by claiming that a 
prohibition on use cannot be covered by Article  20 because t here is no use in the course of trade". 
As regards the illustrative list of examples of "special requirements", the use of the term "such as" 
in Article  20 makes it clear that the specified examples are not a closed list and that a wide range 
of special re quirements could be covered by Article  20, so long as they encumber use of a 
trademark in the course of trade. Indonesia maintains that there is no support in the language of 
Article  20 for the view that a special requirement prohibiting use in the course of trade is excluded 
from the scope of Article  20.4747  
7.2201.   Indonesia argues that Article  19 deals with a single circumstance relating to use of a 
trademark – namely, where use is required for registration, but obstacles to use beyond the 
control of the trademark  owner (e.g. import requirements) prevent such use. For Indonesia, once 
Article  19 is given its proper meaning, it becomes clear that, if Article  20 does not address 
prohibitions on use of a trademark in the course of trade, no other provision will.4748 
7.2202.   Indon esia also considers that Australia's position that the rights to be conferred under the 
TRIPS  Agreement  are negative rights of exclusion would deliver only half the protection required 
and, thus, would be inconsistent with the object and purpose of the TRIPS  Agreement . In 
Indonesia's view, Australia's interpretation would create an untenable situation where the 
TRIPS  Agreement  would allow Members total freedom to impose a prohibition on the use of a 
trademark without justification or explanation, but wou ld be required to provide a justification and 
explanation when imposing limitations on the use of a trademark.4749 
7.2203.   Furthermore, Indonesia considers that Australia's concern that including prohibitions on 
use within the scope of Article  20 would undermine othe r widely -used tobacco control policies, 
such as advertising bans or product bans, is specious. Indonesia argues that there is a distinction 
between a general prohibition on the availability of a good and a prohibition on the use of a 
specific trademark or a special class of trademarks on a good that is lawfully placed on the market. 
Article  20 is not concerned with the application of any and all requirements that may indirectly 
encumber the use of trademarks. Rather, it addresses the application of "special  requirements". A 
                                                
4744 Cuba's second written submission, paras.  71-72. 
4745 Cuba's second wri tten submission, para. 73 (referring to Panel Report, India – Autos , 
paras.  7.269 -7.270).  
4746 Cuba's second written submission, paras.  75-77. 
4747 Indonesia's second written submission, para. 116. 
4748 Indonesia's second written submission, paras.  122-124. 
4749 Indonesia's second written submission, para. 125. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 686 - 
  general prohibition, such as on the sale of a good in a market or on advertising generally, does not 
satisfy the definition of a "special requirement" on the use of a trademark.4750 
7.3.5.3.1.2   Main arguments of the third parties  
7.2204.   Argentina  agrees with A ustralia's interpretation that, while Article  20 lays down certain 
conditions in relation to the use of a trademark, it says nothing about whether or not it can be 
used.4751 
7.2205.   Brazil  is not convinced that a prohibition on the use of trademarks would be outside the 
scope of Article  20. Nor does it seem appropriate, in Brazil's view, to affirm that Article  19 could 
serve as valid context to such interpretation. In its view, Article  19 makes reference to 
requirements concerning goods or services themselves (e.g. te chnical, sanitary), not concerning 
trademarks. The non -exhaustive list of examples of special requirements (introduced by the term 
"such as") per se does not exclude prohibition of use from the scope of Article  20. In light of a 
definition offered by the Shorter Oxford English Dictionary , a prohibition seems to be a form of 
encumbrance. Furthermore, if a prohibition of use were deemed to be beyond the scope of 
Article  20, then a loophole in the TRIPS  Agreement  could be created, whereby it would be possible 
to circumvent the obligation of "no -unjustifiable -encumbrance" by prohibiting the use of 
trademarks altogether.4752 
7.2206.   Canada  argues that the examples of requirements listed in Article  20 relate to how a 
trademark can be used. In its view, restrictions related t o whether  a trademark can be used (e.g. 
prohibiting their use on goods or in advertising) or where  a trademark can be used (e.g. 
designating use on specified parts of product packaging) are not "special requirements" for the 
purposes of Article  20. Article  20 does not expressly state that a Member is prohibited from 
banning or restricting the use of a trademark. The absence of such language indicates that 
Members sought to preserve this regulatory flexibility. Thus, "[t] aking into consideration the 
ordinary meaning of the words, in their context, the term 'special requirements' in Article  20 must 
be interpreted narrowly to mean: mandatory demands that have a limited scope of application or a 
limited effect4753 on how a trademark can be used."4754 While Cana da agrees with Honduras that 
Article  19.1 protects trademarks when they are "incidentally" affected by measures regulating 
products, it is clear in Canada's view that the text does not limit the protection of trademarks to 
these "types" of circumstances. T he text does not preclude other types of measures, such as those 
directly regulating the use of trademarks or products, from constituting "circumstances" that may 
be recognized as valid reasons for non -use of a trademark. For Canada, the narrow interpretat ion 
advanced by Honduras is not supported by the text and would untenably limit the scope of 
protection afforded under Article  19.1.4755 
7.2207.   China  is of the view that, where the use of a trademark is prohibited, its use is 
"encumbered". The three special requirem ents mentioned in Article  20 are non -exhaustive 
illustrations, as indicated by the term "such as".4756 
7.2208.   The European Union  considers that Article  20 applies to cases where requirements that 
amount to "encumbrances" are imposed by WTO Members on the use of trad emarks for 
designated goods and services which may be commercialized. Article  20 does not apply to 
restrictions on commercialization of goods and services. Under the TRIPS  Agreement , WTO 
Members have retained their sovereign right to prohibit or to impose conditions on the 
commercialization of designated goods and services. The word "special" is often "used with a large 
number of legal terms to denote particular or distinctive instances or cases of the thing, action, or 
person in question". In Article  20, the particularity or distinctiveness of the "requirements" must 
be understood to relate to the specific subject -matter of that provision. Article  20 is about use of a 
                                                
4750 Indonesia's second written submission, paras.  126-127. 
4751 Argentina's third -party submission, para. 10. 
4752 Brazil's third -party submission, paras.  40-43. 
4753 (footnote original) For example, the requirement may be limited in its application to, or effect on, a 
particular class of trademarks or category of goods.  
4754 Canada's third -party submission, paras.  64-67. 
4755 Canada's third -party response to Panel question No. 12, paras.  25-26. 
4756 China's third -party submission, para. 39. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 687 - 
  trademark. Therefore, the notion of "special requirement" does not cover requirements that  affect 
the use of trademarks but that are otherwise unrelated to trademarks and their function (i.e. to 
convey information that enables the public to distinguish between the goods or services of 
different undertakings). For instance, an absolute restricti on on advertising of tobacco products in 
print or broadcast media is not covered and hence would not be subject to the Article  20 test. 
However, measures that are specific to trademarks, including measures that specifically prohibit 
the use of trademarks o n the labelling of products or on advertising, would amount to "special 
requirements".4757 
7.2209.   The European Union maintains that Article  19 of the TRIPS  Agreement  does not change 
this conclusion. Article  19 (entitled "Requirement of Use") refers in general to "im port restrictions 
on or other government requirements for goods or services". This sentence is furthermore just an 
example ("such as") of an obstacle to the use of a trademark, thus indicating that there may be 
other obstacles to such use. The fact that Article 20 is entitled "Other Requirements" must be read 
in the light of the title of Article  19, and its first sentence, addressing the requirement of use of a 
trademark. It does not imply that the "special requirements" under Article  20 and the "other 
government requirements" under Article  19 are mutually exclusive concepts.4758 The text of 
Article  19 does not contain a distinction according to whether trademarks are incidentally or 
directly affected by measures. It may, therefore, be applicable in both conste llations.4759 
7.2210.   Guatemala  understands Article  19 to deal specifically with the "requirement of use" to 
"maintain a registration", while Article  20 addresses "other requirements", to the exclusion of the 
"requirement of use" addressed in Article  19. Article  20 applies provided that the requirement at 
issue is not a "requirement of use" to "maintain a registration". Guatemala considers that 
Article  20 applies to a total prohibition. Therefore, Guatemala submits that "unjustifiably 
encumbered" encompasses unjus tifiable prohibitions or "impediments" to the use of a trademark. 
Guatemala is not convinced that the TRIPS  Agreement  allows Members total freedom to impose 
prohibitions but not when they impose limitations on the use of trademarks.4760 
7.2211.   Japan  submits that a prohibition on use of a trademark constitutes  a "special 
requirement" within the meaning of Article  20 since such prohibition impairs the ability  of a 
trademark  owner to distinguish its goods or services from those of other economic operators. In its 
view, Australia's proposed interpretation would yield outcomes that are counterintuitive. 
Conditions that interfere with, but do not prohibit, the use of a trademark would be allowed under 
Article  20 only if such restrictions were justifiable. Yet, under Austral ia's interpretation, a total 
prohibition on the use of a trademark would always be allowed without any discipline, although it 
would effectively deprive the trademark of value .4761 
7.2212.   Malawi  asserts that the TRIPS  Agreement  protects "the qualified minimum right to use 
validly registered trademarks".4762 As regards Article  20, it considers that a prohibition on the use 
of a trademark amounts to the ultimate encumbrance.4763 
7.2213.   New Zealand  submits that the term "special requirements" must be interpreted in 
accordance with t he ordinary meaning to be given to the term in its context and in light of the 
object and purpose of the TRIPS  Agreement . It notes that each of the examples in the 
non-exhaustive list deals with the use of a trademark.4764 New Zealand maintains that Honduras' s 
suggestion that Article  19 serves to protect trademarks when they are "incidentally" affected by 
measures regulating goods does not have any basis within the text of the provision.4765 
                                                
4757 European Union's third -party submission, paras.  13-17 (referring to  Oxford English Dictionary 
online, definition of "special", available at: 
<http://www.oed.com/view/Entry/185972?rskey=7v9b1F&result=1#eid >, accessed  8 April 2015).  
4758 European Union's third -party submission, para. 18. 
4759 European Union's third -party response to Panel question No. 12, para. 46. 
4760 Guatemala's third -party submission, paras.  21-23. 
4761 Japan's third -party submission, paras.  12 and 14.  
4762 Malawi's third -party submission, para. 18. 
4763 Malawi's third -party statement, para. 15. 
4764 New Zealand's third -party submission, paras.  45 and 51.  
4765 New Z ealand's third -party response to Panel question No. 12, p. 7. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 688 - 
  7.2214.   Nicaragua  argues that Article  20 confirms that "use of a trademark in th e course of trade" 
is a matter covered by the TRIPS  Agreement . The Agreement thus goes beyond treating 
trademarks as mere negative rights and protects the use of a trademark. Article  20 protects the 
distinguishing function of trademarks. Special requiremen ts on the use of a trademark that 
encumber use include the special requirement not to use the trademark on the product in retail 
trade. General regulatory requirements that may affect the use of trademarks such as advertising 
restrictions are not covered b y Article  20 because they are not "specific" to the use of a trademark 
such that they would be "special" requirements.4766 Nicaragua agrees with Honduras that Article  19 
focuses on the protection from cancellation of a trademark registration due to non -use in  the 
presence of a ban or restriction on the commercialization or placing on the market of a product for 
which the trademark is registered.4767 
7.2215.   Norway  argues that, although Article  20 refers to the use of a trademark, its terms do not 
impose on WTO Members an  obligation to provide a "right of use". Article  20 deals with 
government regulation and its limits if  a trademark is used. Norway agrees with Australia's 
position that measures prohibiting the use of a trademark do not fall within the scope of Article  20. 
It notes that the three examples listed in Article  20 are all concerned with how a trademark is 
used. Article  19 recognizes Members' right to impose measures creating an "obstacle" to the use of 
a trademark. A logical consequence of the recognition in Article 19 of Members' right to prevent 
the use of a trademark is that the term "special requirements" in Article  20 does not refer to 
requirements of this kind, but rather refers to obligations imposed in situations where the use of a 
trademark is not prohib ited.4768 
7.2216.   Oman  endorses the legal arguments and factual evidence set out in Australia's 
submissions to the Panel.4769 
7.2217.   Singapore  argues that Article  20 does not lay down an obligation to permit the use of a 
trademark. The application of the ejusdem generis  rule s upports the reading that a prohibition on 
the use of trademarks does not fall within the meaning of special requirements that encumber the 
use of trademarks because it is not of the same type as the special requirements that are listed. 
This reading is con firmed by the negotiating history of Article  20 which commentators have 
explained was directed at certain practices during the Uruguay Round such as requiring foreign 
trademarks to be used with the trademark or trade name of the local licensee. The practic es 
discussed did not include prohibitions on the use of trademarks. For these reasons, Singapore's 
view is that aspects of the TPP measures  that prohibit the use of "non -word" trademarks are not 
within the scope of Article  20.4770 It also considers that the second sentence of Article  19.1 does 
not set out exhaustively the types of situations which may constitute "obstacles to the use of 
trademark".4771 
7.2218.   Zambia  asserts that the TPP measures  impose drastic "special requirements" on word 
marks and prohibit all other trademark use entirely and thus impose the "ultimate encumbrance" 
on the use of trademarks.4772 
7.2219.   Zimbabwe  considers that the right to use is protected under international law, in 
particular in Articles  16 and 20 of the TRIPS  Agreement . Therefore, it considers that Australia 
violates its obligations under the TRIPS  Agreement  by prohibiting the use of trademarks on 
tobacco products. The TPP measures  impose the ultimate encumbrance by almost entirely 
prohibiting trademark o wners from using their registered marks on lawful products.4773 
                                                
4766 Nicaragua's third -party submission, paras.  26-27. 
4767 Nicaragua's third -party response to Panel question No. 12, p. 9. 
4768 Norway's third -party submission, paras.  35 and 49 -51; and Norway's third -party response to Panel 
question No. 13, paras.  24-26. 
4769 Oman's third -party statement, para. 4. 
4770 Singapore's third -party submission, paras.  43-45. 
4771 Singapore's third -party response to Panel question No. 12, p. 6. 
4772 Zambia's third -party statement, para. 12. 
4773 Zimbabwe's third -party submission, paras.  34-35. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 689 - 
  7.3.5.3.1.3   Analysis by the Panel  
7.2220.   As described above, Article  20 relates to "special requirements" that "encumber" the use 
of a trademark, and a finding of violation of Article  20 would therefore involve in the first instance 
a finding that such "special requirements" exist and that they "encumber" the use a trademark. 
The parties have different views on the meaning of these terms in Article  20. We therefore 
consider this question first.  
Meaning of "special requirements"  
7.2221.   As described above, the parties disagree on the extent to which prohibitions on the use of 
a trademark may constitute "special requirements" within the meaning of Article  20. We therefore 
consider the ordinary meaning of this term, taken in i ts context and in light of its object and 
purpose and that of the TRIPS  Agreement .4774 
7.2222.   The term "requirement" refers to "[s]omething called for or demanded; a condition which 
must be complied with".4775 This term has been interpreted in the context of various ot her covered 
agreements. For instance, in the context of an analysis of Annex A(1) of the SPS Agreement, the 
panel in EC – Approval and Marketing of Biotech Products  "note[d] that the term 'requirements' is 
broad in scope": "[f]or instance, both an authoriz ation to market a particular product and a ban on 
the marketing of a particular product may be considered 'requirements', in that one is effectively a 
requirement to permit the marketing of a product and the other a requirement to ban the 
marketing of a pr oduct."4776 We agree with that panel that the plain meaning of the term 
"requirement" does not imply permitting a certain action or behaviour, to the exclusion of banning 
or prohibiting certain actions. We now consider the specific context in which the term i s used.  
7.2223.   In Article  20, the specific object of the term "requirements" is the "use of a trademark in 
the course of trade". The term "requirements" is qualified by the adjective "special". The use of the 
term "special" suggests two relevant connotations. Th e first is "[h]aving a close or exclusive 
connection with a specified person, thing, or set; own, particular, individual"; "specific, individual, 
or particular to the specified person, thing, or set"; or "[h]aving an individual, particular, or limited 
application, object, or intention; affecting or concerning a single person, thing, group".4777 The 
second connotation relates to being "[e]xceptional in quality or degree; unusual; out of the 
ordinary".4778 All parties refer to the panel report in US – Section  110(5 ) Copyright Act , where the 
panel considered the meaning of "special cases" in Article  13 of the TRIPS  Agreement , which 
relates to limitations and exceptions to exclusive rights in relation to copyright.4779 The panel 
explained in that context that "[t]he term  'special' connotes 'having an individual or limited 
application or purpose', 'containing details; precise, specific', 'exceptional in quality or degree; 
unusual; out of the ordinary' or 'distinctive in some way'".4780  
7.2224.   In our view, it follows from the ordina ry meaning of "special" that the relevant 
"requirements" under Article  20 are limited in application. The "requirements" referred to must 
have "a close or exclusive connection" with their specific object, namely, in the context of 
Article  20, the "use of a trademark in the course of trade".  
                                                
4774 See, e.g. para.  7.1822  above . 
4775 Oxford English Dictionary online, definition of "requirement", available at: 
<http://www.oed. com/view/Entry/163260?redirectedFrom=requirement#eid >, accessed  2 May 2017.  
4776 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1334. See also Panel 
Reports, US – Continued Suspension , para. 7.433; and Canada  – Continued Suspension , para. 7.424.  
4777 Oxford English Dictionary online, definition of "special" , available at:  
<http://www.oed.com/view/Entry/185972?rskey=j7u0X4&result=1#eid >, accessed  2 May 201 7. 
4778 Oxford English Dictionary online, definition of "special" , available at:  
<http://www.oed.com/view/Entry/185972?rskey=j7u0X4&result=1#eid >, accessed  2 May 2017.  
4779 Article  13 of the TRIPS Agreement, relating to copyright, provides that: "Members shall confine 
limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal 
exploitation of the work and do not unreasonably prej udice the legitimate interests of the right holder."  
4780 Panel Report, US – Section 110(5) Copyright Act , para. 6.109. See Honduras's first written 
submission, para. 278; Dominican  Republic 's first written submission, fn 289; Cuba's first written submission,  
fn 388; Indonesia's first written submission, para. 250; and Australia's first written submission, fn 529. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 690 - 
  7.2225.   Australia argues that if domestic law prohibits the "use" of certain trademarks altogether, 
then those trademarks are not being "use[d] … in the course of trade" and Article  20 is therefore 
not engaged.  In support of its position, Australia points out that each of the examples of a "special 
requirement" contained in the first and second sentences of Article  20 refers to how a trademark 
may be used when it is used, not to whether it can be used. The three  specific situations identified 
in the first sentence are the following: use with another trademark; use in a special form; and use 
in a manner detrimental to its capability to distinguish the goods or services of one undertaking 
from those of other undert akings. The second sentence refers to the use of the trademark 
identifying the undertaking producing the goods or services along with,  but without linking it to, 
the trademark distinguishing the specific goods or services in question of that undertaking, w hich 
is not precluded.  
7.2226.   The examples introduced by "such as" in the first sentence of Article  20 may assist our 
understanding of the scope of Article  20, insofar as they illustrate situations in which special 
requirements are imposed in relation to the use of trademarks in the course of trade that fall 
within the scope of Article  20.4781 We note that the term "such as" is placed immediately after the 
term "special requirements", indicating that the enumeration that follows identifies examples of 
"special requir ements".4782 While these three examples appear to relate, on their face, to 
situations in which a trademark may be used, with certain conditions, this list, preceded by the 
term "such as", is illustrative. In our view, therefore, it does not imply that other types of 
requirements, including a requirement amounting to a prohibition on use, would be precluded from 
falling within the scope of Article  20.  
7.2227.   Similarly, the fact that the second sentence of Article  20 expressly identifies a specific 
situation, unrelat ed to a prohibition on the use of a trademark, as being "not precluded" carries no 
implication, in our view, that situations in which the use of a trademark is entirely prevented would 
not be covered by the terms of the first sentence.  
7.2228.   As described above,  the parties have also referred to the title and text of Article  19 as 
relevant context in support of their respective positions. Article  19 is entitled "Requirement of 
Use", while Article  20 is entitled "Other Requirements". The requirement addressed by Article 19 is 
the requirement that may exist under domestic law that a trademark be used as a condition for 
maintaining its registration. The "other requirements" in the title of Article  20 evidently refer to 
something other than the requirement of use addr essed in Article  19.  
7.2229.   Australia argues that the second sentence of Article  19 contemplates that "government 
requirements" may prohibit the use of trademarks, which in its view implies that Article  20 is 
concerned with "special requirements" on the use of t rademarks when "government requirements" 
do not otherwise prohibit such use.4783 Honduras responds that the second sentence of Article  19 
only envisages situations where trademarks are incidentally affected by measures regulating 
goods.4784  
7.2230.   The second sentence of Article  19 provides that "[c] ircumstances arising independently of 
the will of the owner of the trademark which constitute an obstacle to the use of the trademark, 
such as import restrictions on or other government requirements for goods or services pro tected 
by the trademark, shall be recognized as valid reasons for non -use". We note that it does not 
distinguish between government requirements that affect trademarks incidentally or directly. 
Furthermore, in our view, "government requirements" as referre d to in the second sentence of 
Article  19 and "special requirements" addressed in Article  20 are not mutually exclusive notions. 
                                                
4781 We will address the parties' views on whether encumbrances that fall within the scope of the 
illustrative list are presumed to be unjustifiable in  section 7.3.5.5.2.4  below.  
4782 As noted by the Dominican  Republic  and Canada, in the French version, the term " telles que " in its 
plural form refers to "des prescriptions spéciales ". See Dominican  Republic 's response to Panel question 
No. 39, para. 157; and Canada's third -party submission, paras.  69-72. In the French text, the first sentence of 
Article  20 reads as follows: " L'usage d'une marque de fabrique ou de commerce au cours d'opérations 
commerciales ne sera pas entravé de manière injustifiable par des prescriptions spéciales, telles que l'usage 
simultané d'une autre marque, l'usage sous une forme spéciale, ou l'usage d'une manière qui nuise à sa 
capacité de distinguer les produits ou les services d'une entreprise de ceux d'autres entreprises ." The Spanish 
text is " como por ejemplo ". 
4783 Australia's first written submission, para. 341. 
4784 Honduras's second written submission, para. 285. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 691 - 
  The fact that Article  19 contemplates the existence of a government measure that prevents the 
use of a trademark and addresses the consequences of such measures in respect of the 
maintenance of registration based on use does not, as such, address whether any such measure 
would amount to a special requirement affecting the use of a trademark and be subject to the 
disciplines of Article 20. In light of these elements, we are not persuaded that Article  19 supports 
the proposition that the "special requirements" referred to in Article  20 are limited in scope to 
situations in which the use of the relevant trademark is allowed.  
7.2231.   The elem ents above suggest that the term "special requirements" refers to a condition 
that must be complied with, has a close connection with or specifically addresses the "use of a 
trademark in the course of trade", and is limited in application. This may include  a requirement not 
to do something, in particular a prohibition on using a trademark.  
7.2232.   For the complainants, the relevant question is not whether a trademark is being used, but 
rather whether its use is being encumbered.4785 We agree that the relevant questio n, for the 
purposes of determining whether "special requirements" may be considered to "encumber the use 
of a trademark", is not whether the trademark is being  used, but rather whether its use is being 
encumbered  by the "special requirements" at issue. We now consider the meaning of the term 
"encumber", which also provides further relevant context for our understanding of the term 
"special requirements".  
7.2233.   Before turning to this question, we note that all parties agree, albeit for different reasons, 
that a ge neral regulatory measure, such as an advertising ban, would not be covered by the 
disciplines under Article  20.4786 The complainants and some third parties come to this conclusion 
on the grounds that such general regulatory measures are not " special  requireme nts", as they do 
not specifically concern the conditions on the use of a trademark; in their view, regulatory 
requirements that incidentally affect the use of a trademark but are unrelated to the mark and its 
functions, are not "special requirements" for t he purposes of Article  20.4787 Australia and some 
third parties come to the same conclusion on the grounds that prohibitions on the use of 
trademarks are not covered under Article  20.4788 While we note these positions, we do not find it 
necessary for the purposes of the present dispute s to take a position on the extent to which any 
particular measures not before us in these proceedings may or may not be covered by this 
provision. In partic ular, nothing in our findings should be taken as suggesting that the kind of 
trademark use that may be affected by measures falling within the scope of Article  20 is 
necessarily limited to use in the form of application of a trademark on a product presente d for 
sale. 
Meaning of "encumber"  
7.2234.   By the terms of Article  20, "special requirements" may give rise to a violation of that 
provision only if they " encumber " the "use of a trademark in the course of trade". The term 
"encumber" therefore further informs the c onnection that must exist between the "special 
requirements" at issue and the "use of a trademark", for the purposes of Article  20. Specifically, 
the term "encumbered" defines the type of situation in which a "special requirement" affecting the 
"use of a t rademark in the course of trade" falls under the purview of Article  20. If "special 
requirements" do not "encumber" the "use of a trademark", no violation of this provision will 
arise.4789 
                                                
4785 Dominican  Republic 's second written submission, para. 102. 
4786 See section 7.3.5.3.1.1  above.  
4787 Honduras's second written submission, para. 295; Dominican  Republic's second written submission, 
paras.  108 and 110; Cuba's second written submission, paras.  75-77; Indonesia's second written submission, 
paras.  126-127; European Union's third -party submission, para. 16; and Nicaragua's third -party submission, 
para. 27. 
4788 Australia's first written submission, paras.  343 and 345; and Canada's third -party submission, 
para. 64. 
4789 Furthermore, for there to be a violation of Article  20, the use of a trademark in the course of trade 
must be encumbered by special requirements  "unjustifiably". We will consider the meaning of the term 
"unjustifiably" in section 7.3.5.5.1  below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 692 - 
  7.2235.   The verb "encumber" is defined as follows: "[r]estrict or impede (some one or something) 
in such a way that free action or movement is difficult"4790; "impede or hamper the function or 
activity"4791; and "to hamper" or "to burden".4792 Synonyms of this term include "hamper", 
"hinder", "obstruct", "limit", or "restrain".4793 Therefore, "s pecial requirements" that would restrict 
or impede the use of a trademark would fall within the scope of Article  20, to the extent that they 
would restrict such use "in the course of trade".  
7.2236.   Without prejudice, at this stage of our analysis, to the meaning  to be given to the phrase 
"in the course of trade" in Article  20, we see no basis for assuming that a "special requirement" 
prohibiting entirely the use of a trademark would not "hinder" or "hamper" the use of such 
trademark. Rather, if the use of a trade mark is prohibited, it is "encumbered" to the greatest 
possible extent. We are therefore not persuaded that the terms of Article  20 imply that only 
"special requirements" that would determine how a trademark may be used, to the exclusion of 
special require ments entirely disallowing the use of a trademark, may be considered to "encumber 
the use" of such trademark.  
7.2237.   Although it relates to partially different terms in different contexts, this understanding is 
consistent with the approach reflected in the rulin gs cited above under the SPS Agreement4794, and 
in the rulings under the GATS, where a prohibition on market access was considered to amount to 
a quantitative limitation under Article  XVI of the GATS.4795 
7.2238.   We also agree with those complainants and third parties w ho argue that it would be 
"counterintuitive" to consider that a measure that restricts the use of a trademark would be 
subject to the disciplines of Article  20 while a more far -reaching measure to prohibit such use 
would not. Specifically, such an interpre tation would, in our view, defeat the very object of this 
provision. It would create an illogical distinction between a highly restrictive requirement that 
comes extremely close to an outright prohibition, which would need to be justified, and an outright 
prohibition of use, which under such an interpretation would require no justification.  
7.2239.   In our view, therefore, encumbrances arising from special requirements within the 
meaning of Article  20 may range from limited encumbrances, such as those resulting from  the 
specific types of requirements mentioned in the first and second sentences of Article  20, to more 
extensive encumbrances, such as a prohibition on the use of a trademark in certain situations.  
7.3.5.3.2   Application to the TPP measures  
7.2240.   As described in greater d etail above4796, the TPP measures  regulate the appearance of 
trademarks on tobacco retail packaging and products in various ways. In respect of retail 
packaging of tobacco products, the TPP measures  permit the use of word marks that denote the 
brand, business  or company name, or the name of the product variant, as long as these 
trademarks appear in the form prescribed by the TPP Regulations . They prohibit the use of stylized 
word marks, composite marks and figurative marks.4797 In respect of tobacco products, the  
TPP measures  prohibit the use of all trademarks on cigarettes. In respect of cigars, they permit the 
use of trademarks denoting the brand, business or company name, or the name of the product 
                                                
4790 Oxford Dictionaries online, British & World English, definition of "encumber", 
<https://en.oxforddictionaries.com/definition/encumber >, accessed  2 May 2017.  
4791 Merriam -Webster Dictionary online, definition of "encumber", available at: 
<https://www.merriam -webster.com/dictionary/encumber >, accessed  2 May 2017 . 
4792 Oxford English Dictionary online, definition of "encumber", available at: 
<http://www.oed.com/view/Entry/61832?rskey=9GoJbi&result=2&isAdvanced=false#eid >, accessed  
2 May 2017. 
4793 Oxford Dictionaries online, English synonyms, synonyms of "encumber", 
<https://en.oxforddictionaries.com/thesaurus/encumber >, accessed  2 May 2017.   
4794 Honduras's second written submission, paras.  280-281 (referring to Panel Reports, EC – Approval of 
Marketing of Biotech Products ; US – Continued Suspension ; and Canada  – Continued Suspension ). 
4795 Honduras's first written submission, para. 286 (referring to Panel Report, US – Gambling,  
paras.  6.331 -6.332; and Appellate Body Report, US – Gambling,  paras.  232-238).  
4796 See sections 2.1.2.3.3 and 2.1.2.4 above.  
4797 For an explanation of the terminology used in th ese Reports for different types of trademarks, see 
fn 4095 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 693 - 
  variant, as well as the country of origin, so long as these tra demarks appear in the form prescribed 
by the TPP Regulations . 
7.2241.   As noted, all parties agree that the TPP measures  impose "special requirements" with 
respect to word marks, to the extent that they permit the use of word marks but require that 
these appear in the form prescribed by the TPP Regulations .4798 These requirements have a 
connection with, and affect, the use of trademarks by expressly permitting their use only in a 
prescribed manner. The measures must be complied with and are limited in their application to the 
use of trademarks on tobacco product s and their packaging. We find, therefore, that the 
requirements of the TPP measures  permitting the use of word marks on tobacco retail packaging 
and on cigars only in the prescribed form constitute "special requirements" within the meaning of 
Article  20. We also note that these requirements, which prescribe the use of a word mark without 
any stylized elements and in a single standard font and colour, constitute "use in a special form" 
within the meaning of the second example of the illustrative list in the  first sentence of Article  20, 
bearing in mind that use of a word mark generally includes use in a wide range of possible fonts, 
sizes, colours and placement.  
7.2242.   It is also not in dispute that these requirements "encumber" the use of the affected 
trademarks, in that they restrict the manner in which the trademarks at issue may be displayed on 
the relevant products and their packaging. We therefore agree with the pa rties that these 
measures affecting word marks amount to "special requirements" that "encumber" the use of 
trademarks.  
7.2243.   In our view, the prohibition on the use of stylized word marks, composite marks and 
figurative marks on tobacco retail packaging and pro ducts under the TPP measures  also amounts 
to "special requirements". This prohibition must be complied with, has a close connection with and 
specifically addresses the use of trademarks, and is limited in application to the use of trademarks 
on tobacco ret ail packaging and products. We also note that, as regards a stylized word mark or a 
composite mark, these requirements only permit the use of the brand, business or company name, 
or the name of the product variant, which is part of that mark, and thus requ ire "use in a special 
form" within the meaning of the second example of the illustrative list in the first sentence of 
Article  20. 
7.2244.   These special requirements on the use of stylized word marks, composite marks and 
figurative marks also "encumber" the "use" of the relevant trademarks, in that they expressly 
disallow, and thereby hinder and obstruct, such use on tobacco products and packaging.  
7.2245.   In light of the above, we find that the TPP measures , to the extent they restrict the use of 
word marks to certain for ms prescribed by the TPP Regulations  and prohibit the use of stylized 
word marks, composite marks, and figurative marks in the specified situations, amount to "special 
requirements" that "encumber" the use of a trademark within the meaning of Article  20. T hese 
determinations are without prejudice to the question of whether these special requirements 
encumber use "in the course of trade", or do so "unjustifiably".  
7.3.5.4   Whether the special requirements in the TPP measures  encumber the "use of a 
trademark" "in the course of trade"  
7.2246.   The complainants argue that the trademark -related requirements in the TPP measures  
encumber the use of trademarks "in the course of trade" within the meaning of Article  20. 
Australia considers that they do not. The divergent views of the p arties in this respect are based 
importantly on their different interpretation of the term "in the course of trade" and their different 
understanding of what constitutes relevant "use" of a trademark for the purposes of Article  20.  
7.2247.   We therefore consider f irst the meaning of the term "in the course of trade", and what 
may be considered relevant "use" of a trademark under Article  20, before turning to a 
consideration of whether the TPP measures  encumber "the use of a trademark in the course of 
trade".  
                                                
4798 See section 7.3.5.3.1.1  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 694 - 
  7.3.5.4.1   Meanin g of the phrase "in the course of trade"  
7.3.5.4.1.1   Main arguments of the parties  
7.2248.   Honduras  refers to its interpretation of the phrase "in the course of trade" in the context 
of Article  16.1 of the TRIPS  Agreement .4799 In that context, it argues that the phrase "in the c ourse 
of trade" should be read as capturing all activities related or linked to trade. The ordinary meaning 
of the term "trade" is "[t]he action of buying and selling goods and services"; and "the activity or 
process of buying, selling, or exchanging goods  or services". The term "course" means "[t]he way 
in which something progresses or develops". The phrase "course of trade" thus refers to the 
manner in which the action of buying or selling of goods unfolds, "progresses" or "develops". Put 
differently, the  phrase "course of trade" captures all activities that have a connection with, or a 
bearing on, trade, including for instance, transportation, distribution, display, sale, use, as well as 
advertising.4800 Responding to Australia, Honduras argues that there is  no basis in the ordinary 
meaning in the English, Spanish or French versions of Article  20 to suggest that the phrase "in the 
course of trade" refers only to the point of sale.4801 
7.2249.   The Dominican Republic  submits that "the course of trade" includes the success ion of 
events undertaken in producing, supplying, distributing, selling and delivering goods and services 
for commercial purposes. In Article  20, the phrase refers to the use of a trademark as part of 
commercial activities, such as the commercial sale of g oods. The trademark is applied to the 
packaging and the good to provide the consumer with important commercial information about the 
quality, characteristics, and reputation of the product. The trademark continues to provide this 
information to the consume r, and perform its differentiating function, after the sale has occurred. 
At that time, the use of the trademark is part of a continuing commercial relationship between the 
producer and the consumer; furthermore, the trademarks serve as a continuing guaran tee of the 
product's quality, characteristics, and reputation in view of possible subsequent purchases.4802 The 
Dominican Republic invokes as relevant context Articles  5C(1) and 10 bis(3) of the 
Paris Convention .4803 
7.2250.   Cuba argues that the trademark restrictions affect the use of trademarks in a commercial 
context: trademarks are employed to distinguish tobacco products in the eyes of consumers and 
commercial actors and they are relevant to buying and selling decisions by su ch actors. 
Accordingly, the encumbrances and special requirements in question relate to the use of 
trademarks in "the course of trade".4804 
7.2251.   Indonesia  argues that the phrase "in the course of trade" appeared in the final version of 
Article  20, that previous te xts had referred to use of a trademark "in commerce", and that the two 
concepts are understood to be synonymous. It notes that "in the course of trade" is also used in 
Article  16.1 of the TRIPS  Agreement .4805 In its view, "in the course of trade" refers to ac tivities 
conducted in a commercial context as opposed to private use and does not end at the point of 
sale. The phrase is understood to include a range of commercial activities, including "every act or 
operation that is aimed at, directly or indirectly, or  that results from, directly or indirectly, buying 
and selling products or services in a professional manner".4806 
7.2252.   Australia  argues that the phrase "in the course of trade"' refers to acts undertaken during 
the buying and selling of goods for profit. Thus, "[ t]he use of a trademark in the course of trade" 
refers to the act of employing or applying a trademark to distinguish the goods or services of one 
undertaking from those of other undertakings during the sale of goods or services. In Australia's 
view, an en cumbrance is only relevant under Article  20 insofar as it encumbers the use of a 
                                                
4799 Honduras's first written submission, para. 287. 
4800 Honduras's first written submission, para. 223 ( referring to  Oxford Dictionaries online, HND 
excerpts, (Exhibit HND -31), definitions of "trade" and "course"; and Merriam -Webster Dictionary online, HND 
excerpts, (Exhibit HND -48), definition of "trade").  
4801 Honduras's second written submission, para. 302. 
4802 Dominican  Republic 's second written submission, paras.  129 and 133.  
4803 Dominican  Republic 's second written submission, paras.  134-138. 
4804 Cuba's first written submission, paras.  311-312. 
4805 Indonesia's first written submission, para. 270. 
4806 Indonesia's second written submission, para. 144 (quoting  Carvalho 3rd  edn, IDN excerpts, (Exhibit 
IDN-106), para. 16.7).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 695 - 
  trademark while the trademarked product remains within the course of trade, which necessarily 
culminates at the point of sale. Thus, insofar as a measure might affect how a tr ademark might be 
perceived by consumers or others after the point of sale, this effect would not relate to the use of 
a trademark "in the course of trade" and would fall outside the scope of Article  20. Such an effect 
would not form part of an encumbrance that can be evaluated for its consistency with 
Article  20.4807  
7.2253.   Australia argues that the relevant encumbrance under the first sentence of Article  20 is 
the encumbrance (if any) that arises from the special requirements imposed by the measure at 
issue. To the  extent that the responding Member maintains other laws or regulations that affect 
how a trademark may be used to distinguish goods or services in the course of trade, the effects 
of those other measures must not be attributed to the particular "special re quirements" that are 
the subject of the claim under Article  20.4808 
7.2254.   Honduras  argues that, under Article  16 of the TRIPS  Agreement , a trademark owner is 
entitled to prevent an unauthorized third party from using "in the course of trade" a confusingly 
similar s ign on similar goods. This permits a trademark owner to object to the use of such signs in 
any commercial context. The rights conferred by Article  16 are clearly not limited to the point of 
sale. Similarly, Article  10bis(3) of the Paris Convention , which i s incorporated into the 
TRIPS  Agreement  through its Article  2.1, also uses the phrase "in the course of trade" broadly.4809 
None of the examples of "special requirements" set out in Article  20 limit the encumbering special 
requirements to the point of sale. R ather, they are broad examples of anything that reduces the 
distinctiveness of the mark.4810 The trademark's distinctive function is not limited to the point of 
sale. It starts well before and continues well after the point of sale.4811 Furthermore, Honduras 
contends that Australia's suggestion that, after the point of sale, the trademark does not play its 
"neutral" distinguishing function, but that it is only used to appeal, lead, and mislead the consumer 
is flawed.4812 
7.2255.   Responding to Australia, Cuba argues that there is no basis under the ordinary meaning 
of the words to suggest that the phrase "in the course of trade" refers only to point of sale. This 
phrase also appears in Article  16.1 of the TRIPS  Agreement  and Article  10bis(3) of the 
Paris Convention  in its broadest commercial sense. Cuba adds that "Australia's suggestion that 
after the point of sale the trademark does not play its 'neutral' distinguishing function but rather is 
only used to attract, manipulate and mislead consumers is fundamentally erroneous  … Trademarks 
may have many different functions in different contexts, but their main function is and remains 
that of indicating the source of the product and that of differentiating products."4813 
7.3.5.4.1.2   Main arguments of the third parties  
7.2256.   Brazil  argues that the ex pression "use of a trademark in the course of trade" in Article  20 
is best understood in contrast to those uses of a trademark that are of no concern to the WTO, 
such as use in letterheads, promotional materials and advertisements, or even under sponsorshi p 
contracts. Read jointly with Article  15, that expression seems to restrict the scope of the provision 
to the situation where trademarks are applied to goods or services in order to distinguish goods 
and services of one undertaking from those of others. T hat expression is not subject to when or 
whether consumers actually get in direct contact with products and their trademarks.4814 
7.2257.   China  opines that Australia reads the phrase "in the course of trade" too narrowly. Noting 
that the same phrase is also used in Articles  16.1 and 24.8 of the TRIPS  Agreement  and 
                                                
4807 Australia's first written submission, paras.  348-349. 
4808 Australia's first written submission, para. 351. 
4809 Honduras's second written submission, para. 303. 
4810 Honduras's second written submission, para. 304. 
4811 Honduras's second written submission, para. 316. 
4812 Honduras's second written submission, para. 318. 
4813 Cuba's second written submission, paras.  80-85. 
4814 Brazil's third -party submission, paras.  45-47. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 696 - 
  Article  10bis(3) of the Paris Convention , China believes it is more convincingly interpreted as "in 
commerce or in commerce activities, in a broader sense".4815 
7.2258.   The European Union  considers that Australia's rea ding of the phrase "in the course of 
trade" is too narrow. For example, the European Union believes that it also encompasses the use 
of trademarks in advertising or catalogues. In general, the mark must be used publicly and 
outwardly  in the context of comm ercial activity with a view to economic advantage for the purpose 
of ensuring an outlet for the goods and services which it represents. But outward use does not 
necessarily imply use aimed at end consumers: for instance, use "in the course of trade" also 
includes use of the trademark directed at intermediaries or distributors.  The relevant criterion is to 
determine whether the relevant goods or services themselves are identified and offered on the 
market under the trademark. It is not necessary for the mark  to be affixed to the goods 
themselves. A representation of the mark on packaging, catalogues, advertising material or 
invoices relating to the goods and services in question constitutes an instance where the mark has 
been put to genuine use in the course of trade. However, use in the private sphere or purely 
internal use within a company or a group of companies does not amount to genuine use, as 
opposed to public or outward use.4816 
7.2259.   New Zealand  submits that the phrase "use of a trademark in the course of trad e" refers 
to the act of employing or applying a trademark to distinguish the goods or services of one 
undertaking from those of other undertakings during the sale of the goods or services. The "course 
of trade" terminates at the point of sale. The use whic h must be evaluated is the use of a 
trademark to distinguish the goods and services of one undertaking from those of other 
undertakings while they remain within the course of trade. The assessment of the relevant 
encumbrance must take into account the resp onding Member's other laws and regulations that 
affect how a trademark may be used in the course of trade.4817 
7.3.5.4.1.3   Analysis by the Panel  
7.2260.   As described above, Australia takes the view that the phrase "in the course of trade" 
refers to acts undertaken during the buy ing and selling of goods for profit, and that this 
"culminates" at the point of sale. As also described above, the complainants, in turn, consider that 
it more broadly covers all activities related to commercial activity.  
7.2261.   The ordinary meaning of the term " trade" refers to "[t]he action of buying and selling 
goods and services".4818 The phrase "in the course of" means "in the process of, during the 
progress of".4819 In our view, taking these terms in aggregate, the phrase "in the course of trade" 
is not, on its face, limited to "trade" in the sense of "buying and selling" but more broadly covers 
the process relating to commercial activities. The corresponding French phrase "au cours 
d'opérations commerciales" and Spanish phrase "el curso de operaciones comerciales" also 
connote a meaning that more broadly relates to commercial activities.  
7.2262.   We note that the phrase "in the course of trade" is used, in addition to Article  20, in two 
other provisions of the TRIPS  Agreement  that are the subject of separate claims in these 
proceedings, namely Article  16.1 of the TRIPS  Agreement  and Article  10bis(3)(3) of the 
Paris Convention  (1967) , as well as Article  24.8 of the TRIPS  Agreem ent and Article  10bis(3)(2) of 
the Paris Convention  (1967) . The Appellate Body emphasized in Korea  – Dairy  that, "[i]n light of 
the interpretive principle of effectiveness, it is the duty of any treaty interpreter to 'read all 
applicable provisions of a tr eaty in a way that gives meaning to all of them, harmoniously'."4820 
                                                
4815 China's third -party submission, para. 43. 
4816 European Union's third -party submission, para. 23. 
4817 New Zealand's third -party submission, paras.  54 and 56.  
4818 Oxford Dictionaries online, HND excerpts, ( Exhibit HND-31), definition of "trade".  
4819 Oxford English Dictionary online, definition of "in the course of", available at: 
<http://www.oed.com/view/Entry/43183?rskey=AUb1lV& result=1#eid8126812 >, accessed  2 May 2017.  
4820 Appellate Body Report, Korea  – Dairy , para. 81 (emphasis original). In US – Offset Act (Byrd 
Amendment) , the Appellate Body noted that " Article  32.1 of the SCM Agreement is identical in terminology and 
structure  to Article  18.1 of the Anti -Dumping Agreement, except for the reference to subsidy instead of 
dumping. We endorse Canada's contention that '[t]his identical wording gives rise to a strong interpretative 
presumption that the two provisions set out the same  obligation or prohibition.'" Appellate Body Report, US –
 Offset Act (Byrd Amendment) , para. 268. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 697 - 
  Harmonious interpretation requires that same or similar terms in different provisions of the same 
agreement should be presumed to have the same or similar meaning, much as the use of differe nt 
terms creates a presumption that the terms were intended to have a different meaning. We note 
that none of these other provisions define the notion of "course of trade" with specific reference to 
the "point of sale" or distinguish between "pre -" and "po st-sale" situations for this purpose.4821 
7.2263.   This implies that at least some commercial activities taking place after the retail sale are 
covered by the phrase "in the course of trade". In fact, both the complainants and Australia have 
referred to certain commer cial functions that trademarks continue to serve after the completion of 
the act of sale. The Dominican Republic emphasizes that the trademark continues to provide 
commercial information about the quality, characteristics, and reputation of the product to the 
consumer, and perform a differentiating function, after the sale has occurred.4822 Australia asserts 
that it is well established that, in addition to distinguishing the goods of one undertaking from 
those of another in the course of trade, trademarks serv e an advertising function4823, which may 
continue after the completion of the sale.4824 We see no reason to assume that such commercial 
functions that trademarks may continue to serve after the retail sale would fall outside the scope 
of commercial activities co vered by the phrase "in the course of trade".  
7.2264.   In light of the above, we do not find support in the language of Article  20 or its context 
for the assertion that "in the course of trade" culminates or terminates at the point of sale.4825 
7.3.5.4.2   The relevant "use of a trademark"  
7.3.5.4.2.1   Main arguments of the parties  
7.2265.   Australia  argues that, in order to assess whether special requirements "encumber" the 
"use" of a trademark "in the course of trade", the "use" which must be evaluated is the use of a 
trademark to distinguish the goo ds and services of one undertaking from those of other 
undertakings. Insofar as special requirements encumber the "use" of a trademark for other 
purposes (such as to convey positive emotional associations with a product or to appeal to 
particular segments of consumers), those "uses" are not relevant under Article  20.4826 
7.2266.   Australia draws this conclusion from the definition of "protectable subject matter" set 
forth in Article  15.1 of the TRIPS  Agreement , which provides that "[a]ny sign, or any combination 
of signs, capable of distinguishing the goods or services of one undertaking from those of other 
undertakings, shall be capable of constituting a trademark". In order to demonstrate under 
Article  20 tha t a measure encumbers the "use" of a trademark in the course of trade, a 
complainant must demonstrate that the measure encumbers the use of a trademark "to distinguish 
the goods or services of one undertaking from those of other undertakings". While tradem arks 
may serve other functions, the ability of a sign to distinguish the commercial source of the product 
                                                
4821 We recall our finding in para. 7.1978  above tha t Article  16.1 does not establish a trademark owner's 
right to use its registered trademark but provides for a trademark owners' right to prevent certain activities by 
unauthorized parties under certain conditions, including that these activities take plac e "in the course of trade". 
We note that paragraph 2 of that Article  refers to "the promotion of the trademark" as a factor to be taken into 
account in determining whether a trademark is well -known. In our view, this reference to "the promotion of the 
trademark" indicates that the drafters considered such promotion to be among the normal ways in which the 
owner of a trademark may wish to use its trademark in the marketplace. We see no reason why the exclusive 
right to prevent in paragraph 1, conditioned by the phrase "in the course of trade" would not encompass such 
common commercial activities mentioned in paragraph 2. In our view, this also suggests that the exclusive 
right to prevent conferred under Article  16.1 covers more than the act of selling and buy ing, and encompass es 
more broadly commercial activities relating to the commercialization of the goods or services in respect of 
which the trademark is protected. This, in turn, would support interpreting the same phrase used in Article  20 
also to cover su ch activities.  
4822 Dominican  Republic 's second written submission, para. 133. 
4823 Australia's first written submission, para. 85. 
4824 Australia's first written submission, para. 358.  
4825 We note that our interpretation is consistent with the common understanding of this term in 
trademark literature, where the term "in the course of trade" is given a broad meaning to cover commercial 
activities connected to buying and selling. For example,  de Carvalho understands the term to include "every act 
or operation that is aimed at, directly or indirectly, or that results from, directly or indirectly, buying and selling 
products or services in a professional manner". Carvalho 3rd  edn, IDN excerpts, (Exhibit IDN -106), p. 254. 
4826 Australia's first written submission, para. 350. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  is what makes the sign a trademark. The "source identification" function is therefore the only 
essential function of a trademark. Closely related to t his is the function of indicating that products 
bearing the same trademark are manufactured under the control of the same commercial source 
and that, as a result, consumers may expect a consistency of experience with products bearing 
that trademark, someti mes referred to as the "quality" or "guarantee" function of trademarks.4827 
7.2267.   Australia adds that trademarks also serve to advertise and promote the trademarked 
products by conveying certain associations with those products, and those associations are often 
reinforced through other means of advertising and promotion. A tobacco trademark might be used 
to convey associations with exclusivity and wealth, femininity, masculinity, youthfulness or even 
"value for money". Each of these associations appeals to a particu lar segment of consumers or 
prospective consumers. In short, different trademarks may "appeal" to different market segments. 
The use of a trademark to advertise and promote the trademarked product is not a part of the 
distinguishing function of a trademark . The word "Marlboro", for example, is sufficient to identify 
the commercial source of the product and indicate that all products bearing that trademark have 
been manufactured under the control of a single enterprise without having to convey associations 
with masculinity and ruggedness. The former is distinguishing, the latter is advertising. Neither 
Section 2 of the TRIPS  Agreement , nor Article  20 more particularly, concerns the use of 
trademarks to advertise and promote the trademarked product, such as by  making the product 
more appealing to particular segments of consumers or prospective consumers.4828 
7.2268.   Australia asserts that the complainants have been careful throughout these proceedings 
not to acknowledge that trademarks are used to advertise and promote th e trademarked product, 
even though that is a widely acknowledged function of trademarks. Australia contends that the 
complainants do not want to admit that trademarks are used for this purpose, as this would 
contradict their position that the use of tradem arks on retail tobacco packaging does not serve to 
advertise and promote tobacco products. The complainants' assertion that trademarks serve to 
distinguish goods and services in "quality, characteristics, and reputation" is simply a euphemism 
for the use o f trademarks to advertise and promote tobacco products.4829 
7.2269.   Australia argues that the complainants have borrowed the terms "quality", 
"characteristics", and "reputation" from Article  22.1 in Section 3 of the TRIPS  Agreement  
concerning GIs. These terms do not appear anywhere in Section 2 of the TRIPS  Agreement . If the 
drafters of the TRIPS  Agreement  had considered that "quality, characteristics, and reputation" 
were relevant to the function of a trademark under Article  15.1, they would have used these terms 
in that Article  as they did in the case of Article  22.1. As context, the fact that these terms do not 
appear in Article  15.1 indicates that "quality, characteristics, and reputation" have no relevance to 
the distinguishing function of trademarks under Article  20.4830 
7.2270.   Australia argues that the complainants have failed to present any evidence that the 
TPP measures  encumber the use of trademarks to distinguish the goods of one undertaking from 
those of other undertakings, which is the only relevant use of trademarks  under Article  20.4831  
7.2271.   Referring to Article  15.1, Australia adds that "[t]he complainants are confusing what is 
eligible for registration  as a trademark with what is necessary to distinguish the goods or services 
of one undertaking from those of other undert akings. The fact that a particular figurative element, 
for example, is a sign that is ' capable  of distinguishing the goods or services of one undertaking 
from those of other undertakings' does not mean that the figurative element is necessary  for this 
purpose, i.e. that the trademarked goods or services could not be distinguished in the absence of 
this figurative element."4832 
                                                
4827 Australia's second written submission, paras.  86-90. 
4828 Australia's second written submission, paras.  91-96. 
4829 Australia's second written submission, paras.  85, 97 -98 and 118.  
4830 Australia's second written submission, paras.  99-102. For Australia's detailed analysis why it 
considers that these terms do not relate to the distinguishing function of trademarks but instead refer to the 
advertising and promotion functions of trademarks , see Australia's second written submission, paras.  105-117. 
4831 Australia's second written submission, paras.  121-130. 
4832 Australia's second written submission, paras.  129 and 130. (emphasis added  by Australia)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2272.   Honduras  notes that trademarks are defined in Article  15.1 of the TRIPS  Agreement  as 
any sign capable of distinguishing the goods of on e undertaking from those of other undertakings. 
Such signs include names, letters and figurative elements which shall be eligible for registration as 
a trademark, and once registered, deserve to be protected under the TRIPS  Agreement . Honduras 
argues that the text of the provisions in Section 2 of the TRIPS  Agreement  does not limit 
protection of a trademark only to those elements that Members consider to be necessary to 
distinguish the products, but afford protection to all trademarks – word marks and figur ative 
elements alike – that are capable of distinguishing products.4833 
7.2273.   In Honduras's view, Australia errs in trying to distinguish between word marks and 
figurative elements in terms of their "neutrally distinguishing function". There is no basis in the 
TRIPS Agreement  or in international IP law generally for asserting that word marks distinguish 
products in a neutral manner whereas figurative elements do not.4834 Honduras contends that 
"Australia further errs in trying to distinguish between a trademark's disti nguishing function 
(source or origin) and its quality function (real or perceived)". Honduras argues that trademarks 
distinguish products in terms of their quality, characteristics and reputation. Origin, quality, and 
other characteristics are at the heart  of the distinguishing function that trademarks play in the 
marketplace.4835  
7.2274.   Honduras argues that whether or not trademarks perform any functions other than 
identifying and distinguishing the source of the product depends on the circumstances in the 
market a nd the manner in which the proprietor uses the mark. It contends that "depending on the 
product, trademarks could be used ' in advertising'. However, that does not mean that, on tobacco 
products, trademarks are used for advertising in Australia because advertising has not been 
allowed for tobacco products in nearly the last 25 years. Nowadays, trademarks on tobacco 
products just communicate source and quality to consumers." Honduras argues that, therefore, 
Australia's ar gument that trademarks could be seen as "bridge between advertising and purchase" 
is incorrect. In a country like Australia where there has been no tobacco advertising for almost 25 
years, no such bridge exists.4836 
7.2275.   The Dominican Republic  argues that consumer s do not distinguish goods simply – or even 
primarily – in terms of the commercial source. Instead, they care about the quality, 
characteristics, and reputation of goods and use trademarks to differentiate goods in these terms. 
It cites an explanation of A dvocate -General Jacobs of the European Court of Justice: "The 
consumer is not interested in the commercial origin of goods out of idle curiosity; his interest is 
based on the assumption that goods of the same origin will be of the same quality ." From the 
consumers' perspective, origin, qualities, characteristics, and reputation are inseparable.4837 
7.2276.   The Dominican Republic adds that Article  20 asks whether "[t]he use of a trademark" is 
"encumbered ", that is, hindered or obstructed. To be relevant, the wording do es not require that 
an encumbrance on use prevent the identification of the commercial source. In its view, this is 
confirmed by the third example of an encumbrance in Article  20. While Australia says that, to be 
relevant, a measure must prevent  a trademar k from identifying the source, the example shows 
that a measure that diminishes  – is "detrimental  to" – the distinguishing power of a trademark is 
an encumbrance. Furthermore, Article  20 applies to a "trademark" as defined in Article  15.1, and a 
"trademark " is defined in Article  15.1 to include all design features. If the use of trademark design 
features is hindered or obstructed in any way, there is an encumbrance.4838 
7.2277.   Cuba argues that, over time, the functions of trademarks have expanded beyond the 
initial f unction of the origin. In its view, Australia's arguments gloss over these essential and 
broader functions. Through the guarantee of quality function, the trademark acts as a signal to 
consumers that the goods have a high quality (especially luxury tradema rks) and the trademark 
owner is responsible for the goods and their quality. Through the communication function, 
                                                
4833 Honduras's opening statement at the second meeting of the Panel, para. 9. 
4834 Honduras's opening statement at the second meeting of the Panel, para. 10. 
4835 Honduras's opening statement at the second meeting of the Panel, para. 11. 
4836 Honduras's opening statement at the second meeting of the Panel, para. 12. (emphasis original)  
4837 Dominican  Republic 's opening statement at the second meeting of the Panel, para. 9 (referring to  
European Court of Justice, Case C -10/89, SA CNL -Sucal NV v. HA G GF AG (1990) ECR I, p. 3725, (Exhibit 
DOM-362), para. 72). 
4838 Dominican  Republic 's second opening statement, paras.  13-14 and 16. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 700 - 
  trademarks serve as a vehicle for providing consumers with various kinds of information on the 
goods identified by them, including non -physical  specific attributes such as tradition, values, 
strength, or luxury. The investment function is the use of the trademark to acquire or preserve a 
reputation that maintains consumer loyalty for a long period of time.4839 Cuba adds that 
"[c]onsumers do not pay a price substantially higher as recognition of the identity of the producer; 
consumers pay the premium because they subscribe to the trademark proposition communicated 
by a trademark".4840 
7.2278.   Indonesia  argues that t rademarks identify the source or maker of a pro duct. Based on 
this identification, consumers associate special meaning based on past experiences with the 
product and determine which ones reliably satisfy their needs and which ones do not. Illustrating 
the functions of brands for both consumers and trad emark holders, it lists the following functions 
for the manufacturer: means of identification, handling or tracing; means of legally protecting 
unique features; signal of quality level to satisfied consumers; means of endowing products with 
unique associat ions; source of competitive advantage; and source of financial returns.4841 
7.3.5.4.2.2   Analysis by the Panel  
7.2279.   The question before us is whether the relevant "use" of a trademark in the course of 
trade for the purposes of Article  20 is limited, as Australia argues, to its  use for the purpose of 
distinguishing the goods or services of one undertaking from those of other undertakings.  
7.2280.   Under Article  20, Members have undertaken not  to unjustifiably encumber by special 
requirements the "use" of a trademark in the course of tra de. On its face, this language is very 
general and does not qualify the nature of relevant "use" or otherwise circumscribe this obligation 
in terms of any particular uses, i.e. any particular ways in which the trademark holder might wish 
to use the tradema rk, other than such use being "in the course of trade".  
7.2281.   We note that one of the three examples of special requirements identified expressly in 
Article  20 is "use [of a trademark] in a manner detrimental to its capability to distinguish the 
goods or servic es of one undertaking from those of other undertakings". This reference makes 
clear that a special requirement to use a trademark in a manner detrimental to its "distinguishing" 
function would fall within the purview of Article  20. However, as described ab ove, this is one of 
three examples of situations in which "use  … in the course of trade" would be encumbered. If 
anything, therefore, this reference (introduced by the term "or") makes clear that a requirement to 
use a trademark "in a manner detrimental to  its capability to distinguish the goods or services of 
one undertaking from those of another" is not a sine qua non  condition for a finding that "use … in 
the course of trade" is being encumbered within the meaning of Article  20. While the existence of 
such detrimental impact may therefore provide an important indication of the existence of an 
encumbrance, this is not a necessary condition for such a finding.  
7.2282.   The language of Article  20 therefore does not support a finding that the relevant "use" to 
be tak en into consideration under Article  20 would be limited to the use of a trademark for the 
specific purpose of distinguishing the goods or services of one undertaking from those of other 
undertakings.  
7.2283.   In support of its position, Australia refers to the definition of protectable subject -matter in 
Article  15.1 as relevant context.4842 We note that Article  15.1, which is part of Section 2 of the 
TRIPS  Agreement , entitled "Trademarks", defines protectable subject -matter as being "[a]ny sign, 
or any combination of signs, capable of distinguishing the goods or services of one undertaking 
from those of other undertakings". Such signs "shall be capable of constituting a trademark", and 
"shall be eligible for registration as trademarks".4843 The phrase "[a]ny sign, or c ombination of 
signs, capable of distinguishing the goods or services of one undertaking from those of other 
                                                
4839 Cuba's opening statement at the second meeting of the Panel, paras.  24-28. 
4840 Cuba's opening statement a t the second meeting of the Panel, para. 37. 
4841 Indonesia's first written submission, paras.  261-262. 
4842 Australia's second written submission, paras.  86-90. 
4843 The third sentence of Article  15.1 recognizes that, where signs are not inherently capable of 
distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness 
acquired through use.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 701 - 
  undertakings" describes the characteristics of a sign that is capable of constituting a trademark 
and eligible for registration as a trademark pursu ant to Article  15.1 but, in our view, it does not 
address, or imply a limitation on, the types of uses of a protected trademark that are relevant for 
the purposes of Article  20. 
7.2284.   We note that Articles  15.3 and 19 of the TRIPS  Agreement  refer to situations w here "use" 
may be required under domestic law for registering a trademark or maintaining a registration.4844 
In our view, the reference to "use" in these provisions is comparable to that in Article  20, insofar 
as what is at issue in these provisions is the fact of use, as an objective matter. In our view, 
harmoniously with how the term "use" is applied under these other provisions of the 
TRIPS  Agreement , it is appropriate to understand the term "use" also under Article  20 as referring 
to an objective fact of u se "in the course of trade", i.e. in the course of commercial activities, 
rather than seeking to limit it on the basis of a notion of function or purpose of such use. In any 
event, functions of product differentiation and promotion of products for their ta ngible and 
intangible qualities, characteristics and reputation, may overlap in practice.  
7.2285.   We also note that prior rulings on other forms of IP have recognized that it is for the right 
holder to decide how to exploit or make use of its exclusive rights to e xtract economic value from 
those rights in the marketplace. The panel in US – Section 110(5) Copyright Act  was called upon 
to interpret the term "normal exploitation" of a copyright work in the context of a general 
exceptions clause in Article  13 of the TRIPS Agreement . The panel explained that the "ordinary 
meaning of the term 'exploit' connotes 'making use of' or 'utilising for one's own ends'. We believe 
that 'exploitation' of musical works thus refers to the activity by which copyright owners employ 
the exclusive rights conferred on them to extract economic value from their rights to those 
works."4845 Similarly, the panel in Canada  – Pharmaceutical Patents  considered that "exploitation" 
in a general exceptions clause in Article  30 applicable to patents "ref ers to the commercial activity 
by which patent owners employ their exclusive patent rights to extract economic value from their 
patent. … The normal practice of exploitation by patent owners, as with owners of any other 
intellectual property right, is to e xclude all forms of competition that could detract significantly 
from the economic returns anticipated from a patent's grant of market exclusivity."4846 Our 
understanding of the term "use … in the course of trade" in Article  20 as an essentially factual 
matte r is consistent, in our view, with these rulings, in that it reflects the notion underlying these 
rulings that the manner in which the exploitation of the protected subject -matter, in this instance 
trademarks, takes place, and how to extract economic value  from it, is essentially a matter for the 
right holder to decide. Moreover, the argument that the relevant "use" for the purposes of 
Article  20 is limited to the use of a trademark to distinguish a product from those of other 
undertakings makes a false dic hotomy between such use and the broader promotion of a good or 
service associated with a trademark. As we noted in the context of our analysis of the 
complainants' claims under Article  16.1 of the TRIPS  Agreement , the "use" of a trademark that is 
relevant for the acquisition and maintenance of distinctiveness is not limited to use on packaging 
of a product, but rather extends to a wider range of commercial, advertising and promotion 
activities.4847 
7.2286.   For the above reasons, we find that the relevant "use" for the  purposes of Article  20 is 
not limited to the use of a trademark for the specific purpose of distinguishing the goods and 
services of one undertaking from those of other undertakings.  
7.3.5.4.3   Application to the TPP measures  
7.2287.   We recall our determination above that r elevant "use" for the purposes of determining 
whether the use of a trademark "in the course of trade" is being encumbered is not limited to the 
ability of trademarks to perform a "distinguishing" function, nor does it end at the "point of sale".  
                                                
4844 We understand that under domestic laws, such use is generally assessed by objective evidence of 
use in relation to the relevant goo ds or services, by means of actual use in labelling and packaging, use in 
promotion and communications to consumers, and other use in commercial settings, rather than by reference 
to a more abstract standard of what was the function or intended purpose of use: for example, has the mark 
been applied to the relevant goods in the course of trade, and in what markets; and has it been used in 
advertising or other commercial settings to present and promote the goods in the relevant market.  
4845 Panel Report, US – Section 110(5) Copyright Act , para. 6.165.  
4846 Panel Report, Canada  – Pharmaceutical Patents , paras.  7.54-7.55. 
4847 Paragraph 7.1989  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2288.   As described above4848, Chapter 3 of the TPP Act makes it an offence to sell, supply, 
purchase, package or manufacture tobacco products or packaging for retail sale that are not 
compliant with the plain packaging requirements. Penalties apply to manufacturers, packagers, 
wholesalers, distributors and re tailers of tobacco products in Australia who fail to comply with the 
plain packaging requirements.4849 The provisions of the TPP Act therefore expressly regulate, 
inter alia, the acts of selling and offering for sale, as well as purchasing for purposes other than 
personal use. The acts regulated by the TPP measures  also include various commercial 
transactions that precede retail sale. These requirements therefore affect the use of the 
trademarks "in the course of trade", even within the narrow meaning given to  this term by 
Australia, limited to the acts of buying and selling.  
7.2289.   Australia explains that it maintains a comprehensive ban on the advertising and 
promotion of tobacco products, including extensive restrictions on how tobacco products may be 
marketed and  displayed at the point of sale. The practical effect of these measures is that 
Australian consumers have no opportunity to even see tobacco packages or products in the course 
of trade until after they have decided which product to purchase (if any), so th at the package or 
product will become visible only when the purchase transaction is complete (or nearly 
complete).4850 In Australia's view, therefore, the special requirements imposed by the 
TPP measures  do not encumber the ability of trademarks to perform th eir distinguishing function 
while the products remain within the course of trade, i.e. up to the point of sale, and therefore, 
they do not encumber use "in the course of trade".4851 
7.2290.   Australia also asserts that it is clear from the evidence and arguments prese nted by the 
complainants that their actual objections to the TPP measures  relate to how trademarks on 
tobacco packaging and products shape the perceptions of consumers and others after the point of 
sale, i.e. after the course of trade is complete. Australi a submits that it agrees with the 
complainants that trademarks on tobacco packaging and products can have these effects. In fact, 
Australia underlines that the rationale for the TPP measures  specifically relates to these post -sale 
effects. As discussed abo ve, Australia argues that any "encumbrance" that the TPP requirements 
impose upon the "use" of a trademark in this post -sale context lie s outside the scope of the 
provision.4852 
7.2291.   We recall our findings above that "use … in the course of trade" within the meani ng of 
Article  20 is not limited to use "up to the point of sale" or to the use of a trademark to perform a 
"distinguishing function". It is undisputed that the restrictions on the use of trademarks under the 
TPP measures  remain applicable beyond the point of sale. In particular, Section 25 of the TPP Act 
specifically prescribes that the retail packaging of tobacco products must not include any features 
designed to change the packaging after retail sale. Indeed, as described above, Australia explains 
that th e very rationale of the TPP measures  is to address the ability of trademarks (and more 
generally packaging) to affect the perception of consumers and others after the point of sale.  
7.2292.   In light of the above, and taking into account our earlier findings at pa ragraphs 7.2264  
and 7.2286 , we find th at the trademark requirements of the TPP measures  amount to special 
requirements that encumber "the use of a trademark in the course of trade".  
7.3.5.5   Whether the TPP measures  "unjustifiably" encumber the use of trademarks in 
the course of trade  
7.2293.   Having determine d that the trademark requirements of the TPP measures  amount to 
"special requirements" that "encumber" the "use of a trademark in the course of trade", we must 
now consider whether they do so "unjustifiably". For this purpose, we first consider the meaning of 
the term "unjustifiably".  
                                                
4848 See section 2.1.2.6.  
4849 TPP Bill Explanatory Memorandum, (Exhibits AUS -2, JE-7), p. 3. 
4850 Australia's first written submission, para. 353. 
4851 See also paras.  7.2252 -7.2253 . 
4852 Australia's first written submission, para. 358. Australia emphasizes that, although it considers that 
these post -sale effects are outside the scope of Article  20, they are of great concern to it as a matter of public 
health. Australia's response to Panel question No. 103, para. 61. Australia submits that the definition of "in the 
course of trade" in Article  16 and in Article  20 should be given the same meaning. Australia's response to Panel 
Question No. 42, para. 112. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 703 - 
  7.3.5.5.1   Meaning of the term "u njustifiably"  
7.3.5.5.1.1   Main arguments of the parties  
7.2294.   Honduras  submits that the ordinary meaning of the term "justifiable" is defined as 
something "[a]ble to be shown to be right or reasonable; defensible". In its view, this and related 
"ordinary meanings indicate t hat a 'justifiable' encumbrance must be ' able to be shown  to be right 
or reasonable', 'defensible', must be based on reasons that are 'acceptable', and shall not be 
'extreme' or 'excessive' (i.e. disproportionate)".4853 In a subsequent submission, it adds tha t the 
ordinary meaning of "unjustifiably" "denotes measures that are 'necessary', 'proportionate', and 
'supported by evidence'".4854 
7.2295.   Honduras responds to Australia that the ordinary meaning of the term "unjustifiably" 
itself indicates that in order to fall wi thin the scope of "justifiable" encumbrances, it would not be 
sufficient for a special requirement to be merely "rationally connected" to its stated objective.4855 
7.2296.   Honduras further responds to Australia that  the ordinary meaning of the term is only the 
beginn ing of a holistic exercise of interpretation. First, the interpretation offered by Australia is 
based on a reading of the term "unjustifiable" by the Appellate Body in respect of the chapeau  of 
Article  XX of the GATT 1994, which is an entirely different co ntext where the term is used in 
combination with the terms "arbitrary" and "disguised restriction on trade". Second, the question 
of "arbitrary or unjustifiable" discrimination under the chapeau  of Article  XX relates to countries 
where the same "conditions " prevail. Third, the terms "arbitrary or unjustifiable" relate to the 
discrimination resulting from the application of the measure that is provisionally justified, and not 
to the actual trade encumbrance that is examined under the sub -paragraphs of Article XX; to the 
extent that any analogy with Article  XX can be drawn, the reasons that can "provisionally justify" 
measures under the sub -paragraphs of Article  XX for being "necessary" for the fulfilment of a 
policy objective seem to be the more relevant part  of Article  XX. Fourth , in contrast to Article  XX of 
the GATT 1994, Article  20 is not an exception, but rather contains a mixture of an affirmative 
obligation and permissive elements. Fifth , even under the chapeau  of Article  XX, a finding of 
justifiable di scrimination is not made merely because the measure has a "rational connection" with 
the objective in question; other factors play an equally important part, including whether 
alternative approaches were explored, or whether the particular type and extent of discrimination 
was actually necessary in light of the objective pursued.4856 
7.2297.   Honduras argues that the term "justifiable" must be interpreted in its context  and in the 
light of the object and purpose  of the Agreement to protect both trade interests and legi timate 
non-trade concerns of WTO Members, as reflected in Article  8.1 of the TRIPS  Agreement  and the 
Declaration  on the TRIPS Agreement and Public Health4857 (Doha Declaration).4858 
7.2298.   Honduras is of the view that the absence of any indication of a possible policy objective in 
Article  20 argues in favour of reading "unjustifiably" as qualifying "encumbered" and as being 
related to the extent to which the requirement is encumbering the use of a trademark rather than 
the reasons for the encumbrance.4859 It adds that the use of the term "unjustifiably" avoids any 
possible misunderstanding that Article  20 would prevent the possibility of trademark -related 
consumer protection actions provided for under Article  10bis of the Paris Convention , for example, 
or justified by the reasons set out in Article  15.2 of the TRIPS  Agreement  and Article  6quinquies  B 
of the Paris Convention . In Honduras's view, "[g]iven that, for example, Article  15.2 permits the 
refusal to register a trademark because it is misleading, it should be similarly permitted to prevent 
the use of such misleading marks or to impose special requirements to prevent that trademarks 
could be misleading, without first having to cancel their registration or invalidate their status as 
trademarks. By inser ting the term 'unjustifiably' the negotiators ensured that there would be no 
                                                
4853 Honduras's first written submission, para. 292 ( referring to  Oxford Dictionaries online, HND 
excerpts, (Exhibit HND -31), definitions of "justifiable", "right", and "reasonable"). (emphasis original)  
4854 Honduras's second written submission, para. 352. 
4855 Honduras's second written submission, para. 329. 
4856 Honduras's se cond written submission, paras.  330-334. 
4857 Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001, 
WT/MIN(01)/DEC/2.  
4858 Honduras's first written submission, para. 293. 
4859 Honduras's second written submission, para. 336. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 704 - 
  debate about this."4860 Furthermore, Honduras considers that the statement by the panel in EC –
 Trademarks and Geographical Indications (Australia)  cited by Australia is irrelevant t o the current 
dispute, since it is difficult to derive any implications from that statement that appear to relate to a 
specific argument made by the respondent.4861 
7.2299.   Honduras submits that it "does not merely import the concept of 'necessity' (including 
'less r estrictiveness') into Article  20 from other provisions of the covered agreements, such as 
Article  2.2 of the TBT Agreement ". In Honduras's view, the "unjustifiably" test appears to be 
broader than the "necessity test" and must be read in the context of the  TRIPS  Agreement . 
"Unjustifiably" does not imply a less stringent standard or provide broad deference to a Member's 
regulatory authorities, as Australia proffers. Rather, Honduras claims that it "may encompass a 
wide array of cumulative elements, including  some elements of the 'necessity test'". This is 
confirmed by Article  8.1 of the TRIPS  Agreement , which provides context for Article  20, and states 
that Members may adopt measures that are " necessary  to protect public health". Honduras argues 
that Article  8.1 requires that, regardless of whether a particular measure is "necessary", it also 
must be "consistent" with the provisions of the TRIPS  Agreement . "When Article  20 is read in the 
light of the general principles set out in Article  8.1, it becomes clear that the test of 'unjustifiably' 
is, in fact, more stringent than a traditional 'necessity test', as it requires the examination of 
factors other than 'necessity', namely the consistency of a given measure with the provisions of 
the TRIPS  Agreement ."4862 
7.2300.   Honduras argues that trademark holders' "legitimate interests" referred to in Article  17 of 
the TRIPS  Agreement  must inform the Panel's analysis of the consistency of the TPP measures  with 
the requirements of Article  20, namely whether these measures are "unjustifiable".4863 
7.2301.   As regards the object and purpose  of the TRIPS  Agreement , Honduras does not dispute a 
Member's right to adopt measures that improve public health. Such measures, however, must take 
into account other important objectives of the WTO system , which include the promotion of world 
economic development and welfare, based on the principles of free markets. This objective is 
reflected in the TRIPS  Agreement , which aims "to reduce distortions and impediments to 
international trade", takes into acco unt "the need to promote effective and adequate protection of 
intellectual property rights", and recognises that these are private rights. In accordance with these 
principles, previous panels have acknowledged that "both trademark owners and consumers have  
a legitimate interest  in the ability of a trademark to fulfil its key function to distinguish goods, 
including through use of trademarks in the course of trade".4864 
7.2302.   In light of this, Honduras argues that the interpretation of the term "unjustifiably" must 
strike an appropriate balance between the competing objectives of the protection of public health, 
on one hand, and maintaining the competitive opportunities of WTO Members or the protection of 
IP right s, on the other. Under the TRIPS  Agreement , a Member's right to regulate public health is, 
therefore, limited by the obligation to protect IP right s. This is confirmed by its Article  8.1, which 
states that measures taken to protect public health must be "consistent with the provisions of this 
Agreement", and Article 7 which further refers to "balancing rights and obligations".4865 Articles  7 
and 8 undermine, rather than support, Australia's position.4866 
                                                
4860 Honduras' s second written submission, para. 337. 
4861 Honduras's second written submission, paras.  342-343. Honduras refers to Panel Report, EC –
 Trademarks and Geographical Indications (Australia) , para. 7.246, which reads as follows:  
 
[The principles set out in Article  8 of the TRIPS Agreement] reflect the fact that the agreement does not 
generally provide for the grant of positive rights to exploit or use certain subject matter, but rather 
provides for the grant of negative rights to prevent certain acts. This f undamental feature of intellectual 
property protection inherently grants Members freedom to pursue legitimate public policy objectives 
since many measures to attain those public policy objectives lie outside the scope of intellectual 
property rights and do  not require an exception under the TRIPS Agreement.  
 
4862 Honduras's second written submission, para. 357. (emphasis original)  
4863 Honduras's second written submission, para. 359. 
4864 Honduras's first written submission, para. 294 (referring to Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , paras.  7.664 and 7.675). (emphasis original)  
4865 Honduras's first written submission, para. 295. (emphasis omitted)  
4866 Honduras's second written submission, para. 341. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 705 - 
  7.2303.   In Honduras's view, in order to determine whether a special requirement results in an 
"unjustifiable" encumbrance,  a WTO panel has to strike an appropriate balance between two 
factors. The first factor is the right to regulate to achieve a legitimate objective, such as public 
health. The second factor is Members' obligation to ensure the required level of IP protectio n. In 
order to strike this balance, a WTO panel must consider the two following criteria: (i) whether the 
measure contributes to its stated objective; and (ii) whether its objective can be achieved through 
a less -restrictive measure, that is, a measure tha t has a lesser impact on the rights of other 
Members.4867 
7.2304.   Honduras notes that these criteria have been applied by panels and the Appellate Body 
when balancing a Member's rights and obligations under various legal standards of the covered 
agreements, for insta nce, the "necessity" test under Article  XX of the GATT 1994, Article  XIV of the 
GATS and Article  2.2 of the TBT Agreement . The Appellate Body has also clarified that the extent 
of the contribution required for the measure to be necessary will depend on the  measure's 
restrictiveness. In other words, the more restrictive the measure, the higher the contribution 
should be. Normally, a measure that is severe would require a relatively high degree of 
contribution to its objective, such as a " material " degree of contribution. If the measure at issue is 
found to make some contribution, the Appellate Body has considered useful to analyse 
less-restrictive alternatives, to determine whether the measure is the least -restrictive one among 
other available options. The le ss-restrictive alternative must: (i) be reasonably available (namely 
the responding Member must be capable of taking it, without undue burden, such as prohibitive 
costs or substantial technical difficulties); and (ii) preserve for the responding Member its  right to 
achieve its desired level of protection with respect to the objective pursued.4868 
7.2305.   Honduras considers that, when analysing whether the restriction on the use of a 
particular trademark is justifiable under Article  20, the Panel should determine wheth er this 
measure: (i) makes a material contribution to the public policy objective; and (ii) constitutes the 
least-restrictive means to achieve this objective among other options that are reasonably 
available.4869 Honduras argues that certain measures of a per vasive and severe nature are 
unjustifiable within the mea ning of Article 20. Such measures include (i) blanket and indiscriminate 
restrictions on the use of trademarks, which do not take into account the individual features of the 
trademarks; and (ii) meas ures defeating the core function of a trademark. When analysing 
whether such measures are justifiable, a panel need not engage in a ful l consideration of the 
above cri teria.4870 
7.2306.   In Honduras's view, negotiating history confirms that there should be weighing and 
balancing between competing concerns. It refers to proposals by developing countries that would 
have reserved the unqualified right to stipulate in national laws special requirements for the use of 
a trademark, proposals by developed countries that sou ght to prohibit special requirements, and 
"a more balanced approach" offered by the European Communities and Japan that would have 
allowed the imposition of only those encumbrances on use that were not " unjustifiabl[e] ". 
Honduras submits that "[t]he fact t hat the current text of Article  20 is based on the … balanced 
approach, as opposed to a unilateral approach … provides a strong indication that Members agreed 
that …  an encumbrance on use would be allowed only in exceptional circumstance, based on 
justifia ble reasons" .4871 
7.2307.   The Dominican Republic  argues that, in Article  20, the word "unjustifiable" provides an 
exception or qualification to a prohibition on encumbrances on the use of a trademark.4872 Against 
that background, relevant dictionary meanings of the word  "justifiable" include "[c]apable of being 
legally or morally justified, or shown to be just, righteous, or innocent; defensible"; as well as 
"supported or justified by good evidence or convincing reasoning; well -founded". To "justify" – as 
used in "justif iable" – means "to support the truth or value of, validate; to provide a reason for, 
warrant, necessitate; to prove (an action or reaction) to have been right, proper, or reasonable". 
In its view, based on the dictionary meaning, an "unjustifiable" encumbr ance refers to one that is 
                                                
4867 Honduras's first written submission, para. 296. 
4868 Honduras's first written submission, paras.  298-300. (emphasis original)  
4869 Honduras's first written submission, para. 301. 
4870 Honduras's firs t written submission, para.  315. See also Honduras's second writt en submission, 
paras.  361-372. 
4871 Honduras's first written submission, paras.  302-306. (emphasis original)  
4872 See also para. 7.2135  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  not defensible, warranted or necessary; lacks a reasoned and/or convincing basis for its 
imposition; and is not well -founded in the evidence.4873 In other words, "[o]n a purely literal 
reading, an encumbrance on the use of a tradema rk is 'unjustifiabl[e]' if it is not rational, 
reasonable, proper, defensible or warranted".4874 
7.2308.   It adds that these definitions are consistent with previous interpretations of similar terms 
in the covered agreements. The word "unjustifiable" has been found to  mean "undue", and 
"go[ing] beyond what is warranted". The word "reasonable", which is one of the dictionary 
meanings of "justifiable", has been understood to mean "proportionate"; "sensible"; and "within 
the limits of reason, not greatly less or more than  might be thought likely or appropriate".4875 
7.2309.   The Dominican Republic argues that the treaty interpreter cannot begin with an 
assumption that the word "unjustifiably" must be interpreted in opposition to the word 
"unnecessary" and, for that reason, exclude som e elements of a necessity test. The interpretive 
exercise must begin with discerning the meaning of the word actually used, "unjustifiably". The 
mere fact that the word "unjustifiably" is not the same as the word "unnecessary" does not provide 
an interpret ive reason to exclude the extent of the encumbrance, the extent of the contribution 
and alternative measures from consideration.4876 
7.2310.   As regards Australia's discussion on the WTO jurisprudence on the term "unjustifiable" in 
Article  XX of the GATT 1994, the Dom inican Republic responds that the word "unjustifiable" in the 
chapeau  plays a small part in the overall justification of a measure under Article  XX. By contrast, 
under Article  20 of th e TRIPS  Agreement , the word "unjustifiably" is the entire basis upon whi ch a 
panel must assess the justification of a measure. In these circumstances, the interpretation of the 
word "unjustifiably" in Article  20 of the TRIPS  Agreement  cannot involve a lesser standard than the 
interpretation of the very same word in the chapeau  of Article  XX of the GATT 1994. The 
Dominican Republic contends that Australia omits to mention that the word "unjustifiable" under 
the chapeau  of Article  XX allows for consideration of a broad range of factors, besides the limited 
factors it identifies. With respect to other elements, the Dominican Republic submits that the word 
"unjustifiable" in the chapeau  of Article  XX involves consideration of whether reasonably available 
alternative measures proposed by the complainant could have avoided the discrimination.4877 
7.2311.   The Dominican Republic considers a number of factors that, in its view, must be 
addressed to determine whether an encumbrance is justifiable. The first is the need for 
individualized assessment of the tobacco trademarks subject to the measures due to the nature of 
a trademark.4878 In addition, it suggests a legal standard comprising the following four factors: (i) 
the nature and extent  of the encumbran ce: how much of an obstruction does the measure place 
on the use and function of a trademark; (ii) the purpose for which an encumbrance is imposed: 
what objective  does the Member seek to achieve and do the ends warrant the resulting 
interference with the u se of a trademark; (iii) the particular means chosen to achieve the ends: 
does the encumbrance, as it bears upon each element of the encumbered trademark, make a 
contribution  to the ends; and (iv) the available alternatives: could an alternative measure  have 
been deployed that would make an equivalent contribution, while imposing a lesser or no 
encumbrance on trademark use. A panel should assess these four factors through a relational 
                                                
4873 Dominica n Republic 's first written submission, para. 379 ( referring to  Oxford English Dictionary 
online, definition of "justifiable", available at: 
<http://www.oed.com/view/En try/102219?redirectedFrom=justifiable#eid >, accessed  9 April 2014, (Exhibit 
DOM-85); and Oxford English Dictionary online, definition of "justify", available at: 
<http://www.oed.com/view/Entry/102219?redirectedFrom=justifiable#eid >, accessed  9 April 2014 , (Exhibit 
DOM-86)). 
4874 Dominican  Republic 's second written submission, para. 143. 
4875 Dominican  Republic 's first written submission, para. 380 ( referring to  Panel Repo rts, EC – Approval 
and Marketing of Biotech Products , para. 7.1495; and Dominican  Republic  – Import and Sale of Cigarettes , 
para. 7.385).  
4876 Dominican  Republic 's second written submission, paras.  186, 200, 304 and 570.  
4877 Dominican  Republic 's second written submission, paras.  576 and 578 -579 (referring to Appellate 
Body Reports, EC – Seal Products , para. 5.306; US – Gasoline , pp. 26-28, DSR 1996:I, p. 3 ; US – Shrimp , 
para. 171; and Panel Reports, China  – Rare Earths , para. 7.354 and fn  549). See also Dominican  Republic 's 
response to Panel question No. 108, paras.  166-167. 
4878 Dominican  Republic 's first written submission, paras.  382-383. The Dominican  Republic 's and other 
parties' arguments on whether unjustifiability of the requirements should be assess ed in respect of individual 
trademarks and their individual features are considered in section 7.3.5.5.2.2  below.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 707 - 
  analysis  that weighs and balances  the relative merits of the impugned and  alternative measures, 
reaching a holistic determination on justifiability.4879 
7.2312.   The Dominican Republic argues that " a panel must 'determine the objective  of Article  20 
and the interests it seeks to protect  in order to carry out a meaningful analysis of whether a 
measure is justifiable'".4880 The contribution of the TPP measures , and the availability of alternative 
measures, must be assessed against the stated objective of reducing smoking behaviour.4881 
7.2313.   In its vi ew, the interest protected under Article  20 is "[t]he use of a trademark", and the 
objective of the provision in protecting that interest is safeguarding, to the greatest extent 
possible, the ability of a trademark to fulfil its basic function of distingui shing goods or services, 
without prejudicing the ability of a Member to achieve other legitimate objectives. To be justifiable,  
government interference with the use of a trademark must be carefully calibrated to impose the 
least prejudice possible to the p rotected interest of "[t]he use of a trademark".4882 
7.2314.   It elaborates that the treaty text shows that "[t]he use of a trademark" is a protected 
interest  under Article  20 that must be considered in assessing justifiability. As a result, the legal 
standard for "justifiability" must be developed in light of the role and importance of "[t]he use of a 
trademark", as the interest protected by the provision. "The use of a trad emark" is essential to a 
trademark's ability to fulfil its basic treaty function of distinguishing goods or services in commerce 
in terms of their quality, characteristics, and reputation. Against that background, the object and 
purpose of Article  20 in pr otecting "[t]he use of a trademark" is to safeguard the ability of a 
trademark to fulfil its basic treaty function of distinguishing a good or service as far as possible, 
while permitting a Member to achieve other legitimate objectives. It adds that "[t]he  object and 
purpose of safeguarding the ability of a trademark to fulfill its basic treaty function as far as 
possible unquestionably furthers the object and purpose of the TRIPS  Agreement  as a whole". 
There is no parallel to Article  20 to protect the use of other forms of IP covered by the 
TRIPS  Agreement .4883 
7.2315.   The Dominican Republic  responds to Australia that it considers that there is no 
disagreement between the parties that an encumbrance must pursue a legitimate objective in 
order to be justifiable, and th at a panel must identify the objectives of the measure through an 
objective assessment of all of the available evidence.4884 The Dominican Republic notes that, 
although it agrees that Article  20 is violated if there is no rational connection between an 
encumb rance and a legitimate objective, it does not agree that this narrow conception exhausts 
the circumstances in which an encumbrance is unjustifiable.4885  
7.2316.   The Dominican Republic recalls that the panel in EC – Trademarks and Geographical 
Indications (Australia)  considered that the "legitimate interests" mentioned in Article  17 of the 
TRIPS  Agreement  include the trademark owner's interest "in using its own trademark".4886 It 
invokes Article  17 as context to support its view that the trademark owner's "legitimate int erests" 
must be taken into account in assessing "justifiability" under Article  20. It adds that the mere fact 
that Article  17 creates a formal exception to the rights conferred in Article  16 does not deprive 
Article  17 of relevance to the treaty interprete r as a source of helpful guidance in interpreting 
Article  20. In its view, " Article  17 of the TRIPS Agreement  is relevant context for interpreting 
Article  20 of the TRIPS Agreement  because the two provisions have similarities. Specifically, both 
provisions  are concerned with justifying  government measures that undermine the  distinctiveness 
of a trademark ."4887 In both cases, in deciding whether to permit government measures that 
                                                
4879 Dominican  Republic 's first writt en submission, paras.  387-391. See Dominican  Republic 's second 
written submission, para. 146 (offering a slightly different formulation of the suggested legal standard). See 
also Dominican  Republic 's second written submission, paras.  289 and 293 -294. 
4880 Dominican  Republic 's second written submission, para. 144 ( referring to  the European Union's 
response to Panel question No. 17, para. 102) (emphasis added  by the Dominican  Republic ). See para. 7.2362  
below for a summary of the European Union's position.  
4881 Dominican  Republic 's second written submission, para. 288. 
4882 Dominican  Republic 's second written submission, para. 145. 
4883 Dominican  Republic's second written submission, paras.  157-161. 
4884 Dominican  Republic 's second written submission, para. 275. 
4885 Dominican  Republic 's second written submission, para. 150. 
4886 Dominican  Republic 's first written submission, para. 257. 
4887 Dominican  Republic 's second written submission, paras.  171-174. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 708 - 
  undermine the distinctiveness of a trademark, the treaty interpreter must take int o consideration 
the legitimate interests of the trademark owner in using the trademark to maintain that 
distinctiveness.4888 
7.2317.   Cuba submits that the relevant ordinary meaning of the term "unjustifiable" is that which 
cannot be "shown to be just, reasonable or correct" or "defensible". The term "reasonable" was 
held by the panel in Dominican Republic  – Cigarettes  to refer to notions su ch as "proportionate", 
"sensible" and "within the limits of reason, not greatly less or more than might be thought likely or 
appropriate".4889 
7.2318.   In Cuba's view, these definitions indicate that any analysis of unjustifiability must 
determine whether the benefits  to the implementing WTO Member warrant the burdens imposed 
on trademark holders. A special requirement that does not achieve the aim for which it is imposed 
is unjustifiable, because no benefits are realised by the implementing WTO Member to justify the 
burdens imposed. Furthermore, the availability of equally effective but less trademark 
encumbering alternative measures implies that a special requirement is unjustifiable, as the 
burdens imposed on trademark holders are entirely avoidable. Finally, a situa tion where the 
magnitude or character of the regulatory benefits that an implementing WTO Member realises 
from a special requirement cannot justify the adverse impact on trademark owners also implies 
that the special requirement is unjustifiable.4890  
7.2319.   Against  this background, Cuba submits that a special requirement should be treated as 
unjustifiable if any of the following (non -exhaustive) conditions are met: (i) if the aim sought to be 
achieved (through the special requirement) is illegitimate ; (ii) if the sp ecial requirement is 
ineffective , in that it fails to achieve the legitimate aim for which it is imposed; and (ii i) if the 
special requirement is disproportionate , in that there are alternative measures which do not 
encumber the use of trademarks (or which  would encumber the use of trademarks to a lesser 
degree) that meet the legitimate aim sought to be achieved to an equivalent (or greater) extent. 
Cuba accepts that Australia pursues a legitimate aim of reducing smoking prevalence. Cuba's case 
is that the TPP measures  are unjustifiable because they are ineffective or, alternatively, because 
they are disproportionate.4891  
7.2320.   Cuba further argues that the broad term "unjustifiably" may have many different 
meanings according to the context for which it is used, rang ing from "undue" – a term essentially 
similar to "unnecessary" – to "unreasonable", "excessive", "disproportionate" and "incapable of 
being justified or explained". The ordinary meaning of the term is, therefore, only the beginning of 
a holistic exercise o f interpretation. Moreover, the ordinary meaning of the term "unjustifiably", as 
used in the context of Article  20, is not the same as when it is used in the context of the chapeau  
of Article  XX of the GATT 1994. The adverb "unjustifiably", as used in Article 20, refers to the 
nature and extent of the encumbrance and the disproportionate, extreme or unreasonable effect of 
the requirement.4892 Cuba adds that "[i]n the context of the TRIPS  Agreement , the justification for, 
that is to say, 'reason for' imposing t he special requirements actually does not matter. What does 
matter is the extent to which intellectual and industrial property rights are affected."4893 
7.2321.   Cuba agrees with Australia that Article  20 is not a provision establishing an exception. 
Cuba argues that Article  20 imposes a positive obligation not to encumber unjustifiably the use of 
a trademark through special requirements. This means that no requirement should be justified 
provisionally, but the complainant must establish that the encumbrance is disprop ortionate, not 
limited, and therefore unduly restrictive. In this sense, Article  20 combines the positive obligation 
of refraining from imposing special requirements with the possibility of the existence of a limited 
exception for a provision, but imposes the burden of proof for both on the complainant.4894  
                                                
4888 Dominican  Republic 's second written submission, para. 180. 
4889 Cuba's first written submission, para. 316 (quoting Shorter Oxford English Dictionary , 6th edn, A. 
Stevenson (ed.) (Oxford Univ ersity Press, 2007), Vol. 1, (Exhibit CUB -45), p p. 1482 and 3445; and Panel 
Report, Dominican  Republic  – Import and Sale of Cigarettes , para. 7.385).  
4890 Cuba's first written submission, paras.  317-318. 
4891 Cuba's first written submission, paras.  319-320. 
4892 Cuba's second written submission, paras.  94-101. 
4893 Cuba's second written submission, para. 104. 
4894 Cuba's second written submission, para. 102-103. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 709 - 
  7.2322.   Cuba notes that Australia argues that the drafters have deliberately used the concept of 
"unjustifiably" in Article  20 instead of the term "unnecessarily". In Cuba's view, Australia's 
argument is erroneous  if one takes into account its own statements that Article  8.1 of the 
TRIPS  Agreement , the Doha Declaration , Article  XX of the GATT 1994, Article  2.2 of the 
TBT Agreement  and similar provisions allow Members to adopt measures "necessary" to protect 
health.  Accordingly, at least, encumbrances imposed specifically on trademarks by the measure 
should be "necessary" and thus contribute to the fulfilment of the objective rather than being 
simply "rationally connected" to that objective.4895 
7.2323.   Indonesia  submits that the term "unjustifiably" means "not capable of being justified". 
"Justified" means "[m]ade just or right; made or accounted righteous; warranted; supported by 
evidence". In the present tense, "justify" means "[t]o make good (an argument, stat ement, or 
opinion); to confirm or support by attestation or evidence; to corroborate, prove, verify". Thus, in 
Indonesia's view, Article  20 prevents WTO Members from encumbering the use of a trademark 
without the support of evidence, sufficient lawful reas on, or a convincing rationale.4896 It adds that 
the word "unjustifiably" is an adverb modifying the verb "encumber", which means it is the 
encumbrance that must be justified and not the special requirements themselves.4897 
7.2324.   Indonesia argues that an analysis of "u njustifiable" requires the use of a sliding scale – 
measures that impose a high degree of encumbrance also impose a higher burden on the 
respondent to justify the measure. In its view, this interpretation is consistent with the principle of 
proportionality  reflected in the Appellate Body's connection of "unjustifiable" with terms such as 
"beyond what is warranted  … ; excessive, disproportionate". These terms underscore the 
understanding that a measure that is "justifiable" is one that is "just", "warranted" , "proportional", 
and "supported by evidence". Indonesia argues that "[i]t can only follow that radical and 
unprecedented encumbrances, such as those imposed by [the TPP measures ], require more 
evidence to prove that the burden is 'warranted' and 'supporte d', whereas a minor encumbrance 
(i.e. use with a health warning and limitations on size or placement) could be justified with less 
rigorous evidence".4898  
7.2325.   Indonesia argues that the existence of a "rational connection" to a legitimate objective is 
not suffici ent to justify an encumbrance under Article  20. It adds that there is support from the 
third parties for several of the elements put forward by the complainants, including the following 
three factors: (i) a rational connection to a legitimate objective; (i i) an assessment of the 
contribution arising from the special requirement; and (iii) the extent of the encumbrance. The 
third parties generally consider that whether a requirement is justified or not should be resolved 
on a case -by-case basis by "weighing and balancing" the extent of the encumbrance and the 
contribution it makes to the objective.  
7.2326.   Indonesia considers that "[t]he plain text of Article  8.1 requires that public health 
measures must be both necessary and consistent with the provision of the TRIPS Agreement ".4899 
In its view, paragraph 4 of the Doha Declaration  "is consistent with the language of Article  8.1 and 
does not expand the level of deference to be accorded to public health measures under the 
TRIPS  Agreement ".4900 
                                                
4895 Cuba's second written submission, para. 108. 
4896 Indonesia's first written submission, paras.  287-288 ( referring to  Merriam -Webster Dictionary 
online, definition of "unjustifiably", available at: <https://www.merriam -webster.com >, accessed  
29 September 2014; and The Compact  Oxford English Dictionary , 2nd edn, J.A. Simpson and E.S.C. Weiner 
(eds.) (Oxford University Press, 2000), p. 905).  
4897 Indonesia's first written submission, para. 286. 
4898 Indonesia's first written submission , para. 292 (referring to Appellate Body Report, Australia  –
 Apples , para. 437). 
4899 Indonesia's second written submission, para. 40. (emphasis original)  
4900 Indonesia's second written submission, paras.  46-47. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 710 - 
  7.2327.   Australia  submits that the term  "unjustifiable" is defined as "not justifiable, indefensible". 
The ordinary meaning of the term "justifiable", in turn, is "able to be legally or morally justified; 
able to be shown to be just, reasonable, or correct; defensible".4901  
7.2328.   It notes that no prior  panel has had occasion to consider the meaning of the term 
"unjustifiably" as it appears in Article  20. However, panels and the Appellate Body have considered 
the meaning of the term "unjustifiable" in the context of the phrase "arbitrary or unjustifiable  
discrimination", as it appears in Article  XX of the GATT 1994 and Article  XIV of the GATS. In 
Brazil  – Retreaded Tyres,  the Appellate Body considered that an examination of whether 
discrimination is "arbitrary or unjustifiable" within the meaning of Article XX of the GATT 1994 
should be "directed at the cause, or rationale, of the discrimination". The Appellate Body explained 
that this inquiry requires a panel to examine whether the discrimination at issue has a "rational 
connection" to the objective that was provisionally found to justify the measure under one or more 
of the general exceptions contained in Article  XX. The Appellate Body held that there is no "rational 
connection" if the rationale for discrimination "does not relate to" or "would go against " the pursuit 
of a legitimate objective under Article  XX. In EC – Seal Products,  the Appellate Body recently 
reaffirmed the interpretation of the chapeau  to Article  XX that it articulated in Brazil  – Retreaded 
Tyres. The Appellate Body stated that "[o]ne o f the most important factors in the assessment of 
arbitrary or unjustifiable discrimination is the question of whether the discrimination can be 
reconciled with, or is rationally related to, the policy objective with respect to which the measure 
has been p rovisionally justified under one of the subparagraphs of Article  XX". The Appellate Body 
examined this issue as one of whether the discrimination inherent in the measure had a "rational 
relationship" to the objective that provisionally justified the measur e under Article  XX.4902 
7.2329.   In Australia's view, these prior Appellate Body reports are consistent with the ordinary 
meaning of the term "unjustifiably" and support the conclusion that the use of a trademark in the 
course of trade is "unjustifiably" encumbered by special requirements  only if there is no "rational 
connection" between the imposition of the special requirements and a legitimate public policy 
objective. The meaning of the term "unjustifiably" in Article  20 of the TRIPS  Agreement  must be at 
least as permissive as the meani ng of the term "unjustifiable" in the chapeau  to Article  XX, 
considering that Article  XX concerns measures that have been found to violate one or more 
provisions of the GATT 1994. Article  20 of the TRIPS  Agreement , by contrast, is not an exception 
to a vio lation. Rather, it is an affirmative obligation relating to special requirements that encumber 
the use of trademarks in the course of trade, and the ordinary meaning of Article  20 requires only 
that such encumbrances bear a rational connection to a legitim ate public policy objective.4903 
7.2330.   Australia adds that the ordinary meaning of the term "unjustifiably" thus focuses on the 
rationality or reasonableness of the connection between the encumbrance imposed by a measure 
and the measure's legitimate public policy o bjective. As these definitions make clear, 
"unjustifiably" is not an absolute standard. There will ordinarily be more than one possible 
outcome that is " able to be shown to be just, reasonable, or correct", or that is " within the limits  of 
reason". Under a  rational connection standard, the relevant inquiry is whether the complainants 
have shown that the relationship between the encumbrance imposed by the measure and the 
measure's objective is not one that is within the range of rational or reasonable outcom es.4904 
7.2331.   Australia notes that, even under a legal standard of "necessity", panels and the 
Appellate  Body have found that a measure is capable of contributing to its legitimate objectives 
where there is "a genuine relationship of ends and means between the obje ctive pursued and the 
measure at issue". The Appellate  Body has indicated that the existence of a "genuine relationship 
of ends and means" can be evaluated either in quantitative or qualitative terms, and that the 
ultimate objective of the inquiry is to de termine whether the measure is "capable of making a 
contribution" to its objective. The Appellate  Body has further indicated that, even under a legal 
standard of "necessity", there is no "pre -determined threshold of contribution" that the measure 
                                                
4901 Australia's first written submission, para. 365 ( referring to  Shorter Oxford English Dictionary , Vol. 2 
AUS excerpts, (Exhi bit AUS -245), p. 3445; and Shorter Oxford English Dictionary , Vol. 1 AUS excerpts, Part 1, 
(Exhibit AUS -243), p. 1482).  
4902 Australia's first written submission, paras.  366-368 (ref erring to Appellate Body Report , Brazil  –
 Retreaded Tyres, paras.  225 and 227 -228; and EC – Seal Products,  para. 5.306).  
4903 Australia's first written submission, para. 369. See also Australia's response to Panel question 
No. 107. 
4904 Australia's second written submission, para. 149. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 711 - 
  must be c apable of achieving in order to be found "necessary". These considerations suggest that, 
under a legal standard of "unjustifiability", and bearing in mind that the complainant bears the 
burden of proof, a complainant would need to demonstrate that an encum brance is incapable of 
contributing to its objectives in order to prove that it is "unjustifiable".4905 
7.2332.   In Australia's view, the principal point of disagreement concerns the complainants' 
position that the term "unjustifiably" should be interpreted as functio nally equivalent to a standard 
of necessity.4906 It argues that the complainants' contention that the term "unjustifiably" in 
Article  20 encompasses a requirement of "necessity" (such as under Article  XX(d) of the GATT 
1994) or a standard comparable to that p rescribed by Article  2.2 of the TBT Agreement  goes 
beyond the ordinary meaning of the term "unjustifiably". Notwithstanding the fact that the 
concepts of "necessity", "least trade -restrictiveness", and "reasonably available alternatives" were 
well known at  the time of the Uruguay Round and appear in other Uruguay Round agreements, 
these concepts were not incorporated into Article  20 of the TRIPS  Agreement . Article  20 uses the 
word "unjustifiably" to establish the standard by which special requirements impos ed upon the use 
of trademarks are to be evaluated. The ordinary meaning of this term is clear and bears no 
resemblance to the concepts of "necessity", "least restrictiveness", and "reasonably available 
alternatives" that appear elsewhere in the covered agr eements. Just as the use of the same or 
similar terms in different provisions of the covered agreements creates a presumption that the 
terms should be interpreted to have the same or similar meaning, the use of different terms 
creates a presumption that th e terms were intended to have a different meaning.4907 
7.2333.   Furthermore, the term "unjustifiably" does not require a "weighing and balancing" 
analysis, which is the hallmark of a "necessity" analysis.4908 Interpreting the term "unjustifiably" to 
include a requirement  of "least restrictiveness" would render this term functionally equivalent to a 
standard of "necessity". What distinguishes the term "necessary" from other standards of 
justification, such as "relating to", "reasonable", "undue", "unjustifiable", is the co nnotation that 
the measure at issue was the only way of achieving the Member's objective in a WTO compatible 
manner. The fact that Article  20 does not use the term "necessary" as the basis for its standard of 
justification must be given interpretative effe ct. In Australia's view, the complainants do not 
seriously contend that a requirement of "least restrictiveness" follows from the ordinary meaning 
of the term "unjustifiably", but rather base it on contextual arguments relating to "legitimate 
interests" or  a "protected treaty interest" despite the absence of these terms in the text of 
Article  20.4909 
7.2334.   Australia contends that the complainants' descriptions of the ordinary meaning of the 
term "unjustifiably" do not support their assertion that this term requires an examination of 
"necessity" or an examination of whether the encumbrance is the "least restrictive" encumbrance 
possible in light of "reasonably available alternatives". Insofar as the terms "reasonable" and 
"undue", referred to by complainants, bear upo n the interpretation of the term "unjustifiably", the 
ordinary meanings of these terms as interpreted by panels and the Appellate Body do not support 
the complainants' assertion that the term "unjustifiably" means "necessary" or "least restrictive" in 
light of "reasonably available alternatives".4910 
7.2335.   Australia observes that, in their submissions to the Panel, the complainants have treated 
their analysis of whether the TPP measures  are "unjustifiable" under Article  20 of the 
TRIPS  Agreement  as essentially inter changeable with their analysis of whether the measures are 
"more trade -restrictive than necessary" under Article  2.2 of the TBT Agreement . It argues that 
such an approach ignores the ordinary meaning of the term "unjustifiable" and represents an 
attempt by  the complainants to rewrite Article  20 to say something that it does not say.4911 
                                                
4905 Australia's second written sub mission, paras.  152-153 ( referring to Appellate  Body Report , Brazil  –
 Retreaded Tyres,  paras.  145 and 149; and EC – Seal Products,  para. 5.213).  
4906 Australia's second written submission, para. 145. 
4907 Australia's first written submission, paras.  385, 393 -394 and 408 (referring to Appellate Body 
Report, US – Gasoline,  pp. 17-18, DSR 1996:I, p. 3). 
4908 Australia's second written submission, paras.  159-162. 
4909 Australia's second written submission, paras.  165-173. 
4910 Australia's first written submission, paras.  397 and 400.  
4911 Australia's second written submission, para. 158. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 712 - 
  7.2336.   Australia argues that it is evident from the context of Article  20 that the term 
"unjustifiably" was not meant to impose significant constraints upon Members' sovereign right t o 
regulate the use of trademarks in furtherance of public policy objectives (as acknowledged in the 
principle set forth in Article  8.1).4912 More specifically, it submits that the TRIPS  Agreement  is not 
generally concerned with the use of trademarks, or with the use of other types of IP. Article  20 is 
not an exception to rights that Members are otherwise required to confer upon trademark owners 
under domestic law, but a provision that relates, exc eptionally, to a sovereign right that the 
TRIPS  Agreement  does not otherwise seek to constrain. Article  19, which immediately precedes 
Article  20, specifically contemplates that Members may regulate products in such a way as to 
create an obstacle to the us e of a trademark, and provides that Members must not refuse to renew 
registration on this basis. Article  20 comes toward the end of Section 2, outside the main line of 
Section 2's concern with rights with respect to registration and rights of exclusion. Th e drafters 
considered that special requirements imposed upon the use of trademarks in the course of trade 
are permissible so long as they are not "unjustifiable". This choice is consistent with the fact that 
the Paris Convention  – upon which Section 2 of t he TRIPS  Agreement  is largely based – "does not 
contain any obligation to the effect that the use of a registered trademark must be permitted".4913 
To Australia, these considerations support the conclusion that an encumbrance resulting from the 
imposition of special requirements upon the use of a trademark is not "unjustifiable" if the 
encumbrance has a rational connection to a public policy objective.4914 
7.2337.   Australia contends that the Dominican Republic's attempt to recast Article  20 as "a 
prohibition against encu mbrances on the use of a trademark", which is then subject to an 
exception implied by the word "unjustifiably", is a complete rewriting of Article  20. There is no 
sense in which Article  20 establishes any sort of "prohibition" or "presumption" against 
encumbrances upon the use of trademarks through the imposition of special requirements.4915 
7.2338.   Australia responds to the complainants' arguments on the relevance of "legitimate 
interests" and a "protected treaty interest" for the interpretation of Article  20. 
7.2339.   As reg ards "legitimate interests", Australia argues that the concepts of "necessity" and 
"least restrictiveness" cannot be inferred from Article  17 of the TRIPS  Agreement , which obliges 
Members to "take account of the legitimate interests of the owner of the tra demark". In its view, 
the complainants have not offered any explanation why the Panel should read the requirements of 
Article  17 into Article  20, which are different provisions addressing two different topics: Article  17 
concerns exceptions to the rights c onferred under Article  16. Article  20, by contrast, is not an 
exceptions provision, but rather an affirmative obligation that Members undertake in respect of 
encumbrances imposed upon the use of trademarks in the course of trade. The "legitimate 
interests of the owner of the trademark" are therefore not relevant in the context of Article  20, as 
they are in the context of Article  17. The absence of comparable language in Article  20 confirms 
that no such obligation exists. The context provided by other provis ions within the same 
agreement can be relevant both in their similarity and their dissimilarity to the provision to be 
interpreted. The fact that Article  20 does not require Members to take into account "the legitimate 
interests of the owner of the tradema rk", in contrast to Article  17, strongly suggests that the 
drafters of the TRIPS  Agreement  did not consider this to be a relevant or necessary requirement in 
the case of measures that impose an encumbrance upon the use of a trademark. Instead, 
Article  20 focuses exclusively on that standard of whether any encumbrance resulting from the 
imposition of special requirements is "unjustifiable".4916 
7.2340.   As regards a "protected treaty interest", Australia responds that the arguments based on 
such an interest appear to be  just another way of asserting that the TRIPS  Agreement  has the use 
of trademarks as one of its  paramount concerns, even though there is nothing in the Agreement to 
support this conclusion. The complainants seek to distinguish a "right of use", which they agree is 
not conferred by the TRIPS  Agreement , from what they characterize as an "interest in use" and 
                                                
4912 Australia's first written submission, para. 374. 
4913 Australia's first written submission, paras.  371-373 (quoting  Letter from D. Latham of Lovell White 
Durrant , (Exhibit AUS -234)).  
4914 Australia's  first written submission, para. 374. 
4915 Australia's first written submission, para. 403 ( referring to  Dominican  Republic 's first written 
submission, para. 343).  
4916 Australia's first written submission, paras.  404-407; and Australia's second written submission, 
paras.  179 and 182.  See also Australia's second written submission, paras.  177-178. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 713 - 
  the "importance of use" in allowing trademarks to "fulfil their basic function". The complainants' 
arguments about "interests in use" and the "importance  of use" are essentially the "right of use" 
argument in a different guise. The complainants' argument in this respect is essentially teleological 
– because trademarks serve to "distinguish the goods or services of one undertaking from those of 
other undert akings" when they are used for this purpose, it must be the case that the 
TRIPS  Agreement  has the protection of this telos as one of its core objectives, and that the term 
"unjustifiably" must be interpreted in this light.4917  
7.2341.   The first problem with this argument is that it begs the question of what "interests" the 
TRIPS  Agreement  seeks to "protect". This question is answered by examining the relevant 
provisions of the Agreement, not by engaging in teleological reasoning. The pr incipal concern of 
the TRIPS  Agreement  is to ensure that all Members recognise and enforce a certain minimum 
standard of IP right s. In each instance, the TRIPS  Agreement  defines these rights in terms of 
rights of exclusion, and does not once refer to any "right of use". The complainants' teleological 
observations concerning an "interest in use" and the "importance of use" would apply to all forms 
of IP covered by the TRIPS Agreement , yet it is clear from its terms that the Agreement does not 
grant rights with respect to the use of IP.4918  
7.2342.   The use of other forms of IP is at least equally important to allowing those forms of IP to 
"fulfil their basic function". Moreover, the o wners of other forms of IP have at least an equally 
legitimate "interest" in the use of that IP. Nevertheless, the TRIPS  Agreement  imposes no 
constraints on how Members may regulate the use of other forms of IP. This confirms that the use 
of IP, of any typ e, is not a primary concern of the TRIPS  Agreement  and is a matter that the 
Agreement leaves almost entirely unconstrained.4919  
7.2343.   Australia contends that the complainants' arguments about "interests" amount to an 
assertion that because Article  20 imposes some constraint upon the ability of Members to 
encumber the use of trademarks, it must be the case that the use of trademarks is a paramount 
concern of the TRIPS  Agreement  that deserves the highest levels of treaty protection, including a 
requirement of "least restrictiveness". But this assertion simply assumes the conclusion of the 
interpretative analysis. Every affirmative obligation under the covered agreements could be said to 
reflect a "protected treaty interest", but it does not follow that each such "inte rest" is equally 
important or that the obligation must be interpreted to impose the highest levels of protection for 
that "interest". The nature of the obligation that a treaty provision imposes can be determined only 
by interpreting the relevant treaty te rms in accordance with their ordinary meaning, in their 
context and in light of the object and purpose of the agreement. The term "unjustifiably" in 
Article  20, properly interpreted, is not equivalent to a standard of "necessity" and does not impose 
a requ irement of "least restrictiveness". The complainants' arguments about "protected treaty 
interests", whatever their interpretative relevance, do not support a different conclusion.4920 
7.2344.   Australia argues that its interpretation of the term "unjustifiably" is sup ported by the 
object and purpose of the TRIPS  Agreement . In its view, the core object and purpose of the 
TRIPS  Agreement  is to ensure that all WTO Members provide a minimum level of exclusive rights 
to owners of IP. These exclusive rights are in the nature  of "negative rights to prevent certain 
acts", not "positive rights to exploit or use certain subject matter". As Carvalho explains, the 
"fundamental and overall thrust" of the TRIPS  Agreement  "is about the protection of intellectual 
property rights, not a bout the freedom to exploit them in trade".4921 
7.2345.   Australia adds that the nature of the rights that the TRIPS  Agreement  seeks to protect 
has important implications for the rights that Members retain to regulate the use and exploitation 
of IP, including trademar ks. The panel in EC – Trademarks and Geographical Indications 
(Australia)  observed that the fact that the TRIPS  Agreement  requires Members to confer certain 
negative rights of exclusion upon IP owners "inherently grants Members freedom to pursue 
                                                
4917 Australia's second written submission, para. 188. 
4918 Australia's second written submission, para. 189. 
4919 Australia's second  written submission, para. 190. 
4920 Australia's second written submission, paras.  192-193. 
4921 Australia's first written submission, para. 376 ( referring to  Panel Report, EC – Trademarks and 
Geographical Indications (Australia),  para. 7.246; and Carvalho 3rd edn, AUS excerpts,  (Exhibit AUS -236),  
p. 348).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 714 - 
  legitimate  public policy objectives", since most measures that regulate the use or exploitation of IP 
will not interfere with the rights of exclusion that Members are required to confer. Most such 
measures are simply "outside the scope of intellectual property right s" and are therefore not 
constrained by Members' obligations under the TRIPS  Agreement .4922 
7.2346.   In Australia's view, Article  8 is an express acknowledgement of the broad scope that 
Members retain under the TRIPS  Agreement  to adopt laws and regulations for public policy 
purposes. Article  8.1 is not an exception for public policy measures that are otherwise inconsistent 
with a Member's obligations under the Agreement but enunciates a fundamental principle of the 
Agreement that must be taken into account when interpr eting and applying its remaining 
provisions. It recognizes that each Member retains the right to adopt measures in furtherance of 
public policy objectives, including measures to protect public health, as long as those measures 
are consistent with the Membe rs' obligations under the Agreement.4923  
7.2347.   The Doha Declaration  refers to the principles set forth in Article  8.1. Paragraph 4 of the 
Declaration states that the TRIPS  Agreement  "does not and should not prevent Members from 
taking measures to protect public health", and "reaffirm[s] the right of WTO Members to use, to 
the full, the provisions in the TRIPS  Agreement , which provide flexibility for this purpose". The 
Declaration fur ther states that "in applying the customary rules of interpretation of public 
international law, each provision of the TRIPS  Agreement  shall be read in the light of the object 
and purpose of the Agreement as expressed, in particular, in its objectives and principles", i.e. in 
Articles  7 and 8.4924  
7.2348.   A "weighing and balancing" analysis is particularly inappropriate in the case of a measure 
that is designed to protect public health. The Doha Declaration  serves to underscore that the term 
"unjustifiably" in Article 20 provides Members with a wide degree of latitude to implement 
measures to protect public health and, unlike the term "necessary", contemplates a range of 
possible outcomes that are "able to be shown to be just, reasonable, or correct" or that are "with in 
the limits of reason". In this relevant context, it is not a panel's function to "weigh and balance" 
the considerations, including public health considerations, that the Member took into account when 
crafting the measure at issue in order to substitute the panel's own assessment for that of the 
implementing Member. Rather, the panel's function is to evaluate whether the complaining 
Member has demonstrated that an encumbrance upon the use of trademarks resulting from the 
measure at issue is "unjustifiable ".4925 
7.3.5.5.1.2   Main arguments of the third parties  
7.2349.   Argentina  agrees with Australia that the term "unjustifiably" in Article  20 should be 
analyzed in terms of the connection, or the lack thereof, between the encumbrance and the policy 
objective pursued by the measure.4926 One should also take into consideration whether the 
measure makes any contribution to the objectives. The possible availability of alternative 
measures would, however, be more akin to proof of "necessity" than of "justifiability".4927 The 
panel in EC – Trademarks and Geographical Indications  pointed out that the TRIPS  Agreement  
does not contain any provision corresponding to Article  XX of the GATT 1994, and stated that a 
fundamental feature of IP protection grants States freedom to pursue legitimate public p olicy 
objectives since many measures to obtain those public policy objectives lie outside the scope of IP 
rights and do not require an exception under the TRIPS  Agreement . Consequently, the 
interpretation of "unjustifiable encumbrance" must be made in the light of the provisions of the 
TRIPS  Agreement , bearing in mind its object and purpose, without extrapolating the application of 
                                                
4922 Australia's first written submission, para. 379 ( referring to  Panel Report, EC – Trademarks and 
Geographical Indications (Australia),  para. 7.246).  
4923 Australia's first written submission, paras.  380-381. 
4924 Australia's first written submission, para. 382. 
4925 Australia's second written submission, para. 163. 
4926 Argentina's third -party submission, para. 10. Argentina also conceptually agrees with the comments 
by Brazil, Canada, China, and Japan. In this respect, A rgentina in particular refers to para. 49 of Brazil's 
third -party submission, which is reflected in para. 7.2350  below . Argentina's third -party resp onse to Panel 
question No. 17, para. 27. 
4927 Argentina's third -party response to Panel question No. 19. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 715 - 
  Article  XX of the GATT 1994.4928 Bearing in mind the principles laid down in Article  8.1 of the 
TRIPS  Agreement  and the Doha Decla ration , the TRIPS  Agreement  must be applied in a manner 
which supports the right of M embers to protect public health4929, bearing in mind that tobacco is a 
unique product owing to the high risk of addiction and damage to health.4930 
7.2350.   Brazil  submits that, in Article  20, the term "unjustifiably" is associated with the term 
"encumbered" and not the expression "special requirements". Therefore, what seems to be central 
to the analysis of consistency with Article  20 is not so much whether a measure is unjustifiabl e, 
but whether the encumbrance it poses to the use of a trademark is unjustifiable.4931 The existence 
of a rational connection or the lack thereof between the measure at issue and a certain policy 
objective may not be sufficient for assessing whether a specia l requirement unjustifiably 
encumbers the use of a trademark in the course of trade. In its view, complainants would have to 
demonstrate that the encumbrance posed by the measure is not commensurate with the 
importance of the objective pursued, and the res pondent would have to adduce evidence in order 
to prove there is a balance between the importance of the objective pursued and the encumbrance 
posed by its measure.4932 The dictionary definition of the word "justifiable" conveys the idea of 
reasonability; con sequently, if the encumbrance posed by a special requirement is demonstrated 
to be excessive in relation to the importance of the objective pursued, it would probably not be 
justifiable at the same time.4933 
7.2351.   As regards the public health context, Brazil recall s that the fourth WTO Ministerial 
Conference in Doha 2001 recognized that nothing in the WTO rules prevents its Members from 
taking measures for the protection of human life or health, at the levels they consider appropriate, 
provided that such measures (i ) are not applied in a manner which would constitute a means of 
arbitrary or unjustifiable discrimination between countries where the same conditions prevail; (ii) 
do not represent a disguised restriction on international trade; and (iii) are otherwise in 
accordance with the provisions of the WTO Agreement s.4934 As regards the specific commitments 
under the TRIPS  Agreement , the Ministerial Conference adopted the Doha Declaration , where it 
agreed that the Agreement does not and should not prevent Members from t aking measures to 
protect public health, reaffirmed the right of Members to use, to the full, the provisions in the 
TRIPS  Agreement , which provide flexibility for such purpose, and recognized that these flexibilities 
include, among others, the imperative o f having each provision of the TRIPS  Agreement  read in 
the light of its object and purpose ( Articles  7 and 8), when applying the customary rules of 
interpretation of public international law.4935 
7.2352.   Canada  argues that, while the term "justifiable" involves somet hing that can be defended, 
supported or, in essence, is reasonable, the term "necessary" signifies something "that cannot be 
dispensed with or done without, requisite, essential, needful". It is evident that the threshold to 
establish that a measure is "ne cessary" must be higher and more stringent than the threshold to 
establish that a measure is "justifiable". If Members had intended to use the word "necessary" in 
Article  20, they would have done so, as they did in a number of other provisions of the 
TRIPS  Agreement . Some complainants would have the Panel collapse the two distinct concepts of 
"necessity" and "justifiability" together, but this would ignore a basic tenet of treaty 
interpretation.4936 While Australia's proposed test of requiring a complainant to  establish that there 
is no rational connection between the requirement and a legitimate public policy objective in order 
to demonstrate that the requirement is "unjustifiable" would establish an extremely onerous 
burden to establish a violation of Article  20, the test advanced by the complainants to determine 
                                                
4928 Argentina's third -party response to Panel question No. 20 (referring to Panel Report, EC –
 Geographical Indications , paras.  7.114 and 7.210); and Argentina's third -party submission, para. 8. 
4929 Argentina's third -party responses to Panel question Nos. 23 and 21, respectively.  
4930 Argentina's third -party response to Panel question No. 17. 
4931 Brazil's third -party submission, para. 48. 
4932 Brazil's third -party submission, para. 49. 
4933 Brazil's third -party submission, para. 50 (referring to Shorter Oxford English Dictionary ). 
4934 Brazil's third -party submission, para. 18 (referring to para. 6 of the Doha Ministerial Declaration , 
adopted on  14 November 2001, WT/MIN(01)/DEC/1).  
4935 Brazil's third -party submission, para. 19 (referring to paras.  4 and 5 of the Doha Declaration ). 
4936 Canada's third -party submission, paras.  77-79 and 81 (referring to Appellate Body Reports, Korea  –
 Dairy , para. 81; a nd Japan  – Alcoholic Beverages II , p. 17). See also Canada's third -party submission, 
paras.  82-83, and response to Panel question No. 20, paras.  38-41. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 716 - 
  whether a requirement is "unjustifiable" is equally untenable as it would require the requirement to 
be the least trade -restrictive to achieve the objective.4937 
7.2353.   Canada submits that Article  8.1 does not set out rights or obligations and is not an 
exception for measures that may otherwise be inconsistent with the provisions of the 
TRIPS  Agreement , but espouses the principle that Members have the right to take measures 
necessary to protect health.4938 The test  established to determine whether a measure is 
"unjustifiable" under Article  20 must reflect and preserve the regulatory space to protect public 
health recognized in Article  8.1. To use the language in Article  8.1 to import "necessity" into the 
concept of "unjustifiable" so as to create an inappropriately stringent test in Article  20 would be a 
perverse use of Article  8.1 and at odds with its intent and purpose.4939 
7.2354.   Having regard for the ordinary meaning of the words, existing case law, and relevant 
context, i ncluding other TRIPS provisions and the Doha Declaration , Canada proposes that the 
elements to be examined in determining whether a special requirement is "unjustifiable" under 
Article  20 constitute the following: (i) is the objective of the requirement le gitimate; (ii) is there a 
rational connection between the requirement and the legitimate objective; (iii) does the 
requirement contribute to the objective; and (iv) to what extent does the requirement encumber 
how a trademark can be used.4940 The exercise in determining whether a special requirement is 
"unjustifiable" involves weighing and balancing these factors. In other words, a panel would weigh 
the importance of the objective and the contribution of the requirement with the extent of the 
encumbrance on th e use of a trademark.  
7.2355.   Canada emphasizes that its proposed test does not include a comparative analysis 
between the measure at issue and an alternative measure to determine whether an alternative 
measure is reasonably available, less trade -restrictive , and makes an equivalent contribution to 
the fulfilment of the objective. It is appropriate for a "justifiable" test to exclude such a 
comparative element as the ordinary meaning of that term in its context suggests that it supports 
a test that determines wheth er a measure is defensible and reasonable, not whether it is 
indispensable and the least trade -restrictive .4941 In response to a Panel question, Canada adds that 
the "justifiable" concept in Article  20 is fundamentally concerned with the relationship between the 
measure and the encumbrance, rather than with how the measure compares with other possible 
alternatives with respect to the degree of encumbrance. It may be appropriate, however, in certain 
cases, to take into consideration other measures that were con templated but rejected by the 
implementing Member, as this may assist in elucidating , inter alia , the contribution or rational 
connection of the measure at issue to its objective.4942 
7.2356.   China  argues that, unlike Article  2.2 of the TBT Agreement  and Article  XX of the GATT 
1994, Article  20 does not incorporate notions like "necessary", "least restrictiveness"  and 
"reasonably available alternatives"  but use s a broader term , "unjustifiably ". In accordance  with the 
customary rules of interpret ation as embodied in Article 31 of the Vienna Convention, the text of 
Article  20 must not be disregarded by inserting something that has not been incorporated in that 
provision. Furthermore, a measure inconsistent with GATT 1994 obligations may be justified on the 
grounds set out  in any of the items (a) through (j) of Article  XX of the GATT 1994, provided that 
the conditions provided for in the chapeau  of Article  XX are also fulfilled, but only items (a), (b), 
(d), (i) and (j) establish a standard of "necessary ". This appears to support  the view that the 
standard of "justifiable"  is lower than that of "necessary ". If this is the case, the jurisprudence 
regarding the "necessary " standard under Article  XX of the GATT 1994 and/or Article  2.2 of the 
TBT Agreement  may not be simply tra nsplanted into the "justifiable " standard under Article  20 of 
the TRIPS  Agreement .4943  
                                                
4937 Canada's third -party submission, paras.  85-86. 
4938 Canada's third -party submission, para. 80. 
4939 Canada's  third-party response to Panel question No. 21. See also Canada's third -party submission, 
paras.  8 and 10 -11; and Canada's third -party response to Panel question No. 23, paras.  47-48. 
4940 Canada's third -party submission, para. 87. 
4941 Canada's third -party submission, paras.  88-89. 
4942 Canada's third -party response to Panel question No. 19, para. 37. 
4943 China's third -party submission, para. 49. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 717 - 
  7.2357.   China adds that, u nlike the "necessary" test under Article  2.2 of the TBT Agreement , the 
"unjustifiably"  test under Article  20 of the TRIPS  Agreement  does not necessarily call for 
"comparative analysis " between the challenged measure and possible alternative measures . If the 
challenged measure , however,  makes no, or very little, contribution to its objectives and 
encumber s the use of trademarks to a high degree , while other measures  exist that encumber the 
use of trademarks to a much lower degree and make equivalent or even much greater 
contribution s to the objectives, it would be difficult for the challenged measure to be justified.4944 
7.2358.   China suggests  that the Pane l, in determining whether an encumbrance imposed by the 
TPP measures  is unjustifiable, may need to examine, in a holistic manner, various factors, 
including but not limited to: ( i) the policy objective  and its importance ; (ii) the extent of the 
rational co nnection or, in other words, the contribution of the measure to the policy objective ; and  
(iii) the extent of encumbrance imposed by the measure. Generally speaking, the more important 
the policy objective is, the more likely the encumbrance may be justifi ed; the more contribution 
the measure ma kes to the policy objective, the more likely the encumbrance may be justified; 
and, the lower the extent of encumbrance is, the more likely the encumbrance may be justified.   
7.2359.   China submits that i t is undisputed that the policy objective of the TPP measures , 
including trademark requirements therein, is to protect public health by controlling  tobacco use, 
and that this policy objective is of great importance. It appears also to be undisputed that the 
trademark  requireme nts encumber the use of tobacco trademarks in the course of trade to a high 
extent. Thus the Panel 's examination would be expected to concentrate on the issue of the 
contribution of the trademark requirements to the objective of tobacco control.4945 As regards the 
public health context, China states that " the WTO Agreement s recognize and accommodate 
societal values and interests, such as the protection of public health, public moral and 
environment" . The preface of the WTO Agreement  states  that international trade relations shall be 
conducted " with a view to raising standards of living ", which may be considered to include human 
health, and "with the objective of sustainable development ". China also refers to the Marrakesh 
Declaration of 15 April 1994  as evidence of Members ' desire to operate in a fairer and more open 
multilateral  trading system "for the benefit and welfare of their peoples ". Among the societal  
values and interests recognized and accommodated  in the WTO Agreement s, "protection of human 
life and health is 'both vital and important in the highest degree'".4946 
7.2360.   The European Union  argues that Article  20 must be read in the light of the objectives and 
principles of the TRIPS  Agreement  in order to clarify its precise meaning. The provisions of th e 
TRIPS  Agreement  provide a wide margin of discretion for setting up an IP regime that is capable of 
responding to public health concerns. Its Articles  7 and 8 are important for interpreting other 
provisions of the Agreement, including where measures are t aken by Members to meet health 
objectives.4947 Bearing in mind the importance of the Doha Declaration , in particular of its 
paragraphs 4 and 5(a)4948, panels and the Appellate Body should give preference to interpretations 
on the meaning of particular provisions  that are "supportive of WTO Members' right to protect 
public health in disputes".4949 It is also important that the FCTC and its implementing guidelines 
are accorded proper weight.4950 
7.2361.   The European Union notes that the parties' and certain other third parties' proposed tests 
under Article  20, which contain from two to five elements, are similar, with the key difference 
being a different degree of justification or, more precisely, deference.4951 In its own view, the 
                                                
4944 China's third -party response to Panel question No. 19, pp. 7-8. See also China's third -party 
submission, paras.  50, 52 and 54.  
4945 China's third -party submission, para. 56, p. 7. See also China's third -party response to Panel 
question No. 17. 
4946 China's third -party submission, paras.  5-6 (quoting Appellate Body Report, EC – Asbestos,  
para. 172).  
4947 European Union's third -party submission , paras.  30-32. 
4948 European Union's third -party submission , paras.  33-35. (footnote omitted)  
4949 European Union's third -party submission , para. 35 (quoting para. 4 of the Doha Declaration ). 
4950 European Union's third -party submissi on, para. 36. 
4951 European Union's third -party response to Panel question No. 17, paras.  82-85. The European Union 
identifies five elements in the various proposed tests: (i) is the objective of the requirement legitimate? (ii) is 
there a rational connection  between the requirement and the legitimate objective? (iii) does the requirement 
contribute to the objective? (iv) to what extent does the requirement encumber how a trademark can be used? 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 718 - 
  application of the test in Article  20 must necessa rily involve an enquiry into whether a measure is 
apt to make a contribution to the fulfilment of a legitimate objective; but it must also involve a 
consideration of the objective of Article  20 and, consequently, of the interests or privileges that it 
reflects. Therefore, as contended by other third parties, it would be appropriate for the Panel to 
examine both the degree of contribution to the objective and the degree of the encumbrance. 
What the Panel should not do is to interfere with the regulating Memb ers' decisions on the level of 
protection to be achieved. Therefore, it is irrelevant whether less restrictive measures may come 
close to the desired level of protection, but fall short of it: that can never be a basis for deeming a 
measure to be unjustifi able.4952 
7.2362.   The European Union considers that there are a number of factors that support the view 
that, in general terms, Article  20 provides a flexible tool of interpretation: (i) had the negotiators 
wanted in all instances a test of "necessity", they could have said so; (ii) the main focus in the 
TRIPS  Agreement  is on preventing third -party interference with right holders, as oppos ed to 
regulatory interference with right holders; (iii) Articles  7 and 8 are relevant context and clarify the 
object and purpose of the Agreement; (iv) the reasoning by the panel in EC – Trademarks and 
Geographical Indications (Australia) , with which the E uropean Union agrees, support the view that 
Article  20 should be understood as capturing the full range of possible justifications;4953 (v) 
Article  20 does not refer to specific considerations that must be undertaken, unlike, for example, 
Articles  13, 17 and 30 of the TRIPS  Agreement ; and (vi) Article  20 was not intended to cut off the 
possibility for WTO Members to implement new regulatory approaches which, by definition, are yet 
to be tested in real conditions and which may deploy their full effects only ove r time.4954 
7.2363.   Noting that, a s a matter of principle and in general terms, it is important to recognise in 
Article  20 a flexible interpretative tool, capable of capturing the full range of possible justifications, 
the European Union submits that, "in this partic ular case, given that the measure at issue is a 
technical regulation, we consider that the interpretation and application of Article  20 of the 
TRIPS  Agreement  should be contextually informed by Article  2.2 of the TBT Agreement ". To the 
extent that Article  20 of the TRIPS  Agreement  is applicable, the encumbrance would not be 
justifiable if it is inconsistent with Article  2.2 of the TBT Agreement . This would avoid any conflict 
and questions as to how such a conflict might need to be resolved.4955 
7.2364.   Japan  argues th at the ordinary meaning of "unjustifiably" suggests two types of 
standards: "correctness" and "reasonableness". On one hand, some of the factors outlined in the 
tests proposed by the Dominican Republic and Honduras, such as the contribution to the end 
pursued, as well the relational nature of the analysis, bear resemblance to the "necessity" analysis 
under some of the subparagraphs of Article  XX of the GATT 1994 and Article  2.2 of the 
TBT Agreement ; such a test, however, does not appear to have any basis within the text of the 
TRIPS  Agreement . On the other hand, Australia's proposed test may be overly permissive as it 
would allow Members to restrict trademarks without any effective disciplines.4956 In reviewing a 
claim under Article  20 a panel must determine whether the nature and extent of the encumbrance 
on the use of the trademark has a rational connection to the policy objective. In so doing, the 
following factors may be relevant: is the encumbrance  rationally related to the stated purpose, or 
does it run contrary to that purpose; where the policy objective is legitimate, does the 
encumbrance result from a single and unbending solution applied across a wide range of situations 
where the problem is mo re or less present; and whether the encumbrance is reasonably calibrated 
                                                                                                                                                  
(v) are there possible alternatives which may be less restrictive while providing an equivalent contribution to 
the achievement of the objective? It notes that, while the parties seem to agree on the first two steps, they 
differ on the extent to which the WTO adjudicator should apply deference with respect to steps (iv) and (v). 
Ibid. paras.  82-85 and 93.  
4952 European Union's third -party response to Panel question No. 17, paras.  89-90. See also 
paras.  91-92. 
4953 European Union's third -party response to Panel question No. 17, paras.  97-101. The European Union 
cites paragraph  7.246 of the Panel report in EC – Trademarks and Geographical Indications (Australia) , quoted 
in footnote 4493 above.  
4954 European Union's third -party response to Panel question No. 17, paras.  102-103 (referring to 
Appellate Body Report, Brazil  – Retreaded Tyres , para. 151, to support the proposition th at a measure's 
contribution may be demonstrated by quantitative projections or qualitative reasoning supported by evidence).  
4955 European Union's third -party response to Panel question No. 17, para. 106. 
4956 Japan's third -party submission, paras.  18-21. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 719 - 
  to contribute to the policy objective?4957 Japan adds that whether there may have been a way to 
contribute to the stated policy objectives with a lesser degree of encumbrance on the use of a 
trademark is relevant to the assessment of whether the encumbrance is reasonably calibrated to 
the policy objective, and therefore justifiable.4958 
7.2365.   Korea  takes the view that the trademark owner's "legitimate interest" to use a 
trademark, recognized by th e panel in EC – Trademarks and Geographical Indications  in the 
context of Article  17 of the TRIPS  Agreement  should be considered in interpreting Article  20.4959 
7.2366.   Malawi  argues that " Article  8 of the TRIPS  Agreement  provides that Members can adopt 
measures 'necessary' to protect public health and only if such measures are consistent with the 
provisions of the TRIPS  Agreement . … [T]he plain packaging measure is neither 'necessary' 
because it does not contribute to its  public health objective nor is it consistent with the 
TRIPS  Agreement ."4960  
7.2367.   New Zealand  submits that the term "unjustifiable" is defined as "not justifiable, 
indefensible". The term "justifiable" is defined as "able to be legally or morally justified; able to be 
shown to be just, reasonable, or correct; defensible".4961 The proper interpretation of the term 
"unjustifiably" in Article  20, drawing on Appellate Body's interpretation in respect of the same word 
in Article  XX of the GATT 1994, requires there to be n o rational connection between any 
encumbrance resulting from the special requirements imposed on the use of trademarks, on one 
hand, and the implementation of a legitimate public policy objective, on the other. Even though 
the term "unjustifiably" in Article XX of the GATT 1994 appears in conjunction with other terms, 
including trade -restrictive ness, which are not found in Article  20 of the TRIPS  Agreement , the 
interpretation of that term by the Appellate Body is still useful guidance irrespective of those 
differences.4962 
7.2368.   None of the complainants' various proposed interpretations of the term "unjustifiably" are 
supported by the ordinary meaning of that term interpreted in its context, and in light of the 
object and purpose of the TRIPS  Agreement . Given that the notions of "necessity" and "least 
trade -restrictive" were not included in Article  20, it is reasonable to draw the inference that the 
drafters of Article  20 did not intend to incorporate those notions. The use of different terms creates 
a presumption t hat the terms were intended to have a different meaning. Given the vast and 
incontrovertible difference between the term "unjustifiably" and the terminology that has been 
used to establish requirements of necessity and least trade -restrictiveness, it is im plausible for the 
complainants to suggest that this was the intended meaning of the term "unjustifiably" in 
Article  20.4963 
7.2369.   The Doha Declaration  refers to the principles set out in Article  8.1 of the 
TRIPS  Agreement , and states that the TRIPS  Agreement  "does not and should not prevent 
Members from taking measures to protect public health" and "reaffirm[s] the right of WTO 
Members to use, to the full, the provisions in the TRIPS  Agreement , which provide flexibility for 
this purpose".4964 Article  8.1 recognises tha t each Member retains the right to adopt measures in 
furtherance of public policy objectives, including measures to protect public health, provided that 
those measures are consistent with the Members' obligations under the TRIPS  Agreement . 
Article  8.1 is, in essence, a policy statement rather than a general exception to the 
TRIPS  Agreement .4965 
                                                
4957 Japan's third -party submission , para. 27. 
4958 Japan's third -party response to Panel question No. 19, p. 10. 
4959 Korea's third -party statement at the first meeting of the Panel, para. 7. 
4960 Malawi's third-party statement , para. 17. See also Malawi's third -party submission, para. 21. 
4961 New Zealand's third -party submission, para. 60 (referring to  Shorter Oxford English Dictionary, Vol. 
2 AUS excerpts, (Exhibit AUS -245), p. 3445; and Shorter Oxford English Dictionary, Vol. 1 AUS excerpts, Part 
1, (Exhibit AUS -243), p. 1482).  
4962 New Zealand's third -party response to Panel question No. 20, p.  10. See also New Zealand's 
third -party submission, paras.  61-64. 
4963 New Zealand's third -party submission, paras.  72-76. 
4964 New Zealand's third -party submission, para. 69. 
4965 New Zealand's third -party responses to Panel question Nos. 21 and 23.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 720 - 
  7.2370.   Nicaragua  submits that the term "unjustifiably" can have a wide variety of meanings 
depending on the particular context in which it is used. The meaning of that term in  Article  XX of 
the GATT 1994 cannot be directly transposed to the term as used in the TRIPS  Agreement .4966 The 
term "unjustifiably" must not be interpreted so as to allow any encumbrance that is related to a 
legitimate policy objective. Proportionality and suitability are the two key conditions for any 
encumbrance on the use of a trademark.4967 Proportionality requires the weighing and balancing 
between the encumbrance on the use of trademarks and the contribution to the legitimate policy 
objective. Suitability  requires an examination of the way in which the encumbrance operates and 
whether it is appropriate and fit to achieve the objective.4968 Part of this analysis is whether there 
are available alternatives that make an equivalent contribution to the objective w ith a lesser 
degree of encumbrance on the use of trademarks.4969  
7.2371.   Nicaragua asserts that the complainants have made a prima facie  case that the 
TPP measures  are not suited to reduce smoking. For that reason as well, the TPP measures  are an 
"unsuitable" and th us "unjustifiable" encumbrance on the use of a trademark.4970 Furthermore, the 
TPP measures  are "unjustifiable" because they are likely to increase tobacco consumption, increase 
illicit trade, and have adverse health consequences, thus going against the alleg ed health 
objective.4971 
7.2372.   Nicaragua argues that, while Article  8.1 confirms that "public health" is among the 
legitimate policy objectives, it does not mean that any measure taken in furtherance of public 
health is "justifiable" under Article  20. Article  8.1 itself provides that such measures need to be at 
least "necessary" to "protect" public health. In addition, Article  8.1 makes clear that, even when 
the measure is necessary to protect health, it must still be consistent with the TRIPS  Agreement . 
This means that the term "unjustifiably" in Article  20 adds an obligation and certainly does not 
impose a lower standard than the necessity standard.4972 
7.2373.   Norway  submits that the word "justified" means, inter alia, "reasonable" and having 
"adequate grounds".4973 The ordinar y meaning of the word "unjustifiable", as it has been 
interpreted by the Appellate Body in the context of Article  XX of the GATT 1994, supports the 
understanding that "unjustifiably" in Article  20 refers to an inquiry of whether there is a "rational 
connec tion" between the "special requirements" and the policy directive behind those 
requirements.4974  
7.2374.   As regards the key considerations that should guide a panel in its assessment of the term 
"unjustifiably", Norway argues, first,  that the concept of "(un)justifi ability" is different from that of 
"necessity". Both terms are found in the TRIPS  Agreement , and the drafters' choice to use the 
word "unjustifiably" in Article  20, instead of "necessary", must be given meaning. Thus, the 
concept of "necessity", including the ancillary comparative analysis between the measure at issue 
and any alternative less restrictive measure, should not be part of the proper test to be applied in 
the assessment of "(un)justifiably" under Article  20. Secondly, the test involves the deter mination 
of the policy objective behind the special requirements, and the importance – or legitimacy – of 
such objective. This consideration will ensure that the underlying rationale behind the 
requirements is sufficiently important to justify the encumbra nce. Thirdly, the assessment must 
include an analysis of whether there is a "rational connection" between the "special requirements" 
and the policy objective behind those requirements.4975 
7.2375.   Norway does not regard the degree of contribution of the measure to th e policy objective 
and the extent of the encumbrance as key considerations for the assessment of "(un)justifiability".  
                                                
4966 Nicaragua's third -party response to Panel question No. 20, pp. 13-14. 
4967 Nicaragua's third -party submission, paras.  28-29. 
4968 Nicaragua's third -party response to Panel question No. 17, p. 12. 
4969 Nicaragua's third -party response to Panel question No. 19, p. 13. 
4970 Nicaragua's third -party submission, para. 29. 
4971 Nicaragua's third -party submission, paras.  31-32. 
4972 Nicaragua's third -party response to Panel question No. 21, p.14.  
4973 Norway's third -party submission, para. 56 (referring to  Collins English Dictionary , 9th edn, 
(HarperCollins Publishers, 2007) ). 
4974 Norway's third -party submission, paras.  58-59 (ref erring to Appellate Body Report , Brazil  –
 Retreaded Tyres , para. 225; and EC – Seal Product s, para. 5.306).  
4975 Norway's third -party response to Panel question No. 17, paras.  36-38. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 721 - 
  Should the Panel consider the degree of contribution, it should have due regard to the broader 
context of comprehensive strategies implemented to fight complex health problems, such as 
promoting public health by reducing smoking prevalence.4976 Norway submits that the "inherent 
freedom to pursue public policy objectives" is recognized in Article  8.1, which must be understood 
as a fundame ntal principle to be taken into account when interpreting the TRIPS  Agreement . This 
is acknowledged in the Doha Declaration , where WTO Members not only underscored that the 
TRIPS  Agreement  "does not or should not prevent Members from taking measures to pro tect 
public health", but also stated that "each provision of the TRIPS  Agreement  shall be read in the 
light of the object and purpose of the Agreement, as expressed, in particular, in its objectives and 
principles".4977 
7.2376.   Oman  endorses the legal arguments and f actual evidence set out in Australia's 
submissions to the Panel. In addition, it emphasizes that nothing in the TRIPS  Agreement  confers 
on trademark owners a positive right to use their trademarks. Moreover, Article  8.1 of the 
TRIPS  Agreement  contemplates Members' right to formulate and amend their regulations for the 
protection of public health as long as they are consistent with the TRIPS  Agreement . Furthermore, 
the Doha Declaration  explicitly recognises "WTO Members' right to protect public health" and 
confirms WTO Members' agreement that TRIPS "can and should be interpreted and implemented in 
a manner supportive of" that right.4978 
7.2377.   Singapore  submits that it would be appropriate to adopt an interpretation of the term 
"unjustifiably" in Article  20 that is sim ilar to the interpretation of the term "unjustifiable" in the 
chapeau  of Article  XX of the GATT 1994. The necessity standard should not be used to determine 
the justifiability of the measure under Article  20.4979 A measure is not unjustifiable if it bears a 
rational connection to a legitimate objective. The following factors have to be considered in order 
to determine the issue: (i) the importance of the interest sought to be protected; (ii) the extent of 
the encumbrance; and (iii) the degree of contribution o f the measure to the policy objective. If the 
objective of a measure is legitimate, then the assessment of whether the measure bears a rational 
connection to the objective would involve weighing and balancing the three above -mentioned 
factors.4980 The existen ce of an alternative measure that results in a lesser degree of encumbrance 
on the use of trademarks is not a relevant consideration for the reason that the test of 
unjustifiability is not the same as the necessity test in the sense of Article  XX of the GA TT 1994 or 
Article  2.2 of the TBT Agreement .4981 
7.2378.   Singapore argues that the trademark rights conferred by the TRIPS  Agreement  are 
negative rights of exclusion and not positive rights of use. As acknowledged by Article  19, the 
TRIPS  Agreement  does not prevent Members from imposing government regulations that may 
prevent the owner of a trademark from using a trademark that is duly registered. In light of these 
two points, the standard for assessing the justifiability or lack thereof of a measur e under 
Article  20 should be less onerous than that which governs exceptions to the rights conferred by the 
TRIPS  Agreement .4982 Article  8.1, which recognizes and affirms the sovereign right of Members to 
adopt public health measures, should be read in conjun ction with paragraph 4 of the 
Doha Declaration , which states that the Agreement can and should be interpreted and 
implemented in a manner supportive of WTO Members' right to protect public health. The 
Doha Declaration  constitutes a subsequent agreement wit hin the meaning of Article  31(3)(a) of 
the Vienna Convention. Thus, the term "unjustifiably" in Article  20 should be interpreted in a 
manner which supports WTO Members' right to protect public health.4983 
7.2379.   South Africa  argues that the term "unjustifiably" refe rs to measures that do not have a 
reasoned basis, i.e. that do not have a rational connection to a particular legitimate objective. This 
should be determined on a case -by-case basis. The "justifiability" of a measure entails defending 
                                                
4976 Norway's third -party responses to Panel question Nos. 17 (para. 39) and 22 ( para. 49) (referring to 
Appellate Body Report, Brazil  – Retreaded Tyres , para. 151).  
4977 Norway's third -party submission, para. 64. 
4978 Oman's third -party statement, paras.  4 and 15 -16. 
4979 Singapore's third -party response to Panel question No. 20, p. 12; and Singapore's third -party 
submission, paras.  52-53 (referring to Appellate Body Report, Brazil – Retreaded Tyres , paras.  226-227).  
4980 Singapore's third -party response to Panel question No. 17, p. 10. 
4981 Singapore's third -party response to Panel question No. 19, p.11.  
4982 Singapore's third -party submission, paras.  47-49. 
4983 Singapore's third -party response to Panel question No. 21, p. 13. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 722 - 
  or convincingly expla ining the rationale for such a measure – not whether the measure in itself will 
be effective.4984 It follows from the proper interpretation of the term "unjustifiably" that no 
"necessity" or "least trade -restrictive" standard is present in Article  20. The ter m "unjustifiably" 
does not have the same meaning as "necessary" and should not be interpreted to impose a 
standard similar to the analysis required under Article  2.2 of the TBT Agreement , including its 
notions of "least restrictiveness" and "reasonably ava ilable alternatives".4985  
7.2380.   It adds that Article  8.1 of the TRIPS  Agreement  does not confer any rights in respect of 
trademarks and merely restates general principles to be applied to the Agreement, which does not 
prevent Members from introducing measures desi gned to protect public health. The use of the 
term "necessary" contained in Article  8.1 should be understood as a relevant consideration in 
informing the rational of the relevant measures, but does not magically change the use of the term 
"unjustifiably" i n Article  20.4986 
7.2381.   Chinese Taipei  submits that, i n assessing "(un)justifiability " of an encumbrance on use 
under Article  20, the key factors should include but not be limited to the following:  (i) legitimacy of 
the objectives;  (ii) importance of the objectives  (e.g. whether they are of public interest);  (iii) 
whether there is a rational connection between the measures and the objectives;  (iv) the extent to 
which the measures contribute to the objectives; and  (v) the extent to which the use of a 
trademark is encumbered by the measures.  As regards the fourth factor, proper weight should be 
accorded to evidence -based international guidelines such as the FCTC and its implementing 
guidelines, in particular those for the implementation of its Articles  11 and 13, wh ich recommend 
that parties consider plain packaging.  In the present  dispute s, those consensus recommendations 
made by the specialized international organization "demonstrate a prima faci e case of the 
substantial contribution of the guidelines to the object ives of the [FCTC]" .4987 
7.2382.   In the Chinese Taipei's view, since Article  20 of the TRIPS  Agreement  and the chapeau  of 
Article  XX of the GATT 1994 are structurally  different, there is little value in referencing the 
interpretation of the term "unjustifiable " in the chapeau  of Article  XX of the GATT 1994 for the 
purpose of explaining the term "unjustifiably " in Article  20 of the TRIPS  Agreement .  
7.2383.   It adds that Article  8.1 of the TRIPS  Agreement  shows that the Agreement recognizes the 
importance of public health  and supports measures adopted by WTO Members for the purpose of 
safeguarding public interest. It serves as a guiding principle for the interpretation of Article  20 and 
other TRIPS provisions. Article  20 determine s whether a specific measure would unjustif iably 
encumber the use of a trademark ; the term "necessary " in Article  8.1 does not refer to a factor for 
assessing whether such an encumbrance should be considered justifiable under Article  20.4988 
7.2384.   Thailand  submits that it is a well -established rule that a treaty should be interpreted in 
light of its object and purpose. Article  7 of the TRIPS  Agreement  refers to "social and economic 
welfare" and "a balance of rights and obligations" as objectives of the Agreement. The Agreement 
must b e interpreted so as to enable WTO Members to implement the TRIPS obligations in a 
manner that maintains the overall balance between the protection of private rights and the 
sovereign rights to pursue socio -economic interests for the public in general.4989 
7.2385.   It argues that Article  8.1 of the TRIPS  Agreement  is an interpretative guidance which 
affirms that WTO Members may exercise their rights to adopt measures necessary to address 
public health concerns. Such measures are presumed to be TRIPS -consistent unless th e 
complainants discharge a burden of proving otherwise. The Panel needs to be cautious not to 
assert higher standards of protection than the minimum standards explicitly required by the 
TRIPS  Agreement . Any interpretation made out of any unclear TRIPS prov ision should be 
                                                
4984 South Africa's third -party responses to Panel question Nos. 17 (p.  8) and 19 ( p. 9). 
4985 South Africa's third -party statement, para. 3.8. 
4986 South Africa's third -party response to Panel question No. 23, p. 10. 
4987 Chinese Taipei's third -party response to Panel question No. 17, pp. 2-3. 
4988 Chinese Taipei's third -party responses to Panel question Nos. 20-21, pp. 4-5. 
4989 Thailand's third -party statement, para. 4; and Thailand's third -party submission, para. 9. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 723 - 
  supportive of public health so as to avoid possible conflicts between IP right s and public interests 
to the greatest extent possible.4990 
7.2386.   Thailand considers that the Doha Declaration  arguably constitutes a "Ministerial Decision" 
within the mea ning of Article  IX:1 of the WTO Agreement , providing interpretative guidance on the 
TRIPS  Agreement  in the area of public health. As a result, the Doha Declaration  is indispensable 
for interpreting TRIPS provisions in this dispute. In addition, Thailand be lieves that the 
Doha Declaration also reflects a "subsequent agreement" within the meaning of Article  31.3(a) of 
the Vienna Convention that states a common understanding regarding the right of WTO Members 
to address public health concerns, while reaffirmin g that the TRIPS  Agreement  is meant to be 
interpreted in a manner supportive of such right. Pursuant to Article  31.3(a) of the Convention, 
therefore, the Panel has to take the Doha Declaration  into account for the purposes of treaty 
interpretation.4991 
7.2387.   As regards the implications of the Doha Declaration , Thailand considers that, pursuant to 
the first part of its paragraph 4, in cases of ambiguity or where more than one interpretation is 
possible, the Panel should attach greater importance to the interpre tation that causes the least 
interferences with the exercise of WTO Members' right to protect public health.  The second part of 
paragraph 4 reaffirms the right of WTO Members to use flexibilities contained in the 
TRIPS  Agreement  for the purposes of public health protection. Furthermore, paragraph 5(a) 
suggests that the interpretation of the Agreement in the light of the object and purpose set out in 
Articles  7 and 8 is one of the  flexibilities  that may be used by WTO Members "to the full". As a 
result, in d ischarging the duty of legal interpretation, the Panel should  read the TRIPS  Agreement  
in a manner that gives sufficient flexibility to accommodate the public health needs of WTO 
Members, in accordance with the objectives and principles of the TRIPS  Agreem ent.4992 
7.2388.   Turkey  argues that it is self -evident from the wording of the first sentence of Article  20 
that there are instances where the use of a trademark in the course of trade can be restricted 
"justifiably". For Turkey, a justifiable restriction can only ar ise as a result of a regulation to fulfil a 
legitimate policy objective. Article  8.1 informs the interpreter that policy objectives mentioned 
therein, such as protection of public health, are legitimate policy objectives to be taken into 
account when evalu ating whether a measure is "justifiable" or "unjustifiable" within the meaning of 
Article  20. Moreover, Turkey thinks that if a measure is confirmed to be "necessary" to protect 
public health under Article  8.1, this may be an indication that the said measu re can be regarded as 
not "unjustifiably encumbering" the use of a trademark under Article  20.4993 
7.2389.   Uruguay  submits that the term "unjustifiably" must be interpreted in accordance with its 
ordinary and literal meaning. In this regard, it agrees with Australia' s arguments.4994 Article  19.1 
of the TRIPS  Agreement  reaffirms the principle that the use of a trademark may be regulated by 
the State.4995 It follows from its Article  7 that the protection and enforcement of IP must promote 
social and economic welfare, and not the contrary. Tobacco control policies promote social and 
economic welfare in the face of a public health problem, which consumes substantial resources in 
the form of health treatments and premature deaths and is highly cost -intensive for the society as 
a whole. For that reason, they also represent sound economic policy.4996 
7.2390.   In Uruguay's view, it is essential to bear in mind the scope of the rights granted to the 
owner by virtue of IP provisions. IP protections include the right to exclude others from the 
performance of specific commercial acts regarding subject -matter protected as a trademark, but 
do not confer the right to perform any commercial act relating to protected subject -matter. The 
principle set forth in Article  8 of the TRIPS  Agreement  is not in the  nature of an exception, but one 
that enables Members to adopt measures necessary to protect public health, provided that such 
                                                
4990 Thailand's third -party submission, para. 14. 
4991 Thailand's third -party submission, paras.  17-19 (referring to Appellate Body Report, US – Clove 
Cigarettes , para. 267).  
4992 Thailand's third -party submission, paras.  20-22. 
4993 Turkey's third -party submission, para. 17; and Turkey's third -party responses to Panel question 
Nos. 21 and 23, p p. 1-2. 
4994 Uruguay's third -party submission, para. 53 (referring to Australia's first written submission, 
paras.  395 and 408).  
4995 Uruguay's third -party submission, para. 51. 
4996 Uruguay's third -party submission, para. 57. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 724 - 
  measures are consistent with the TRIPS  Agreement . Although the TPP Act has an economic and 
commercial impact, its main objective is to protect public health.4997 
7.2391.   The Doha Declaration , including its paragraph 4, reaffirms and ratifies the principle that 
Members have the right to protect public health; it also reaffirms that this principle is incorporated 
in the multilateral system and in the TRIPS  Agreement . It is therefore a reaffirma tion of the 
legitimacy of the objective pursued by the measure.4998 Moreover, Uruguay considers that the 
protection of public health falls within the sovereign competence of States and that each Member 
has the right and obligation to legislate on the basis of  the public interest in pursuit of a legitimate 
public health goal. At the same time, in the area of humanitarian law, States commit themselves 
to serve as the primary guarantors of the right to life and health, understood as being necessary 
for the develo pment of a fair and just society. Within the WTO system, this right is recognized 
under the TRIPS  Agreement , the TBT Agreement  and the GATT 1994. It is also recognized in other 
international law bodies, such as the FCTC, and in the domestic legislation of many member 
States.4999 
7.2392.   Zimbabwe  considers that the right to use a trademark is protected under international 
law, in particular in Articles  16 and 20 of the TRIPS  Agreement , as explained in the expert report 
by Professor Dinwoodie. Australia is entitled, lik e all Members, to enact limited exceptions to the 
rights conferred by a trademark under Article  17 of the TRIPS  Agreement , provided that such 
limited exceptions take account of the legitimate interests of the owner of the trademark and of 
third parties. Th ese legitimate interests include the right to use the mark and to preserve the 
mark's distinctiveness. Prohibiting the use of trademarks or highly regulating the use of word 
marks cannot be considered a "limited" exception. Moreover, Article  8 of the TRIPS  Agreement  
provides that Members may adopt measures necessary to protect public health provided that such 
measures are consistent with the TRIPS  Agreement . The Australian measures are neither 
"necessary" as they do not contribute to reducing smoking rates nor consistent with the 
TRIPS  Agreement  because they violate, inter alia, Article  20. Thus, the illegality of the Australian 
measures cannot be exonerated by reference to Articles  8 or 17 of the TRIPS  Agreement .5000 
7.3.5.5.1.3   Analysis by the Panel  
7.2393.   In accordance with th e applicable rules of interpretation, we must determine the ordinary 
meaning to be given to the term "unjustifiably" in Article  20, in its context and in the light of the 
object and purpose of the provision and the Agreement.5001 
7.2394.   The term "unjustifiably" is a n adverbial form of the term "unjustifiable" and refers to 
something that is done in an unjustifiable manner. This is also reflected in the French text of 
Article  20, which uses the term "de manière injustifiable".5002 The term ""unjustifiable" means 
"[n]ot j ustifiable, indefensible".5003 The term "justifiable" in turn means "[a]ble to be legally or 
morally justified; able to be shown to be just, reasonable, or correct; defensible"5004 and the 
adverb "justifiably" means "[i]n a justifiable manner; with justification ".5005 The term 
"justification", in turn, means "a good reason" or, specifically in the legal context, "[t]he showing 
or maintaining in court of sufficient reason for having committed the act to be answered for".5006  
7.2395.   The term "unjustifiably" therefore refers to the ability to provide a "justification" or "good 
reason" for the relevant action or situation that is reasonable in the sense that it provides 
                                                
4997 Uruguay's third -party submission, paras.  45 and 49.  
4998 Uruguay's third -party submission, para. 47. 
4999 Uruguay's third -party submission, para. 106. 
5000 Zimbabwe's third -party submission, paras.  34 and 41 -42 (referring to G. Dinwoodie, "Compatibility 
of Restrictions on the Use of Trade Marks with the TRIPS Agreement", 13 July 2014, ( Dinwoodie Report ), 
(Exhibit UKR -1)). 
5001 See para. 7.1822  above.  
5002 The Spanish text is "injustificablemente".  
5003 Shorter Oxford English Dictionary, Vol. 2 AUS excerpts, (Exhibit AUS -245), p. 3445.  
5004 Shorter Oxford English Dictionary , Vol. 1 AUS excerpts, Part 1, (Exhibit AUS -243), p. 1482.  
5005 Oxford English Dictionary online, definition of "justifiably", available at: 
<http://www.oed.com/view/Entry/102221?redirectedFrom=justifiably#eid >, accessed  2 May 2017.  
5006 Oxford English Dictionary online, definition of "justification", available at: 
<http://www.oed.com/view/Entry/102224?redirectedFrom=justification& >, accessed  2 May 2017.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 725 - 
  sufficient support for that action or situation. In Article  20, the  term "unjustifiably" qualifies the 
verb "encumbered". The above definitions therefore suggest that the term "unjustifiably", as used 
in Article  20, connotes a situation where the use of a trademark is encumbered by special 
requirements in a manner that la cks a justification or reason that is sufficient to support the 
resulting encumbrance.  
7.2396.   This in turn implies that there may be circumstances in which good reasons exist that 
sufficiently support the application of encumbrances on the use of a trademark in a reasonable 
manner. We will now consider the types of reasons that may provide the basis for such 
encumbrances.  
7.2397.   Article  20 does not expressly identify the types of reasons that may form the basis for the 
"justifiability" of an encumbrance. We find useful  general guidance in this respect in the context 
provided by other provisions of the TRIPS  Agreement .  
7.2398.   We first note that the first recital of the preamble to the TRIPS  Agreement  expresses a 
key objective of the TRIPS  Agreement , namely to "reduce distortio ns and impediments to 
international trade" and takes into account the need, on one hand, "to promote effective and 
adequate protection of intellectual property rights" and, on the other, "to ensure that measures 
and procedures to enforce intellectual prope rty rights do not themselves become barriers to 
legitimate trade".  
7.2399.   We also consider that Article  7 entitled "Objectives" and Article  8 entitled "Principles" 
provide relevant context.  
7.2400.   Article  7, entitled "Objectives", provides that:  
The protection and enf orcement of intellectual property rights should contribute to the 
promotion of technological innovation and to the transfer and dissemination of 
technology, to the mutual advantage of producers and users of technological 
knowledge and in a manner conducive  to social and economic welfare, and to a 
balance of rights and obligations.  
7.2401.   Article  8, entitled "Principles", provides in its first paragraph that:  
Members may, in formulating or amending their laws and regulations, adopt measures 
necessary to protect pu blic health and nutrition, and to promote the public interest in 
sectors of vital importance to their socio -economic and technological development, 
provided that such measures are consistent with the provisions of this Agreement.  
7.2402.   Articles  7 and 8, together with the preamble of the TRIPS  Agreement , set out general 
goals and principles underlying the TRIPS  Agreement , which are to be borne in mind when specific 
provisions of the Agreement are being interpreted in their context and in light of the object and 
purpose of the Agreement. As the panel in Canada  – Pharmaceutical Patents  observed in 
interpreting the terms of Article  30 of the TRIPS  Agreement , "[b]oth the goals and the limitations 
stated in Articles  7 and 8.1 must obviously be borne in mind when doing so as well as those of 
other provisions of the TRIPS  Agreement  which indicate its object and purposes".5007 
7.2403.   Article  7 reflects the intention of establishing and maintaining a balance between the 
societal objectives mentioned therein. Article  8.1, for its part, makes clear that the provisions of 
the TRIPS  Agreement  are not intended to prevent the adoption, by Members, of laws and 
regulations pursuing certain legitimate objectives, specifically, measures "necessary to protect 
public health and nu trition" and "promote the public interest in sectors of vital importance to their 
socio-economic and technological development", provided that such measures are consistent with 
the provisions of the Agreement.  
7.2404.   Article  8 offers, in our view, useful contextu al guidance for the interpretation of the term 
"unjustifiably" in Article  20. Specifically, the principles reflected in Article  8.1 express the intention 
                                                
5007 Panel Report, Canada  – Pharmaceutical Patents , para. 7.26. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 726 - 
  of drafters of the TRIPS  Agreement  to preserve the ability for WTO Members to pursue certain 
legitimat e societal interests, at the same time as it confirms their recognition that certain 
measures adopted by WTO Members for such purposes may have an impact on IP rights, and 
requires that such measures be "consistent with the provisions of the [TRIPS] Agreem ent". 
7.2405.   Read against this broader context, we understand the requirement under Article  20 that 
the use of trademarks in the course of trade not be "unjustifiably" encumbered as reflecting a 
recognition that there may be legitimate reasons for which a Member may encumber such use. 
The term "unjustifiably" defines, in the specific context of encumbrances in respect of the use of 
trademarks, the applicable standard for the permissibility of such encumbrances.  
7.2406.   The specific objectives expressly identified in Article 8.1 do not, in our view, necessarily 
exhaust the scope of what may constitute a valid basis for the "justifiability" of encumbrances on 
the use of trademarks under Article  20. However, their identification in Article  8.1 may shed light 
on the types of r ecognized "societal interests" that may provide a basis for the justification of 
measures under the specific terms of Article  20, and unquestionably identify public health as such 
a recognized societal interest.5008 
7.2407.   We note in this respect that the Doha Decla ration , adopted by Ministers on 14 November 
2001, provides that, "[i]n applying the customary rules of interpretation of public international law, 
each provision of the TRIPS  Agreement  shall be read in the light of the object and purpose of the 
Agreement a s expressed, in particular, in its objectives and principles".5009 
7.2408.   While this statement was made in the specific context of a re -affirmation by Members of 
the flexibilities provided in the TRIPS  Agreement  in relation to measures taken for the protection of 
public health, we note that paragraph 5 of the Doha Declaration  is formulated in general terms, 
inviting the interpreter of the TRIPS  Agreement  to read "each provision of the TRIPS  Agreement " 
in the light of the object and purpose of the Agreement, as expres sed in particular in its objectives 
and principles. As described above, Articles  7 and 8 have central relevance in establishing the 
objectives and principles that, according to the Doha Declaration , express the object and purpose 
of the TRIPS  Agreement  relevant to its interpretation.  
7.2409.   This paragraph of the Doha Declaration  may, in our view, be considered to constitute a 
"subsequent agreement" of WTO Members within the meaning of Article  31(3)(a) of the Vienna 
Convention. As the Appellate Body has clarified:  
Based on the text of Article  31(3)(a) of the Vienna Convention , we consider that a 
decision adopted by Members may qualify as a "subsequent agreement between the 
parties" regarding the interpretation of a covered agreement or the application of its 
provis ions if: (i)  the decision is, in a temporal sense, adopted subsequent to the 
relevant covered agreement; and (ii)  the terms and content of the decision express an 
agreement  between Members on the interpretation or application  of a provision of 
WTO law.5010 
                                                
5008 Cf. Appellate Body Report s, US – COOL , para. 370; and US – Tuna II (Mexico) , para. 313 
(discussing legitimate objectives in the context of Article  2.2 of the TBT Agreement ). 
5009 Doha Declaration , para. 5. 
5010 Appellate Body Report, US – Clove Cigarettes , para. 262 (emphasis original). See also Panel 
Reports, US – Corrosion Resistant Steel Sunset Review , para. 7.27 fn 39 (noting that "Ministers recognized the 
need for the consistent resolution of disputes arising from anti -dumping and countervailing duty measures" in 
the Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article  VI of the 
General Agreement on Tariffs and Trade 1994 or Part V of the Agreem ent on Subsidies and Countervailing 
Measures (Declaration on D ispute Settlement Pursuant to Article VI of the GATT 1994 or Part V of the SCM 
Agreement ), and applying similar interpretative analysis to address analogous issues under the Anti-dumping 
Agreeme nt); US – Softwood Lumber VI , para. 7.18 ( referring to  the Declaration on D ispute Settlement 
Pursuant to Article  VI of the GATT  1994 or Part  V of the SCM  Agreement ); US – Countervailing Duty 
Investigation on DRAMS , para. 7.351 ( referring to  the Declaration  on Dispute Settlement Pursuant to Article  VI 
of the GATT  1994 or Part  V of the SCM  Agreement ); US – Countervailing Measures on Certain EC Products 
(Article  21.5 – EC), para. 7.81 ( referring to  the Declaration on D ispute Settlement Pursuant to Article  VI of the 
GATT  1994 or Part  V of the SCM  Agreement ); US – Oil Country Tubular Goods Sunset Reviews ( Article  21.5 –
 Argentina) , para. 7.58 fn 45 (referring to  the Declaration on D ispute Settlement Pursuant to Article  VI of the 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 727 - 
  7.2410.   In this instance, the instrument at issue is a "declaration", rather than a "decision". 
However, the Doha Declaration  was adopted by a consensus decision of WTO Members, at the 
highest level, on 14  November  2001 on the occasion of the Fourth  Ministerial Conf erence of the 
WTO, subsequent to the adoption of the WTO Agreement , Annex 1C of which comprises the 
TRIPS  Agreement . The terms and contents of the decision adopting the Doha Declaration  express, 
in our view, an agreement between Members on the approach to be followed in interpreting the 
provisions of the TRIPS  Agreement . This agreement, rather than reflecting a particular 
interpretation of a specific provision of the TRIPS  Agreement , confirms the manner in which "each 
provision" of the Agreement must be int erpreted, and thus "bears specifically"5011 on the 
interpretation of each provision of the TRIPS  Agreement .  
7.2411.    The guidance provided by the Doha Declaration  is consistent, as the Declaration itself 
suggests, with the applicable rules of interpretation, which r equire a treaty interpreter to take 
account of the context and object and purpose of the treaty being interpreted, and confirms in our 
view that Articles  7 and 8 of the TRIPS  Agreement  provide important context for the interpretation 
of Article  20.  
7.2412.   The pa rties have discussed extensively the implications of the use of the term 
"unjustifiably" in Article  20 on the nature and extent of the relationship that must exist between, 
on one hand, encumbrances on the use of trademarks resulting from the special requi rements at 
issue and, on the other, the reasons for which these special requirements were adopted, or, in 
other words, how it should be determined whether these reasons are sufficient to support, and 
provide a justification for, the encumbrance resulting f rom the special requirements.5012 
7.2413.   In addition to seeking to establish the ordinary meaning of the term "unjustifiably" in 
Article  20, the parties have sought guidance in this respect from the interpretation of the term 
"unjustifiable" in other provisions of t he covered agreements, or by contrasting the term 
"unjustifiably" to the terms "unnecessarily" or "necessary" and related terms in other provisions of 
the covered agreements.  
7.2414.   In this respect, Australia responds to the complainants' views  on the meaning of and 
relationship between these terms  that, as the use of the same or similar terms in different 
provisions of the covered agreements creates a presumption that the terms should be interpreted 
to have the same or similar meaning5013, the use of different terms  creates a presumption that the 
terms were intended to have a different meaning. It contrasts the ordinary meaning of 
"unjustifiably" with the meaning of "necessary".5014 The Dominican Republic responds , in turn,  that 
the treaty interpreter cannot begin with an assumption that the word "unjustifiably" must be 
interpreted in opposition  to the word "unnecessary"; rather, the interpretive exercise must begin 
with discerning the meaning of the word actually used, i.e. "unjustifiably".5015 
7.2415.   We consider  that we must discern the proper meaning of the term "unjustifiably" as it is 
used in Article  20, rather than determine its meaning primarily in opposition to any other term. At 
the same time, we also consider  that the use of identical or different terms i n different provisions 
of the covered agreements may provide relevant context and shed light on the meaning to be 
                                                                                                                                                  
GATT  1994 or Part  V of the SCM  Agreement ); and Japan  – DRAMs (Korea) , para. 7.354 ( referring to  the 
Declaration on D ispute Settlement Pursuant to Article  VI of the GATT  1994 or Part  V of the SCM  Agreement ). 
5011 This term was used by the Appellate Body in US – Tuna II (Mexico) , para. 372 ( referring to  
Appellate Body Report, US – Clove Cigarettes , para. 265, in turn quoting Appellate Body Reports, EC –
 Bananas III ( Article  21.5 – Ecuador II) / EC  – Bananas III ( Article  21.5 – US), para. 390).   
5012 See section 7.3.5.5.1.1  above.  
5013 Cuba argues that the term "unjustifiably" may have many different meanings depending on the 
context in which it is used and that the ordinary meaning is only th e beginning of a holistic exercise of 
interpretation. See Cuba's second written submission, para. 95. In this regard, we note that no party has 
asserted that, in the present case, a special meaning should be given to that term. See Article  33.4 of the 
Vienna Convention. Therefore, as we interpret that term in its context and in the light of the object and 
purpose of the TRIPS Agreement, we are to remain within a range of interpretations that fit the ordinary 
meaning. See Article  31.1 of the Vienna Conventio n. 
5014 Australia's first written submission, paras.  384-400. In Australia's view, the terms connote different 
degrees of connection between special requirements and legitimate objectives. Ibid. Furthermore, the ordinary 
meaning of "unjustifiably" implies that there will ordinarily be more than one possible outcome that is "able to 
be shown to be just, reasonable, or correct", or that is "within the limits of reason".  
5015 Dominican  Republic 's second written submission, para. 186. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 728 - 
  given to each of them in their respective contexts. Thus, the use of different terms within a 
covered agreement has been interpreted as implyi ng a deliberate choice designed to convey 
different meanings:  
The implication arises that the choice and use of different words in different places in 
the SPS Agreement  are deliberate, and that the different words are designed to 
convey different meanings . A treaty interpreter is not entitled to assume that such 
usage was merely inadvertent on the part of the Members who negotiated and wrote 
that Agreement.5016 
7.2416.   Conversely, the use of the same term in different contexts does not necessarily imply a 
complete id entity of meanings. The Appellate Body has thus found that the word "necessary" 
"refers to a range of degrees of necessity, depending on the context in which it is used".5017  
7.2417.   The Appellate Body has also underlined the importance of giving meaning to the use of 
different terms, in various paragraphs of Article  XX of the GATT 1994, to express "the degree of 
connection or relationship between the measure under appraisal and the state interest or policy 
sought to be promoted or realized":  
Applying the basic princ iple of interpretation that the words of a treaty, like the 
General Agreement , are to be given their ordinary meaning, in their context and in the 
light of the treaty's object and purpose, the Appellate Body observes that the Panel 
Report failed to take ad equate account of the words actually used by Article  XX in its 
several paragraphs. In enumerating the various categories of governmental acts, laws 
or regulations which WTO Members may carry out or promulgate in pursuit of differing 
legitimate state polici es or interests outside the realm of trade liberalization, Article  XX 
uses different terms in respect of different categories:  
"necessary" - in paragraphs (a), (b) and (d); "essential" - in paragraph (j);  
"relating to" - in paragraphs (c), (e) and (g); "for the protection of" - in paragraph (f);  
"in pursuance of" - in paragraph (h); and "involving" - in paragraph (i).  
It does not seem reasonable to suppose that the WTO Members intended to require, in 
respect of each and e very category, the same kind or degree of connection or 
relationship between the measure under appraisal and the state interest or policy 
sought to be promoted or realized.5018 
7.2418.   In Article  20 of the TRIPS  Agreement , the "kind or degree of connection or relatio nship 
between the measure under appraisal and the state interest or policy sought to be promoted or 
realized", as the Appellate Body puts it, is expressed through the use of the term "unjustifiably". 
That is, WTO Members have determined, in respect specifi cally of special requirements that 
encumber the use of trademarks, that such special requirements must not "unjustifiably" 
encumber such use.  
7.2419.   We note that the term "necessary", by contrast, is used in a number of other provisions 
of the TRIPS  Agreement , namely in Articles  3.2, 8.1, 27.2, 39.3, 43.2, 50.5 and 73(b), as well as 
                                                
5016 Appellate Body Report, EC – Hormones , para. 164. However, we note also that this does not exclude 
the possibility that the use of the same term in a different context, even within the same provision of a covered 
agreement, may have a different meaning within each context.  See, e.g. Appellate Body Reports, Japan  –
 Alcoholic Beverages II , p. 21, DSR 1996:I, 97, p. 114 ; and EC – Asbestos , paras.  88-89 (interpreting the term 
"like" in the context of paragraphs 2 and 4 of Article  III of the GATT 1994, and comparing the term to an 
"accordi on" whose meaning stretches and squeezes differently in different contexts).  
5017 Appellate Body Report, US – COOL , para. 374 fn 745 (referring to Appellate Body Report,  Korea – 
Various Measures on Beef, para. 161). The Appellate Body further noted that "[a]t  one end of this continuum 
lies 'necessary' understood as 'indispensable'; at the other end, is 'necessary' taken to mean as 'making a 
contribution to'". Appellate Body Report , US – Tuna II (Mexico) , para. 318 fn 642 (quoting Appellate Body 
Report, Korea – Various Measures on Beef , para. 161).  
5018 Appellate Body Report, US – Gasoline , pp. 17-18, DSR 1996:I, 3, p. 16. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 729 - 
  Article  11(3) of the Paris Convention  (1967)  and Article  17 of the Berne Convention (1971) as 
incorporated by reference into the TRIPS  Agreement . The term is also used in paragraphs 1  and 3 
of Article  31bis of the TRIPS  Agreement , as well as in paragraphs 1(a) and 2(b)(i) of the Annex to 
the TRIPS  Agreement .5019 The term "unnecessarily" is used in Article  41.2 of the TRIPS  Agreement . 
In our view, this context supports the implication of a  deliberate choice of a distinct term 
"unjustifiably" in Article  20. We do not consider, therefore, that the term "unjustifiably" in 
Article  20 of the TRIPS  Agreement  should be assumed to be synonymous with "unnecessarily".  
7.2420.   At the same time, we do not consider  that the term "unjustifiably" as used in Article  20 
should be assumed to have exactly the same meaning as the term "unjustifiable" as used in the 
chapeau  of Article  XX of the GATT 1994. Australia argues that the Appellate Body's interpretations 
of the terms "arbitrary or unjustifiable" in Article  XX of the GATT 1994 in Brazil  – Retreaded Tyres  
and EC – Seal Products  support the view that, in the context of Article  20 of the TRIPS  Agreement , 
the use of a trademark is "unjustifiably" encumbered only if there is no rational connection 
between the imposition of the special requirements and a legitimate public policy objective.5020  
7.2421.   The findings in Brazil  – Retreaded Tyres  relied upon by Australia do not, in our view, 
support its interpretation of the terms  "arbitrary and unjustifiable" in Article  XX of the GATT 1994. 
The rulings referred to by Australia clarify that, under Article  XX of the GATT 1994, in a situation 
where there is no rational connection between the objective of the measure to be justified a nd a 
discrimination arising from the measure, such discrimination should be found to be "unjustifiable". 
This ruling supports the view that, in the context of Article  XX of the GATT 1994, the existence of a 
"rational connection" between the discrimination to be justified and the objective of the measure is 
a necessary condition for such discrimination not to be considered "unjustifiable". It does not, 
however, logically follow that, wherever some degree of rational connection does exist, this would 
always b e sufficient  to justify the discrimination at issue under the chapeau  of Article  XX.  
7.2422.   We therefore do not find support in these rulings for the notion that, in the context of 
Article  20 of the TRIPS  Agreement , the term "unjustifiably" should be understood to require only 
the existence of some rational connection between encumbrances imposed on the use of a 
trademark and the reason for which they are imposed. As discussed above, the use of the term 
"unjustifiably" conveys a requirement that encumbrances on t he use of a trademark resulting from 
special requirements be capable of being explained, and that a justification or reason should exist 
that sufficiently supports the encumbrance resulting from the action or measure at issue. To that 
extent, we agree that  in both provisions, this term reflects an expectation of some degree of 
"rational connection" between the action to be explained (in Article  XX of the GATT 1994, 
discrimination, and in Article  20 of the TRIPS  Agreement , an encumbrance on the use of a 
trademark) and the reasons for its adoption.5021 However, this does not imply, in our view, that 
the existence of any rational connection, no matter how tenuous, would always sufficiently support 
the imposition of such encumbrance permissible under Article  20.  
7.2423.   We must take due account also of the action that is to be justified, i.e. the encumbrance 
on the use of a trademark in the course of trade resulting from the special requirements.  
7.2424.   In this respect, the Dominican Republic argues that "[t]he use of a trademar k" is the 
protected interest under Article  20 and that the objective of this provision is to safeguard "to the 
greatest extent possible" the ability of a trademark to fulfil its basic function of distinguishing 
goods and services.5022 The Dominican Republic a nd Honduras also refer to Article  17 of the 
TRIPS  Agreement , and the concept of "legitimate interests" of trademark owners in that provision, 
as relevant context.5023  
                                                
5019 See the Protocol Amending the TRIPS Agreement, done on 6 December 2005 in document 
WT/L/641. The amendment entered into force on 23 January 20 17. 
5020 See the summary of Australia's arguments in paras. 7.2328  and 7.2329 . 
5021 See, e.g. Panel Report, Russia  – Pigs (EU) , para. 7.1321 (noting that "[i]n a number of cases, the 
Appellate Body has explained that an analysis of whether discrimination is arbitrary or unjustifiable within the 
meaning of the chapeau  of Article  XX 'should focus on the cause of the discrimination, or the rationale put 
forward to explain its existence '." (footnote omitted) ). 
5022 Dominican  Republic 's second written submission, para. 145. 
5023 Dominican  Republic 's first written submission, para. 257; and Honduras's second written 
submission, para. 359. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 730 - 
  7.2425.   Article  17, entitled "Exceptions", reads: "Members may provide limited exceptions to the 
rights conferred by a trademark, such as fair use of descriptive terms, provided that such 
exceptions take account of the legitimate interests of the owner of the trademark and of third 
parties."  
7.2426.   As the panel in EC – Trademarks and Geographical Indications  noted, Article  17 
"expressly permits Members to provide limited exceptions to the rights conferred by a 
trademark".5024 That panel distinguished the "legitimate interests" of the trademark owner from 
the "rights conferred by a trademark" and agreed with the panel in Canada  – Pharmaceutical 
Patents  that, "[t]o make sense of the term 'legitimate interests' in this context, that term must be 
defined in the way that it is often used in legal discourse – as a normative claim calling for 
protection of interests tha t are 'justifiable' in the sense that they are supported by relevant public 
policies or other social norms".5025  
7.2427.   Article  20 does not address the granting by WTO Members of "exceptions to the rights 
conferred" by a trademark. Nor does it expressly refer to a concept of "legitimate interest" of the 
trademark owner that should be taken into account. Nonetheless, we agree that Article  17 may 
provide relevant context for the interpretation of Article  20, insofar as it can inform our 
understanding of the nature and  extent of relevant interests of trademark owners that are 
recognized as "legitimate" by the TRIPS  Agreement . In particular, we note that the panel in EC –
 Trademarks and Geographical Indications  found that, "[e]very trademark owner has a legitimate 
intere st in preserving the distinctiveness, or capacity to distinguish, of its trademark so that it can 
perform that function. This includes its interest in using its own trademark in connection with the 
relevant goods and services of its own and authorized unde rtakings."5026  
7.2428.   This context confirms, in our view, that in assessing whether encumbrances on the use of 
a trademark are "unjustifiable" within the meaning of Article  20, we must take due account of the 
legitimate interest of the trademark owner in using its trademark "in the course of trade" and how 
this is affected by the encumbrances to be justified. As also expressed by the panel in EC – 
Trademarks and Geographical Indications , this interest reflects the function of trademarks in the 
marketplace, which ben efits trademark owners as well as consumers.5027 Accordingly, an 
assessment of the unjustifiability of encumbrances under Article  20 should involve a consideration 
of the nature and extent of the encumbrance on such use, including the extent to which the 
relevant trademarks are prevented from serving their intended function in the marketplace.  
7.2429.   Overall, therefore, as we understand it, Article  20 reflects the balance intended by the 
drafters of the TRIPS  Agreement  between the existence of a legitimate interest of trademark 
owners in using their trademarks in the marketplace, and the right of WTO Members to adopt 
measures for the protection of certain societal interests that may adversely affect such use.  
7.2430.   In light of the above, we find that a determination of wh ether the use of a trademark in 
the course of trade is being "unjustifiably" encumbered by special requirements should involve a 
consideration of the following factors:  
a. the nature and extent of the encumbrance resulting from the special requirements, 
bearing in mind the legitimate interest of the trademark owner in using its trademark in 
the course of trade and thereby allowing the trademark to fulfil its intended function;  
                                                
5024 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.647.  
5025 Panel Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.662 -7.663 
(quoting Panel Rep ort, Canada  – Pharmaceutical Patents , para. 7.69).  
5026 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.664.  
5027 The panel in EC – Trademarks and Geographical Indications  also noted that Article  17 "not only 
refers to the legitim ate interests of third parties but treats them on par with those of the right holder". It added 
that the function of a trademark to distinguish goods and services of undertakings in the course of trade "is 
served not only for the owner, but also for consum ers. Accordingly, the relevant third parties include 
consumers. Consumers have a legitimate interest in being able to distinguish the goods and services of one 
undertaking from those of another, and to avoid confusion." Panel Reports, EC – Trademarks and G eographical 
Indications (US) , paras.  7.649 and 7.676; and EC – Trademarks and Geographical Indications (Australia) , 
paras.  7.649 and 7.675.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 731 - 
  b. the reasons for which the special requirements are applied, including any societal  
interests they are intended to safeguard; and  
c. whether these reasons provide sufficient support for the resulting encumbrance.  
7.2431.   We do not find it necessary, at this stage of our analysis, to determine further, in the 
abstract, how exactly the different in terests at issue should be "weighed and balanced" in order to 
reach a conclusion as to whether an encumbrance on the use of a trademark should be found to be 
"unjustifiable" in a given case. Rather, this assessment will, in our view, need to be carried out  on 
a case -by-case basis, in the light of the particular circumstances of the case.  
7.3.5.5.2   Whether the TPP measures  are per se unjustifiable  
7.2432.   In the previous Section, we established our understanding of the standard of review for 
the consideration of whether speci al requirements "unjustifiably" encumber the use of trademarks 
in the course of trade. Before applying this standard of review to the TPP measures , we first 
consider the complainants' claims that the TPP measures  are per se unjustifiable.  
7.2433.   The complainants invoke various reasons for which they consider the TPP measures  to be 
per se unjustifiable. In general, the complainants consider that the TPP measures  by their very 
nature cannot be deemed as justifiable within the meaning of Article  20 and that the Panel 
therefore does not need to engage in a detailed consideration of the extent to which the measures 
contribute (or not) to their stated objectives. They argue that the Panel would need to engage in a 
detailed consideration of arguments and evidence in this respect only if it were to disagree that the 
measures by their very nature are unjustifiable.  
7.2434.   First, Honduras and Indonesia argue that a prohibition on the use of stylized word marks, 
composite marks, and figurative marks  rises to a l evel of restrictiveness that cannot be justified. 
Second, Honduras, the Dominican Republic, Cuba and Indonesia argue that the TPP measures  are 
unjustifiable since Australia did not assess the justifiability of the requirements in respect of 
individual trad emarks and their individual features. Third, Indonesia argues that the TPP measures  
unjustifiably encumber the use of trademarks in the course of trade because Australia had failed to 
follow its own process in adopting them and, therefore, failed to develo p the very justification 
required by Article  20 for the encumbrances on tobacco trademarks imposed by its TPP measures . 
Fourth, Cuba argues, taking a somewhat different approach, that the trademark restrictions in the 
TPP measures  fall within the illustrat ive list of measures in the first sentence of Article  20 and, 
therefore, are "presumptively invalid".  
7.2435.   We now take up each of these claims in turn.  
7.3.5.5.2.1   The extreme nature of the encumbrance  
Main arguments of the parties  
7.2436.   Honduras  asserts that, "where a measure's restrictiveness is particularly severe and 
pervasive", that measure must be considered unjustifiable without any further consideration of 
other factors. In its view, by their very nature, the TPP measures  undermine the key  principles of 
the TRIPS  Agreement  and, therefore, cannot be deemed as justifiable within the meaning of 
Article  20.5028 More specifically, it argues that the TPP trademark restrictions eviscerate the 
substance of the trademark protection stipulated in the TRIPS Agreement . By prohibiting the use 
of all tobacco -related trademarks, other than those prescribed by the TPP Act, the measures at 
issue directly preclude these trademarks from fulfilling their core function, which is to distinguish 
the goods of differen t undertakings. In light of this, the TPP trademark restrictions are measures 
that restrict trademarks in a particularly pervasive and severe fashion. Honduras considers that 
                                                
5028 Honduras's first written submission, para. 321. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 732 - 
  this category of measures is by its very nature unjustifiable and, consequently, inconsistent with 
Article  20.5029 
7.2437.   Indonesia  argues that, where the TPP measures  prevent the use of trademarks, "they are 
an 'encumbrance' in the most extreme form and, therefore, cannot be justified in light of the 
object and purpose of TRIPS and the context of Article  20".5030 In its view, "[t]he [T]PP 
requirements impose such extreme burdens on the use of tobacco trademarks that they result in 
the devaluation of such property. There is no basis in the text or object and purpose of TRIPS for 
an interpretation th at such an action is justifiable under any circumstance. For this reason no 
further analysis is necessary and the Panel should find Australia's [TPP] measures are inconsistent 
with Article  20 to the extent they prohibit the use of tobacco trademarks."5031 
7.2438.   Australia responds that Honduras's and Indonesia's claims are based on the false premise 
that the TRIPS  Agreement  confers to a trademark holder a "right to use". It adds that, "[w]ithin 
the context of Article  20, a measure that prohibits the use of certain ty pes of registered 
trademarks – assuming that such prohibitions fall within the scope of Article  20 at all – has no 
a priori  status among the types of special requirements that a Member might impose upon the use 
of a trademark in the course of trade". It co ncludes that under Article  20, Members may impose 
special requirements upon the use of a trademark in the course of trade – including, to the extent 
they are encompassed by Article  20, a prohibition on the use of trademarks – as long as the 
resulting encumbrance is not unjustifiable.5032 
Analysis by the Panel  
7.2439.   We recall that, in Section 7.3.5.3  above, we considered whether the TPP measures  fall 
within the scope of Article  20, to the extent that they prohibit the use of certain trademarks on 
tobacco retail packaging and products. We found in this context that the TPP measures , including 
the prohibitions they impose on the use of stylized word marks, c omposite marks, and figurative 
marks, amount to "special requirements" within the meaning of Article  20, and that they 
"encumber" the use of a trademark in the course of trade.5033 
7.2440.   Honduras and Indonesia consider that these prohibitions rise to a level of 
"restrictiveness" that cannot be justified under any circumstances, and that the Panel should, 
therefore, consider them per se unjustifiable.  
7.2441.   We note that, under the terms of Article  20, Members have committed not to 
"unjustifiably encumber[] by special requi rements" the use of a trademark in the course of trade. 
The language used in that provision does not disallow any particular type of "special 
requirements". Rather, it makes the adoption of such requirements subject to the condition that 
they do not "unjus tifiably encumber[]" the use of trademarks. As described in Section 7.3.5.5.1.3  
above, a consideration of whether the use of a trademark is "unjust ifiably encumbered" will 
normally involve a consideration of various elements, including the nature and extent of the 
encumbrance arising from the special requirements at issue, the reasons for which these 
requirements are applied, and whether these reason s sufficiently support them . While a prohibition 
on use of a trademark by nature involves a high degree of encumbrance on such use, we see no 
basis for assuming that a particular threshold or degree of encumbrance would be inherently 
"unjustifiable" under this provision. Rather, we consider that this must in all cases be assessed in 
light of the circumstances in accordance with the standard of review that we have identified above. 
This reasoning is comparable, mutatis  mutandis , with the reasoning by the App ellate Body in 
Brazil  – Retreaded Tyres  in the context of Article  XX(b) of the GATT 1994: "As the Panel 
recognized, an import ban is 'by design as trade -restrictive as can be'. We agree with the Panel 
that there may be circumstances where such a measure can nevertheless be necessary, within the 
                                                
5029 Honduras's first written submission, paras.  335-336. In this con text, Honduras also argues that the 
TPP measures  constitute an indiscriminate restriction on all trademarks on tobacco products and packaging, 
and do not apply selectively to those specific features of individual trademarks. See ibid. para. 334. We will 
examine Honduras's, the Dominican  Republic 's, Cuba's and Indonesia's claims that the TPP measures  are 
unjustifiable due to the lack of individual assessment in section 7.3.5.5.2.2  below.  
5030 Indonesia's first written submission, para. 277. 
5031 Indonesia's first written submission, para. 284. 
5032 Australia's first written submission, paras.  417-418. 
5033 See para. 7.2245  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 733 - 
  meaning of Article  XX(b)."5034 Similarly, while recognizing that a prohibition on the use of a 
trademark involves a very high degree of encumbrance, we do not consider that this renders it by 
nature incapable of justification under Article  20.  
7.2442.   We therefore conclude that special requirements that involve a high degree of 
encumbrance, such as those in the TPP measures  that prohibit the use of stylized word marks, 
composite marks, and figurative marks, are not per se unjustifiable. Rather, as discussed above, 
we must apply to them the same standard of review, which we have established in Section 
7.3.5.5.1.3  above, as to other special requirements contained in the TPP measures .  
7.3.5.5.2.2   Whether the unjustifiability of requirements should be assessed in respect 
of individual tr ademarks and features  
Main arguments of the parties  
7.2443.   Honduras  argues that restrictions imposed on the use of a trademark in the course of 
trade should apply to individual trademarks, as opposed to a whole class of trademarks, and must 
have a limited nature.5035 Trademark protection under the TRIPS  Agreement  is based upon the 
protection of individual trademarks, and "any restriction on trademarks must only address the 
specific features of the trademark that undermine a Members' policy objective".5036 
7.2444.   It adds that "[t]his is precisely why the term ' a trademark' is used in its singular form in 
Article  20 as well as most other provisions of the Agreement".5037 In its second written submission, 
Honduras reasserts that "[t]he use of the singular confirms the individual tra demark approach that 
is so characteristic of all of the provisions of Section 2. It is not merely a 'drafting convention', but 
rather the reflection of the individual approach that applies to the creation, maintenance, 
enforcement and use of trademarks".5038 
7.2445.   In its view, this approach to regulating each trademark on its own merits under the 
TRIPS  Agreement  follows from the fact that trademark rights, in terms of trademark acquisition, 
registration, maintenance and enforcement, are acquired on an individual bas is.5039 It elaborates 
this by stating that "[t]he distinctiveness of a trademark, as well as eligibility of a trademark for 
protection, registration, and cancelation, is always assessed on an individual  basis. The 
TRIPS  Agreement  thus presumes that each and e very trademark will be treated on its own 
individual  merits."5040  
7.2446.   In its rebuttal, Honduras elaborates that "[c]learly, Members can impose general criteria 
that trademarks must meet in order to be allowed to be used. The point made by Honduras is that 
tradem arks are examined and approved on an individual basis and exist as individual trademarks". 
Considering the context of Section 2 and Article  15.2 of the TRIPS  Agreement , and 
Article  6quinquies B of the Paris Convention , Article  20 requires a similar individ ualized, or at least 
non-class based analysis of trademarks when a Member seeks to justify a special requirement 
encumbering the use of the trademark for reasons of public policy.5041 
7.2447.   Honduras seeks further contextual support from Article  6quinquies  of the 
Paris Convention . It reasons that this provision requires Members to register and protect 
trademarks without interfering with their original format; trademark protection, in turn, includes 
the ability to use a trademark in the course of trade. In its view, t he provision, therefore, implies 
that deviations from the telle quelle  rule in respect of use are allowed only in exceptional cases 
and will depend on the individual nature of each particular trademark.5042 
                                                
5034 Appellate Body Report, Brazil  – Retreaded Tyres , paras.  150–151. 
5035 Honduras's first written submission, para. 289. 
5036 Honduras's firs t written submission, para. 309. 
5037 Honduras's first written submission, para. 289 (emphasis added by Honduras) . 
5038 Honduras's second written submission, para. 370. 
5039 Honduras's first written submission, para. 289. 
5040 Honduras's first written submission, para. 309. (emphasis original)  
5041 Honduras's second written submission, para. 362. 
5042 Honduras's first written submission, para. 290. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 734 - 
  7.2448.   Honduras also seeks contextual support from Article  17 of the TRIPS  Agreement . In its 
view, Article  17 confirms that exceptions to the rights conferred on trademark owners under the 
TRIPS  Agreement  must have a "limited" nature and take into account the legitimate interests of 
the trademark owner, including use. "In other words, a measure that has a wide scope of 
application, covering, in an indiscriminate manner, a broad range of trademarks, cannot be 
regarded as a limited exception. This measure will, therefore, be inconsistent with the basic 
principle of t he TRIPS  Agreement  that restrictions on the use of trademarks must apply to 
individual  trademarks and have a limited  nature."5043 
7.2449.   Honduras clarifies that it "does not believe that Article  17 requires, necessarily, in each 
and every situation, that a measure m ust be addressed at individual trademarks. … Rather, what 
matters is that the scope of the exception be 'limited'". Referring to the panel report in EC –
 Trademarks and Geographical Indications (Australia) , Honduras argues that, although the panel 
suggested that limitations under Article  17 do not necessarily have to affect individual trademarks, 
it clarified that when the exception to trademark rights covers entire categories of trademarks, the 
extent to which trademark rights ar e being affected must be quantitatively or qualitatively limited, 
and must not constitute a blanket ban or another type of indiscriminate restriction.5044 In 
Honduras's view, "the term 'limited exceptions' in Article  17 supports its argument that, under 
Article 20, encumbrances on the use of trademarks in the course of trade must have a 'limited' 
nature – the encumbrance may not apply to a broad range of trademarks in an indiscriminate 
manner".5045 
7.2450.   The Dominican Republic  argues that trademarks and trademark prote ction are 
individualized in terms of the content, acquisition, enjoyment, and enforcement of rights. As a 
result, if a Member seeks to encumber the use of a trademark through special requirements, it 
must take appropriate account of the individual characte ristics of each of the affected trademarks. 
In the case of special requirements that directly distort the appearance and visual content of a 
trademark, a Member must give individual consideration to the features of the trademark to be 
changed, to determine  whether changing those features is warranted by the contribution the 
change will make to the regulatory objective being pursued.5046 It adds that "Australia was 
required, under Article  20, to give individual consideration to the supposedly offending features  of 
each such trademark, to assess whether any features of  that specific trademark warranted 
encumbrance".5047 Individual consideration would have ensured that, for any encumbered 
trademarks, Australia "prohibited solely those specific design features  – if any – that are actually 
demonstrated to be problematic, while allowing other design features to continue to be used 
unencumbered".5048 
7.2451.   In its view, the text of Article  20 itself supports the view that the individual merits of a 
trademark should be taken into ac count in assessing justifiability because the subject -matter of 
the justifiability analysis is "a trademark" in the singular.5049 
7.2452.   The Dominican Republic further argues that, since the subject -matter of Article  20 is 
defined by the word "trademark", the assess ment of justifiability must take into account the 
nature of trademarks and trademark protection. It argues that a  trademark is registered on the 
basis of its specific features, after a process of individual application by the owner, and individual 
assessme nt and approval by the Member. A trademark is also protected against infringement and 
revocation through an individualized process that considers its specific features.5050 
7.2453.   Referring to Article  15.1, it explains that each trademark is a sign composed of lette rs, 
numerals, colours, and/or other figurative elements, and/or a unique combination thereof. Every 
trademark is, therefore, different from every other trademark. A sign is registered, in the first 
                                                
5043 Honduras's first written submission, para. 291. (emphasis original)  
5044 Honduras's response to Panel question No. 91 (referring to Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , paras.  7.650 and 7.654 -7.657).  See also Honduras's second written 
submission, para. 367. 
5045 Honduras's response to Panel question No. 91, p.7.  
5046 Dominican  Republic 's first written submission, para. 394. 
5047 Dominican  Republic 's first written submission, para. 400. 
5048 Dominican  Republic 's first written submission, para. 403. (emphasis original)  
5049 Dominican  Republic 's first written submission, para. 386. 
5050 Dominican  Republic 's response to Panel question No. 108, paras.  127-128. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 735 - 
  place, as a trademark on the basis of its features, after a process of individual application by the 
owner and individual assessment of the features by the Member, culminating in a conclusion that 
the sign is sufficiently unique and distinctive.5051 
7.2454.   It argues that a trademark is protected against infringement throug h an individualized 
process that considers its features. Under Article  16.1 of the TRIPS  Agreement , for example, a 
trademark owner's ability to prevent the use of third -party signs depends, among other factors, on 
an individualized assessment of the degree  of similarity between the trademark and the 
third -party sign. This assessment establishes whether the features of the third -party sign are 
"identical or similar" to the features of the trademark.5052 
7.2455.   Furthermore, a registered trademark is also protected agai nst invalidation through an 
individualized process that considers its features. Article  6quinquies B of the Paris Convention  
provides an exhaustive list of the permitted grounds for the denial or invalidation of the 
registration of trademarks subject to th at provision. Under this provision, in considering 
invalidation, an authority must undertake an individual assessment that examines each trademark 
"on its individual merits".5053 
7.2456.   As to the relevance of these provisions, the Dominican Republic argues that "[a] lthough 
Articles  6quinq uies B and C of the Paris Convention  regulate the registration  of trademarks, and 
Article  20 of the TRIPS  Agreement  regulates the use of a trademark, these differences do not 
mean that the former provisions have no contextual relevance for the interpretation of the latter. 
… [A] provision is relevant context if it has 'some pertinence' for the interpretation of another 
provision."5054 "If a Member is required to consider the unique features of a trademark when 
making a decision on registration relating to those features (e.g., they are misleading), it is 
'unjustifiable' for the Member to ignore those same features when it makes a similarly (or even 
more) far -reaching decision on use that is also related to those features (e.g., they are 
misleading)."5055  
7.2457.   The Dominican Republic further argues that "[i]f a Member currently maintains the 
registration of a trademark – and has not, based 'on its in dividual merits', invalidated the 
trademark on the grounds that it is misleading or is otherwise contrary to morality – the Member 
cannot, under Article  20, deny use of the trademark because of its features, unless it also 
considers the trademark 'on its i ndividual merits'".5056 It adds that this is precisely what Australia 
has done, since it "has not denied or invalidated the registration of any of the trademarks subject 
to the [T]PP requirements on the grounds that they are misleading or, instead, otherwise contrary 
to public morals (e.g., they induce consumers to engage in harmful behaviour)".5057 
7.2458.   In its view, it also follows from the word "unjustifiably" that the unique features of 
individual trademarks have to be assessed. To respect the basic meaning of the word "justifiable", 
as reflected in the synonyms "rational, reasonable, proper, defensible or warranted", a Member 
cannot ignore such features in deciding whether and how to encumber this trademark.5058  
7.2459.   The Dominican Republic notes that, in its first written  submission, Australia argued that 
"[i]f the justification for the imposition of special requirements upon the use of a trademark relates 
to a group of trademarks as a class, nothing in Article  20 requires that justification to be restated 
by reference to individual trademarks falling within that class". T he Dominican Republic agrees 
that, if the decision to encumber use of a trademark relates to considerations common to all 
trademarks in a class, and is unrelated to a particular trademark's features, indiv idual assessment 
                                                
5051 Dominican  Republic 's second written submission, paras.  211-212. 
5052 Dominican  Republic 's second written submission, para. 213. 
5053 Dominican  Republic 's second written submission, para. 214 ( referring to  Bodenhausen, Full text, 
(Exhibit DOM -79), pp. 115-116).  
5054 Dominican  Republic 's second written submission, para. 219 ( referring to  Appellate Body Reports, 
China  – Auto Parts , para. 151). (emphasis original)  
5055 Dominican  Republic 's second written submission, para. 221. See also ibid. para. 257. 
5056 Dominican  Republic 's second written submission, para. 222. (footnote omitted)  
5057 Dominican  Republic 's second written submission, para. 223. 
5058 Dominican  Republic 's second written submission, paras.  224-226. See also ibi d. para. 247. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 736 - 
  is not required.5059 It further contends that "Australia does not exclude that an individual 
assessment is required under Article  20 in situations where an encumbrance relates to 
considerations that vary from individual trademark to individua l trademark  – and are not common 
to 'a group of trademarks as a class'" .5060 
7.2460.   The Dominican Republic considers that Article  17 is relevant context for Article  20. It 
notes that Australia recalls a statement by the panel in EC – Trademarks and Geographical 
Indications  that "nothing in the text of Article  17 indicates that a case -by-case analysis is required 
under the TRIPS  Agreement ". The Dominican Republic, however, argues that the panel's finding in 
that dispute supports its position.5061 In particular, it ar gues that the panel's decision turned on the 
fact that the European Union had required an individual assessment of the trademark and the GI 
at the time of the GI's registration, which obviated the need for further individual assessment 
later.5062 It adds that  "[t]hus, under Article  17, individual assessment of the features of a 
trademark may be required in some circumstances. The same is also true under Article  20: 
although individual assessment is not always required, it may be required depending on the 
circumstances."5063 
7.2461.   The Dominican Republic indicates that it agrees with the panel in EC – Trademarks and 
Geographical Indications (Australia)  that a trademark owner has a "legitimate interest" in using its 
trademark, which must be taken into account in interpreti ng Article  20. In particular, in its view, 
the importance of the legitimate interest in "use" is relevant in considering the nature of 
trademarks and trademark protection, including the need to undertake an individual assessment of 
encumbrances imposed due  to concerns about the specific features of a trademark.5064 The 
Dominican Republ ic emphasizes that its argument has  nothing to do with a right to use but results 
from an interpretation of the text of Article  20.5065 
7.2462.   The Dominican Republic argues that Australia should have separately considered each 
individual design feature of a trademark such as the typeface, size, colour, background colour and 
figurative "tick" shape, particularly when coupled with a 75% graphical health warning.5066 For 
example, a Member must as sess the typeface  of the brand name to establish if the particular 
typeface has the alleged harmful effects (i.e. it causes people to smoke by misleading them or 
appealing to them). Another example is that it has to consider the capitalization of lettering  and 
whether any differences in the format of the lettering cause people to smoke. Moreover, if the 
encumbrance aims at a particular use (e.g. on retail packaging), it must also consider the context 
in which the use will occur ; the features of a trademark,  such as the typeface and capitalization, 
must be considered in light of the fact that the dominant image on a pack is the health 
warning.5067 
7.2463.   The Dominican Republic "agrees that, if the decision to encumber use of a trademark 
relates to considerations common  to all trademarks in a class, and is unrelated to a particular 
trademark's features, individual assessment is not required".5068 It argues that Australia's failure to 
conduct individual assessment, nonetheless, renders the TPP measures  unjustifiable.5069 First, "[i]t 
is not 'justifiable' – rational, reasonable, proper, defensible or warranted – for a regulator to draw 
conclusions about the alleged effects of the design features of a trademark  from the characteristics 
of the  product  to which the trademark is applied. Thus, the fact that trademarks are all applied to 
a particular product, even a harmful product, does not allow the regulator to assume  that all of the 
                                                
5059 Dominican  Republic 's second written submission, para. 233 (quoting Australia's first written 
submission, para. 411) (emphasis added  by the Dominican  Republic  omitted). See also Dominican  Republic 's 
response to Panel question No. 108, paras.  133-134. 
5060 Dominican  Republic 's second written submission, para. 234. (emphasis original)  
5061 Dominican  Republic 's second written submission, para. 260 (referring to Australia's first written 
submission, para. 411, in turn referring to  Panel Report, EC – Trademarks and Geographical Indications (US) , 
para. 7.672).  
5062 Dominican  Republic 's second written submission, para. 261. 
5063 Dominican  Republic 's second written submission, para. 262. 
5064 Dominican  Republic 's response to Panel question No. 99, paras.  65-69 (referring to Panel Report, 
EC – Trademarks and Geographical Indications (Australia) , para. 7.664).  
5065 Dominican  Republic 's second written submission, para. 264. 
5066 Dominican  Republic 's first written submission, paras.  406-407. 
5067 Dominican  Republic 's seco nd written submission, paras.  227, 228 and 230.  
5068 Dominican  Republic 's second written submission, para. 233. 
5069 Dominican  Republic 's second written submission, para. 235. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 737 - 
  design features of all those trademarks have harmful effects on consu mers (e.g. they are 
misleading or appealing)."5070 Secondly, it is not justifiable to encumber the use of all design 
features of all trademarks because of the possibility that design features might be appealing or 
misleading.5071 
7.2464.   Cuba argues that the encumbrance s are "unjustifiable" because plain packaging is not 
based on an individual assessment of the trademark.5072 
7.2465.   Indonesia  considers that each type of special requirement and its related encumbrance 
must be evaluated and "justified" independently.5073  
7.2466.   Indonesia arg ues that i t would be inappropriate to use evidence that may support one 
type of encumbrance (i.e. a limitation on the use of certain colours) to justify the imposition of a 
different type of encumbrance (mandating a certain typeface) or a range of encumbra nces across 
the board.5074 It submits that "Australia has assumed that any trademark element located 
anywhere  has the effect of persuading people to smoke when they otherwise would not".5075  
7.2467.   The Panel asked Indonesia's views on the extent to which the effect of  different types of 
requirements, such as those relating to colour or font, can be distinguished from the overall effect 
of the TPP measures ; and, to the extent that the evidence may not distinguish between such 
elements, what implications would this have for the assessment of the justifiability of such 
measures under Article  20. In response, Indonesia argued that the fact that "Australia assumed 
that every element of every trademark that is used on a tobacco product or its packaging is 'guilty' 
of inducing  people to smoke or misleading consumers" is sufficient for the Panel to find 
inconsistency with Article  20. Therefore, "[i]t is not necessary for the Panel to attempt to find in 
the post -implementation data an indication of which elements Australia should  have regulated and 
which it should not have".5076 
7.2468.   Australia  responds that the fact that trademarks are ordinarily acquired, registered, and 
enforced on an individual basis is simply a consequence of the fact that trademarks must be 
capable of distinguishing between products in the course of trade. It does not follow that any 
justification for the imposition of special requirements upon the use of a trademark must likewise 
be framed by reference to the characteristics of individual trademarks. Article  20 is no t concerned 
with the registration of individual trademarks, but rather with special requirements that are 
imposed upon the use of trademarks. If the justification for the imposition of special requirements 
upon the use of a trademark relates to a group of trademarks as a class, nothing in Article  20 
requires that justification to be restated by reference to individual trademarks falling within that 
class.5077 
7.2469.   In its second written submission, it sums up that nothing in Article  20 implies that any 
sort of "indi vidualised assessment" is required, under any circumstance. On the contrary, 
Article  20 is plainly concerned with public policy measures that are likely to affect an entire 
category of trademarks that implicate the public policy concern. Whether or not a m easure 
covered by Article  20 is "unjustifiable" will depend upon the rationale of the measure as it relates 
to the affected category of trademarks as a whole.5078 
7.2470.   Australia argues that the complainants have not presented any interpretative basis for 
their ass ertion that the test for "unjustifiably" requires Members to perform an individualised 
assessment of trademarks.5079 As regards the Dominican Republic's interpretation of Article  20 
                                                
5070 Dominican  Republic 's second written submission, para. 238 (emphasis original). See a lso ibid. 
paras.  236-239. 
5071 Dominican  Republic 's second written submission, paras.  240-255. 
5072 Cuba's second written submission, para. 68. 
5073 Indonesia's first written submission, para. 293. 
5074 Indonesia's first written submission, para. 293. 
5075 Indonesia's first written submission, para. 316. (emphasis original)  
5076 Indonesia's response to Panel question No. 106, para. 31. 
5077 Australia's first written submission, paras.  410-411. See also Australia's second written submission, 
para. 202. 
5078 Australia 's second written submission, para. 204. 
5079 Australia's second written submission, paras.  201 and 287.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 738 - 
  building on the "legitimate interests" of trademark owners and WTO Members, A ustralia responds 
that this term is absent from Article  20, and that the complainants have not offered any 
explanation for why the context provided by Article  17 would require the Panel to read the 
requirements of that provisions into Article  20.5080 It adds that "[t]he Dominican Republic does not 
contend that the requirements of an 'individual assessment' (at least is some cases) follows from 
the ordinary meaning of the term 'unjustifiably', and it has not identified anything in the context of 
Article 20 or in the object and purpose of the TRIPS  Agreement  that would support this asserted 
requirement".5081 
7.2471.   As regards the complainants' arguments relating to the use of the term "a trademark" in 
the singular in the first sentence of Article  20, Australia res ponds that they seek to impart 
interpretative significance to what is nothing more than a drafting convention. Australia adds that 
Article  17 of the TRIPS  Agreement  also refers to "a trademark" in the singular, and yet the panel in 
EC – Trademarks and Geog raphical Indications (US) held that nothing in the text of Article  17 
requires exceptions to the rights conferred by a trademark to be crafted on an individual basis. In 
its view, there is no reason for which a different conclusion would apply in the case of 
Article  20.5082 It adds that the justification for the imposition of special requirements upon the use 
of a trademark in the course of trade will often (if not ordinarily) relate to a class of trademarks as 
a whole, such as pharmaceutical products and prod ucts that are inherently hazardous to human 
health (such as tobacco).5083 
7.2472.   In respect of the complainants' contextual arguments relating to Article  17, Australia 
notes that the panel in EC – Trademarks and Geographical Indications (US)  found that any 
exception  to the rights conferred under Article  16 need not "take account of the legitimate 
interests of the owner of the trademark" on an individual basis. The panel observed that, even 
though the regulation at issue required a case -by-case analysis of the GI at the time of 
registration, "nothing in the text of Article  17 indicates that a case -by-case analysis is a 
requirement under the TRIPS  Agreement ". In its view, the panel's conclusion applies a fortiori  to 
the interpretation of Article  20, which, unlike Article 17, does not concern exceptions to rights that 
are conferred under the TRIPS  Agreement . Rather, Article  20 is a provision that concerns special 
requirements that Members impose upon the use of a trademark in furtherance of public policy 
objectives, and t he justification for such requirements will often relate to a class of trademarks as 
a whole.5084, 5085 
7.2473.   Australia argues that the complainants also seek support for their position from their 
overarching contention that the TRIPS  Agreement  establishes a "right to  use". In particular, it 
refers to Honduras's contextual arguments relating to Article  6quinquies  of the Paris Convention . 
Australia responds that "the TRIPS  Agreement  does not establish a 'right of use' that would 
somehow compel an 'individual assessment' of particular trademarks when imposing special 
requirements upon the use of a class of trademarks".5086 
                                                
5080 Australia's second written submission, paras.  173, and 179 (referring to Dominican  Republic 's 
response to Panel question No. 99, para. 69). See para. 7.2461  above for a summary of the 
Dominican  Republic 's position.  
5081 Australia's second written submission, para. 201. 
5082 Australia's first written submi ssion, para. 413. 
5083 Australia's first written submission, para. 414. 
5084 Australia's first written submission, para. 411 (quoting Panel Report, EC – Trademarks and 
Geographical Indications (US) , para. 7.672); and Australia's second written submission, para. 202 (quoting 
Panel Report, EC – Trademarks and Geographical Indications (US) , para. 7.672).  
5085 Australia adds that, "even if a measure were concerned with the 'specific features' of trademarks, it 
does not follow that the measure is 'unjustifiable' in the a bsence of an 'individualised assessment' of each 
trademark that is affected by the measure. The rationale for a measure that is subject to Article  20 could relate 
to an entire category of trademarks that possess some feature that relates to the objective o f the measure. For 
example, if the objective of the measure were to improve the legibility of pharmaceutical product packaging for 
the benefit of the elderly or people with impaired vision, a measure might require trademarks for 
pharmaceutical products reg istered in a cursive typeface to be rendered in a non -cursive typeface on the 
product package. The rationale for this measure would relate to the entire category of trademarks that are 
registered in a cursive typeface. No 'individualised assessment' of the  'specific features' of each trademark 
within this category would be required." Australia's second written submission, para. 203. (emphasis original)  
5086 Australia's first written submission, para. 412. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 739 - 
  7.2474.   Australia draws attention to "the troubling implications" of what  it sees as "extreme 
evidentiary approach to public health policymaking", and questions the plausibility of individualized 
assessments of each element of each trademark for each of the many hundreds of tobacco and 
cigar packages that were on the market in Australia prior to the implementation of tobacco plain 
packaging.5087 
7.2475.   As regards the TPP measures  in particular, Australia argues that, whether or not the 
complainants' "individualised assessment" argument has any legal basis, it is premised on either a 
misun derstanding or a mischaracterisation of the measures' objectives and the manner in which 
they operate. It explains that "[t]he premise of the tobacco plain packaging measure is not that 
'specific features' of particular trademarks increase the appeal of to bacco products, detract from 
the effectiveness of GHWs, or mislead consumers as to the harms of tobacco use  … the premise of 
the tobacco plain packaging measure is that prescribing a standardised, plain appearance for 
tobacco packages and products will min imise the ability of tobacco packages and products to have 
any of these effects." It argues that, in line with the FCTC Guidelines, "a standardised, plain 
appearance for tobacco packages is designed to eliminate the opportunity for tobacco companies 
to use  the package as a medium for advertising and promoting the product" and to convey any 
positive associations.5088 Australia adds that "[t]he package design eliminates  the ability of tobacco 
companies to use figurative design elements to increase the appeal of the package or to create 
any sort of positive association with the product, whether it is one of masculinity, femininity, 
youthfulness, purity, value for money, or any other association that a tobacco company might 
want to attach to its product".5089 
7.2476.   Apart fr om preventing tobacco companies from using the package to increase the appeal 
of tobacco products, Australia argues that the plain appearance of the pack serves other important 
purposes: limit the ability of the pack to distract from and reduce the noticea bility of GHWs; 
prevent tobacco companies from using different colours to create misleading perception of the 
harmful effects of tobacco use or to exploit certain positive associations with particular colours; 
and, more broadly, to denormalize tobacco, whi ch is a uniquely hazardous product, i.e. the only 
lawful consumer product that kills its users when used as intended.5090 
7.2477.   In sum, Australia explains that "the tobacco plain packaging measure is not concerned 
with the 'specific features' of particular trademar ks".5091 
7.2478.   Australia further contends that the Dominican Republic concedes that no "individualised 
assessment" is required unless the measure concerns the "specific features" of particular 
trademarks.5092 The complainants' "individualised assessment" argument is t herefore moot by their 
own admission.5093 
                                                
5087 Australia's closing statement at the second meeting o f the Panel, paras.  2-16. 
5088 Australia's second written submission, para. 291. Australia cites para. 16 of the  Article  13 FCTC 
Guidelines (Tobacco advertising, promotion and sponsorship), which provide as follows:  
 
The effect of advertising or promotion on  packaging can be eliminated by requiring plain packaging: 
black and white or two other contrasting colours, as prescribed by national authorities; nothing other 
than a brand name, a product name and/or manufacturer's name, contact details and the quantity  of 
product in the packaging, without any logos or other features apart from health warnings, tax stamps 
and other government -mandated information or markings; prescribed font style and size; and 
standardized shape, size and materials. There should be no a dvertising or promotion inside or attached 
to the package or on individual cigarettes or other tobacco products .  
 
Ibid. para. 290 (emphasis added  by Australia). See also Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit 
JE-21), Annex, para. 16. 
5089 Austr alia's second written submission, para. 292. (emphasis original)  
5090 Australia's second written submission, para. 293. 
5091 Australia's second written submission, para. 294. 
5092 Australia's second written submission, para. 295 (referring to the Dominican  Republic 's response to 
Panel question No. 108, paras.  133-134). The Dominican  Republic 's arguments on this point are summarized in 
para. 7.2459  above.  
5093 Australia's opening statement at the Panel's second meeting, para. 126. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 740 - 
  Main arguments of the third parties  
7.2479.   The Panel invited the third parties to comment on the extent to which an assessment of 
"justifiability" of the TPP measures  should be individualized, e.g. trademark by trademark, or  
requirement by requirement.5094 
7.2480.   Argentina  responds that it understands that the assessment of the justifiability of the 
TPP measures  should not be made "requirement by requirement" but comprehensively, taking 
account of the requirements as a whole and their overall contribution to the aim pursued, which in 
the case of the TPP measures  is the protection of public  health by convincing people to drop the 
habit of smoking and discouraging them from taking up smoking.5095 
7.2481.   Brazil  is not convinced that the term "specia l requirements" under Article  20 would be 
restricted to requirements specifically applicable to individual trademarks. The TRIPS  Agreement  
uses the terms "a trademark" or "the owner of a registered trademark" when establishing 
definitions, rights conferred , exceptions, the term of protection, and requirements and conditions 
of licensing ( Articles  15-21); this, however, does not mean that horizontal requirements affecting 
trademarks in general would fall outside its scope. Thus, the term "special requirement s" in 
Article  20 may also refer to requirements applicable to a group of related trademarks, not just to 
an individual trademark. Consequently, the fact that a measure at issue is horizontal does not 
seem to be in itself proof of violation of Article  20.5096 
7.2482.   Canada  responds that the text of Article  20 does not necessitate that each trademark 
affected nor each requirement affecting the trademark be assessed individually to determine 
whether the measure in issue is "justifiable". Specifically, Article  20 does no t require that a 
measure that impacts on a category of trademarks (e.g. trademarks used on a specified group of 
products) be considered "justifiable" only where it has taken into account the individual 
characteristics of each affected trademark. The plain meaning of the word "justifiable" in its 
context supports this interpretation. That is, if the special requirement is found to encumber the 
use of a category of trademarks, then the justification for that requirement would logically relate 
to any and all t rademarks that fall within that category. The use of the singular "a trademark" is a 
drafting convention, like that used in Article  17, and does not, ipso facto , suggest that all special 
requirements must be justified by reference to each individual tradem ark affected. Further, 
Canada considers that where a complainant has challenged individual "special requirements" under 
Article  20, then it may be appropriate for a panel to conduct a separate analysis of each individual 
requirement to determine their cons istency with the provision. However, where a complainant 
challenges a measure that has various constituent requirements, then a panel may draw 
conclusions as to the "justifiability" of the measure as a whole on the basis of an integrated 
analysis of these requirements.5097 
7.2483.   The European Union  considers that an assessment of "justifiability" pursuant to Article  20 
does not require an individual, case -by-case analysis, particularly in situations such as in the 
present case, where the factors or concerns underlying the encumbrance on the use of trademarks 
are common to all trademarks. It finds support for this in the panel report in EC – Trademarks and 
Geographical Indications (US) . The European Union continues, " Article  17 of the TRIPS  Agreement  
refers explicitly to 'the legitimate interests of trademark owners'. If not even Article  17 requires a 
case-by-case analysis then even less so Article  20 of the TRIPS Agreement  which does not contain 
such an explicit reference to 'the legitimate interests of trademark owners'".5098 
7.2484.   Japan  understands that , of the three specific objectives of the measures contained in 
subsection  3(2) of the TPP Act, the first one appears to relate to discouraging consumers from 
smoking irrespective of whether they are fully informed of the harmful effect of tobacco products , 
while the second and third objectives appear intended to prevent consumers ' misunderstanding  
about  the health risk o f tobacco products . In its view, it would assist the analysis of whether the 
                                                
5094 Panel question No. 18. 
5095 Argentina's third -party response to Panel question No. 18. 
5096 Brazil's third -party s ubmission, paras.  36-39. 
5097 Canada's third -party response to Panel question No. 18, paras.  31-33. 
5098 European Union's third -party response to Panel question No. 18 (referring to Panel Report, EC –
 Trademarks and Geographical Indications (US) , para. 7.672).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 741 - 
  measure s are  reasonably calibrated to contribute to its policy objective s, if Australia were to 
explain, in respect of  the first objective, which aspect(s) of trademarks used on t obacco products 
are the ones that make tobacco products appeal to consumers and why restriction s on the other 
aspects of the trademark are  warranted ; and, in respect of the latter two objectives, which aspects 
of trademarks give rise to consumers ' misunderstanding about the harmful effects.5099 
7.2485.   New Zealand  argues that Article  20 does not require an assessment of the "justifiability" 
of Australia's plain packaging requirements. Rather, it requires that the complainants demonstrate 
that Australia's measures impose an encumbrance unjustifiably. If the complainants demonstrate a 
prima facie  case, Australia is then required to demonstrate that its measures are not unjustifiable. 
Article  20 is not concerned with the registration of individual trademarks, but rather with special 
requirements that are imposed upon the use of trademarks.  If the justification for the imposition of 
special requirements upon the use of a trademark relates to a group of trademarks as a class, 
nothing in Article  20 requires that justification to be restated by reference to individual trademarks 
falling within that class. New Zealand notes that the panel in EC – Trademarks and Geographical 
Indications (US)  found that any exception under Article  17 to the rights conferred under Article  16 
need not "take account of the legitimate interests of the owner of the trad emark" on an individual 
basis, and considers that these conclusions are also applicable to the present dispute s.5100 
7.2486.   Nicaragua  considers that any measure imposing specific requirements that seeks to 
restrict or prohibit trademark rights must be based on an in dividualized assessment of the 
particular trademark in question in order to determine whether that trademark, or any element of 
that mark, raises concerns that warrant the limitation of that trademark right.5101 
7.2487.   Norway  argues that the complainants' view, to a  large degree, seems to be founded on 
the fact that trademark rights, in terms of trademark acquisition, registration, maintenance and 
enforcement, are acquired on an individual basis. It counters that the reason why trademarks are 
normally acquired, regis tered and enforced individually is that they must be capable of 
distinguishing between goods in the course of trade; this, however, is not a basis for requiring an 
individualized assessment of "justifiability" in the context of Article  20. The use of the t erm "a 
trademark" in the singular does not change this: the use of the singular form in most of the 
provisions of the Agreement speaks in favour of this being a way of drafting, rather than an 
interpretative factor. The singular form is also used in Article 17; in this regard, the panel in EC –
 Trademarks and Geographical Indications (US)  noted that "nothing in the text of Article  17 
indicates that a case -by-case analysis is a requirement under the TRIPS  Agreement ". In light of 
this, Norway submits that the re is no basis in Article  20 to require an individualized assessment of 
"justifiability" in cases where the special requirements at issue apply to a group of trademarks.5102 
7.2488.   Singapore  is of the view that an individualized assessment of trademarks is not requi red 
by the terms of the TRIPS  Agreement . If no such requirement is found in respect of Article  17 of 
the TRIPS  Agreement , which governs exceptions to rights conferred by a trademark, a fortiori  such 
requirement cannot apply in respect of the use of a trademark, which is not a right conferred 
under the TRIPS  Agreement .5103 
7.2489.   South Africa  argues that the justifiability of a measure must be assessed in its entirety, 
as a whole. There may be different fa ctors that inform the justifiability of a measure; however the 
measure as a whole and the objective of such a measure should be examined as one single 
process.5104 
                                                
5099 Japan's third -party submission, paras.  30-32. 
5100 New Zealand's third -party response to Panel question No. 18, pp. 8-9 (referring to  Panel Report, 
EC – Trademarks and Geographical Indications (US),  para. 7.672).  
5101 Nicaragua's third -party response to Panel question No. 18, p. 13. 
5102 Norway's third -party response to Panel question No. 18, paras.  40-42 (quoting Honduras's first 
written submission, para. 289; and Panel Report, EC – Trademarks and Geographical Indications (US),  
para. 7.672 ). 
5103 Singapore's third -party response to Panel question No. 18, p. 11 (referring to Panel Report, EC –
 Trademarks and Geographical Indications  (US), para. 7.672) . 
5104 South Africa's third -party response to Panel question No. 18, p. 8. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 742 - 
  7.2490.   Zambia  fails to see any justification for the TPP measures , in light of, inter alia, the failur e 
of the measures to consider each trademark individually.5105 
7.2491.   Zimbabwe  argues that Australia imposes a ban on trademarks without examining whether 
individual marks are a cause for increase in smoking rates or prevent existing smokers from 
quitting. In its vi ew, this is contrary to the principle of "product independence" as reflected in 
Article  15.4 of the TRIPS  Agreement .5106 
Analysis by the Panel  
7.2492.   The question before us here is whether Article  20 requires the "unjustifiability" of any 
"special requirements" impo sed on the use of trademarks to be assessed, in all cases, in relation 
to each individual trademark and its specific features and whether, as a result, the encumbrances 
imposed by the TPP measures  are per se "unjustifiable" in that they do not involve such  an 
individual assessment but rather apply to all trademarks on tobacco products without distinction.  
7.2493.   In accordance with the applicable rules of interpretation, we first consider the text of 
Article  20.5107 We note that this text, both in its first and second  sentences, is silent on whether 
any special requirements it refers to concern the use of individual trademarks or a class of 
trademarks, or use of trademarks in particular situations. The text merely provides that such 
special requirements shall not unjus tifiably encumber the use of "a trademark" in the course of 
trade.  
7.2494.   As described above, the parties disagree on the implications of the use of the term "a 
trademark" in the singular in the first sentence of Article  20. We agree with Australia and a 
number of third parties that the use of this term in the singular is a drafting convention used in 
many provisions of the TRIPS  Agreement , and we are therefore not persuaded that it implies, as 
such, that the justifiability of any special requirements must be ass essed in respect of each 
individual trademark.5108 
7.2495.   Many provisions of the TRIPS  Agreement  setting out minimum rights and permissible 
exceptions similarly use the singular form to establish the general level of protection that applies 
to all protected subject -matter. For example, certain provisions that determine the scope for 
permissible exceptions to the rights granted to right holders under the respective sections of 
Part II of the Agreement also use the singular form: Article  13, which is applicable to copyright, 
refers to "the work" and "the right holder"; Article  17, applicable to trademarks, refers to "a 
trademark"; and Article  30, applicable to patents, refers to "a patent". Previous panels have 
applied those provisions to measures that affected a range of protected subject -matter rather than 
individual works, trademarks or patents, suggesting that the use of the singular was not 
considered material in delineating the consistency of those domestic measures with the provision s 
in question. In US – Section 110(5) Copyright Act , the panel found that certain domestic 
limitations to the rights to communicate works to the public met the requirements of Article  13 of 
the TRIPS  Agreement  and thus were consistent with Articles  11bis(1)(iii) and 11(1)(ii) of the Berne 
Convention (1971) as incorporated into the TRIPS  Agreement  by Article  9.1 of that Agreement.5109 
In EC – Trademarks and Geographical Indications , the panel found a domestic regulation that 
provided a particular regime of coex istence between GIs and prior trademarks to be inconsistent 
with Article  16.1 of the TRIPS  Agreement  but justified by Article  17.5110 In Canada  –
 Pharmaceutical Patents , the panel found that a domestic exception to exclusive rights allowing the 
production of patented inventions for the purposes of regulatory review satisfied the conditions of 
Article  30, and thus was not inconsistent with Article  28.1 of the TRIPS  Agreement .5111 
                                                
5105 Zambia's third -party statement, para. 13. 
5106 Zimbabwe's third -party submission, para. 35. 
5107 The text of Article  20 is reproduced in paragraph 7.2131  above.  
5108 We note that the term "the trademark" is also in the singular in the second sentence of Article  20, 
which allows Members to prescribe a requirement that the trademark identifying the  undertaking producing the 
goods or services is used along the trademark distinguishing those goods or services.  
5109 Panel Report, US – Section 110(5) Copyright Act , para. 7.1(a).  
5110 Panel Reports, EC – Trademarks and Geographical Indications (Australia) , para. 7.686; and EC –
 Trademarks and Geographical Indications (US) , para. 7.688.  
5111 Panel Report, Canada  – Pharmaceutical Patents , para. 7.84. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 743 - 
  7.2496.   In light of the above, we do not find support in the text or immediate context of Article 20 
for the complainants' assertion that special requirements that encumber the use of trademarks 
could only be "justifiable" on the basis of an assessment of individual trademarks and their specific 
features.  
7.2497.   The complainants emphasize that trademark s are acquired, registered, maintained, 
invalidated and enforced on an individual basis. Australia agrees, but responds that this is a 
consequence of the fact that trademarks must be distinctive and it does not follow that any special 
requirements upon the  use of trademarks must similarly be formulated and justified in respect of 
each individual trademark.  
7.2498.   We note that the definition in Article  15.1 of the TRIPS  Agreement  of what can constitute 
a trademark refers to any sign, or any combination of signs, t hat is "capable of distinguishing the 
goods or services of one undertaking from those of other undertakings". We agree with the 
complainants that it is in the nature of trademark protection that decisions on eligibility for 
protection, registration and inv alidation are taken in respect of individual trademarks. This is 
reflected in Article  15, as well as under Articles  6 and 6 quinquies  of the Paris Convention  (1967) . 
The enforcement of the rights conferred under Article  16.1 of the TRIPS  Agreement  requires a 
consideration of whether a third party's use of a sign that is identical or similar to a registered 
trademark is likely to cause confusion. This assessment by its very nature involves comparing the 
third-party sign and the registered trademark in questio n. However, it does not follow from this, in 
our view, that special requirements under Article  20 would always need to be formulated and 
assessed in respect of individual trademarks, not least because these requirements govern the use 
of trademarks and hav e no bearing on their eligibility for registration nor on specific decisions 
whether to register an individual trademark. Similarly, we see no basis for transposing the rules on 
the registration or invalidation  of individual trademarks applicable in the si tuations covered under 
Article  6quinquies , to the interpretation of Article  20, which does not relate to the registration or 
invalidation of trademarks but to their use.5112 
7.2499.   Any special requirements on the use of trademarks, rather, should be considered under 
the terms of Article  20. As we have already noted, the obligation under Article  20 is that such 
requirements shall not be imposed "unjustifiably". This text is silent on whether such requirements 
concern t he use of individual trademarks, a class of trademarks, or use of trademarks in particular 
situations. We see no reason to assume that WTO Members may not choose to address the use of 
trademarks in a general manner, within the constraints of Article  20 and  other relevant provisions 
of the TRIPS  Agreement . 
7.2500.   Both the Dominican Republic and Australia cite the panel report in EC – Trademarks and 
Geographical Indications (US)  in support of their respective positions. The relevant passage reads 
as follows:  
The Pan el observes that Articles  7(4) and 14(3) of the Regulation do require a 
case-by-case analysis at the time of a decision on GI registration and, even though 
                                                
5112 With reference to Sections B and C of Article  6quinquies  of the Paris Convention  (1967), the 
Dominican  Republic  argues that, if a Member has not invalidated a specific trademark on the grounds that it is 
misleading or is otherwise contrary to morality, it cannot, under Article  20, deny the use of that trademark 
because of its features, unless it also considers that trademark on its individual merits. Dominican  Republic 's 
second written submission, paras.  214-223. As the Appellate Body has explained, " Article  6quinquies A(1) 
provides an alternative way of obtaining protection of that trademark in other countries of th e Paris Union". 
Appellate Body Report, US – Section 211 Appropriations Act , para. 134. Article  6quinquies , Section  B provides 
that those trademarks that are covered by that Article  may be neither denied registration nor invalidated 
except in certain specified cases, including when they are contrary to morality or public order and, in 
particular, of such a nature as to deceive the public. As we have noted, it is in the nature of trade mark 
protection that decisions on the registration or invalidation are taken in respect of a particular trademark, 
including in situations covered by Article  6quinquies . Honduras observes that, under Article  6quinquies  of the 
Paris Convention , Members are required to register and protect trademarks " telle quelle " under certain 
circumstances. It argues that this includes the ability to use a trademark, and that, therefore, deviations from 
the "telle quelle " rule in respect of use will depend on the individua l nature of each particular trademark. See 
para. 7.2447  above. In section 7.3 above , we found that the " telle quelle " rule under Article  6quinquies  does 
not relate to the ability to use a trademark. Therefore, it also does not follow from Article  6quinquies  that, 
under Article  20, whether speci al requirements on use have been imposed "unjustifiably" necessarily has to be 
assessed in respect of each individual trademark.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 744 - 
  they do not require a case -by-case analysis at the time of subsequent use, nothing in 
the text of Article 17 indicates that a case -by-case analysis is a requirement under the 
TRIPS  Agreement .5113 
7.2501.   As described above, Australia considers that the panel's conclusion applies a fortiori  to 
the interpretation of Article  20. For the Dominican Republic, it implies that, under Article  20, 
individual assessment is not always required but may be required depending on the circumstances. 
In the course of the proceedings, Honduras clarified that it does not believe that Article  17 
necessarily requires that a measure must address individual trademarks; rather, what matters is 
that the scope of the exception be "limited"; in its view, this supports its argument that under 
Article  20 encumbrances must have a "limited" nature.  
7.2502.   We note that, in the discussion preceding the cite d paragraph above, the panel in EC –
 Trademarks and Geographical Indications (US)  explained how the legitimate interests of the 
owner of a prior trademark are taken into account when a subsequent GI is registered under the 
relevant EC regulation. The same panel held that Article  17 does not require case -by-case analysis 
in respect of exceptions to the rights conferred under Article  16 and that the number of 
trademarks or trademark owners affected by an exception is not determinative in considering 
whether a n exception is "limited" for the purposes of Article  17.5114 This interpretation is consistent 
with prior interpretations of similar general exceptions clauses contained in Articles  13 and 30.5115  
7.2503.   We note that, in prior rulings on Article  175116, the term "limited " has not been 
understood to require that exceptions to the rights conferred be applied in respect of individual 
trademarks. The fact that the term "limited" in Article  17 does not imply that Members are 
necessarily required to formulate exceptions to the rights conferred in respect of individual 
trademarks supports the view that, similarly, Members are not necessarily required to formulate 
any special requirements under Article  20 in respect of individual trademarks. We further note that 
the term "limited"  is used in Article  17 to qualify permissible exceptions to the rights conferred 
under Article  16, while the distinct term "unjustifiably" is used in Article  20 to qualify special 
requirements that may be imposed on the use of trademarks.  
7.2504.   This view is also consistent with our understanding that Article  20 reflects the balance 
intended by the drafters of the TRIPS  Agreement  between the existence of a legitimate interest of 
trademark owners in using their trademarks in the marketplace, and th e right of WTO Members to 
adopt measures for the protection of certain societal interests that may adversely affect such 
use5117, including for public health reasons.  
7.2505.   In light of the above, we find that Article  20 does not require the unjustifiability of spec ial 
requirements under Article  20 to be in all cases assessed by a Member in respect of individual 
trademarks and their specific features. The extent to which an assessment of the unjustifiability of 
specific encumbrances will require an assessment on the basis of individual trademarks and their 
specific features will depend on the circumstances of the case. In particular, when a Member 
applies such requirements to a class of trademarks or to some specific types of situations rather 
than to the specific fea tures of particular trademarks, an assessment of unjustifiability of such 
requirements may need to focus on their overall rationale as it relates to the reason for adopting 
them.  
7.2506.   This interpretation is confirmed, in our view, by the negotiating history of Article  20, 
which provides some indication of the types of measures that Article  20 was designed to address. 
The first two examples in the illustrative list, namely "use with another trademark" and "use in a 
special form" already appeared in early proposal s of GATT Contracting Parties.5118 One such 
proposal included examples of the relevant policies applied by a number of countries at that time, 
                                                
5113 Panel Report, EC – Trademarks and Geographical Indications (US) , para. 7.672.  
5114 See Panel Report, EC – Trademarks and Geograp hical Indications (US) , paras.  7.650 and 7.654.  
5115 See Panel Reports, US – Section 110(5) Copyright Act (with respect to Article  13); and Canada  –
 Pharmaceutical Patents (with respect to Article  30). 
5116 Panel Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.644 -7.686.  
5117 See para. 7.2429  above.  
5118 See, e.g. the suggestions by the United States, Switzerland, and India in GATT documents 
MTN.GNG/NG11/W/14/Rev.1, p. 6; MTN.GNG/NG11/W/73 , Article  217; and MTN.GNG/NG11/W/37, 
para. 42(iv), respectively.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 745 - 
  namely the requirement to display the generic name on a drug in conjunction with a brand name, 
and the use of a fore ign trademark in conjunction with a domestic trademark.5119 Both practices 
concern policies applied to entire categories of trademarks.  
7.2507.   In the circumstances of the present case, we note Australia's explanation that the 
removal of stylized fonts, logos, emble ms and other branding imagery from trademarks on tobacco 
packaging and products is intended to prevent the use of such imagery to communicate specific 
messages to targeted demographic groups or to convey any positive associations. It further 
explains that the TPP measures  are not concerned with the specific features of particular 
trademarks; rather, their premise is that prescribing a standardized, plain appearance for tobacco 
packages and products is intended to minimize the ability of tobacco packages and  products to 
increase the appeal of tobacco products, detract from the effectiveness of graphic health warnings, 
or mislead consumers as to the harms of tobacco use. We consider that this approach is not, 
per se, unjustifiable. Rather, as described above, to the extent that the requirements at issue 
relate to an entire class of marks or signs, an assessment of their unjustifiability is best 
approached in terms of the extent to which this is supported by the reasons for their adoption. We 
will therefore cons ider further whether this is the case in respect of the TPP measures , as part of 
our analysis in the section 7.3.5.5.3.4  below.  
7.2508.   In light of the abo ve, we find that the complainants have not demonstrated that the 
trademark requirements of the TPP measures  are per se inconsistent with Australia's obligations 
under Article  20 on the grounds that they do not provide for individual assessment of trademark s 
and their specific features.  
7.3.5.5.2.3   Compliance with domestic regulatory procedures  
Main arguments of the parties  
7.2509.   Indonesia  argues the TPP measures  unjustifiably encumber the use of trademarks in the 
course of trade because Australia had failed to follow its own process in adopting plain packaging. 
More specifically, it asserts that one of the definitions for "justified" is "to show sufficient lawful  
reason for an act done". It adds that the definition of "lawful" is "being in harmony with the 
law".5120 It alleges that Australia failed to follow its established regulatory procedures during the 
passage of its TPP measures . This regulatory process was desi gned to determine, inter alia, 
whether the proposed TPP Regulations were "justified". Indonesia alleges that Australia had to 
bypass its regulatory process because the Government could not convince its own OBPR that the 
TPP measures  were justified. By circumventing this process, Australia failed to develop the very 
justification required by Article  20 for the encumbrances on tobacco trademarks imposed by its 
TPP measures .5121 
7.2510.   Australia  responds that it fully adhered to its own internal administrative and legislative 
processes in developing the TPP measures . It adds that, in any event, it is legally irrelevant to the 
interpretation and application of Article  20 whether Australia did or did not adhere to its own 
internal processes. In its view, the evaluation of whether special requirements imposed upon the 
use of a trademark are "unjustifiable" turns on the objective rationale for those special 
requirements, not on any question of adherence to domestic law.5122 
                                                
5119 India's proposal in GATT document MTN.GNG/NG11/W/37, para. 42(iv).  
5120 Indonesia's first written submission, para. 295 ( referri ng to Merriam -Webster online, definition of 
"lawful", < https://www.merriam -webster.com >, accessed 29 September 2014).  
5121 Indonesia's first written submission, para. 295-302 ( referring to  Howell Report, ( Exhibit UKR -4)). 
5122 Australia's first written submission, para. 423 and Part II.G.1. In footnote 603 to its first written 
submission, Australia explains that the Australian regulatory impact analysis process allows for a PIR in the 
circumstances where, for one reason or another, a RIS is not completed in relation to a regulatory proposal, 
and must commence within one to two years of implementation. The PIR is a similar process to that of a RIS. 
Australia adds that, consistent with Australian regulatory best practice, the PIR process for the TPP measures  
commenced by 1 December 2014. It states that "[t]hus, Indonesia is simply incorrect when it argues that the 
adoption of the tobacco plain packaging measure was not 'lawful' or 'in harmony with law'".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 746 - 
  Analysis of the Panel  
7.2511.   In Sectio n 7.3.5.5.1.3  above, we established the standard of review for assessing 
whether special requirements "unjustifiably" encumber the use of a tradema rk within the meaning 
of Article  20. We do not exclude the possibility that the manner in which a measure was prepared 
and adopted may inform the assessment of the unjustifiability of specific "special requirements" 
under that standard. However, in our vie w, Article  20 does not impose any specific independent 
obligation on Members as to how they should design their domestic legislative procedures or how 
those procedures should operate. A Member's compliance with its own domestic regulatory 
procedures does n ot, in itself, determine whether a Member has complied with its obligations 
under Article  20. 
7.2512.   We therefore do not consider it necessary to examine further Indonesia's arguments that 
Australia's alleged lack of compliance with its own domestic regulatory pr ocedures in the process 
leading to the adoption of the TPP measures  would, in and of itself, render the TPP measures  
inconsistent with Article  20. 
7.2513.   We note that, in section 2.1.2.9 above, we described the Australian regulatory impact 
analysis process and ho w the Australian Government carried it out in relation to the TPP measures , 
including by completing a PIR of tobacco plain packaging in February  2016.  
7.3.5.5.2.4   Whether encumbrances falling within the scope of the listed examples in the 
first sentence of Article  20 are presumed to be "unjustifiabl[e]"  
Main arguments of the parties  
7.2514.   Cuba argues in its first written submission that the trademark restrictions in the 
TPP measures  fall within the illustrative list of measures in the first sentence of Article  20 and, 
theref ore, are "presumptively invalid".5123 In other words, that sentence lists measures which are 
to be presumed to violate Article  20. In Cuba's view, this is implied by the use of the term "such 
as" immediately after the term "unjustifiably encumbered by special  requirements" and a comma. 
The listing that follows the comma is a listing of special requirements that involve unjustifiable 
encumbrances.5124  
7.2515.   Cuba argues that this position is supported by the text of Article  20, the context and the 
drafting history.5125 In particular, it argues that, since the second sentence of Article  20 provides 
that a subset of the listed measures is permissible, the appropriate inference is that the first 
sentence provides that the listed measures are impermissible.5126 In its view, the dr afting history 
indicates that each of the measures listed in the first sentence were subject of demands for 
proscription from participants in the Uruguay Round negotiations regardless of whether or not they 
could pass a test of justifiability; the eventual  inclusion of the listing in the first sentence suggest 
that the negotiators were able to reach consensus that this set of measures should be proscribed 
or at least presumed to be proscribed.5127 
7.2516.   In light of this, Cuba submits that "once a measure falls withi n the scope of the 
illustrative list then it is presumptively unjustifiable. In other words, unless the reviewing panel 
has a very high degree of confidence that the measure achieves a legitimate objective in a 
proportionate manner, it must rule that it vi olates Article  20 of the TRIPS  Agreement ."5128 
7.2517.   Australia  responds that "[t]he three examples provided in the first sentence of Article  20 
are merely illustrations of what might constitute 'special requirements', not illustrations of special 
requirements that are unjustifiable or 'presumptively unjustifiable'. This is evident from the 
                                                
5123 Cuba's first written submission, paras.  323-325. 
5124 Cuba's first written submission, para. 326. 
5125 Cuba's first written submission, paras.  328-330. 
5126 Cuba's first written submission, para. 329. 
5127 Cuba's first written submission, para. 330. 
5128 Cuba's first written su bmission, para. 331. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 747 - 
  placement of these three examples immediately after 'sp ecial requirements', introduced by 'such 
as'."5129 
7.2518.   In advance of its first meeting with the parties, the Panel requested all complainants to 
clarify whether they consider that the situations introduced by the terms "such as" in Article  20 
constitute "special requirements on use", or "encumbrances" or "unjustifiable encumbrances".5130 
7.2519.   Honduras  responds that it considers that the three situations introduced by the term 
"such as" in Article  20 are examples of "special requirements", which is clear from the fact that  
these three situations follow immediately the terms "such as", the ordinary meaning of which is "of 
a kind or character to be indicated or suggested". In its view, the text, context and negotiating 
history of Article  20 do not suggest that a "special requ irement" is by definition '"unjustifiable" 
within the meaning of this provision.5131  
7.2520.   The Dominican Republic  likewise considers that the illustrative list of examples that 
follows the term "such as" does not list examples of measures that necessarily involve unjustifiable 
encumbrances. It argues, inter alia, that although there is some ambiguity in the English and 
Spanish versions of the text, the French text suggests that the three examples involve "special 
requirements": the French version indicates that the  examples are "special requirements", since 
the term " telles que " (or "such as") is inscribed in the plural and accords with the term 
"prescriptions spéciales " (or "special requirements").5132  
7.2521.   Indonesia  understands that the illustrative list of special requi rements provides examples 
of measures that "encumber use in the course of trade".5133 
7.2522.   Cuba "refers the Panel to the reply given by Honduras, which Cuba endorses inasmuch as 
it considers that the examples introduced by 'such as' are examples of special require ments that 
encumber the use of trademarks".5134 
Main arguments of the third parties  
7.2523.   Canada  takes the view that the listed examples are not examples of "unjustifiable" special 
requirements that encumber the use of a trademark; rather, the obligation establishe s that the 
listed requirements, like other similar requirements, must not "unjustifiably" burden the use of a 
trademark. Requirements that "justifiably" encumber how a trademark may be used do not violate 
Article  20.5135 This interpretation is substantiated b y the French text.5136 Furthermore, it is 
supported by the negotiating history: the word "unjustifiably" was inserted into the text (initially in 
square brackets) after a general consensus had been achieved on the list of "special requirements" 
to be included . In its view, this demonstrates that the requirements in the list were not considered 
to be "unjustifiable", and that the term was included to provide Members with the opportunity to 
justify any potential offending measure.5137 
7.2524.   Singapore  discusses Cuba's arg uments relating to the text of Article  20, the context and 
the drafting history.5138 In particular, it argues that it would be erroneous to infer from the fact 
that the second sentence of Article  20 refers to requirements that are permissible that the three 
examples listed in the first sentence are therefore presumptively unjustified. Instead, one can only 
say definitively that a justification is not required in respect of a measure falling within the second 
sentence of Article  20.5139 Commenting on the negotiati ng history, Singapore notes that the 
eventual outcome of Article  20 was a compromise among countries that demanded the 
proscription of certain measures regardless of whether or not they could pass a test of 
                                                
5129 Australia's first written submission, para. 422. 
5130 Panel question No. 39. 
5131 Honduras's response to Panel question No. 39, p. 17. 
5132 Dominican  Republic 's response to Panel question No. 39, paras.  156-157 and 164.  
5133 Indonesia's response  to Panel question No. 39, para. 44. 
5134 Cuba's response to Panel question No. 39 (annexed to its response to Panel question No. 138).  
5135 Canada's third -party submission, para. 69. 
5136 Canada's third -party submission, paras.  71-72. 
5137 Canada's third -party submission, para. 73. 
5138 Singapore's third -party submission, paras.  39-42. 
5139 Singapore's third -party submission, para. 40. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 748 - 
  justifiability, those that wished to leave the ma tter of use of trademarks to national legislation, and 
others that proposed to proscribe certain special requirements unless they are not unjustifiable.5140 
Singapore submits that, in light of the negotiating history, the interpretation that best reflects the  
intention of the drafters is one where the examples listed in the first sentence of Article  20 are 
encumbrances that are not allowed if they are unjustifiable, while the example contained in the 
second sentence of Article  20 is permitted because it is deemed justifiable.5141 
Analysis of the Panel  
7.2525.   As noted earlier, the term "such as" is placed immediately after the term "special 
requirements", indicating that the enumeration that follows identifies examples of "special 
requirements". As noted by both the Do minican Republic and Canada, in the French version, the 
term " telles que " in its plural form refers to " des prescriptions spéciales ".5142  
7.2526.   We therefore find that the situations identified in this list are illustrations of special 
requirements, rather than exa mples of encumbrances that are presumptively "unjustifiable". 
Special requirements falling within the scope of one of the three examples are therefore subject to 
the same obligation as other special requirements, namely that they shall not unjustifiably 
encumber the use of a trademark in the course of trade.  
7.2527.   This interpretation is confirmed, in our view, by the negotiating history of Article  20.5143 
The draft text proposals introduced during the first half of 1990 fell into three categories: they 
would have ei ther prohibited special requirements that encumber the use of trademarks, allowed 
them provided that such use was not encumbered "unjustifiably", or left the regulation of any 
conditions for the use of trademarks entirely for domestic regulation.5144 These dr aft texts formed 
the basis for the subsequent drafts.5145 The negotiators eventually settled on the second 
formulation that disallows only those special requirements that "unjustifiably" encumber the use of 
a trademark in the course of trade.5146  
7.2528.   In light of th e above, and of our earlier finding in paragraph 7.2526 , we do not consider it 
necessary to examine further, for the purposes of addressing Cuba's claim of per se violation, 
whether the special requirements that are part of the TPP measures  fall within the scope of the 
illustrative list in the first sentence of Article  20. 
                                                
5140 Singapore's third -party submission, para. 41. 
5141 Singapore's third -party submission, para. 42. 
5142 In the French text, the first sentence of Article  20 reads as follows: "L'usage d'une marque de 
fabrique ou de commerce au cours d'opérations commerciales ne sera pas entravé de manière injustifiable par 
des prescriptions spéciales, telles que l'usage sim ultané d'une autre marque, l'usage sous une forme spéciale, 
ou l'usage d'une manière qui nuise à sa capacité de distinguer les produits ou les services d'une entreprise de 
ceux d'autres entreprises." The Spanish text is "como por ejemplo".  
5143 We note that C uba and Honduras, as well as Canada and Singapore, discuss the negotiating history 
of Article  20 to shed light on the role of the three examples. While Cuba explains that each of the measures 
listed in the first sentence of Article  20 were discussed by the  negotiators, Singapore notes that the eventual 
outcome was a compromise between three categories of proposals by the GATT 1994 Contracting Parties.  
5144 Proposals by the European Communities, the United States, Switzerland, and Japan, and a group of 
twelve c ountries, namely Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, India, Nigeria, Peru, Tanzania, 
and Uruguay, circulated in GATT documents MTN.GNG/NG11/W/68 (European Communities), 
MTN.GNG/NG11/W/70 (United States), MTN.GNG/NG11/W/73 and Corr.1 (Sw itzerland), MTN.GNG/NG11/W/74 
(Japan) and MTN.GNG/NG11/W/71 (Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, India, Nigeria, 
Peru, Tanzania, and Uruguay). Proposals relating to special requirements made at earlier stages of the 
negotiations can be found in GATT documents MTN.GNG/NG11/W/14 and Rev.1 (United States), and 
MTN.GNG/NG11/W/35 and Corr.1 (Australia), MTN.GNG/NG11/W/37 (India), MTN.GNG/NG11/W/38 and Add.1 
(Switzerland), MTN.GNG/NG11/W/47 (Canada), and MTN.GNG/NG11/W/51 (Hong Kong).  
5145 GATT d ocuments MTN.GNG/NG11/W/76 and MTN.TNC/W/35/Rev.1.  
5146 See p. 65 of the December 1991 Draft Final Act Embodying the Results of the Uruguay Round of 
Multilateral Trade Negotiations, GATT document MTN.TNC/W/FA, known as the "Dunkel draft". There were no 
furthe r changes to the text of Article  20 before the adoption the TRIPS Agreement as part of the Uruguay 
Round results.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 749 - 
  7.3.5.5.3   Application to the TPP measures  
7.3.5.5.3.1   Introduction  
7.2529.   We recall our finding in paragraph 7.2430  that a determination of whether the use of a 
trademark in the course of trade is being "unjustifiably" en cumbered by special requirements 
should involve a consideration of the following factors:  
a. the nature and extent of the encumbrance resulting from the special requirements, 
bearing in mind the legitimate interest of the trademark owner in using its tradema rk in 
the course of trade and thereby allowing the trademark to fulfil its intended function;  
b. the reasons for which the special requirements are applied, including any societal 
interests they are intended to safeguard; and  
c. whether these reasons provide s ufficient support for the resulting encumbrance.  
7.2530.   We also noted that the manner in which the different interests at issue should be 
"weighed and balanced" in order to reach a conclusion as to whether an encumbrance should be 
found to be "unjustifiable" need s to be determined on a case -by-case basis, in the light of the 
particular circumstances of the case.  
7.2531.   We first consider the nature and extent of the encumbrances resulting from the 
trademark requirements of the TPP measures , and then the reasons for which these special 
requirements are applied. We will then consider whether these reasons provide sufficient support 
for the resulting encumbrances, taking into account the manner in which the special requirements 
relate to the reasons for which they are applied , including whether they can and do contribute 
towards the societal interests they are intended to safeguard. In this context, we will weigh and 
balance the different interests at issue to reach a conclusion as to whether the encumbrances 
resulting from th e TPP measures  should be found to "unjustifiably" encumber the use of 
trademarks in the course of trade.  
7.3.5.5.3.2   Nature and extent of the encumbrance resulting from the TPP measures  
7.2532.   As outlined above, we now turn to whether the trademark -related special requiremen ts in 
the TPP measures  "unjustifiably" encumber the use of a trademark in the course of trade. We first 
consider the nature and extent of the encumbrances on the use of trademarks resulting from these 
requirements.  
7.2533.   We recall our finding above that Article  16.1 of the TRIPS  Agreement  provides for a 
registered trademark owner's right to prevent certain activities by unauthorized third parties under 
the conditions set out in the first sentence of Article  16.1.5147 In addition, Members have 
undertaken, under Article 20, not  to unjustifiably encumber by special requirements the use of a 
trademark in the course of trade. In paragraph 7.2286  above, we found that the relevant "use" for 
the purposes of Article  20 is not limited to the use of a trademark for the specific purpose of 
distinguishing the goods and services of one undert aking from those of other undertakings. In the 
following, we consider the implications that these constraints have in the marketplace, both on a 
trademark's ability to distinguish goods and services in the course of trade and on a trademark 
owner's ability  to extract economic value from the use of its trademark.  
7.2534.   The focus of our analysis at this stage is on the nature and extent of the encumbrances 
on the use of a trademark in the marketplace, to enable us to properly weigh the impact of these 
constraints against the reasons for which the special requirements are applied, and to consider 
whether these reasons provide sufficient support for the resulting encumbrances.  
                                                
5147 Para. 7.1978  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 750 - 
  Main arguments of the parties5148 
7.2535.   Honduras  argues that "[t]rademarks are an essential element of commercial life. It is 
impossible to conceive of a sophisticated economy that does not feature the systematic use of 
trademarks by commercial operators."5149 It adds that the use of a trademark forms an essential 
part of the legal rights and obligations un der Articles  15 to 21, as well as the policies and norms 
underpinning these legal rights and obligations. From a commercial perspective, a merchant will 
expend time and financial resources into creating a trademark only if it can subsequently use the 
trade mark and earn profits from that use.5150 Similarly, from a legal perspective, the concept of 
"use" pervades the TRIPS legal framework governing trademarks.5151  
7.2536.   Honduras adds that "the core function of trademarks – namely distinguishing goods and 
services of the  trademark owner – as well as the trademark protection under the TRIPS  Agreement  
depends on the actual use of the trademark in the course of trade".5152 It adds that o rigin, quality 
and other characteristics are at the heart of the distinguishing function tha t any trademark plays in 
the marketplace.5153 
7.2537.   The Dominican Republic  argues that, in a market economy, competition requires 
perceptible differences between competing goods and services, such as differences in price, quality 
and availability. For consumer good s, branding plays a critical role in promoting difference in the 
marketplace. Consumers are usually willing to pay a premium for this guarantee of the quality, 
characteristics and reputation of the product.5154 By distinguishing goods and services in the 
marketplace, and by signalling quality, characteristics, and reputation to consumers, trademarks 
create valuable competitive opportunities for producers and exporting countries.5155 The Dominican 
Republic contends that it cannot accept Australia's efforts to prev ent its producers from continuing 
to compete by using trademarks and GIs to signal the premium quality, characteristics, and 
reputation of their products.5156 
7.2538.   The Dominican Republic adds that differentiation through trademarks enables competitive 
opportunitie s by facilitating the development of consumer loyalty, and thereby sustaining market 
share and supporting price premiums.5157 TRIPS provisions on trademarks promote competitive 
opportunities by requiring Members to protect the ability of goods and service sup pliers to 
distinguish their products from those of other suppliers.5158 In order to serve the function of 
distinguishing goods or services, a sign must be used in connection with those goods or 
services.5159 Without the ability to use trademarks in commerce, the  benefits that warrant the 
international protection of trademarks disappear.5160 Article  20, in particular, serves a critical role 
in the TRIPS  Agreement , acting as a crucial element in the trademark regime as a whole, by 
seeking to ensure that, in principle at least, trademarks can perform their basic function of 
distinguishing goods or services through use in commerce.5161 The TPP measures  impose a severe 
                                                
5148 The parties have not provided arguments that specifically address the "nature and extent" of the 
encumbrance on the use of a trademark, under the exact heading used in this section, which reflects the test 
for determining whether the use of a trademark  in the course of trade is being "unjustifiably" encumbered by 
special requirements we have clarified above. Nonetheless, the parties have extensively discussed the 
implications of the trademark requirements of the TPP measures  on the use of trademarks in the  course of 
trade. We also note that some of the arguments exchanged on this issue overlap with their discussion of the 
trade -restrictiveness of the TPP measures  under Article  2.2 of the TBT Agreement . 
5149 Honduras's first written submission, para. 143. 
5150 Honduras's first written submission, paras.  166-167. 
5151 Honduras's first written submission, para. 168. We have considered the related arguments 
concerning the legal interpretation of the relevant provisions of the TRIPS Agreement in the context of those 
particular provisions.  
5152 Honduras's first written submission, para. 272. 
5153 Honduras's response to Panel question No. 167, p. 21. 
5154 Dominican  Republic 's first written submission, paras.  10-12. 
5155 Dominican  Republic 's first written submission, para. 16. 
5156 Dominica n Republic 's first written submission, para. 22. 
5157 Dominican  Republic 's first written submission, para. 209. 
5158 Dominican  Republic 's first written submission, para. 220. 
5159 Dominican  Republic 's first written submission, para. 225. 
5160 Dominican  Republic 's firs t written submission, para. 243. 
5161 Dominican  Republic 's first written submission, para. 344. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 751 - 
  encumbrance, through special requirements, on word marks, composite marks and figurative 
marks.5162 
7.2539.   Cuba under lines "the essential role that trademarks play in any economy, developed or 
developing, capitalist or socialist, in enabling consumers to make informed choices when they 
purchase goods or services and in creating incentives for suppliers to invest in quali ty". By creating 
consumer uncertainty, the TPP measures  reduce the willingness of consumers to reward the Cuban 
industry's investments in quality by paying a premium for Cuban products.5163 
7.2540.   Indonesia  argues that, as the definition of "trademark" in Article  15.1 of the 
TRIPS  Agreement  reflects, the principal function of a trademark is to differentiate the goods and 
services of one company from those of another. The distinguishing function of trademarks gives 
customers a shorthand way of identifying products a nd their associated quality. It also promotes 
competition in the marketplace by providing a means for consumers to differentiate between 
products and by giving trademark owners an incentive to maintain the quality that consumers 
expect from their products.  The removal of distinctive brand packaging from cigarettes reduces the 
willingness of consumers to pay for premium cigarette brands.5164 A trademark owner's ability to 
use its trademark underlies the ability to differentiate products and promote competition in the 
marketplace. Therefore, use has become a cornerstone of trademark protection.5165 It asserts that 
"[t]he intent of [the TPP measures ] is to destroy even a legally registered trademark's ability to 
convey meaningful information to consumers about a lega l product".5166 
7.2541.   Australia  responds that the TPP measures  ensure that tobacco manufacturers can 
continue to distinguish their products from those of other manufacturers in the course of trade by 
allowing them to use company, brand and variant names on tobacco retail packaging. In addition, 
Section  28 of the TPP Act and other features of Australian law ensure that the inability of tobacco 
manufacturers to use certain types of trademarks (such as figurative trademarks) on tobacco 
products and packaging does not i mpair their rights under Australian law in respect of the 
registration and enforcement of such trademarks.5167  
7.2542.   Australia argues that the TPP measures  restrict the ability of trademarks (as well as other 
signs and branding elements) to serve a promotional fun ction by prohibiting the use of 
non-standardized fonts, colours and logos on the retail packaging of tobacco products.5168 The use 
of logos, emblems or other branding imagery on packaging can communicate specific messages to 
targeted demographic groups.5169 In line with the Article  13 FCTC Guidelines, the measures are 
designed to eliminate the opportunity to use the package as a medium for advertising and 
promoting, and to convey any positive associations.5170 Furthermore, the TPP measures  lead to a 
greater noticeab ility of health warnings, largely because the visual interference and competition of 
brand images are greatly reduced.5171 The elimination of design features also contributes to 
reducing the ability of the pack to mislead consumers.5172 
7.2543.   Australia argues that clo sely related to the distinguishing function ("source identification" 
function) is the function of indicating that products bearing the same trademark are manufactured 
under the control of the same commercial source and that, as a result, consumers may expe ct a 
consistency of experience with products bearing that trademark (sometimes referred to as the 
"quality" or "guarantee" function of trademarks).5173 But the use of a trademark to advertise and 
promote the trademarked product is not part of the distinguishi ng function of a trademark.5174  
                                                
5162 Dominican  Republic 's second written submission, paras.  111-127 and 201 -204. 
5163 Cuba's first written submission, paras.  333 and 337.  
5164 Indonesia's first written submission, paras.  132-136. 
5165 Indonesia's first written submission, para. 137. 
5166 Indonesia's first written submission, para. 267. 
5167 Australia's first written submission, para. 5. 
5168 Australia's first written submission, para. 86. 
5169 Australia's first written submission, para. 89. 
5170 Australia's second written submission, paras.  291-292. 
5171 Australia's first written submission, para. 176. 
5172 Australia's first written submission, paras.  187-200. 
5173 Australia's second written submission, para. 90. 
5174 Australia's second written submission, para. 95. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 752 - 
  7.2544.   In Australia's view, the complainants' assertion that trademarks serve to distinguish 
goods and services in commerce in terms of the "quality, characteristics, and reputation" of the 
product is a euphemism that the complainant s have seized upon in order to describe the use of 
trademarks to advertise and promote tobacco products .5175 As regards "quality", the TPP measures  
permit tobacco companies to use trademarked brand and variant names on retail tobacco 
packaging, thus allowing consumers to expect a consistency of experience with tobacco products 
bearing those trademarks, but curtail the use of trademarks to create "artificial" perceptions.5176 
As regards "characteristics", the TPP measures  do not impede the use of trademarks to con vey 
information about the actual characteristics of tobacco products, but reduce the opportunities for 
tobacco companies to use figurative elements, colours, stylized typefaces, and other design 
elements to associate their products with particular social o r attitudinal "characteristics" 
(masculinity, femininity, etc.) or with other positive associations that are not actual characteristics 
of the product (such as purity, cleanliness, or healthiness).5177 As regards "reputation", it is only 
through repeated use of the trademarked product that consumers may come to expect a particular 
experience with products bearing that trademark; Australia considers that the complainants are 
likely referring to the use of trademarks to impart a particular social or attitudinal "reputation" to 
tobacco products, as in "this cigarette has the reputation of being smoked by men", or "this 
cigarette has the reputation of being smoked by cool kids".5178 
7.2545.   Australia asserts that the complainants have presented no evidence that any special 
requirements imposed by the TPP measures  encumber the use of trademarks to distinguish the 
tobacco products of one undertaking from those of other undertakings. Rather, the TPP measures  
allow tobacco companies to use brand and variant names on retail tobacco  packaging in order to 
distinguish their products from those of other undertakings.5179 
7.2546.   In response to the Panel's question on whether there is any empirical evidence on 
consumers being unable to distinguish the goods of one undertaking from those of other 
undertakings with respect to the commercial source of those goods, Honduras  submits that it is 
not aware of any empirical study following the implementation of the TPP measures  showing that, 
as a result of the measures, consumers would have been unable to distinguish the goods of one 
undertaking from those of other undertakings with respect to the commercial source of those 
goods. It, however, underscores that such quantitative data would not in any way assist the Panel 
in the resolution of the claims under the TRIPS  Agreement  in the present disputes, because there 
is no specific requirement for the level of "actual confusion" among consumers or a specific 
"sufficiency" level for  distinguishing products that is required by the TRIPS  Agreement .5180 
7.2547.   Honduras argues that whether or not trademarks perform functions other than identifying 
and distinguishing the source of the product depends on the circumstances in the market and the 
manne r in which the proprietor uses the mark. "Certainly, depending on the product, trademarks 
could be used ' in advertising'. However, that does not mean that, on tobacco products, trademarks 
are used for advertising in Australia because advertising has not be en allowed for tobacco products 
in nearly the last 25 years. Nowadays, trademarks on tobacco products just communicate source 
and quality to consumers."5181 
7.2548.   Cuba responds that it does not have empirical evidence showing that , as a result of the 
TPP measures , consumers have been unable to distinguish the goods of one undertaking from 
those of other undertakings with respect to the commercial source of those goods. It, however, as 
also indicated by Honduras in its reply, considers this to be irrelevant to the pr esent case.5182 
7.2549.   As regards the role of a trademark, Cuba argues that consumers do not pay a higher 
price for Cuban cigars as recognition of the identity of the producer; consumers pay the premium 
because they subscribe to the trademark proposition communicate d by a trademark. The 
manufacturers of prestige and luxury goods would not commit very substantial funds to marketing 
                                                
5175 Australia's second written submission, paras.  98 and 118.  
5176 Australia's second written submission, paras.  105-108. 
5177 Australia's second written submission, paras.  109-114. 
5178 Australia's second w ritten submission, paras.  115-117. 
5179 Australia's second written submission, para. 121. 
5180 Honduras's response to Panel question No. 168, p. 22. 
5181 Honduras's opening statement at the second meeting of the Panel, para. 12. (emphasis original)  
5182 Cuba's response to Panel question No. 168, p. 11. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 753 - 
  and global promotion of their trademarks if they would simply serve to identify a producer. For 
high-end luxury goods, trademarks are a me ans to signal status and prestige, a guarantee of 
quality, and a fundamental means of product differentiation.5183 
7.2550.   Indonesia  responds that, since the legal standard under the TRIPS  Agreement  does not 
require evidence of actual confusion in order to make out a claim of "likelihood of confusion" or 
"deceptive similarity", it has not expended its limited resources collecting evidence on whether 
consumers have been unable to distinguish the goods  as a result of the TPP measures . In its view, 
the question before the Panel is not whether there is evidence of actual confusion in the Australian 
market but (i) whether there is a likelihood of confusion given that consumers have imperfect 
recollections and cigarette packs are now stripped of all distinguishing features; and (ii) whether 
the trademark owner of a figurative or stylized mark can protect itself against infringement with no 
minimum opportunity to use the mark.5184 
7.2551.   Indonesia argues that the comme rcial source is only one indicator of the quality, 
characteristics, and reputation of a product, and is not always sufficient to prevent confusion. In its 
view, the evidence in the Australian market shows that word marks on tobacco products do not 
adequate ly distinguish quality, characteristics, and reputation. Specifically, the TPP measures  have 
led to downtrading from higher - to low -priced tobacco products, which shows that the distinctions 
between brands have weakened, consumer loyalty has lessened, and switching between brands 
has increased.5185 
7.2552.   The Dominican Republic  argues that the distinguishing function of a trademark reflects a 
spectrum, where each additional distinguishing feature enhances the distinguishing power of the 
trademark on the spectrum. Cor respondingly, interference with each additional feature lessens 
that distinguishing power. As regards figurative and composite marks, each trademark design 
feature is a distinct means by which consumers differentiate the relevant good. Trademark design 
features are potent visual cues that can be readily recognized by consumers. A distinctive typeface 
of a word mark makes an incremental contribution to distinguishing one competing good from 
another. The removal of these differentiating features means that th e relevant quality, 
characteristics, and reputation are not adequately communicated to consumers, as they would be 
absent the TPP measures . The Dominican Republic claims that the evidence in the Australian 
market shows that the word marks on tobacco produc ts do not adequately distinguish commercial 
source, quality, characteristics, and reputation. Specifically, the TPP measures  have led to 
downtrading from higher - to low -priced tobacco products, which shows that the distinctions 
between brands have weakened , consumer loyalty has lessened, and switching between brands 
has increased.5186 
7.2553.   The Dominican Republic adds that the TPP measures  are designed, structured, and 
implemented to eliminate the opportunity for producers to differentiate their products using design 
features, such as trademarks, as well as the pack shape, size, opening mechanism, and 
compositional material. This differenti ation engenders consumer loyalty and, in turn, increases 
consumers' willingness to pay. Consumers' perceptions of the quality of competing brands are 
based on a combination of (i) functional benefits and (ii) intangible benefits that consumers derive 
from each brand. The disproportionate impact on the perceived intangible benefits of premium 
products translates into reduced loyalty and a reduced willingness to pay for the premium 
products.5187 Professor Steenkamp, an expert for the Dominican Republic and Hondu ras, explains 
in his rebuttal report:  
Brand logo, font, color, and other brand -related packaging elements are important 
channels through which consumer quality perceptions are built and sustained 
(Richardson et al. 1994, Stokes 1985, Wells et al. 2007). Ar ibarg et al. (2014) argue 
that brand packaging is crucial to build and maintain positive and unique associations, 
as a means to differentiate the brand from competitor product offerings. … Under PP, 
                                                
5183 Cuba's opening statement at the second meeting of the Panel, paras.  37-38. 
5184 Indonesia's response to Panel question No. 168, paras.  32 and 34.  
5185 Indonesia's response to Panel question No. 167, paras.  29 and 31.  
5186 Dominican  Republic 's responses to Panel question Nos. 167 and 168, paras.  173, 181, 184, and 
185. 
5187 Dominican  Republic 's second written submission, paras.  933-936. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 754 - 
  brand -specific elements are eliminated, thereby reducing the contribution of branding 
to the intangible benefits for both premium and value brands.  
Consumers' perceptions of the quality of different brands are based on a mix of the 
functional benefits (e.g., taste, flavor, etc.) and intangible benefits delivered  by that 
brand. Consumers of premium brands generally perceive greater functional benefits 
and intangible benefits for premium brands than for value brands. Often, the 
differences in intangible benefits are greater between premium and value brands than 
the differences in functional benefits (Park and Srinivasan 1994), and packaging plays 
an important part in establishing and maintaining the high intangible benefits 
attributed to premium products. Thus, while the intangible benefits decrease for both 
value a nd premium brands when differentiation decreases, the decrease in intangible 
benefits for premium brands significantly exceeds the decrease in intangible benefits 
for value brands.5188 
7.2554.   The Dominican Republic explains that Professor Steenkamp dedicated a porti on of his 
second rebuttal report to elaborating on the meaning of the term "intangible benefits".5189 He 
defines the concept of "intangible benefits" as follows:  
[T]he concept of "intangible benefit", as I have used it, relates to the benefit that 
comes from a consumer being able to rely, with a high degree of certainty, on the fact 
that the product they are purchasing has certain expected qualities and/or 
characteristics. In that case, the "intangible benefit" arises from the assurance – 
increased certainty – that a consumer derives about the product's quality and 
characteristics from the distinguishing design features, such as branding and 
trademarks.5190 
7.2555.   Australia  responds that the article to which Professor  Steenkamp refers, Park and 
Srinivasan 1994, discusses  the intangible benefits that products derive from brands. Based on the 
discussion in that article, there are two components to the intangible value that brands provide, 
namely (i) favourably biased attribute perception through which a consumer perceives t he 
attributes of the product more favourably than an objective measurement of those attributes 
would suggest; and (ii) the non -attribute based component capturing brand associations unrelated 
to product attributes (e.g. the masculine image conveyed by the Marlboro Man).5191 Australia 
considers Professor Steenkamp's definition of "intangible benefits" in his second rebuttal report to 
be inconsistent with his earlier published views and the use of the term more generally in 
marketing literature.5192 In Australia's view, it is clear from the context that when 
Professor  Steenkamp accepted in his rebuttal report that removing brand -specific elements from 
packaging reduced the contribution of branding to the intangible benefits of both premium and 
value brands, he was r eferring to all of the non -tangible features with which brands can imbue 
                                                
5188 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  92-93. 
5189 Dominican  Repub lic's response to Panel question No. 169, para. 187. 
5190 Steenkamp Second Rebuttal Report, (Exhibit DOM/HND -19), para. 45. Professor Steenkamp 
summarizes his views by explaining that "premium brands provide 'intangible benefits' to consumers, by 
offering an assurance that the product being purchased has the tangible qualities and characteristics expected 
by the consumer. In other words, these intangible benefits are the assurance that the brand will deliver on the 
promised tangible benefits and characteristic s based on the brand's reputation. Accordingly, intangible benefits 
reduce consumer uncertainty with respect to product choice, and these benefits are conveyed to consumers by 
the brand's name, logo, font and stylistic elements." Ibid. para. 6. 
5191 Australia 's comments on responses to Panel question No. 169, para. 146 (referring to  Park and 
Srinivasan 1994 , (Exhibit AUS -619), p. 272).  
5192 Australia's comments on responses to Panel question No. 169, paras.  145-153. Australia quotes 
from Kumar and Steenkamp, Private Label Strategy , (Exhibit AUS -601), p. 99:  
 
Manufacturer brands offer something intangible that most private labels do not (yet) offer. They allow 
consumers to identify with the values imbued in the brand, and help consumers express who they are 
and how these brands fit into their lifestyle and self -concept. Brand imagery refers to the personalized 
social -emotional bond the consumer has with a brand. What does the brand stand for, and does that 
appeal to me … For example, brands like Marlboro, Harle y-Davidson, Jack Daniels, and Levi's glamorize 
American ideals of the West, strength and masculinity.  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 755 - 
  products and which are attractive to consumers.5193 Australia maintains that it is precisely these 
intangible benefits that the TPP measures  are aimed at curtailing.5194 
Analysis by the Pan el 
7.2556.   We recall that, as described above, in respect of retail packaging of tobacco products, the 
TPP measures  permit the use of word marks that denote the brand, business or company name, or 
the name of the product variant, so long as these trademarks appear  in the form prescribed by the 
TPP Regulations , but prohibit the use of stylized word marks, composite marks and figurative 
marks. In respect of tobacco products, the TPP measures  prohibit the use of all trademarks on 
cigarettes, and, in respect of cigars,  permit the use of trademarks denoting the brand, business or 
company name, or the name of the product variant, as well as the country of origin, so long as 
these trademarks appear in the form prescribed by the TPP Regulations .5195 
7.2557.   The complainants emphasize the far -reaching nature of the TPP measures ' prohibitions on 
the use on tobacco retail packaging and products of figurative trademarks, as well as of the 
figurative and stylized elements of composite and word marks. We agree that such prohibitions are 
far-reaching. Figurative elements, combinations of colours, and combinations of signs, form part of 
the definition of the protectable subject -matter under Article  15.1. Their inclusion in this definition 
suggests that the drafters of the TRIPS  Agreement  consid ered that it is possible to use such 
non-word trademark content to distinguish the goods of one undertaking from those of other 
undertakings. The TPP measures  eliminate the possibility of applying figurative trademarks, or 
figurative or stylized elements o f composite and word marks to tobacco retail packaging and 
products, to distinguish the goods of one undertaking in this manner from those of other 
undertakings.  
7.2558.   The TPP measures  thus prevent any non -word components of the relevant trademarks, 
such as font s, size, colours and placement of the trademark on the product, as well as all other 
distinctive visual content, from contributing to distinguishing the products in the marketplace. As 
described above5196, in the complainants' view, the removal of figurative elements has undermined 
the ability of trademarks to signal tobacco products' quality, characteristics and reputation to 
consumers. The Dominican Republic distinguishes between functional (or tangible)  benefits and 
intangible benefits that consumers derive from each brand. It argues that the TPP measures  have 
a disproportionate impact on the perceived intangible benefits of premium products. The 
complainants further emphasize that, by eliminating the op portunity to differentiate tobacco 
products by using design features, the TPP measures  result in reduced consumer loyalty and 
willingness to pay for premium products, which  leads to downtrading in the Australian market.  
7.2559.   Australia, however, considers that t he operation of the TPP trademark requirements 
should be viewed as a whole. It argues that the TPP measures  ensure that tobacco manufacturers 
can continue to distinguish their products from those of other manufacturers in the course of trade 
by allowing th em to use company, brand and variant names on tobacco retail packaging. Taking 
the permissive and prohibitive aspects of the measures together, Australia claims that the 
TPP measures  have not affected tobacco companies' ability to use trademarks to disting uish their 
products in the course of trade. It emphasizes that the prohibition on the use of figurative and 
stylistic elements is merely intended to prevent the use of such elements for promotional purposes 
and to convey any positive associations, as well as to improve the noticeability of health warnings 
and to reduce the ability of the pack to mislead consumers.5197 
7.2560.   We recall that the Panel in EC – Trademarks and Geographical Indications  explained that:  
The function of trademarks can be understood by refere nce to Article  15.1 as 
distinguishing goods and services of undertakings in the course of trade. Every 
trademark owner has a legitimate interest in preserving the distinctiveness, or 
capacity to distinguish, of its trademark so that it can perform that fun ction. This 
                                                
5193 Australia's comments on responses to Panel question No. 169, para. 154. 
5194 Australia's comments on responses to Panel question No. 169, para. 153. 
5195 For further details, see sections 2.1.2.3.3 and 2.1.2.4 above.  
5196 See section " Main arguments of the parties " within section 7.3.5.5.3.2  above.  
5197 See section " Main arguments of the parties " within section 7.3.5.5.3.2  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 756 - 
  includes its interest in using its own trademark in connection with the relevant goods 
and services of its own and authorized undertakings. Taking account of that legitimate 
interest will also take account of the trademark owner's interest in t he economic value 
of its mark arising from the reputation that it enjoys and the quality that it 
denotes.5198 
7.2561.   Although this passage concerns the panel's analysis of "the legitimate interests of the 
owner of the trademark" in Article  17, it provides useful con textual guidance as regards the 
legitimacy of concerns about constraints on the use of trademarks also for the purposes of 
Article  20. Furthermore, we recognize the importance of use of trademarks so that they can serve 
to distinguish products in the marke tplace.  
7.2562.   Recognizing the legitimacy of the trademark owner's interest in using its trademark for 
various purposes, including to identify the source of the product and communicate benefits of the 
product, whether functional or intangible, we need to consider  the impact of the TPP measures  on 
the right holder's ability to use trademarks for these various purposes. We also recognize that the 
impact of these measures may vary between the different purposes for which the right holder may 
wish to use its trademark . 
7.2563.   As discussed in section 7.3.5.4.2  above, we consider that the relevant "use … in the 
course of trade" under Article  20 is not limited to a partic ular function of trademarks. We recall in 
particular our finding in paragraph 7.2286  that such "use" is not limited to the use of a trademark 
to dis tinguish the goods and services of one undertaking from those of other undertakings. 
Article  20 does not distinguish between different functions that trademarks may serve in the 
marketplace. We therefore need not take a view on how to characterize these fu nctions. As 
described above, a consideration of the relevant "use" for the purposes of Article  20 should be 
based on the "fact" of use in the course of trade. In our view, it would be inappropriate to conflate 
actual trademark use with the different functi ons served by such use.5199 In the following, we will 
focus on the implications of the TPP trademark requirements on a trademark's ability to distinguish 
goods and services of undertakings in the course of trade and on the ways in which a trademark 
owner migh t wish to use its trademark in the marketplace, as well as how these requirements 
affect consumers.  
7.2564.   We first note that the TPP measures  allow undertakings to use word marks that denote 
the brand, business or company name, or the name of the product variant on retail packaging of 
tobacco products for the purposes of distinguishing their tobacco products from those of other 
undertakings. Th e complainants have not sought to demonstrate that consumers have in fact been 
unable to distinguish the commercial source of tobacco products of one undertaking from those of 
other undertakings (i.e. the identity of the source or maker of the product) as a result of the TPP 
trademark requirements. However, as described above, they argue that the removal of figurative 
elements has undermined the ability of trademarks to signal individual tobacco products' quality, 
characteristics and reputation to consumers . 
7.2565.   Australia considers that the "quality function" is closely related to the "source 
identification function", and argues that the TPP measures  do not impair the communication of the 
product's quality, characteristics and reputation as regards the consisten cy of experience and 
actual characteristics. Australia explains that the TPP measures  are intended precisely to reduce 
the opportunities to signal artificial perceptions and attitudinal characteristics or reputations, which 
Australia characterizes as an "a dvertising function".  
                                                
5198 Panel Report, EC – Trademarks and Geographical Indications (US),  para. 7.664.  
5199 We note that the application of a trademark to the relevant goods can and often does serve multiple 
functions – hence one form of use which serves to distinguish the goods of one undertaking from those of 
another undertaking can also signal other attribut es about the very same goods. Indeed, one undertaking's 
products can be distinguished from another undertaking's in part because of the intangible aspects of a brand, 
which include various aspects of reputation, quality, and other distinctive characteristi cs: this applies to word 
marks and the effect of their associations for the public, as well as to figurative marks or composite marks. It 
is, therefore, important to distinguish the empirical fact of trademark usage – for instance, the application of 
the m ark to products that are offered to the public for sale - from the range of overlapping functions which 
such trademark usage can serve.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 757 - 
  7.2566.   We recall our earlier findings that branded packaging can act as an advertising or 
promotion tool in relation to tobacco products, and that this has in fact been considered to be the 
case by tobacco companies operating in the Austral ian market, even in the presence of significant 
restrictions on advertising in the period leading to the entry into force of the TPP measures . This is 
particularly the case in a regulatory context such as Australia's, where all other forms of 
advertising a nd promotion for tobacco products are prohibited.5200 The important role played by 
trademarks in branding and marketing of products has also been acknowledged. Trademarks have 
thus been described as "the legal anchor for the use of the commercial functions of  brands".5201  
7.2567.   The role played in this context by colours and other design features, the use of which is 
prohibited by the TPP measures , has also been acknowledged. We recall ou r findings in 
section  7.2.5.3.5.2  above that the evidence before us, in particular statements emanating from 
the tobacco industry itself, indicates that a key purpose of the use of branding on tobacco 
products, including packaging, is to generat e certain positive perceptions in relation to the product 
in the eyes of the consumer, including, as described above, to "generate the optimal level of 
modernity, youthful image and appeal" among consumers.5202 Indeed, as explained by Australia, 
the very purp ose of the TPP measures , including their trademark aspects, is to prevent such 
design features from creating positive product perceptions and thus to discourage the use of 
tobacco products by consumers. By the same token, the TPP measures  prevent these tra demark 
features from being used by trademark owners in the marketplace as a means of product 
promotion or differentiation.  
7.2568.   We note in particular the various expert reports submitted by the complainants describing 
in detail the expected impact of the TPP measures  on the ability to maintain or create product and 
brand differentiation in respect of tobacco products. Professor Winer explains that a brand and its 
trademarked markers "embrace a set of values and attributes (both tangible and intangible) which 
meaningfully and appropriately differentiate products which are otherwise very similar".5203 He 
submits that the benefits that a strong brand provides to the firm that owns it include greater 
customer loyalty, higher margins and ease of international expansion.5204 He adds that the value 
of a strong brand is especially high for a product like cigarettes, where brands are key sources of 
differentiation among what are otherwise largely similar products5205, and that trademarked 
packaging is the only remaining communicati on vehicle for cigarette manufacturers in Australia, 
where advertising and promotional opportunities have been progressively reduced.5206 Professor 
Neven explains that package design, including the use of trademarks and logos on cigarette packs, 
is a form of product design, which permits producers to distinguish their offerings from competing 
brands and enhance the commercial value of their brand.5207 He submits that plain packaging is 
likely to have harmful effect on producers' brand equity and profits and on th e possibility of entry 
into the Australian market.5208 Professor Steenkamp explains that "[b] rand logo, font, color, and 
other brand -related packaging elements are important channels through which consumer quality 
perceptions are built and sustained", and tha t "brand packaging is crucial to build and maintain 
positive and unique associations, as a means to differentiate the brand from competitor product 
offerings". He adds that, under the TPP measures , "brand -specific elements are eliminated, 
thereby reducing the contribution of branding to the intangible benefits for both premium and 
value brands".5209 
7.2569.   We note that by disallowing the use of design features of trademarks, the TPP measures  
prevent a trademark owner from using such features to convey any messages ab out the product, 
whether functional or intangible, and deriving any economic value from the use of such features. 
Therefore, the TPP measures  prevent a trademark owner from extracting economic value from any 
                                                
5200 See " Tobacco packaging as a form of promotion or advertising " within section 7.2.5.3.5.2 , 
particularly paras.  7.659  and 7.663  above.  
5201 WIPO Brands Report, (Exhibit DOM -56), p. 22. 
5202 See para.  7.660  above.  
5203 Winer Report , (Exhibit UKR -9), para. 14 (referring to  J.M. Murphy, Brand Strategy 2 (Cambridge, 
United Kingdom: Director Books 1990) ). 
5204 Winer Report , (Exhibit UKR -9), para. 22. 
5205 Winer Report , (Exhibit UKR -9), para. 27. 
5206 Winer Report , (Exhibit UKR -9), para. 49. 
5207 Neven Report , (Exhibit UKR -3) (SCI), p. 19. 
5208 Neven Report , (Exhibit UKR -3) (SCI), p. 41. 
5209 Steenkamp Rebuttal Report , (Exhibit DOM/HND -14), paras.  92-93. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 758 - 
  design features of its trademark through its use  in the course of trade. In principle, therefore, the 
TPP measures ' prohibitions on the use of figurative trademarks on tobacco retail packaging and 
products, as well as of the figurative and stylized elements of composite and word marks, are 
far-reaching in terms of the trademark owner's expected possibilities to extract economic value 
from the use of such features.  
7.2570.   The practical implications of those prohibitions are partly mitigated by the fact that the 
TPP measures  allow tobacco manufacturers to use wo rd trademarks, including brand and variant 
names, to distinguish their products from each other. As described above, the complainants have 
not sought to demonstrate that, as a result of the encumbrances resulting from the 
trademark -related requirements of the TPP measures , consumers have in fact been unable to 
distinguish tobacco products of one undertaking from those of other undertakings.5210  
7.2571.   As regards the ability of the owners of the affected trademarks to otherwise extract 
economic value from those trade marks, however, the complainants argue that the trademark 
requirements of the TPP measures , by restricting the opportunity for product differentiation, 
increase price competition and adversely impact in particular premium brands.5211 In the context 
of our analysis of the complainants' claims under Article  2.2 of the TBT Agreement , we have 
analysed the evidence before us on the impact of the reduced differentiation on prices and 
downward substitution.  
7.2572.   As regards price competition, the empirical evidence before us, submitted by both 
Australia and the complainants, shows that the net of taxes price of tobacco products has 
increased since the introduction of the TPP measures , over the period for which data  is available to 
us.5212 Moreover, evidence before us also suggests that brands in the higher priced segments 
generally maintained or increased their pricing premiums over brands in the lower -priced 
segments in the first year following the implementation of p lain packaging, and have not exhibited 
a marked drop.5213 Evidence submitted to the Panel, including data provided by the complainants 
also clearly demonstrates that the total value of the retail market increased, rather than 
decreased, over the period Q4 200 9 to Q3 2013, despite the reduction in the consumption of 
tobacco products in the Australian market.5214 Overall, the empirical evidence before us relating to 
cigarette prices, to the total value of the retail market and to the total value and volume of 
cigarette imports does not validate the complainants' argument that the TPP measures  will lead to 
an increase in price competition and a fall in prices, and consequently to a decrease in the sales 
value of tobacco products and the total value of imports .5215 While  the complainants have not 
demonstrated that the TPP measures  have reduced the value of imported tobacco products on the 
Australian market, it cannot be excluded that this may happen in the future, either as a result of 
the effect of the measure on consump tion only or as a result of this effect combined with a fall in 
prices.5216 
7.2573.   As regards downward substitution, we found that there is some evidence, albeit limited, 
that, together with enlarged GHWs introduced on the same date, the TPP measures  appear to have 
had a negative impact on the ratio of higher - to low -priced cigarette wholesale sales. To the extent 
there are reasons to expect the TPP measures , in particular the removal of figurative features on 
                                                
5210 Honduras thus observes that there has not been an emp irical study assessing whether consumers 
have been unable to distinguish the commercial source of tobacco products of one undertaking from that of 
other undertakings following the implementation of the TPP measures, but considers that such quantitative 
data would not assist the Panel in resolving the claims under the TRIPS Agreement in these proceedings.  See 
the responses by Honduras, the Dominican  Republic , Cuba,  and Indonesia to Panel question No. 168, which are 
reflected in paragraphs 7.2546 , 7.2552 , 7.2548 , and 7.2550  respectively. For related discussion, see fn 5496 . 
We note that some of the evidence before us suggests that the potential impact of plain packaging on brand 
recall, i.e. the ability to recognize a brand, was considered in some of the plain pa ckaging studies and 
concluded that "for young smokers at least, plain packaging would not affect brand recall". Stirling Review, 
(Exhibits AUS -140, HND-130, CUB -59), section 4.6.3, p. 82.  
5211 See " Main arguments of the parties " within section 7.3.5.5.3.2  above.  
5212 The time period covered by each data set provided to  the Panel varies by source. The largest data 
set of relevance to this topic covers the period from January 2000 to September 2015. See Appendix E, 
para. 12 fn 14 and Figure E.5.  
5213 See para. 7.1215  above.  
5214 See para. 7.1216  above.  
5215 See para. 7.1218  above.  
5216 See para. 7.1225  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 759 - 
  tobacco products and their retail packaging, to have a st ronger impact on the appeal of tobacco 
products for premium cigarettes, it is reasonable to expect that the reduction in the ratio of 
higher - to low -priced cigarette wholesale sales observed since the entry into force of the 
TPP measures  results at least i n part from the intended operation of the TPP measures  and their 
effect on the consumption of tobacco products more generally.  This could be the case where an 
important part of the value of premium products relies on the contribution of branding in buildin g 
and maintaining positive and unique associations as a means to differentiate them from competing 
products.5217 We are not persuaded, however, that this decrease in the consumption and imports 
of premium tobacco products is exclusively the result of "downtra ding" as the complainants 
describe it, i.e. a transfer of consumption/imports from premium to non-premium  products. First, 
given that the overall consumption of tobacco products has decreased, at least some part of the 
decrease in the consumption of premiu m tobacco products has not been substituted with the 
consumption of non-premium  products. Second, and more generally, as discussed in Appendix E, 
it appears that the higher - and lower -priced segments of the market have evolved on the basis of 
distinct tren ds, even before the implementation of the TPP measures .5218 
7.2574.   Finally, we note that Section 28 of the TPP Act is intended to preserve a trademark 
owner's ability to protect a trademark, and to register and maintain registration of a 
trademark.5219 The TMA Act is i ntended to enable the Australian Government, if necessary, to 
quickly remedy any unintended interaction between the TPP Act and the TM Act.5220 As regards the 
complainants' arguments regarding the implications of the TPP measures  in respect of other 
provision s of the TRIPS  Agreement  they have invoked, we consider them in the context of our 
analysis relating to those provisions.  
7.3.5.5.3.3   The reasons for the adoption of the TPP measures  
7.2575.   We now turn to a consideration of the reasons for which the special requirements under 
the TPP measures  are applied, including any societal interests they are intended to safeguard, so 
as to enable us to consider whether these reasons provide sufficient su pport for the resulting 
encumbrances on the use of trademarks in the course of trade.  
Main arguments of the parties  
7.2576.   Australia  argues that tobacco use is the world's leading cause of preventable morbidity 
and mortality, and has been classified as a global e pidemic under the FCTC. Tobacco use is 
responsible for the deaths of nearly 6,000,000 people annually, including 600,000 non -smokers 
exposed to second -hand smoke. There is no safe level of tobacco use or safe level of exposure to 
second -hand or environment al tobacco smoke. Tobacco use harms nearly every organ in the 
body.5221 
7.2577.   Australia submits that nicotine is the chemical in tobacco that causes addiction. All 
tobacco products contain substantial amounts of nicotine; cigarettes are particularly effective in 
delivering nicotine. The addictive properties of nicotine are critical in the transition of smokers 
from experimentation to sustained smoking and to the maintenance of smoking for the majority of 
smokers who wish to quit. Statistics indicate that 95% of all quit attempts are unsuccessful, such 
is the grip of nicotine addiction.5222 
7.2578.   Australia notes that tobacco is "a unique, highly addictive, and deadly product", and "the 
only legal consumer product that kills half of its long -term users when used exactly as inte nded by 
the manufacturer, and up to two in every three Australian smokers". Authoritative scientific 
opinion has concluded that smoking causes many forms of cancer (lung, larynx, lip, tongue, 
mouth, pharynx, oesophagus, pancreas, bladder, kidney, cervix, s tomach and acute myeloid 
leukaemia, liver cancer, and urinary tract cancer), stroke, peripheral vascular disease, chronic 
obstructive pulmonary disease, several serious cardiovascular diseases, many kinds of respiratory 
                                                
5217 See para. 7.1196  above.  
5218 See p ara. 7.1197  above.  
5219 For further information, see section 2.1. 2.5 above.  
5220 For further information, see section 2.1.2.8 above.   
5221 Australia's first written submission, para. 23. 
5222 Australia's first written submission, paras.  24-27. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 760 - 
  diseases and impairments and other t ypes of disease. There is also authoritative scientific opinion 
that involuntary inhalation of tobacco ("passive smoking") "causes premature death and disease in 
children and in adults who do not smoke" including lung cancer, coronary heart disease and 
Sudden Infant Death Syndrome (SIDS). Smoke from cigars, like the smoke from cigarettes, 
contains toxic and cancer causing chemicals harmful to both smokers and non -smokers. However, 
the amounts of these substances found in cigar smoke are much higher. Cigar s moking is causally 
linked to cancer, cardiovascular disease and chronic lung disease.5223 
7.2579.   Australia explains that the WHO estimates that if current trends continue, the annual 
death toll worldwide from tobacco use could rise to more than 8,000,000 by 2030. Th is global 
tobacco epidemic affects all WTO Members. Australia notes that in their amici  submission, the 
WHO and FCTC Secretariat outline the extensive health, social, environmental, and economic 
consequences of tobacco consumption and exposure, and make cl ear that these consequences 
"have a particularly acute impact on developing countries". Tobacco use is the only common risk 
factor across all four major non -communicable diseases (cardiovascular diseases, cancers, chronic 
respiratory diseases and diabetes) . The burden of death and diseases from non -communicable 
diseases is most heavily concentrated in the world's poorest countries. Tobacco related illness has 
a significant impact on the poor and economically vulnerable and places increasing social and 
econo mic strain on governments forced to spend greater amounts to help address the burden of 
disease that tobacco use causes. So serious is the effect of tobacco consumption on developing 
countries, that the United Nations has highlighted the implementation of the FCTC as a sustainable 
development goal for the post -2015 development agenda.5224 
7.2580.   In Australia, tobacco use remains one of the leading causes of preventable disease and 
premature death. Estimates of the annual mortality attributable to smoking in Australia  since 2000 
have "ranged from about 15,000 deaths to about 20,000 with the differences reflecting 
methodology". As many as two in three Australian smokers will die prematurely from 
smoking -related diseases. The harmful consequences of tobacco use are dispr oportionately felt by 
disadvantaged communities, and smokers in Australia are twice as likely as non -smokers to have 
been diagnosed or treated for a mental illness. Smoking is responsible for 12.1% of the total 
burden of disease and 20% of deaths among Abo riginal and Torres Strait Islander peoples. 
Although rates of smoking prevalence in Australia continue to decline, the social and economic 
costs of tobacco consumption in Australia, estimated at AUD 31.5 billion in 2004, are expected to 
continue to rise, a s the disease and health effects caused by tobacco consumption can take many 
years to manifest.5225 
7.2581.   Australia states that, in giving effect to its obligations under the FCTC, the Australian 
Government introduced the TPP measures  to improve the public health o f Australian citizens. It 
adds that "[t]his decision was made in the context of the comprehensive range of Australian 
tobacco control measures, including advertising and promotional bans, excise measures, graphic 
health warnings, and investments in anti -smoking initiatives".5226 
7.2582.   Honduras  claims that this dispute "is not about whether smoking is dangerous or whether 
it affects the health of many people in Australia and around the world – it is and it does". 
Honduras explains that it has itself implemented compr ehensive tobacco regulation measures and 
shares Australia's goal of reducing smoking prevalence and tobacco consumption.5227 It adds that 
"[a]ll WTO Members can, and must, promote their health objectives within the framework of legal 
commitments accepted at t he end of the Uruguay Round".5228 It emphasizes that Honduras is, and 
will remain, a very active party to the FCTC and fully supports the FCTC's call as set out in its 
paragraph 4.3 "to establish and implement effective tobacco control programmes, taking into  
consideration local culture, as well as social, economic, political and legal factors".5229 In 
Honduras's view, "[t]he issue before the panel is whether the simple invocation of the protection of 
                                                
5223 Australia's first written submission, paras.  1 and 28 -30. 
5224 Australia's first written submission , paras.  31-33 (quoting WHO/FCTC amici curiae  brief, (Exhibit 
AUS-42 (revised)), para. 5). 
5225 Australia's  first written submission, paras.  34-35. See also ibid. para. 1; and Australia's opening 
statement at the first meeting of the Panel, paras.  2-7. 
5226 Australia's opening statement at the first meeting of the Panel, para. 8. 
5227 Honduras's first written submission, paras.  1-2. (emphasis original)  
5228 Honduras's opening statement at the first meeting of the Panel, para. 2. 
5229 Honduras's closing statement at the se cond meeting of the Panel, para. 3. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 761 - 
  public health, without more, provides a sufficient basis for a  Member to disregard its binding 
multilateral commitments".5230 
7.2583.   The Dominican Republic  underscores that it shares Australia 's objective of reducing 
tobacco prevalence. It adds that "[t]he need for effective tobacco control is  … not in question. … 
[T]he health  consequences and attendant social costs of tobacco consumption are considerable, 
and it is every government 's right – and obligation – to adopt tobacco control measures that 
promote public health." It notes that "[l]ike Australia, the Dominican Republic a ttaches great 
importance to the regulatory ends of tobacco control. However, the ends pursued are not on their 
own sufficient to justify interference with protected trade and IP interests."5231 It adds that "[t]he 
Dominican Republic does not challenge any WTO  Members' right to take effective  public health 
measures. Nor do we claim that the economic development of the Dominican Republic should 
come at the expense of another government 's promotion of public health."5232 
7.2584.   Cuba explains that one of the primary objectives of the policy of the State and 
Government of Cuba is the constant raising of the health level and quality of life of the Cuban 
people, which is irrefutably expressed in its Constitution, the Public Health Act and in numerous 
provisions that are part of its legal system. The importance the Cuban Government attaches to 
public health is undeniable. The constant improvement of its health indicators is a permanent 
objective of the Cuban public health policy. It argues that "every country has the sover eign right 
and the primary responsibility to implement measures aimed at preserving the health of its 
population, but  … while doing so it must comply with the commitments multilaterally undertaken, 
in addition to adequately consider[ing] the socio -economic  implications that those measures have 
for small and vulnerable developing economies, before being implemented".5233 
7.2585.   Indonesia  argues that the WTO provides wide latitude to its Members to pursue legitimate 
public policy objectives such as smoking prevention. As a result, none of the complainants are 
challenging Australia's right to restrict the advertising of tobacco products, labelling requirements, 
point-of-sale restrictions, mandatory health warnings, and the numerous other measures taken by 
Australia to re duce the consumption of tobacco products and lower smoking prevalence rates 
within its borders.5234 It emphasizes that "[n]o one, certainly not the Government of 
Indonesia…denies the tragic effects of smoking. As Australia has reminded the Panel on many 
occas ions, tobacco use is 'the world's leading cause of preventable morbidity and mortality, 
causing the deaths of nearly 6,000,000 people annually'."5235 It adds that "[t]he harm caused by 
tobacco use is something all nations should address. However, just because  tobacco use is bad 
does not mean every form of tobacco control is good." In its view, the TPP measures  "do not work 
and certainly do not justify Australia's drastic departure from the decades -long protection of 
trademarks and intellectual property".5236 
Analysis by the Panel  
7.2586.   We recall that, in the context of our analysis of the complainants' claims under Article  2.2 
of the TBT Agreement , we concluded that we understand that the objective pursued by Australia 
through the TPP measures  is to improve public healt h by reducing the use of , and exposure to , 
tobacco products.5237 The TPP trademark requirements are an integral part of the overall 
TPP measures , which also include the standardization of other elements of packaging and tobacco 
product appearance. Our analysi s in the context of Article  2.2 of the TBT Agreement  covered both 
the trademark -related and other requirements of the TPP measures . It is, therefore, relevant also 
for determining the underlying policy concern being addressed through the trademark 
requirem ents of the TPP measures , for the purposes of Article  20 of the TRIPS  Agreement . 
Accordingly, we understand that, for the purposes of Article  20, the reason for which Australia 
                                                
5230 Honduras's opening statement at the first meeting of the Panel, para. 2. 
5231 Dominican  Republic 's first written submission, paras.  138-139 and 143.  
5232 Dominican  Republic 's opening statement at the first meeting of the Panel, para. 4. (emphasis 
original)  
5233 Cuba's opening statement at the second meeting of the Panel, paras.  2-4. 
5234 Indonesia's first written submission, para. 6. 
5235 Indonesia's second written submission, para. 2 (referring to  Australia's opening statement at the 
first meeting of the Panel, para. 3). 
5236 Indonesia's second written submission, paras.  2-3. (footnotes omitted)  
5237 See para.  7.232  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 762 - 
  applies the trademark requirements, as an integral part of the TPP measures , is to improve public 
health by reducing the use of , and exposure to , tobacco products.  
7.2587.   We note that the parties are in agreement about the importance of public health as a 
policy concern. They, furthermore, agree on the importance of effective tobacco control measures 
to reduce the public health burden resulting from tobacco use. We also recall that the Appellate 
Body has recognized the preservation of human life and health as a value that is "both vital and 
important in the highest degree".5238  
7.2588.   As regard s the TRIPS  Agreement  in particular, we noted earlier that its Article  8.1 sheds 
light on the types of societal interests that may provide a basis for the justification of measures 
under the specific terms of Article  20, and expressly recognizes public hea lth as such a societal 
interest.5239 Paragraph 5 of the Doha Declaration  invites us to read "each provision of the 
TRIPS  Agreement " in the light of the object and purpose of the Agreement, as expressed in 
particular in its objectives and principles, which inc ludes Article  8.5240 WTO Members have further 
emphasized the importance of public health as a legitimate policy concern in paragraph 4 of the 
Doha Declaration .5241 
7.2589.   We further note Australia's explanation that the decision to introduce the TPP measures  
was made i n the context of a comprehensive range of tobacco control measures, including 
advertising and promotional bans, excise taxes, GHWs, and investments in anti -smoking 
initiatives. We also note the reference made, in the TPP Act and its Explanatory Memorandum,  to 
Australia's intention of giving effect to certain obligations under the FCTC through the adoption of 
the TPP measures , as well as Australia's explanations of how the TPP measures  reflect the 
Article  11 and Article  13 FCTC Guidelines.5242 As regards the pu blic health objectives of the FCTC, 
we note that the preamble  of the FCTC recognizes that "the spread of the tobacco epidemic is a 
global problem with serious consequences for public health that calls for the widest possible 
international cooperation and t he participation of all countries in an effective, appropriate and 
comprehensive international response".5243 
7.3.5.5.3.4   Whether the reasons for the application of the trademark requirements of 
the TPP measures  provide sufficient support for the resulting encumbrance  
7.2590.   Having identified the nature and extent of the encumbrances on the use of trademarks 
arising from the trademark requirements of the TPP measures , and the reasons for which these 
requirements are being applied, we now consider whether these reasons provide su fficient support 
for the resulting encumbrances.  
7.2591.   For that purpose, we need to assess the public health concerns that underlie the TPP 
trademark requirements against their implications on the use of trademarks in the course of trade, 
taking into account th e nature and extent of the encumbrances at issue that we have described 
above.  
7.2592.   We first note that it is undisputed that the grounds on which the special requirements on 
the use of trademarks in the course of trade under the TPP measures  are applied addres s an 
                                                
5238 Appellate Body Report, EC – Asbestos,  para. 172. 
5239 See para. 7.2406  above.  
5240 See para. 7.2408  above.  
5241 Paragraph 4 of the Doha Declaration  reads as follows:  
 
We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to 
protect public health. Accord ingly, while reiterating our commitment to the TRIPS Agreement, we affirm 
that the Agreement can and should be interpreted and implemented in a manner supportive of WTO 
Members' right to protect public health and, in particular, to promote access to medici nes for all.  
 
In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS 
Agreement, which provide flexibility for this purpose.  
 
5242 Australia's first written submission, paras.  140-141. See also TPP Bill Explanatory Memorandum, 
(Exhibits AUS -2, JE-7), p. 2. 
5243 FCTC, (Exhibits AUS -44, JE -19), preamble, second recital.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 763 - 
  exceptionally grave domestic and global health problem involving a high level of preventable 
morbidity and mortality. The fact that these special requirements, as part of the overall 
TPP measures  and in combination with other tobacco -control measures maintained by Australia, 
are capable of contributing, and do in fact contribute, to Australia's objective of improving public 
health by reducing the use of , and exposure to , tobacco products, suggests that the reasons for 
which these special requirements a re applied provide sufficient support for the application of the 
resulting encumbrances on the use of trademarks.  
7.2593.   Specifically, we recall our findings above, on the basis of the evidence before us, that  the 
removal of design features on retail packaging an d cigarettes  is apt to reduce the appeal of 
tobacco products and increase the effectiveness of GHWs. It is integral to this approach that the 
use of certain figurative features and signs, including those that are protectable subject -matter as 
trademarks, i s restricted as part of the overall standardization of retail packaging and the products 
themselves (cigarettes and cigars). This overall design of the TPP measures , of which the 
trademark -related requirements are an integral part, provides support for the  conclusion that the 
reasons for their adoption sufficiently supports these requirements, and that they are therefore not 
applied "unjustifiably".  
7.2594.   We further observe that the uniformity of these features is also an integral part of the 
approach underlying  the TPP measures , including its trademark -related requirements. We recall 
that, in the context of analyzing the alternative measures proposed by the complainants under 
Article  2.2 TBT, we observed that any pre -vetting mechanism would involve the introduction of 
administrative discretion and the possibility of permitting tobacco packaging elements that would 
have impacts that are contrary to the TPP measures ' objective.5244 A pre -vetting mechanism would 
introduce a possibility, which does not exist under the TPP measures , of differentiation and 
packaging elements that could lead to greater consumer appeal, likelihood to mislead, or 
distraction from GHWs. To the extent that such a possibility materialized under a pre -vetting 
mechanism, we considered that this would lead to a lesser degree of contribution than that made 
by the TPP measures .5245 These observations support Australia's premise for standardized 
packaging as described above. By design, the TPP trademark require ments are therefore not 
intended to address individual trademarks and their specific features, but to contribute, as an 
integral part of the TPP measures , to an overall standardization of tobacco packaging and product 
appearance. The complainants have not demonstrated that such standardization of features within 
the overall design of the TPP measures  would be unjustifiable. In light of this context, we are not 
persuaded that the absence of an individualized assessment of individual trademarks or trademark 
features, in itself, renders the encumbrances on the use of trademarks resulting from the 
TPP measures  "unjustifiable" under Article  20. 
7.2595.   We recall that the Article  11 FCTC Guidelines provide that the Parties to the FCTC "should 
consider adopting measures to  restrict or prohibit the use of logos, colours, brand images or 
promotional information on packaging other than brand names and product names displayed in a 
standard colour and font style (plain packaging)".5246 Similarly, the Article  13 FCTC Guidelines 
recommend that the Parties to the FCTC "consider adopting plain packaging requirements to 
eliminate the effects of advertising or promotion on packaging".5247 The Guidelines elaborate on 
the standard features of plain packaging as including nothing other than a b rand or product name, 
without any logos or other features, in a prescribed font style and size.5248  
                                                
5244 See para. 7.1680  above.  
5245 See para. 7.1680  above.  
5246 Article  11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -20), Annex, para.  46. This paragraph 
further provides that such restriction or prohibition "may increase  the noticeability and effectiveness of health 
warnings and messages, prevent the package from detracting attention from them, and address industry 
package design techniques that may suggest that some products are less harmful than others". Ibid.  
5247 Article  13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE -21), Annex, " Recommendation " following 
para. 17. 
5248 Para. 16 of the Article  13 FCTC Guidelines provides as follows:  
 
The effect of advertising or promotion on packaging can be eliminated by requiring plain 
packaging: black and white or two other contrasting colours, as prescribed by national 
authorities; nothing other than a brand name, a product name and/or manufacturer 's name, 
contact details and the quantity of product in the packaging, without any logos or other features 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 764 - 
  7.2596.   We note the reference made in the TPP Act and its Explanatory Memorandum to 
Australia's intention of giving effect to certain obligations under the FCTC through the adoption of 
the TPP measures .5249 In our view, the importance of the public health reasons for which the 
trademark -related special requ irements under the TPP measures  are applied is further underscored 
by the fact that Australia pursues its domestic public health objective in line with its commitments 
under the FCTC, which "was developed in response to the globalization of the tobacco 
epidemic"5250 and has been ratified by 180 countries.5251 
7.2597.   Honduras, the Dominican Republic,  and Cuba argue that the legal standard for assessing 
whether special requirements "unjustifiably" encumber the use of a trademark in the course of 
trade should include a con sideration of whether "an alternative measure could have been deployed 
that would make an equivalent contribution, while imposing a lesser or no encumbrance on 
trademark use".5252 Australia contends that the ordinary meaning of the term "unjustifiably" does 
not support the complainants' assertion that the term requires an examination of whether the 
encumbrance is the "least restrictive" encumbrance possible in light of "reasonably available 
alternatives".5253 We recall our finding in paragraph 7.2430  that a determination of whether the 
use of a trademark in the course of trade is being "unjustifiably" encumbered by special 
requirements should involve a cons ideration of (i) the nature and extent of the encumbrance 
resulting from the special requirements, (ii) the reasons for which the special requirements are 
applied, including any societal interests they are intended to safeguard; and (iii) whether these 
reasons provide sufficient support for the resulting encumbrance.  
7.2598.   In our view, the term "unjustifiably" in Article  20 provides a degree of latitude to a 
Member to choose an intervention to address a policy objective, which may have some impact on 
the use of trademarks in the course of trade, as long as the reasons sufficiently support any 
resulting encumbrance. This, however, does not mean that the availability of an alternative 
measure that involves a lesser or no encumbrance on the use of trademarks could n ot inform an 
assessment of whether the reasons for which the special requirements are applied sufficiently 
support the resulting encumbrance. We do not exclude the possibility that the availability of an 
alternative measure could, in the circumstances of a  particular case, call into question the reasons 
a respondent would have given for the adoption of a measure challenged under Article  20. This 
might be the case in particular if a readily available alternative would lead to at least equivalent 
outcomes in terms of the policy objective of the challenged measure, thus calling into question 
whether the stated reasons sufficiently support any encumbrances on the use of trademarks 
resulting from the measure.  
7.2599.   Honduras, the Dominican Republic,  and Cuba refer, in the context of their claims under 
Article  20 of the TRIPS  Agreement , to the same four measures as under Article  2.2 of the 
TBT Agreement, as potentially constituting valid alternatives to the trademark requirements of the 
TPP measures .5254 These are (i) an increase in taxation of tobacco products; (ii) an increase in the 
                                                                                                                                                  
apart from health warnings, tax stamps and other government -mandated information or 
markings; prescribed font style and size; and standardized shape, size and materials. There 
should be no advertising or promotion inside or attached to th e package or on individual 
cigarettes or other tobacco products.  
 
Article  13 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE -21), Annex, para. 16. 
5249 TPP Act, (Exhibits AUS -1, JE-1), Section 3(1)(b); and TPP Bill Explanatory Memorandum, (Exhibits 
AUS-2, JE-7), p. 2. 
5250 FCTC, (Exhibits AUS -44, JE -19), foreword.  
5251 See also para.  2.97 and fn  908 above.  
5252 Dominican  Republic 's first written submission, para. 390 (emphasis omitted). Honduras argues that 
the TPP measures  "are more trademark -restrictive than necessary, given that … less-trademark -restrictive 
alternatives  are available to Australia that provide an at least equivalent effect". Honduras's second written 
submission, para. 320 (emphasis added). Cuba argues that a special requirement should be treated as 
unjustifiable if "there are alternative measures which do  not encumber the use of trademarks (or which would 
encumber the use of trademarks to a lesser degree) that meet the legitimate aim sought to be achieved an 
equivalent (or greater) extent". Cuba's first written submission, para. 319. 
5253 Australia's first wr itten submission, para. 397. 
5254 Honduras's first written submission, paras.  565-642; Dominican  Republic 's first written submission, 
paras.  736-832; and Cuba's first written submission, paras.  356-362. The complainants submit that the Panel's 
consideration o f less-restrictive alternatives proposed by them is required only if, following its assessment of 
the evidence in this case, it determines that the TPP restrictions make a contribution to achieving Australia's 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 765 - 
  minimum legal purchase age for tobacco products; (iii) an improvement of anti -smoking social 
marketing campaigns; and (iv) the creation of a pre -vetting mechanism for tobac co packaging. 
Three of these alternatives would not involve any encumbrances on the use of trademarks, while a 
pre-vetting mechanism would also involve encumbrances on the use of trademarks.  
7.2600.   We recall that we analysed these alternatives in detail in sectio n 7.2.5.6 above  in the 
context of Article  2.2 of the TBT Agreement . In that context, we found, inter alia, that none of 
these alternative measures would be apt t o make a contribution to Australia's objective equivalent 
to that of the TPP measures . In our view, this analysis is also relevant for our consideration of 
whether the availability of such measures calls into question the justifiability of the 
trademark -related requirements under the TPP measures  for the purposes of the claims under 
Article  20 of the TRIPS  Agreement .  
7.2601.   In light of these earlier findings under Article  2.2 of the TBT Agreement , we conclude for 
the purposes of our analysis under Article  20 of t he TRIPS  Agreement  that the complainants have 
not shown that any of the proposed alternative measures alone or in combination would be 
manifestly better in contributing towards Australia's public health objective , operating  in a manner 
comparable to the TPP measures  as an integral part of Australia's comprehensive tobacco control 
policies and at the level desired by Australia. In light of our analysis under Article  2.2 of the 
TBT Agreement , we are not persuaded that the proposed alternatives call into quest ion the 
sufficiency of the reasons Australia has given to the TPP trademark restrictions, bearing in mind 
the contribution that the TPP measures , including their trademark -related requirements, make, as 
part of its comprehensive tobacco control policies, to Australia's objective of improving public 
health.  
7.2602.   One of the proposed alternative measures, the creation of a pre -vetting mechanism, 
would involve an assessment of indiv idual elements of individual trademarks.5255 As discussed 
above, the complainants consider that Article  20 requires such individual assessment of 
trademarks and their features.5256 They also argue that, even if the Panel were to disagree, 
pre-vetting would repre sent a less restrictive way to achieve the same results as the 
TPP measures .5257  
7.2603.   We recall our finding in paragraph 7.2505  that Article  20 does not re quire the 
unjustifiability of special requirements under Article  20 to be in all cases assessed in respect of 
individual trademarks and their specific features. As regards the TPP measures  in particular, we 
found in paragraph 7.2594  above that the complainants have not demonstrated that the 
trademark requirements of the TPP measures  are inconsistent with Australia's obligations under 
Article  20 on the  grounds that they do not provide for individual assessment of trademarks and 
their specific features. In the context of our analysis, we observed that the TPP trademark 
requirements are not designed to address individual trademarks and their specific feat ures, but to 
contribute, as an integral part of the TPP measures , to the overall polic y of standardiz ing 
packaging and product appearance.5258 This, in turn, is intended to contribute to the 
TPP measures ' objective of improving public health by reducing the u se of, and exposure, to 
tobacco products. We further recall that, in the context of our analysis of the claims under 
Article  2.2 of the TBT Agreement , we described the potential shortcomings of a pre -vetting 
mechanism  that would introduce the possibility o f a lesser fulfilment of Australia's objective in a 
manner that would prevent Australia from pursuing its legitimate public health objective at the 
levels it considers appropriate.5259 Since we have found that Australia is not required to conduct 
individual a ssessment of trademarks and their features in the circumstances of the present case, 
we do not consider that the availability of a pre -vetting mechanism, which in essence amounts to a 
                                                                                                                                                  
objective. See Honduras's first written submis sion, para. 566; Dominican  Republic 's first written submission, 
para. 737; and Cuba's first written submission, para. 356. 
5255 Dominican  Republic 's first written submission, para. 799. 
5256 See section " Main arguments of th e parties " within section 7.3.5.5.2.2  above.  
5257 Honduras's first written submissio n, para. 625; Dominican  Republic 's first written submission, 
para. 801; and Cuba's first written submission, para. 358. 
5258 See p ara. 7.2594  above.  
5259 See section 7.2.5.6.5.5  above. As regards the claims under Article  2.2 of the TBT Agreement , we 
found in para. 7.1715  above that the complainants have not demonstrated that their proposed alternative 
measure of pre -vetting mechanism for tobacco packaging would make an equivalent contribution to Australia's 
objective, taking i nto account the nature of the objective and the risks non -fulfilment would create.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 766 - 
  particular method of conducting such an assessment, would call into ques tion whether the stated 
public health reasons for the special requirements on the use of trademarks sufficiently support 
the encumbrances resulting from the TPP trademark restrictions.  
7.2604.   Overall, we are not persuaded that the complainants have demonstrated t hat Australia 
has acted beyond the bounds of the latitude available to it under Article  20 to choose an 
appropriate policy intervention to address its public health concerns in relation to tobacco 
products, in imposing certain special requirements under th e TPP measures  that encumber the use 
of trademarks in the course of trade. While recognizing that trademarks have substantial economic 
value and that the special requirements are far -reaching in terms of the trademark owners' 
possibilities to extract econo mic value from the use of figurative or stylized features of trademarks, 
we note that the TPP measures , including their trademark restrictions, are an integral part of 
Australia's comprehensive tobacco control policies, and designed to complement the pre -existing 
measures. As noted above, the fact that the special requirements, as part of the overall 
TPP measures  and in combination with other tobacco -control measures maintained by Australia, 
are capable of contributing, and do in fact contribute, to Austra lia's objective of improving public 
health by reducing the use of , and exposure to , tobacco products, suggests that the reasons for 
which these special requirements are applied provide sufficient support for the application of the 
resulting encumbrances on  the use of trademarks. We further note that Australia, while having 
been the first country to implement tobacco plain packaging, has pursued its relevant domestic 
public health objective in line with the emerging multilateral public health policies in the  area of 
tobacco control as reflected in the FCTC and the work under its auspices, including the Article  11 
and Article  13 FCTC Guidelines.  
7.2605.   In light of the above, we conclude that the complainants have not demonstrated that the 
trademark -related requiremen ts of the TPP measures  unjustifiably encumber the use of 
trademarks in the course of trade within the meaning of Article  20 of the TRIPS  Agreement .  
7.3.5.6   Overall conclusion  
7.2606.   In light of the above, we find that the complainants have not demonstrated that the 
TPP measures  are inconsistent with Australia's obligations under Article  20 of the 
TRIPS  Agreement . 
7.3.6   Article  10bis of the Paris  Convention  (1967) , as incorporated by Article  2.1 of the 
TRIPS  Agreement  
7.3.6.1   Introduction  
7.2607.   We will now address the complain ants' claims u nder Article  2.1 of the TRIPS  Agreement  
in conjunction with Article  10bis of the Paris Convention  (1967) , paragraphs 1, 3(1) and 3(3), 
which concerns repression of unfair competition.  
7.2608.   Paragraph 1 of Article  2 of the TRIPS  Agreement , entitled "Intellectual Property 
Conventions", reads as follows:  
In respect of Parts  II, III and IV of this Agreement, Members shall comply with 
Articles  1 through 12, and Article  19, of the Paris Convention  (1967) . 
7.2609.   Article  10bis of the Paris Convention  (1967)  reads as follows:  
(1) The countries of the Union are bound to assure to nationals of such countries 
effective protection against unfair competition.  
 
(2) Any act of competition contrary to honest practices in industrial or commercial 
matters constitutes an act of unfair comp etition.  
 
(3) The following in particular shall be prohibited:  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 767 - 
  1. all acts of such a nature as to create confusion by any means whatever 
with the establishment, the goods, or the industrial or commercial 
activities, of a competitor;  
 
2. false allegations in the course of trade of such a nature as to discredit the 
establishment, the goods, or the industrial or commercial activities, of a 
competitor;  
 
3. indications or allegations the use of which in the course of trade is liable 
to mislead the public as to the nature, the manufacturing process, the 
characteristics, the suitability for their purpose, or the quantity, of the 
goods.  
 
7.2610.   The complainants  claim that the TPP measures  are inconsistent with Article  2.1 of the 
TRIPS  Agreement  in conjunction with Article  10bis of the Paris Convention  (1967) . 
7.2611.   Australia  asks the Panel to reject these claims in their entirety.  
7.2612.   The parties disagree on whether Article  10bis of the Paris Convention  (1967) , as 
incorporated into the TRIPS  Agreement  by means of a reference in its Article  2.1, covers both the 
requirements within the TPP measures  that affect the use of trademarks, GIs and other categories 
of IP right s on tobacco retail packaging and products ("trademark requirements") and the 
requirements that concern other physical features of tobacco retail packaging and products 
("format requirements"). We will, therefore, first consider the scope of the incorporation of 
Article  10bis of the Paris Convention  (1967)  through Article  2.1 of the TRIPS  Agreement .  
7.2613.   We will then consider the interpretation of Article  10bis of the Paris Convention  (1967) , 
before addressing the complainants' claims that the TPP measures  are inconsistent with Australia's 
obligations under paragraphs 1, 3(1) and 3(3) of Article  10bis of the Paris Convention  (1967) as 
incorporated into the TRIPS  Agreement . 
7.3.6.2   Scope of incorporation of Article  10bis of the Paris  Convention  (1967)  through 
Article  2.1 of the TRIPS  Agreement  
7.2614.   The complainants consider that Article  10bis, as incorporated into the TRIPS  Agreement  
by reference through its Article  2.1, applies to both the trademark requirements and the format 
requirements of the TPP measures .5260 Australia considers, however, "if Article  10bis could be 
applied to the tobacco plain packaging measure (contrary to Austral ia's view), it would apply only 
in respect of the 'trademark requirements' that are the subject of Parts  II, III and IV of the 
TRIPS  Agreement ".5261  
7.2615.   We therefore first consider the scope of Article  10bis of the Paris Convention  (1967)  in 
conjunction with Article 2.1 of the TRIPS  Agreement .  
7.3.6.2.1   Main arguments of the parties  
7.2616.   As regards the terms "[i]n respect of Parts II, III and IV of this  Agreement" in Article  2.1 
of the TRIPS  Agreement , Honduras  and Cuba (by reference to Honduras's response) note that Part 
II covers seven areas of  IP rights, and that its Article  15.1 refers to any "signs" that are capable of 
distinguishing products. They submit that broad reference to "any signs" protects words, logos, 
colour combinations, as well as distinctive shapes, forms et c. Therefore, a form could be a 
trademark. " The format requirements have an actual or potential bearing on several categories of 
intellectual property rights covered in Part II, namely: trademarks, industrial designs and patents. 
                                                
5260 Honduras's response to Panel question No. 16; Dominican  Republic 's response to Panel question 
No. 16; Cuba's response to Panel question No. 16 (annexed to its response to Panel question No. 138) 
(endorsing Honduras's response to the question); and Indonesia's response to Panel question No. 16. 
5261 Australia's response to Panel question No. 16. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 768 - 
  For example, cigarette pac kaging, including a cardboard package with a flip -top lid, has been the 
subject of trademark, industrial design and patent registrations in Australia."5262  
7.2617.   The Dominican Republic  and Indonesia  take the view that the reference in Article  2.1 to 
certain parts of the TRIPS  Agreement  does not limit WTO Members' obligations under the 
incorporated articles of the Paris Convention  to the particular forms of IP listed in Part II of the 
TRIPS  Agreement . The Dominican Republic argues that there is nothing in the text of Article  10bis 
of the Paris Convention  itself that would limit its scope to covering acts of unfair competition that 
arise through the use of trademarks or restrictions thereof, or through limitations on any other 
specific form of IP, and adds that " Article  10bis does not specifically reference any particular form 
of intellectual property, but instead relates to protection against 'unfair competition' (which, itself, 
is a type of intellectual property right) in any form".5263 
7.2618.   Australia  considers that Article  10bis is incorporated into the TRIPS  Agreement  "[i]n 
respect of Parts II, III and IV" of that Agreement. Parts II, III and IV of the TRIPS  Agreement  are 
concerned with various aspects of the IP right s defined in the Agreement. It argue s that "if 
Article  10bis could be applied to the tobacco plain packaging measure (contrary to Australia's 
view), it would apply only in respect of the 'trademark requirements' that are the subject of 
Parts II, III and IV of the TRIPS  Agreement ".5264 
7.3.6.2.2   Analysis by the Panel  
7.2619.   We recall that paragraph 1 of Article  2 of the TRIPS  Agreement  provides that :  
In respect of Parts  II, III and IV of this Agreement , Members shall comply with 
Articles  1 through 12, and Article  19, of the Paris Convention  (1967) . 
(emphasis  added)  
7.2620.   It is undisputed, in these proceedings, that the incorporation resulting from Article  2.1 of 
the TRIPS  Agreement  includes Article  10bis of the Paris Convention  (1967) . However, the parties 
have different views on the scope of this incorporation, and  how this affects the application of this 
provision to their claims in relation to the TPP measures .  
7.2621.   As described above, the Dominican Republic and Indonesia consider that the reference in 
Article  2.1 to Parts II, III and IV of the TRIPS  Agreement  does no t limit WTO Members' obligations 
in respect of the incorporated articles of the Paris Convention  (1967) . Honduras and Cuba argue 
that Part II of the TRIPS  Agreement , referred to in Article  2.1, covers seven areas of  IP right s, and 
that the TPP format requi rements have an actual or potential bearing on several categories of IP 
rights covered in Part II. Australia, in turn, takes the view that, to the extent that this provision 
applies to the TPP measures , Article  2.1 of the TRIPS  Agreement  read in conjunctio n with 
Article  10bis of the Paris Convention  (1967)  could only be applied to the TPP "trademark 
requirements" that are the subject of Parts  II, III and IV of the TRIPS  Agreement . 
7.2622.   In support of their position, the Dominican Republic and Indonesia refer to the Appellate 
Body Report in US – Section 211 Appropriations Act . In that case, the question before the panel 
and the Appellate Body was the extent to which the incorporation of certain provisions of the 
Paris Convention  (1967)  through Article  2.1 covers trade names, which are protected under 
Article  8 of the Paris Convention  (1967) . Article  8 of the Paris Convention  (1967)  provides that "[a] 
trade name shall be protected in all the countries of the Union without the obligation of filing or 
registr ation, whether or not it forms part of a trademark". Trade names are not identified as a 
                                                
5262 Honduras's response to Panel question No. 16. Cuba indicates that it agrees with Honduras's reply. 
See Cuba's response to Panel question No. 16 (annexed to its response to Panel question No. 138). 
5263 Dominican  Republic 's response to Panel question No. 16; and Indonesia's response to Panel question 
No. 16. In support of their position, the Dominican  Republic  and Indonesia refer to Appellate Body Report, US –
 Section 211 Appropriations Act , paras.  320-341. Like Honduras, they note that certain format features, such 
as shapes, can be registrable as trademarks, or potentially protectable as industrial designs, patents or other 
forms of intellectual property rights. See Dominican  Republic 's response to Pan el question No. 16, para. 78; 
and Indonesia's response to Panel question No. 16, para. 13. 
5264 Australia's response to Panel question No. 16. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 769 - 
  protectable subject -matter in Part II of the TRIPS  Agreement  under a separate section title, or 
otherwise referred to in the text of Parts II, III and IV.  
7.2623.   The panel in  that case interpreted the terms "[i]n respect of" in Article  2.1 to mean that 
"Members have to comply with Articles  1 through 12 and 19 of the Paris Convention  (1967)  'in 
respect of' what is covered by those parts of the TRIPS  Agreement  identified therein ".5265 The 
panel concluded that Article  8 of the Paris Convention  (1967)  is relevant as part of the 
TRIPS  Agreement  to the extent that it may affect the protection of the categories of IP covered by 
the Agreement.5266 It further found that, as trade names are no t a category of IP covered by the 
TRIPS  Agreement , Members have no obligation under the TRIPS  Agreement  to protect them.5267 
The Appellate Body reversed this finding and found that WTO Members have an obligation under 
the TRIPS  Agreement  to provide protection  to trade names, through the incorporation of Article  8 
of the Paris Convention  (1967) .5268 In the view of the Appellate Body, the panel's interpretation of 
Article  1.2 "fails to take into account that the phrase 'the subject of Sections 1 through 7 of Part  II' 
deals not only with the categories of intellectual property indicated in each section title, but with 
other subjects  as well" .5269 It disagreed with the Panel's view that the words "in respect of" in 
Article  2.1 had the effect of "conditioning" the scope o f Members' obligations under the articles of 
the Paris Convention  (1967)  incorporated into the TRIPS  Agreement , with the result that trade 
names were not covered.5270 The Appellate Body found that Article  2.1 explicitly incorporates 
Article  8 of the Paris Convention  (1967)  into the TRIPS  Agreement , and that, as Article  8 of the 
Paris Convention  (1967)  covers only the protection of trade names, "[t]o adopt the Panel's 
approach would be to deprive Article  8 of the Paris Convention  (1967) , as incorporate d into the 
TRIPS Agreement  by virtue of Article  2.1 of that Agreement, of any and all meaning and 
effect."5271 
7.2624.   The Appellate Body's ruling in US – Section 211 Appropriations Act  was limited to whether 
trade names are covered by the TRIPS  Agreement . The extent  to which other subject -matter 
covered by Articles  1 through 12 of the Paris Convention  (1967)  but not expressly addressed in 
Parts II, III or IV of the TRIPS  Agreement  is covered by the incorporation under Article  2.1 of the 
TRIPS  Agreement  has not yet be en clarified. In this regard, we note that Article  10bis of the 
Paris Convention  (1967)  has been addressed in WTO dispute settlement rulings only once before, 
in EC – Trademarks and Geographical Indications . The panel in those proceedings considered that 
Australia, as the complainant "has not clearly explained the fundamental premise of its claims" and 
concluded that Australia had not made a prima facie  case.5272 The panel added that its finding 
"does not imply any view as to whether and in what respects Articles 10bis and 10 ter of the 
Paris Convention  (1967)  are incorporated by Article  2.1 of the TRIPS  Agreement ."5273 
7.2625.   As described above, Australia takes the view that, to the extent that Article  10bis of the 
Paris Convention  (1967)  could be applied to the TPP measures , it would apply only in respect of 
the "trademark requirements" that are the subject of Parts II, III and IV of the TRIPS  Agreement . 
This suggests a reading of the words " [i]n respect of Parts II, III and IV of this Agreement" in 
Article  2.1 o f the TRIPS  Agreement  that limits the application of Article  10bis of the 
                                                
5265 Panel Report, US – Section 211 Appropriations Act , para. 8.30. 
5266 Panel Report, US – Section 211 Appropriations Act , para. 8.41. The panel found that the categories 
of intellectual property covered by the TRIPS Agreement are those referred to in its Article  1.2. Ibid. 
para. 8.41. See also Ibid. paras.  8.25 and 8.27.  
5267 Panel Report, US – Section 211 Appropriations Act , para. 8.41. 
5268 Appellate Body Report, US – Section 211 Appropriations Act , para. 341. 
5269 Appellate Body Report, US – Section 211 Appropriations Act , para. 335 (emphasis original) . The 
Appellate Body understood that the panel interpreted the second sub -clause  of Article  1.2 as if that phrase 
read "intellectual property means those categories of intellectual property appearing in the titles of Sections 1 
through 7 of Part II". Ibid. para. 335. 
5270 Appellate Body Report, US – Section 211 Appropriations Act , para. 337. While the Appellate Body 
rejected the panel's reading of the term "in respect of" in Article  2.1 of the TRIPS Agreement, it did not provide 
any other meaning to that term.  
5271 Appellate Body Report, US – Section 211 Appropriations Act , para. 338. The pa nel analysed the 
negotiating history of the TRIPS Agreement and was of the view that it confirmed its view . Panel Report, US –
 Section 211 Appropriations Act , paras.  8.31-8.40. The Appellate Body did not see the negotiating history as in 
any way decisive t o the issue before it . Appellate Body Report, US – Section 211 Appropriations Act , 
paras.  339-340. 
5272 See Panel Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.719 -7.728.  
5273 Panel Report, EC – Trademarks and Geographical Indication s (Australia) , para. 7.728 fn 629. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 770 - 
  Paris Convention  (1967)  as incorporated into the TRIPS  Agreement  to those acts of unfair 
competition that relate to the categories of IP right s covered by those Parts of the Agreemen t, 
such as trademarks.  
7.2626.   The question before us, therefore, is as to how the terms "[i]n respect of Part s II, III and 
IV of this Agreement" in Article  2.1 of the TRIPS  Agreement  affect the scope of the requirement, 
established through Article  2.1 of the TRIPS Agreement , for WTO Members  to comply with 
Article  10bis of the Paris Convention  (1967)  and assure effective protection against unfair 
competition as provided for in that provision.5274  
7.2627.   The term "in respect of" is defined as "as regards, as relates to; with reference to".5275 
The ordinary meaning of this term, together with the grammatical structure of Article  2.1, 
therefore suggests that Members shall comply with the identified provisions of the 
Paris Convention  (1967)  as those Paris Convention  provisions relate to Parts  II, III and IV of the 
TRIPS  Agreement . We understand this reference to relate to the subjects addressed in Parts II, III 
and IV, namely standards of protection, domestic enforcement, and acquisition and maintenance 
of IP right s.5276 The phrase  "[i]n respect of Parts II, III and IV of this Agreement" thus makes clear 
that the articles of the Paris Convention  (1967)  incorporated by reference may have a bearing not 
only on standards concerning the availability, scope and use of IP right s (Part II) , but also on 
enforcement of IP right s (Part III), and the acquisition and maintenance of IP right s (Part IV). The 
articles of the Paris Convention  (1967) , in turn, concern the protection of industrial property.5277 
7.2628.   We note the Appellate Body's determination,  in US – Section 211 Appropriations Act,  that 
the words "in respect of" in Article  2.1 do not have the effect of "conditioning" the scope of 
Members' obligations under the articles of the Paris Convention  (1967)  incorporated into the 
TRIPS  Agreement , and i ts conclusion that, accordingly, WTO Members have an obligation under 
the TRIPS  Agreement  to provide protection to trade names in accordance with Article  8 of the 
Paris Convention  (1967)5278, notwithstanding the fact that these are not a specific category of IP 
expressly identified or addressed in Parts II, III or IV of the TRIPS  Agreement . This reasoning 
suggests that the incorporation of the obligations of WTO Members in respect of unfair competition 
pursuant to Article  10bis should likewise not be assumed to be "conditioned" in such a manner that 
it would be limited in scope to those types of subject -matter expressly identified in Parts II, III or 
IV of the TRIPS  Agreement .  
7.2629.   We further note that, while the provisions of Part II of the TRIPS  Agreement  do not 
specifically regulate acts of unfair competition, they expressly refer to the provisions of 
Article  10bis of the Paris Convention  (1967)  in addressing certain types of subject -matter 
addressed in Part II. Specifically, Article 22.2(b) provides that "[i]n respect of geographical 
indications , Members shall provide the legal means for interested parties to prevent: … any use 
which constitutes an act of unfair competition within the meaning of Article  10bis of the 
                                                
5274 We note that this question is without prejudice to the distinct question of the scope of Article  10bis 
of the Paris Convention  (1967), outside of its incorporation by reference in the TRIPS Agreement. We further 
note th at Article  2.2 of the TRIPS Agreement provides that "[n]othing in Parts I to IV of this Agreement shall 
derogate from existing obligations that Members may have to each other under the Paris Convention  …". 
5275 Oxford English Dictionary online, definition of "in respect of", available at: 
<http://www.oed.com/view/Entry/163779?redirectedFrom=in+respect+of#eid177413195 >, accessed 2  May 
2017.  
5276 These topics are reflected in the titles of Parts II, III and IV, namely "Standards Concerning the 
Availability, Scope and Use of Intellectual Property Rights"; "Enforcement of Intellectual Property Rights"; and 
"Acquisition and Maintenance of Intellectua l Property Rights and Related Inter Partes  Procedures", respectively.  
5277 Intellectual property rights are customarily divided into two categories, namely copyright and 
industrial property. The Paris Convention  (1967), the full name of which is the Paris Convention  for the 
Protection of Industrial Property, concerns the protection of industrial property. Its Article  1(1) reads as 
follows: "The countries to which this Convention applies constitute a Union for the protection of industrial 
property." Its Article  1(2) defines the notion of "industrial property" as follows: "The protection of industrial 
property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, 
indications of source or appellations of origin, and  the repression of unfair competition." Similarly to Parts II, 
III and IV of the TRIPS Agreement, the substantive provisions of the Paris Convention  (1967) deal with the 
standards of protection, enforcement, and acquisition and maintenance of industrial pr operty rights, although 
the provisions on standards of protection and domestic enforcement are less extensive than those of the TRIPS 
Agreement.  
5278 Appellate Body Report, US – Section 211 Appropriations Act , para. 341. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 771 - 
  Paris Conventi on (1967) ".5279 As regards the protection of undisclosed information, Article  39.1 
provides that "[i]n the course of ensuring effective protection against unfair competition as 
provided in Article  10bis of the Paris Convention  (1967) , Members shall protect un disclosed 
information in accordance with paragraph  2 and data submitted to governments or governmental 
agencies in accordance with paragraph 3." This context, in particular the reference in Article  39.1 
to "[i]n the course of ensuring effective protection against unfair competition as provided in 
Article  10bis", confirms that the obligation to provide effective protection against unfair 
competition pursuant to Article  10bis of the Paris Convention  (1967)  is intended to be incorporated 
through Article  2.1 of  the TRIPS  Agreement . In addition, Article  4 of the Treaty  on Intellectual 
Property  in Respect of Integrated Circuits (1989), as incorporated into the TRIPS  Agreement  by 
means of a reference in its Article  35, recognizes unfair competition among various legal forms of 
protection through which Members are free to implement their obligations to provide protection to 
layout -designs of integrated circuits.  
7.2630.   We further note that the text of Article  10bis of the Paris Convention  (1967)  itself makes 
no distinctio n between acts of unfair competition that would relate to trademarks, GIs or other 
specific categories of IP and other acts of unfair competition. Article  10bis of the 
Paris Convention  (1967)  lacks such a distinction, and requires that parties to the Paris Convention  
ensure effective protection against unfair competition, without further qualification. This suggests 
that the scope of that provision is not inherently limited to the types of subject -matter identified 
and addressed in Parts II, III and IV of t he TRIPS  Agreement , and the provisions contained 
therein, but encompasses the repression of unfair competition as an object of the protection of 
industrial property.   
7.2631.   In light of the above, we find that, pursuant to the second sub -clause of Article  2.1 of the 
TRIPS  Agreement , Members are required to comply with Article  10bis of the 
Paris Convention  (1967) , and that the term "in respect of" in the first sub -clause of Article  2.1 
does not have the effect of conditioning the scope of the incorporation of the o bligation under 
Article  10bis to cover only those acts of unfair competition that relate to the types of 
subject -matter addressed in Parts II, III or IV of the TRIPS  Agreement .  
7.2632.   We further observe that the challenged measures in this case, the TPP measures , include 
features that may be seen as relating to various categories of IP addressed in Part II of the 
TRIPS  Agreement . Specifically, it is undisputed that they affect the use of trademarks and GIs, and 
they may also affect other categories of IP, such as  industrial designs and patents.5280 In light of 
this also, we find it appropriate not to limit our consideration of how the TPP measures  relate to 
the protection against unfair competition to how they relate to any particular subject -matter 
addressed in Part II, III or IV of the TRIPS  Agreement . 
7.2633.   With these initial determinations in mind, we first consider the interpretation of 
Article  10bis, to inform our assessment of the complainants' claims that the TPP measures  are 
inconsistent wit h Australia's obligations under paragraphs 15281, 3(1)5282, and 3(3)5283 of 
Article  10bis of the Paris Convention  (1967)  as incorporated into the TRIPS  Agreement .  
7.3.6.3   Interpretation of Article  10bis of the Paris  Convention  (1967) , as incorporated 
through Article  2.1 o f the TRIPS  Agreement  
7.3.6.3.1   Main arguments of the parties  
7.2634.   Honduras  argues that the central obligation under Article  10bis is for Members to provide 
"effective protection against unfair competition". According to Honduras, it follows from the term 
"effective prot ection" that WTO Members must enact legally binding substantive  rules that prohibit 
                                                
5279 The term "in respect of" is also use d in the chapeau  of Article  22.2, which is the basis for separate 
claims in these proceedings. See section 7.3.7 below.  
5280 Honduras submits that, for  example, cigarette packaging, including a cardboard package with a 
flip-top lid, has been the subject of trademark, industrial design and patent registrations in Australia. 
Honduras's response to Panel question No. 16. 
5281 Claims raised by Honduras, the Dominican Republic,  and Cuba.  
5282 Claims raised by Cuba and Indonesia.  
5283 Claims raised by Honduras, the Dominican  Republic , Cuba,  and Indonesia.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  acts of unfair competition and provide  effective administrative or judicial avenues through which 
the prohibition on acts of unfair competition can be enforced.5284 Honduras s ubmits that "intent" is 
not a constitutive  element of an act of unfair competition covered by Article  10bis.5285  
7.2635.   Honduras submits that the term "competition" is generally defined as action "[s]triving 
for custom between rival traders in the same commodity" o r "the effort of two or more parties 
acting independently to secure the business of a third party by offering the most favorable 
terms".5286 Honduras refers to the finding by the panel in Mexico  – Telecoms  that "the word 
'competition', in its economic sense, is … defined as 'rivalry in the market, striving for custom 
between those who have the same commodities to dispose of'".5287 Honduras argues that the 
ordinary meaning of the term "unfair" is "not equitable, unjust, not according to the rules"5288, 
such that "'[u ]nfair competition' is, therefore, competition that is 'not equitable' or 'unjust'". 
According to Honduras, the ordinary meaning of the terms in Article  10bis(1) and 10 bis(2) 
suggests that Article  10bis requires a WTO Member to ensure, with regard to all aspects of 
competition, that rival traders in the same commodity can strive for custom in circumstances that 
are "equitable" and "legitimate".5289 
7.2636.   Honduras notes that Article  10bis(2) defines an act of unfair competition as " [a]ny act of 
competition contrary to honest practices in industrial or commercial matters".5290 It interprets the 
term "honest" as "acquired by fair means; legitimate"5291, and the terms "fair" and "honest" 
"competition" as requiring that a market participant be permitted to choose whether to co mpete 
on the basis of price or product differentiation.5292 Thus, Honduras maintains, constraining the 
ability to convey product differentiation through trademarks, imagery, colour and the product 
design features constitutes "unfair competition".5293 According t o Honduras, the inability to 
distinguish goods will not be "fair" to competitors who have invested time and resources into 
ensuring notoriety for their product through consistent superior product quality and marketing 
efforts. Further, competition in such circumstances will not be "honest" because some economic 
operators will be able to pretend that their inferior products are as good as other producers' 
superior products. Honduras contends that Articles  10bis(3)(1) and 10 bis(3)(3) provide two per se 
exampl es of "unfair competition", and both suggest that product differentiation is an integral part 
of "fair competition".5294  
7.2637.   Honduras argues that Article  10bis(1) requires Members to assure protection against all 
acts of unfair competition whereas Article  10bis(3) sets out specific examples of acts of unfair 
competition. These examples are merely indicative and therefore do not exhaust the full universe 
of acts that may constitute acts of unfair competition. Consequently, a measure that is 
inconsistent with one o f the subparagraphs of Article  10bis(3) would by definition be inconsistent 
with Article  10bis(1), and that it would be possible for a measure to be inconsistent with 
Article  10bis(1) without being inconsistent with any of the subparagraphs of Article  10bis(3).5295 
Honduras adds that Article  10bis could address acts other than those covered by the definition of 
unfair competition in Article  10bis(2). In Honduras's view, " Article  10bis(2) provides examples of 
two types of acts that would constitute an act of unfair competition. It does not provide that these 
                                                
5284 Honduras's first written submission, paras.  654-655. (emphasis original)  
5285 Honduras's second written submission, para. 390 (referring to Bodenhausen, HND excerpts, (Exhibit 
HND-39), p. 145). See also Honduras's response to Panel question No. 19. 
5286 Honduras's first written submission, para. 662 ( referring to  New Shorter Oxford English Dictionary, 
HND excerpts,  (Exhibi t HND -89), p. 459; and Merriam -Webster  Dictionary online, HND excerpts, (Exhibit 
HND-48), respectively).  
5287 Honduras's first written submission, para. 663 ( referring to  Panel Report, Mexico  – Telecoms , 
para. 7.230).  
5288 Honduras's first written submission, para. 669 ( referring to  New Shorter Oxford English Dictionary, 
HND excerpts, (Exhibit HND -89), p. 3482).  
5289 Honduras's first written submission, para. 669. 
5290 Honduras's first written submission, para. 671. 
5291 Honduras's first written submission, para. 672 ( referring to  New Shorter Oxford English Dictionary, 
HND excerpts, (Exhibit HND -89), p. 1255).  
5292 Honduras's first written submission, paras.  661-668 and 673 (referring to Steenkamp Report , 
(Exhibit DOM/HND -5), paras.  18 and 61, among other sources).  
5293 Honduras's first written submission, para. 676. 
5294 Honduras's first written submission, paras.  673-675. 
5295 Honduras's response to Panel question No. 15. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  two acts would constitute the whole universe of unfair competition."5296 Honduras adds that, even 
if Article  10bis(2) is considered a s an exhaustive definition of "unfair competition", Australia's 
actions are covered by that definition.5297 Honduras further submits that, while the "normal" 
situation that Article  10bis disciplines is that of firms engaging in acts of commercial dishonesty, 
Article  10bis also disciplines regulatory action of WTO Members. It adds that "[t]his is the key 
point of disagreement between Honduras and Australia (and Singapore)".5298 
7.2638.   Honduras argues that the terms "fair" and "honest" competition require that market 
conditions do not favour one group of competitors to the detriment of another group of 
competitors such that, to the extent that one competitor engages in acts that structurally skew 
competition against one or several other competitors, such behaviour would vi olate the 
requirement of "fair" and "honest" competition. Honduras adds that, likewise, governmental 
regulation  that skews the conditions of competition in favour of some competitors, and to the 
detriment of other competitors, is also "unjust" and "not equ itable".5299 Honduras adds that the 
precise meaning of the term "fair" must be understood in the context of the provision in which it is 
included.5300 According to Honduras, for the purpose of WTO law, the context of the "fair 
competition" rules of Article  10bis of the Paris Convention  (1967)  is the protection of industrial 
property as defined by Article  (1)(1) of the Paris Convention  (1967) . Therefore, any asymmetrical 
impact on different market participants that result from measures that regulate or restrict th e use 
of IP right s is a relevant factor in deciding whether competition is "unfair".5301 
7.2639.   In particular, Honduras maintains that Article  10bis prohibits WTO Members from 
enacting domestic laws that would encourage or require private economic operators to act i n a 
manner amounting to "unfair competition" because where a Member " encourages  or requires , 
through its laws and regulations, an individual or an entity to commit an act of unfair competition, 
that Member cannot be said to be 'assur[ing] … effective prote ction' against  such acts".5302 
According to Honduras, exempting a WTO Member's regulatory actions from the scope of 
Article  10bis would allow domestic regulation to define the concept of "unfair competition", and 
render the disciplines of Article  10bis meanin gless.5303 According to Honduras, the standard for 
"honest[y]" is to be judged both against the norms prevailing in a given WTO Member as well as 
against a more universally accepted, international standard.5304 
7.2640.   Honduras clarifies that it "does not argue that a government's laws or regulations  
constitute acts of 'unfair competition'"; "[t]he acts of unfair competition remain those of private 
parties."5305 Honduras adds that the typical  scenario envisaged under Article  10bis is that of unfair 
competitive acts underta ken by private economic operators without governmental regulation, but 
submits that Article  10bis also covers action by private economic operators undertaken pursuant to 
governmental action that compels  acts of unfair competition.5306  
7.2641.   Honduras refers to the panel report in Mexico  – Telecoms , which addressed the so -called 
"Reference Paper" on telecommunications services, Section 1.1 of which requires WTO Members to 
"maintain[]" "appropriate measures … for the purpose of preventing suppliers who, alone or 
together, are a major supplier from engaging in or continuing anti -competitive practices". The 
panel found that "[t]here is no reason to suppose, and no language to suggest, that the desired 
outcome … – preventing major suppliers from engaging in anti -competiti ve practices – should 
depend entirely on whether a Member's own laws made such practices legal". In Honduras's view, 
                                                
5296 Honduras's response to Panel question No. 18. 
5297 Honduras's response to Panel question No. 18. 
5298 Hondur as's response to Panel question No. 17. 
5299 Honduras's first written submission, paras.  677-678 (emphasis original) . See also ibid. para. 670. 
5300 Honduras's first written submission, para. 670 ( referring to  Panel Report, US – Zeroing (EC) , 
para. 7.260).  
5301 Honduras's first written submission, para. 670. 
5302 Honduras's first written submission, para. 657. (emphasis original)  
5303 Honduras's first written submission, paras.  658-660 ( referring to  Panel Report, Mexico  – Telecoms , 
paras.  7.243 -7.244). See also Honduras's second written submission, para. 392. 
5304 Honduras's first written submission, para. 669 ( referring to  Bodenhausen, HND excerpts, (Exhibit 
HND-39), p. 144).   
5305 Honduras's second written submission, para. 391. (emphasis original)  
5306 Honduras's second written submission, paras.  393-394. (emphasis original)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 774 - 
  the same logic applies to Article  10bis, which, therefore, must be interpreted as, inter alia, 
constraining the regulatory powers of WTO Me mbers.5307 
7.2642.   Honduras elaborates that, although in its view Article  10bis constrains a government's 
regulatory power, it does not argue that Article  10bis requires "unlimited" competition, free from 
any and all governmental intervention. However, legitimate reg ulation may only have an incidental  
impact on competition, in the sense that it may not render competition "unfair", and 
"inequitable".5308 Honduras emphasizes that its interpretation of Article  10bis leaves the 
government with sufficient margin of discretion  to regulate competition, and means that not every 
governmental regulation that may have an asymmetrical impact on different producers and their 
product offerings results in "unfair" competition.5309 Honduras submits that, for instance, a general 
advertising ban would not violate Article  10bis, because its asymmetrical effect on competition is 
only incidental, as compared to legislation that deliberately and ex ante seeks to achieve an 
asymmetrical impact.5310 
7.2643.   The Dominican Republic  notes that the phrase "unfair competition" includes the term 
"competition". Thus, Article  10bis applies to acts that have a bearing on "rivalry in the market" and 
on the process of "striving for custom" between competitors.5311 According to the Dominican 
Republic, Article  10bis requires WTO Members to guarantee protection against "unfair" acts of 
competition. An act is "unfair" if it is "[n]ot fair or equitable; unjust".5312 Article  10bis(2) defines 
"unfair" acts of competition as those "contrary to honest practices in industrial o r commercial 
matters". The term "honest", in the context of describing an action like a "practice", is something 
"done with or expressive of truthfulness, fairness, or integrity of character or intention; free from 
deceit; genuine, sincere".5313 The Dominican  Republic understands that an "act of competition" 
that is "contrary to honest practices" is therefore an act with a bearing upon the relationship 
between competitors in the marketplace performed in a manner that is unfair, unjust, or that lacks 
integrity.5314 The intent of the person engaging in the act is not necessary for a finding of unfair 
competition.5315 
7.2644.   The Dominican Republic argues that the obligation under Article  10bis(1) to assure 
effective protection  against unfair competition is materially different  from the obligation under 
Article  10bis(3) to prohibit  the three specified forms of unfair competition. Thus, even if a Member 
prohibits as a matter of law the private acts of unfair competition listed in Article  10bis(3), it may 
nevertheless fail to meet  its obligations under Article  10bis(1) if it does not provide the requisite 
effective  protection against unfair competition. For example, if violations of the prohibition result in 
only nominal penalties with no deterrent value, then the Member may not be  providing "effective" 
                                                
5307 Honduras's first written submission, paras.  659-660 ( referring to  Panel Report, Mexico  – Telecoms , 
paras.  7.243 -7.244).  Honduras also draws guidance from past rulings on the treat ment of imported and 
domestic products under Article  III:2 and III:4 of the GATT 1994 as well as under Article  2.1 of the 
TBT Agreement . See Honduras's first written submission, paras.  679-680. See also Honduras's response to 
Panel question Nos. 17 and 19.  
5308 Honduras's first written submission, para. 681. (emphasis original)  
5309 Honduras's first written submission, para. 695. 
5310 Honduras's second written submission, paras.  395-396. 
5311 Dominican  Republic 's first written submission, paras.  842-843 (referring to P anel Report, Mexico  –
 Telecoms , para. 7.230, which in turn quotes the definition of the term "competition" in The Shorter Oxford 
English Dictionary , 3rd edn (Clarendon Press, 1990), Vol. II, p. 382). See also Dominican  Republic 's second 
written submission,  paras.  730-731; and response to Panel question No. 22. 
5312 Dominican  Republic 's first written submission, para. 845 (quoting Oxford English Dictionary online, 
definition of "un'fair, adj.", available at: 
<http://www.oed.com/view/Entry/213174?rskey=IGEAyx&result=1&isAdvanced=false#eid >, accessed 
9 April 2014, (Exhibit DOM -143)). See also Dominican  Republic 's second written submission, para. 732. 
5313 Dominican  Republic 's first written submission, para. 845 (quoting Oxford English Dictionary online, 
definition of "honest, adj. and adv.", available at: 
<http://www.oed.com/view/Entry/88149?rskey=Tq7xuH&result=1&isAdvanced=false#eid >, accessed 
9 April 2014, (Exhibit DOM -145)).  
5314 Dominican  Republic 's first written submission, para. 845. 
5315 Dominican  Republic 's first written submission, para. 846 (referring to B odenhausen, Full text, 
(Exhibit DOM -79), p. 145 among others). See also the Dominican  Republic 's response to Panel question 
No. 19; and second written submission, paras.  737-742. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 775 - 
  protection.5316 The Dominican Republic adds that both paragraphs 1 and 3 of Article  10bis are 
susceptible of breach by either an act or an omission by a Member.5317  
7.2645.   As regards the object and purpose of Article  10bis, the Dominican Republi c claims that 
according to WIPO, protection against unfair competition serves a three -fold purpose: (1) the 
protection of competitors; (2) the protection of consumers; and (3) safeguarding competition in 
the public interest, and these objectives play an im portant role in determining "unfairness" in the 
marketplace.5318 The Dominican Republic adds that the examples in Article  10bis(3) also confirm 
WIPO's analysis that protection against unfair competition aims to protect competitors, consumers, 
and safeguard co mpetition in the public interest.5319  
7.2646.   Cuba argues that the overarching obligation under Article  10bis(1) is to ensure effective 
protection against unfair competition , and the content of this overarching obligation is informed by 
the remaining provisions of Article  10bis.5320 Cuba agrees with Honduras that Article  10bis(3) sets 
out specific examples of acts of unfair competition, and that a measure that is inconsistent with 
one of the subparagraphs of Article  10bis(3) is therefore also inconsistent with Article  10bis(1). 
Cuba endorses Honduras's argument that, since the examples in Article  10bis(3) are merely 
indicative and do not exhaust the full universe of acts that may constitute acts of unfair 
competition, it is possible for a measure to be inconsistent with  Article  10bis(1) but not fall within 
the specific examples in Article  10bis(3).5321 
7.2647.   Indonesia  argues that under Article  10bis, WTO Members have a general obligation to 
provide "effective protection against unfair competition". Article  10bis(3) provides examp les of 
three acts that must be prohibited, as the minimum protection to be granted by all Members. 
As the WIPO IP Handbook notes, these examples must not be seen as exhaustive, but rather as 
the minimum protection that has to be granted by all member State s. Thus, Indonesia maintains, 
to protect against unfair competition, WTO Members must at a minimum ensure effective 
protection against the three kinds of acts described in Article  10bis(3).5322 Indonesia reads 
paragraph 1 as creating a broader obligation than  paragraph 3 that is also inclusive of the 
obligations found in paragraph 3 of Article  10bis. Consequently, if a measure is inconsistent with 
Article  10bis(3), it is also necessarily inconsistent with Article  10bis(1); a measure can, however, 
be inconsiste nt with Article  10bis(1) without being inconsistent with any of the subparagraphs of 
Article  10bis(3).5323  
7.2648.   According to Indonesia, Article  10bis(3)(1) refers to acts likely to cause confusion. It 
requires neither confusion to have actually occurred5324, nor an intent to confuse. Similarly, 
sub-paragraph  (3) does not require that untrue information be given to consumers or proof that 
consumers have actually been misled about "the nature, the manufacturing process, the 
characteristics, the suitability for their pu rpose, or the quantity, of the goods".5325 
7.2649.   Indonesia adds that the purpose of Article  10bis is to protect and promote fair 
competition in international trade by protecting competitors and consumers, and safeguarding 
competition in the public interest.5326 
                                                
5316 Dominican  Republic 's response to Panel question No. 15, para. 77. (emphasis  original)  
5317 Dominican  Republic 's second written submission, para. 727. See also Dominican  Republic 's response 
to Panel question No. 15(a).  
5318 Dominican  Republic 's first written submission, para. 839 (quoting WIPO Protection Against Unfair 
Competition, (Exh ibits AUS -536, DOM -139), para. 33). 
5319 Dominican  Republic 's first written submission, paras.  847-850. 
5320 Cuba's first written submission, para. 381. 
5321 Cuba's response to Panel question No. 15 (annexed to its response to Panel question No. 138) 
(endorsing Honduras's response to Panel question No. 15). 
5322 Indonesia's first written submission, para. 154 ( referring to  WIPO IP Handbook, IDN excerpts, 
(Exhibit IDN -43), para. 2.762).  
5323 Indonesia's response to Panel question No. 15. 
5324 See Indonesia' s response to Panel question No. 168. 
5325 Indonesia's first written submission, paras.  156-157. 
5326 Indonesia's first written submission, para. 159 (referring to Wadlow, Law of Passing -Off, IDN 
excerpts, (Exhibit IDN -60), p. 9; and WIPO IP Handbook, IDN excerp ts, (Exhibit IDN -43), para. 2.773). The 
Panel notes that the paragraphs cited from the WIPO IP Handbook are not included in the excerpts provided as 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 776 - 
  7.2650.   Austra lia argues that Article  10bis(1) requires Members to assure "effective protection 
against unfair competition". "Unfair competition" is defined in Article  10bis(2) as " [a]ny act of 
competition contrary to honest practices in industrial or commercial matters ". The ordinary 
meaning of the term "act" is "a thing done; a deed"; "the process of doing". The use of the term 
"act" in Article  10bis(2) thus indicates that the relevant conduct is particular or specific in nature – 
i.e. a particular "thing done" or "dee d" of competition. This is confirmed by the illustrative 
examples of unfair competition in Article  10bis(3) – each of which concerns particular  "acts".5327 
7.2651.   Australia observes that the "acts" prohibited in Article  10bis(2) are "any act[s] of 
competition contra ry to honest practices in industrial or commercial matters". The ordinary 
meaning of the term "competition" is the "action of competing or contending with others" or 
"striving for custom between rival traders in the same commodity".5328 
7.2652.   Australia further desc ribes the ordinary meaning of the term "honest" as, in relevant part, 
"straightforward; free from fraud" or "truthful".5329 In Article  10bis(2), Australia argues, this term 
is used in connection with "practices in industrial or commercial matters", rather tha n in isolation. 
While there is no single international standard for what constitutes an act of competition contrary 
to "honest" commercial practices, the illustrative examples in Article  10bis(3) indicate that 
Article  10bis is concerned with acts that are "dishonest" in the sense of being not "truthful", and 
each of subparagraphs (1) to (3) is an example of a false or misleading  representation. Thus, by 
its terms, Article  10bis requires Members to assure effective protection against "particular deeds" 
of "dishonest" or "untruthful" commercial "rivalry" – i.e. acts that are intended to benefit a market 
actor by influencing consumers on the basis of false or misleading representations.5330 
7.2653.   Australia considers that a failure to prohibit the acts described in Article 10bis(3) would 
constitute a breach of the obligation in Article  10bis(1). It adds that if a measure prevented a 
Member from assuring effective protection against conduct that met the definition of "unfair 
competition" in Article  10bis(2) (" [a]ny act o f competition contrary to honest practices in industrial 
or commercial matters" – i.e. acts of commercial dishonesty involving misrepresentation), and was 
of the same nature and scope as the illustrative examples in Article  10bis(3), such a measure 
would b e inconsistent with the obligation in Article  10bis(1) even if the relevant conduct did not 
specifically come within the subparagraphs of Article  10bis(3).5331 
7.2654.   Australia argues that there is no single international standard for what constitutes an act 
of comp etition contrary to "honest" commercial practices. It adds that such acts may include a 
"competitor's misrepresentation, fraud threats, defamation, disparagement, enticement of 
employees, betrayal of confidential information, and commercial bribery, among others".5332 
Australia adds that Article  10bis requires Members to discipline the conduct of market actors in 
relation to rival competitors and potential consumers. According to Australia, Members have 
discretion in implementing this obligation, including in determining the range of acts constituting 
unfair competition, provided that the definition in Article  10bis(2) and the specific examples set 
out in Article  10bis(3) are given effect.5333 
                                                                                                                                                  
Exhibit IDN -43. The referenced paragraphs were submitted by the Dominican  Republic  in WIPO IP Handbook, 
Full Text, (Exhibit DOM -65). 
5327 Australia's first written submission, paras.  445-447 ( referring to  Shorter Oxford English Dictionary, 
Vol. 1 AUS excerpts,  Part 1,  (Exhibit AUS -243), p. 22). 
5328 Australia's first written submission, para. 447 ( referring to  Shorte r Oxford English Dictionary, Vol. 1 
AUS excerpts, Part 1, (Exhibit AUS -243), p. 470). Australia adds that the latter meaning of "competition" was 
endorsed by the panel in Panel Report, Mexico  – Telecoms , para. 7.230, as well as by Honduras in its first 
written submission, para. 663 and the Dominican  Republic  in its first written submission, para. 842. 
5329 Australia's first written submission, para. 447 ( referring to  Shorter Oxford English Dictionary, Vol. 1 
AUS ex cerpts, Part 1, (Exhibit AUS -243), p. 1271).  
5330 Australia's first written submission, paras.  448-449. 
5331 Australia's response to Panel question No. 15. 
5332 Australia's first written submission, para. 448 and fn  623 ( referring to  Correa's Commentary on the 
TRIPS Agreement, (Exhibit AUS -242), p. 388).  
5333 Australia's first written submission, fn 625 (referring to Bodenhausen, (Exhibits HND -39, DOM -79, 
IDN-61), p. 144).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.6.3.2   Main arguments of the third parties  
7.2655.   Canada  argues  that the ordinary mea ning of the terms "act" and "competition" in the 
context of Article  10bis suggests that the phrase "act of competition" is concerned solely with the 
commercial behaviour of actors competing in the market. A State's role in the market is typically 
as a regu lating or governing body directing the relationship between competing actors, not as a 
market actor itself competing for a market share. Where a Member is regulating the market or its 
private actors, such measures do not constitute "acts of competition" an d fall outside the scope of 
the definition of "unfair competition" under Article  10bis. Moreover, the definition of unfair 
competition in Article  10bis is linked to an act of competition. The text does not state that an act 
bearing on  competition constitutes unfair competition and there is nothing to support an expansion 
of the scope of Article  10bis to capture regulatory measures that are not, themselves, acts of 
competition .5334 
7.2656.   Canada adds that the complainants' argument that a Member cannot legally require the 
behaviour it has undertaken to prevent and protect against follows from their assertions that a 
Member's regulatory flexibility is only constrained by the obligations it actually undertakes. In the 
case of Article  10bis, the obli gation is to protect against unfair competition, which is defined as 
certain acts of competition . If a Member's measure fails to constitute such an act, then 
Article  10bis does not apply and the Member consequently retains its regulatory flexibility in thi s 
regard.5335 
7.2657.   China  notes that the key contention appears to be the definition of "unfair competition" 
within the scope of Article  10bis of the Paris Convention  and Article  22.2(b) of the 
TRIPS  Agreement . In China's view, the TPP measures  do not appear to be an act of unfair 
competition within the meaning of the above provisions. First, noting that an act of unfair 
competition is defined under Article  10bis(2) as any act "contrary to honest practices in industrial 
or commercial matters", China contends that "[ i]t appears difficult to characterize the acts that are 
taken by competitors to comply with the legal requirements as acts 'contrary to honest'".5336 
Second, China maintains that Article  10bis(3) provides that three categories of acts "shall be 
prohibited" in  particular , and the TPP measures  do not fall within the scope of the second or third 
category of acts, i.e. false allegations and misleading indications or allegations, or within the scope 
of the first category which clearly refers to acts of "a competitor".5337 
7.2658.   New Zealand  agrees with Aust ralia's interpretation of, and arguments in relation to, 
Article  10bis.5338 
7.2659.   Singapore  argues that state practice on unfair competition reveals the absence of a single 
international standard of what constitutes an act of "unfair competition", and a variety of 
approaches to implementing the standard.5339 However, certain acts shall be considered to 
constitute unfair competition, as set out in Article  10bis(3). By its terms, Article  10bis proscribes 
acts of commercial dishonesty involving misrepresentation. However,  the complainants' reading 
that by not allowing competitors to differentiate their products in the marketplace, the 
TPP measures  violate Article  10bis(1) is at odds with the notion of what constitutes an act of unfair 
competition. In addition, it would eff ectively place an unduly onerous burden on governments to 
ensure that any regulation must impact all persons equally.5340 Singapore submits that 
                                                
5334 Canada's third -party submission, paras.  24-25. 
5335 Canada's third -party submission, para. 26. 
5336 China's third -party submission, para. 61. 
5337 China adds that, alternatively, if the Panel were to interpret the meaning of "unfair competition" as 
compassing regulatory measures of a government and/or its impact on the market, it would need to carefully 
assess the detailed facts of the dispute, including a range of legal mechanisms provided by Australia, so as to 
determine whether the TPP measures  compel market actors to engage in acts of unfair competition or whether 
Australia fails to assure an effective pr otection against unfair competition due to the TPP measures . China's 
third-party submission, paras.  57-62. 
5338 New Zealand's third -party submission, para. 14. 
5339 Singapore's third -party submission, para. 15 (referring to WIPO Protection Against Unfair 
Competition, (Exhibit s AUS-536, DOM -139), paras.  23-26). 
5340 Singapore adds that such assertion, for instance, would call into question the lawfulness of 
restrictions on tobacco advertising on the basis that the ban could be said to skew the conditions of 
competition in favour of market incumbents. Singapore's third -party submission,  paras.  15-17. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  Article  10bis is not directed at market conditions as such, but at acts of commercial dishonesty 
involving misrepr esentation.5341 
7.2660.   As regards the specific claims made under Article  10bis(3)(1) and (3)(3) – that, by 
preventing producers from distinguishing their tobacco products, the TPP measures  compel acts 
which cause the very confusion and misleading indications that Au stralia is obliged to prevent – 
Singapore notes that the complainants have submitted no empirical evidence that the measures 
have indeed led to confusion or have misleading effect in the Australian market. In contrast, 
Singapore submits that the use of bra nd, business or company names with variant names on 
tobacco packaging (which is allowed, and which themselves may be trademarks) in a uniform and 
consistent manner on all packaging enables consumers to easily focus on, and compare, the words 
only that are used, thus enabling consumers to clearly distinguish the tobacco products of one 
undertaking from another. For the above reasons, Singapore does not consider there to be a 
violation of Article  2.1 of the TRIPS  Agreement  incorporating Article  10bis of the 
Paris Convention .5342 
7.2661.   Uruguay  maintains that the Panel should reject the complainants' claims under Article  2.1 
of the TRIPS  Agreement  incorporating Article  10bis of the Paris Convention .5343 
7.3.6.3.3   Analysis by the Panel  
7.2662.   We recall that, under Article  2.1 of the TRIPS  Agreement , "[i]n respect of Parts II, III and 
IV of the Agreement, Members shall comply with Article  1 through 12, and Article  19, of the 
Paris Convention  (1967) ". We recall that Article  10bis of the Paris Convention  (1967)  reads as 
follows:  
(1) The countries of the Union are bound to assure to nationals of such countries 
effective protection against unfair competition.  
 
(2) Any act of competition contrary to honest practices in industrial or commercial 
matters constitutes an act of unfair competition . 
 
(3) The following in particular shall be prohibited:  
 
1. all acts of such a nature as to create confusion by any means whatever 
with the establishment, the goods, or the industrial or commercial 
activities, of a competitor;  
 
2. false allegations in the course of trade of such a nature as to discredit the 
establishment, the goods, or the industrial or commercial activities, of a 
competitor;  
 
3. indications or allegations the use of which in the course of trade is liable 
to mislead the public as to the nat ure, the manufacturing process, the 
characteristics, the suitability for their purpose, or the quantity, of the 
goods.  
 
7.2663.   Paragraph 1 of Article  10bis, as incorporated into the TRIPS  Agreement  by means of a 
reference in its Article  2.1, thus requires Members5344 to assure to nationals of Members effective 
protection against unfair competition. While paragraph 1 requires that such protection is 
"effective", it does not determine the means by which Members are to assure such protection or 
elaborate on the meaning of unfair competition.  
                                                
5341 Singapore's third -party submission,  para. 61. 
5342 Singapore's third -party submission, paras.  18-20. 
5343 Uruguay's third -party submission, para. 107. 
5344 We understand t he reference in Article  10bis(1) of the Paris Convention  (1967) to the countries of 
the Paris Union in the context of the TRIPS Agreement to mean the Members of the WTO, and the reference to 
nationals of such countries to nationals of other WTO Members as defined in Article  1.3 of the TRIPS 
Agreement. See Appellate Body Report, US – Section 211 Appropriations Act , para. 132. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2664.   "[A]n act of unfair competition" is defined in paragraph 2 of Article  10bis as being "[a]ny 
act of competition  contrary to honest practices  in industrial or commercial matters" (emphasis 
added). The term "competition" in the context  of commerce is defined as "rivalry in the market, 
striving for custom between those who have the same commodities to dispose of".5345 This is also 
how the panel in  Mexico – Telecoms  understood this term "in its relevant economic sense".5346 
7.2665.   The noun "act" means  "something done or effected; a deed".5347 The term "act of 
competition", in the context of "industrial or commercial matters", suggests something that is done 
by a market actor to compete against other actors in the market.  
7.2666.   The ordinary meaning of the adject ive "honest" in conjunction with an action such as 
"practice" is "done with or expressive of truthfulness, fairness, or integrity of character or 
intention; free from deceit; genuine, sincere."5348 As regards the term "practice", the Appellate 
Body considered  as relevant the following definitions: "'habitual doing or carrying out of 
something; usual or customary action or performance'; 'custom; a habit; a habitual action'; 'action 
of doing something; performance, operation; method of action or working'."5349 How commercial 
matters are habitually carried out is likely to vary from market to market and change over time. 
Taken together, these definitions suggest that an "act of competition" is contrary to "honest 
practices" if it is done in a manner that is contrary to what would usually or customarily be 
regarded as truthful, fair and free from deceit within a certain market.  
7.2667.   Accordingly, we understand the definition of "an act of unfair competition" in paragraph 2 
as referring to something that is done by a market a ctor to compete against other actors in the 
market in a manner that is contrary to what would usually or customarily be regarded as truthful, 
fair and free from deceit within a certain market.  
7.2668.   The chapeau  of paragraph 3 provides that "[t]he following in pa rticular  shall be 
prohibited" (emphasis added). The relevant definition of "in particular" is "[a]s one distinguished 
from others of a number".5350 We understand that paragraph 3 is linked to paragraph 2 of 
Article  10bis in that the acts from which the acts l isted in paragraph 3 are distinguished are other 
acts of unfair competition, as defined in paragraph  2.5351 Therefore, we understand that the types 
of acts listed in paragraph 3 are instances of "act[s] of competition contrary to honest practices in 
industria l or commercial matters", and that there may be other types of dishonest commercial 
practices that meet the definition in paragraph 2, which more broadly refers to " [a]ny  act of 
competition contrary to honest practices in industrial or commercial matters" (emphasis added). 
Furthermore, the chapeau  of paragraph 3 is worded as a binding obligation in respect of the types 
of acts listed under its subparagraphs, providing that "[t]he following in particular shall be 
                                                
5345 Oxford English Dictionary online, definition of "competition", available at: 
<http://www.oed.com/view/Entry/37578?rskey=pnBSr9&result=1#eid >, accessed  2 May 2017.  
5346 Panel Report, Mexico  – Telecoms , para. 7.230  (footnote omitted) . Honduras (first written 
submission, para. 663), the Dominican  Republic  (first written submission, para. 842), and Australia (first 
written submission, para. 447 and fn  620) refer to this definition of the term "competition".  
5347 Oxford English Dictionary online, definition of "act, n.", available at: 
<http://www.oed.com/view/Entry/1888?rskey=krCUxv&result=4&isAdvanced=false#eid >, accessed 
2 May 2017.  
5348 Oxford English Dictionary online, d efinition of "honest", available at: 
<http://www.oed.com/view/Entry/88149?rskey=Q1K9kO&result=1&isAdvanced=false#eid >, accessed 
2 May 2017.  
5349 Appellate Body  Report, US – Carbon Steel (India) , para. 4.90 fn 682 ( referring to  Shorter Oxford 
English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, p. 2311).  
5350 Oxford English Dictionary online, definition of "in particular", available at: 
<http://www.oed.com/view/Entry/138260?redirectedFrom=%22in+particular%22#eid31581166 >, accessed 
2 May 2017.  
5351 In India – Agricultural Pro ducts,  the Appellate Body found that the term "in particular" in the first 
sentence of Article  6.2 of the SPS Agreement "underscores the link between" Article  6.2 and the more general 
obligation in Article  6.1 of the SPS Agreement and, together with other considerations, "indicate[s] that, 
together, Articles  6.1 and 6.2 accord prominence to the content of Article  6.2 as one particular way through 
which a Member can ensure that its SPS measures are 'adapted', as required by Article  6.1." Appellate Body 
Repor t, India – Agricultural Products, para. 5.133.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  prohibited" (emphasis added). In other words,  paragraph 3 requires Members to prohibit the types 
of dishonest commercial practices mentioned in its subparagraphs.5352 
7.2669.   Overall, therefore, paragraph 1, read together with paragraphs 2 and 3, requires that a 
Member, in the process of assuring effective prot ection against acts of unfair competition, within 
the meaning of paragraph  2, has to prohibit the types of practices in industrial and commercial 
matters that fall under paragraph 3. Pursuant to paragraph 1, protection against such acts must 
be "effective" . Paragraph 1, however, is silent as to the standard to be applied to determine which 
industrial and commercial practices – beyond those covered by paragraph 3 – should be 
considered dishonest in a particular Member, against which that Member consequently must 
assure effective protection.  
7.2670.   We note that the parties share the view that it would be possible for a measure to be 
inconsistent with paragraph 1 without being inconsistent with any of the sub -paragraphs of 
paragraph 3. Indonesia reads paragraph  1 as creating a broader obligation than paragraph 3, and 
characterizes the examples in paragraph 3 as establishing "minimum protection" . Australia takes 
the view that a measure could be inconsistent with paragraph 1, even if the relevant conduct does 
not specif ically fall under any of the sub -paragraphs of paragraph 3, provided that such conduct is 
"of the same nature and scope" as the acts listed in paragraph 3. We will now turn to these 
questions.5353 
7.2671.   As we determined above, we understand "an act of unfair compet ition" in paragraph 2 as 
referring to something that is done by a market actor to compete against other actors in the 
market, in a manner that is contrary to what would usually or customarily be regarded as truthful, 
fair and free from deceit within a cert ain market. How industrial and commercial matters are 
usually or customarily carried out differs from market to market, as do the perceptions of and the 
standards for determining what constitutes "honest" commercial practices. In this regard, we 
observe th at there may be some diversity in how domestic legal systems approach the repression 
of unfair competition and what types of acts they cover. A WIPO commentary, provided to the 
Panel by the WIPO Secretariat in response to the Panel's request for informatio n, notes that, while 
most countries with special laws on unfair competition have adopted definitions that are the same 
or similar to the one used in Article  10bis(2), using terms such as "honest trade practices", 
perceptions of notions such as "honest prac tices" vary:  
It is true that describing unfair competition as acts contrary to "honest trade 
practices", "good faith" and so on does not make for clear -cut, universally accepted 
standards of behavior, since the meaning of the terms used is rather fluid. T he 
standard of "fairness" or "honesty" in competition is no more than a reflection of the 
sociological, economic, moral and ethical concepts of a society, and may therefore 
differ from country to country (and sometimes even within a country). That standard  
is also liable to change with time.5354 
7.2672.   We read this passage as illustrative also for the purposes of understanding the definition 
of an act of unfair competition contained in Article  10bis(2). In our view, the reference in that 
definition to "honest practic es" does not suggest that a single "clear -cut, universally accepted 
standard of behaviour" applies in determining whether a commercial practice is "honest". Rather, it 
suggests that this assessment should be made in light of what constitutes "honest practi ces" in the 
relevant market.  
7.2673.   In this respect, the notion of "honest practices" resembles another notion referred to in 
the WTO agreements, namely "public morals". The panel in US – Gambling , in interpreting 
Article  XIV(a) of the GATS, found that  "the term 'public morals' denotes standards of right and 
                                                
5352 We address the interpretation of the terms used in sub -paragraphs (3)(1) and (3)(3) of Article  10bis 
of the Paris Convention  (1967) in the context of the claims raised under those sub -paragraphs. See 
paras.  7.2714 , 7.2750 , 7.2753  below.  
5353 Honduras's response to Panel question No. 15; Dominican  Republic 's response to Panel question 
No. 15, paras.  72-76; Cuba's response to Panel question No. 15 (endorsing Honduras's response to question); 
Indonesia's response to Panel question No. 15; and Australia's response to Panel question No. 15. 
5354 Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Annex 8, International Bureau of WIPO, Protection Against Unfair Competition: Analysis of the Present World 
Situation , World Intellectual Property Organization (Geneva , 1994), paras.  28-29. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 781 - 
  wrong conduct maintained by or on behalf of a community or nation".5355 It also noted that "the 
content of these concepts for Members can vary in time and space, depending upon a range of 
factors, including preva iling social, cultural, ethical and religious values".5356 Similarly, the panel in 
China  – Publications and Audiovisual Products , in interpreting Article  XX(a) of the GATT 1994, 
noted that "the content and scope of the concept of 'public morals' can vary from  Member to 
Member, as they are influenced by each Member's prevailing social, cultural, ethical and religious 
values".5357 
7.2674.   The context provided by other provisions of the TRIPS  Agreement  referring to morality 
point in a similar direction. Article  6quinquies  of the Paris Convention  (1967) , as incorporated into 
the TRIPS  Agreement , allows a Member to deny or invalidate, under certain circumstances, a 
trademark that is "contrary to morality or public order". As Bodenhausen notes, the grounds for 
refusal or invali dation of a trademark exist when such a trademark is contrary to morality or public 
order "as considered in the country where protection is claimed".5358 Article  27.2 of the 
TRIPS  Agreement  allows Members to exclude from patentability inventions "the preventi on within 
their territory  of the commercial exploitation of which is necessary to protect ordre public  or 
morality " (emphasis added), suggesting that the necessity of preventing commercial exploitation 
on the grounds of morality is to be considered in resp ect of a particular territory.  
7.2675.   Therefore, the notion of "honest practices" as used in the definition of an act of unfair 
competition in Article  10bis(2) should be interpreted with reference to standards of honest conduct 
habitually applied and maintained in the domestic market at issue. What is to be considered as the 
market concerned needs to be determined based on the circumstances of a particular ca se. We 
note in this respect that the fact that what is considered to constitute an "honest practice" may 
vary from Member to Member does not render the obligation discretionary. If certain acts 
objectively fall within what is considered, within the domesti c market at issue, "contrary to honest 
practices in industrial or commercial matters", then they will constitute an act of unfair competition 
subject to the obligation in Article  10bis.5359 
7.2676.   This understanding is confirmed by the preparatory works of the Paris Convention  (1967) . 
The original 1883 Paris Convention  did not address unfair competition. The first mention of it was 
included in Article  10bis of the 1900 Brussels Act5360, and the current wording was introduced at 
                                                
5355 Panel Report, US – Gambling , para. 6.465. This interpretation was not question ed by the Appellate 
Body. Appellate Body Report, US – Gambling , para. 299. 
5356 Panel Report, US – Gambling , para. 6.461.  
5357 Panel Report, China  – Publications and Audiovisual Products , para. 7.763.  
5358 As regards the related concept of "public order", Bodenhaus en adds that "[a] mark contrary to 
public order would be a mark contrary to the basic legal or social concepts of the country concerned". 
Bodenhausen , Full text, (Exhibit DOM -79), p. 116. We note that all parties to the present disputes have relied 
on the Guide to the Paris Convention  in various parts of their submissions.  
5359 We also note that the Guide to the Paris Convention  by Bodenhausen refers to notions of honesty 
not only as prevailing in a Member's jurisdiction but also as established in international trade: "[a]ny act of 
competition will have to be considered unfair if it is contrary to honest practices in industrial o r commercial 
matters. This criterion is not limited to honest practices existing in the country where protection against unfair 
competition is sought. The judicial or administrative authorities of such country will therefore also have to take 
into account honest practices established in international trade." Bodenhausen, Full text, (Exhibit DOM -79), 
p. 144. In the circumstances of a particular case, honest practices established in international trade, if 
discernible, should therefore also inform the meaning  of "[a]ny act of competition contrary to honest practices 
in industrial or commercial matters" under paragraph 2 of Article  10bis. 
5360 Article  10bis of the 1900 Brussels Act provides that "[n]ationals of the Convention ( Articles  2 and 3) 
shall enjoy, in all  the States of Union, the protection granted to nationals against unfair competition". This 
provision, in a somewhat modified form, is now contained in paragraph 1 of Article  10bis. The 1911 
Washington Conference introduced the wording "assure … effective protection" and the 1925 Hague Act 
substituted "are bound" for "undertake". The definition of an act of unfair competition was inserted into its 
paragraph 2 in the 1925 Hague Act, and remains unchanged. The 1925 Hague Conference also inserted 
paragraph 3 w ith two sub -paragraphs containing the two examples that in essence correspond to the present 
sub-paragraphs 1 and 2. The third sub -paragraph with a further example was inserted into the 1958 Lisbon Act 
and remains unchanged. See Response by WIPO to the Pan el's request for factual information, letter dated 5 
October 2015, Excerpts from the records of diplomatic conferences adopting, revising and amending 
Articles  6bis, 6quinquies , 7 and 10 bis of the Paris Convention  (1967).  The extracts from the 1900, 1911 a nd 
1925 Acts of the Paris Convention are from the English translations of those acts as contained in The Paris 
Convention for the Protection of Industrial Property from 1883 to 1983  (WIPO, 1983).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  the 1925 Hague Revision Conference.5361 The D rafting Committee introduced the final text with, 
inter alia, the following comments:  
[O]n a jugé utile, en renforçant l'obligation prise par les pays contractants à 
Washington, d'établir le principe qu'il fallait atteindre la concurrence déloyale sous 
toutes ses formes et de donner seulement comme un exemple minimum  les deux 
groupes de faits qu'on était unanimes à ranger parmi les actes de concurrence 
déloyale .5362 
7.2677.   The aforementioned WIPO commentary further confirms that the three practices listed in 
paragra ph 3 that "in particular" have to be prohibited "must not be seen as exhaustive, but rather 
as the minimum protection that has to be granted by all member States".5363  
7.2678.   These elements confirm that the practices enumerated in paragraph 3 of Article  10bis are 
examples of dishonest practices and constitute an internationally agreed minimum as regards the 
types of dishonest practices that countries of the Paris Union are to prohibit. This does not detract 
from the fact that paragraph 2 sets the scope of the defini tion of "an act of unfair competition" as 
including "[a]ny" act of competition contrary to honest practices in commercial matters. The 
countries of the Union are, therefore, bound to provide effective protection against any acts of 
unfair competition falli ng within the definition in paragraph  2. This must comprise – at a minimum 
– the categories of practices mentioned in paragraph 3. The preparatory works cited above make it 
clear that, while the negotiators did not endeavour to specify other specific categ ories of practices 
against which all countries would be bound to assure effective protection, they had the intention of 
addressing unfair competition " sous toutes ses formes " ("in all of its forms"), and that the specific 
situations identified in paragraph  3 were provided " seulement comme un exemple minimum " 
("only as a minimum example").  
7.2679.   Accordingly, WTO Members are required not only to prohibit the three specific types of 
acts identified in paragraph 3 of Article  10bis, but also to provide effective prote ction against all 
acts falling more generally within the scope of its paragraph 2. While a Member is required to 
prohibit the types of dishonest practices in industrial and commercial matters enumerated in its 
paragraph  3, the scope of other practices in i ndustrial and commercial matters against which it is 
bound to assure effective protection needs to be considered in the context of the legal systems 
and conceptions of what constitutes an act contrary to what would usually or customarily be 
regarded as tru thful, fair and free from deceit within the domestic market at issue.5364 
7.2680.   We further note that, as observed by the Dominican Republic and Indonesia, protection 
against unfair competition serves to protect competitors as well as consumers, together with the 
public interest . We agree with the analysis in the WIPO commentary, to which the Dominican 
Republic refers, that when determining "honesty" in business dealings, all these factors have to be 
                                                
5361 The report of the Fourth Sub -Committee of the 1925 Hague C onference characterized the 
above -mentioned modification of paragraph 1 as having " d'un effet plutôt moral ". This was not considered 
sufficient, and there remained efforts, inter alia, to "prévoir certaines espèces qui dans tous les cas devraient 
former l' objet de la protection conventionnelle ." Response by WIPO to the Panel's request for factual 
information, letter dated 5 October 2015, Annex 4, Excerpts from the Records of the Hague Revision 
Conference (1925), Report of the Fourth Sub -Committee, p. 472. T he records are only available in French.  
5362 Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Annex 4, Excerpts from the Records of the Hague Revision Conference (1925), Report of the Drafting 
Committee, p. 547. 
5363 Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Annex 8, International Bureau of WIPO, Protection against Unfair Competition: Analysis of the Present World 
Situation , World Intellectual Property Organization (Geneva , 1994),  para. 21. Indonesia referred to a similar 
statement in the WIPO IP Handbook, IDN excerpts, (Exhibit IDN -43), para. 2.762. See Indonesia's first written 
submission, para. 154. Bodenhausen, commenting on paragraph  1 of Article  10bis of the Paris Convention  
(1967), explains that "[i]n giving effective protection against unfair competition, each country may itself 
determine which acts  come under this category, provided, however, that paragraphs (2) and (3) of the 
Article  under consideration are complied with". Bodenhausen, Full text, (Exhibit DOM -79), p. 144. (emphasis 
added)  
5364 Our conclusion is without prejudice to the scope of obligations resulting from the references in 
Articles  22.2(b) and 39.1 of the TRIPS Agreement to Article  10bis of the Paris Convention  (1967).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 783 - 
  taken into account.5365 This approach is consistent with Article  7 of the TRIPS  Agreement , entitled 
"Objectives", which reflects the intention of establishing and maintaining a balance between the 
societal objectives mentioned therein. Consequently, a determination of what amounts to an act 
that is contrary to honest practices in commercial matters may, depending on the circumstances, 
reflect a balancing of these interests.  
7.2681.   We further note that this interpretation is consistent with the relevant context in the 
TRIPS  Agreement , into which Article  10bis is incorporated b y means of the reference in its 
Article  2.1. In this regard, we note that the second and third sentences of Article  1.1 of the 
TRIPS  Agreement  provide that "Members may, but shall not be obliged to, implement in their law 
more extensive protection than is required by this Agreement, provided that such protection does 
not contravene the provisions of this Agreement", and "Members shall be free to determine the 
appropriate method of implementing the provisions of this Agreement within their own legal 
system a nd practice."  
7.2682.   The second sentence of Article  1.1 makes it clear that the TRIPS  Agreement  is a 
minimum standards agreement. As the panel in China  – Intellectual Property Rights  noted, it 
"clarifies that the provisions of the Agreement are minimum standards only, in that it gives 
Members the freedom to implement a higher standard, subject to a condition".5366 Furthermore, 
the third sentence clarifies that the TRIPS  Agreement  is not intended to harmonize laws between 
Members. As the Appellate Body noted in India – Patents , "Members, therefore, are free to 
determine how best to meet their obligations under the TRIPS Agreement  within the context of 
their own legal systems".5367 We also note that the third sentence of Article  1.1 of the 
TRIPS  Agreement  leaves it to that  Member to choose the appropriate methods within its own legal 
system and practice to repress any such dishonest practice.  
7.2683.   In response to a question from the Panel, Honduras, Cuba,  and Indonesia argue that 
Article  10bis could cover more than "acts of unfai r competition" as defined in its paragraph 2 
because Article  10bis(1) requires effective protection against "unfair competition".5368  
7.2684.   Article  10bis(2) defines the term "act of unfair competition", whereas Article  10bis(1) 
requires effective protection agains t "unfair competition". We do not, however, read the omission 
of the word "act" from paragraph 1 as extending the scope of Article  10bis beyond acts of unfair 
competition as defined in paragraph 2. As described above, the term "competition" refers, in the 
relevant economic sense, to  "[r]ivalry in the market, striving for custom between those who have 
the same commodities to dispose of."5369 This definition entails that competition is a process 
between market actors. By referring to competition, Article  10bis(1) thus requires effective 
protection against unfair competition between market actors. This is underscored by the three 
subparagraphs of Article  10bis(3) which are each based on the assumption that unfair competition 
involves an action of market actors. Subparagraphs 1 and 2 of Article  10bis(3) both refer to 
something being done to a "competitor", which implies that a competing market operator is 
involved in what amounts to unfair competition. Likewise, subparagraph 3 of Article  10bis(3) 
regulates the use  of certain types of " indications or allegations … in the course of trade", implying 
that unfair competition relates to actions undertaken by actors operating on the market. We 
also do not have any indication from the preparatory work of Article  10bis and its subsequent 
                                                
5365 Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Annex 8, International Bureau of WIPO, Protection against Unfair Competition: Analysis of the Present World 
Situation , World Intellectua l Property Organization (Geneva , 1994), paras.  33-37. See also WIPO Protection 
Against Unfair Competition, (Exhibits AUS -536, DOM -139).  
5366 Panel Report, China  – Intellectual Property Rights , para. 7.513. The condition referred to by the 
panel is contained i n the third sub -clause of the second sentence of Article  1.1, namely that such more 
extensive protection may not contravene the provisions of the TRIPS Agreement. For example, generally such 
protection has to be made available to nationals of other Members without discrimination, consistently with 
Articles  3-5. 
5367 Appellate Body Report, India – Patents (US) , para. 59. 
5368 Honduras's response to Panel question No. 18; Cuba's response to Panel question No. 18 (annexed 
to its response to Panel question No. 138); and Indonesia's response to Panel question No. 18. 
5369 Oxford English Dictionary online, definition of "competition", available at: 
<http://www.oed.com/view/Entry/37578?rskey=b0X7t0&result=1&isAdvanced=false#eid >, accessed 
2 May 2017.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 784 - 
  amendments5370 that would suggest any intention by negotiators to address unfair competition in 
relation to anything other than business competition involving market actors.5371 
7.3.6.4   Whether the TPP measures  are inconsistent with Article  10bis of the 
Paris Convention  (1967) , as incorporated in the TRIPS  Agreement   
7.3.6.4.1   Introduction  
7.2685.   We now turn to the claims by Honduras, the Dominican Republic, Cuba and Indonesia 
that the TPP measures  are inconsistent with Article  10bis.  
7.2686.   Honduras  claims that the TPP measures  are inconsistent with:  
a. Article  10bis(1) because the plain packaging trademark restrictions give rise to a 
situation of "unfair competition" by ex ante and systematically skewing the conditions of 
competition to the detriment of high -end products and prod ucers and to the advantage 
of lower -end products and producers5372; and  
b. Article  10bis(3)(3) because the TPP measures  require producers to make "indications or 
allegations" that all tobacco products have the same physical properties and 
characteristics.5373 
7.2687.   The Dominican Republic  claims that the TPP measures  are inconsistent with:  
a. Article  10bis(1) because the TPP measures  compel acts that amount to unfair 
competition5374; and  
b. Article  10bis(3)(3) because the TPP measures  compel acts that are liable to mislead the 
public as to the characteristics of tobacco products.5375 
7.2688.   Cuba claims that the TPP measures  are inconsistent with Article  10bis, because a 
competitive environment in which rival manufacturers are required to present their goods to 
consumers in a visually undif ferentiated manner results in unfair competition .5376 In particular, 
they are inconsistent with : 
a. Article  10bis(1), because the TPP measures  require competitors to carry out acts that 
constitute unfair competition5377; and  
b. Article  10bis(3)(1) because the TPP meas ures create confusion5378; and  
c. Article  10bis(3)(3) because the TPP measures  are liable to mislead consumers.5379 
7.2689.   Indonesia  claims that the TPP measures  are inconsistent with:  
a. Article  10bis(3)(1) because the TPP measures  are likely to create confusion5380; and  
                                                
5370 Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Excerpts from the records of various diplomatic conferences adopting, revising and amending Articles  6bis, 
6quinquies , 7 and 10 bis of the Paris Convention . 
5371 This is without prejudice to the question – not raised in the present proceedings – whether and 
under what circumstances other entities, like consumer associations, might be considered to act as  competing 
market operators, or be accorded rig hts or obligations under the national unfair competition laws of Members.  
5372 Honduras's first written submission, paras.  20 and 938.  
5373 Honduras's first written submission, paras.  20 and 938.  
5374 Dominican  Republic 's first written submission, section VI.I.2.  
5375 Dominican  Republic 's first written submission, section VI.I.2.  
5376 Cuba's first written submission, para. 382. 
5377 Cuba's first written submission, para. 383; and Cuba's second written submission, para. 145. 
5378 Cuba's second written submission, paras.  137 and 145. 
5379 Cuba's second written submission, paras.  137 and 145.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 785 - 
  b. Article  10bis(3)(3) because the TPP measures  are liable to mislead consumers.5381 
7.2690.   The complainants' arguments concerning Article  10bis relate to two aspects. Cuba argues 
that the TPP measures  themselves constitute an act of unfair competition on the grounds t hat they 
create unfair conditions for competition. In addition, the complainants argue that the 
TPP measures  compel market actors to engage in the types of acts of unfair competition against 
which Australia is obliged to assure effective protection pursuan t to paragraph 1, or to prohibit 
under paragraph 3(1) or 3(2). In the following, we will first address whether the TPP measures  
themselves constitute acts of unfair competition, and then whether they require market actors to 
engage in acts of unfair compet ition of the type that Australia is required to provide protection 
against under Article  10bis, as incorporated through Article  2.1.  
7.2691.   As regards the order of analysis of the second set of claims, we recall that, in our general 
interpretative analysis of Ar ticle 10 bis, we found that the types of acts listed in paragraph 3 are 
instances of acts of unfair competition, as defined in paragraph 2.5382 Pursuant to paragraph 3, 
WTO Members are required to prohibit the three specific types of acts identified in that paragraph . 
Pursuant to paragraph 1, they are also to provide effective protection against all other acts falling 
more generally within the scope of the definition of an act of unfair competition in paragraph 2.5383 
We, therefore,  consider it appropriate to firs t address the arguments that relate to the specific 
types of acts of unfair competition identified in paragraphs 3(1) and 3(3), which Australia is 
obliged to prohibit, and then th e arguments  that relate to other acts of unfair competition falling 
more gene rally within the scope of paragraph  2 against which Australia is obliged to assure 
effective protection pursuant to paragraph  1.  
7.2692.   We will, accordingly, address in turn:  
a. the allegation by Cuba and Indonesia that the TPP measures  compel acts inconsistent 
with paragraph 3(1) of Article  10bis;  
b. the allegation by Honduras, the Dominican Republic, Cuba,  and Indonesia that the 
TPP measures  compel acts that are inconsistent with paragraph 3(3)  of Article 10 bis; 
and 
c. the allegation by Honduras, the Dominican Republi c and Cuba that the TPP measures  
compel acts of unfair competition inconsistent with paragraph 1 of Article  10bis. 
7.3.6.4.2   Whether the TPP measures  themselves constitute an act of unfair competition  
7.2693.   Cuba argue s that the "competitive environment" resulting from the application of the 
TPP measures  – where rival manufacturers are required to present their goods in a visually 
undifferentiated manner – leads to "a situation of 'unfair competition '".5384  
7.2694.   Honduras  initially argued, as regards its claim under Article 10 bis(1), that a governmental 
regulation  that skews the conditions of competition in favour of some competitors and to the 
detriment of other competitors is "unjust" and "not equitable", i.e. unfair, and that Article  10bis 
constrains a government's regulatory power in this regard to the extent that regulation has more 
than " incidental " impact on competition in that it renders  competition unfair.5385 As regards its 
claim under Article  10bis(3)(3), Honduras initiall y contended that the TPP measures are 
inconsistent with paragraph  3(3) on the grounds that they give rise to misleading indications and 
allegations. In its view, this results in unfair competition because consumers are being misled 
about the true nature of  tobacco products and because the TPP measures have an asymmetrical 
impact on competitors.5386 Honduras later clarified that it does not argue that a government's laws 
                                                                                                                                                  
5380 Indonesia's first written submission, section V.2.b.  
5381 Indonesia's first written submission, section V.2.c  
5382 See para. 7.2668  above.  
5383 See para. 7.2679  above.  
5384 Cuba's first written submission, para. 382; and second written submission, para. 138. 
5385 Honduras's first  written submission, paras. 677 -681. 
5386 Honduras's first written submission, paras. 718 -734. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 786 - 
  or regulations constitute acts of unfair competition. Rather, the acts of unfair competitio n are 
those of private parties.5387  
7.2695.   The Dominican Republic  explains that it is not arguing that the TPP measures are 
themselves "acts" of unfair competition but rather the particular acts of unfair competition at issue 
are private acts of producers.5388  
7.2696.   As reg ards its claim under Article  10bis(3)(1), Indonesia  initially contended that "PP is an 
act of 'such a nature as to create confusion ' among competitors' tobacco products"5389 because the 
required uniformity of packaging and presentation of tobacco products allegedly, inter alia, drove 
manufacturers to compete on price, limited competitive opportunities resulting in downtrading, 
and encouraged illicit trade.5390 Later in the proce edings, Indonesia clarified that " [t]he 'acts of 
unfair competition' are not regulatory acts by Australia. The relevant acts of unfair competition are 
the private acts by competitors in the market place when they present their competing products in 
virtual ly identical packaging."5391 
7.2697.   Australia  responds that an act of unfair competition does not encompass the regulatory 
environment in which such acts take place.5392  
7.2698.   We recall that an act of unfair competition is defined in paragraph 2 of Article  10bis as 
"[a]ny act of competition contrary to honest practices in industrial or commercial matters". We 
also recall our understanding in paragraph 7.2665  that the terms "competition", and "act of 
competition", which are part of the definition, suggest, in the context of "industrial or commercial 
matters", that the term "act of competition" refers to something that is done by a market actor to 
compete agains t other actors in the market. In our view, therefore, laws and other instruments 
that a Member adopts to regulate the market, or the overall regulatory environment within which 
the market operates do not per se amount to "acts of unfair competition".5393 
7.2699.   We, therefore, find that the TPP measures  in themselves do not constitute an act of 
competition within the meaning of Article  10bis(2), and therefore also do not constitute an act of 
unfair competition against which a Member is bound to assure effective protec tion under 
Article  10bis(1), including by prohibiting all acts of unfair competition of such a nature as to create 
confusion within the meaning of Article  10bis(3)(1) or by prohibiting indications or allegations, the 
use of which in the course of trade is liable to mislead the public within the meaning of 
Article  10bis(3)(3).  
7.3.6.4.3   Whether the TPP measures  require market actors to engage in acts of unfair 
competition against which Australia is obliged to assure protection  
7.2700.   As described above, all complainants argu e that the TPP measures  compel market actors 
to engage in the types of acts of unfair competition against which Australia is obliged to assure 
effective protection pursuant to paragraph 1 (Honduras, the Dominican Republic and Cuba), or to 
prohibit under pa ragraph 3, namely acts of unfair competition that create confusion within the 
meaning of paragraph 3(1) (Cuba and Indonesia), or acts of unfair competition that amount to 
misleading indications or allegations within the meaning of paragraph  3(3) (Honduras,  the 
Dominican Republic, Cuba, and Indonesia).  
7.2701.   We will therefore first consider whether the TPP measures  compel market actors to 
engage in any acts of unfair competition that Australia is obliged to prohibit in accordance with 
paragraphs  3(1) or 3(3) of Article 10bis, and then whether they compel other acts of unfair 
                                                
5387 Honduras's second written submission, para. 391.  
5388 Dominican  Republic 's second written submission, para. 749 . 
5389 Indonesia's first written submission, para. 167.  
5390 Indonesia's first written submission, paras. 163 and 168-177. 
5391 Indonesia's second written submission, para. 57.  
5392 See Australia's first written submission, paras. 445 -450 and the summary of arguments above.  
5393 This is without prejudice to the question of whether, and under what circumstances, a Member itself 
can be considered to act as  a competing market operator, or be accorded rights or obligations under the 
national unfair competition laws of Members, an issue not raised in the present proceedings.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 787 - 
  competition contrary to paragraph 1.5394 If we find that the TPP measures  do compel market actors 
to engage in acts of unfair competition that Australia is obliged to prohibit under paragraphs  3(1) 
or 3(3), or against which Australia is bound to assure effective protection pursuant to paragraph  1, 
we will consider whether, in compelling these acts, Australia fails to prohibit such acts within the 
meaning of paragraphs 3(1) and 3(3) or assure "effe ctive protection" against such acts within the 
meaning of paragraph 1, in violation of Article  10bis.  
7.3.6.4.3.1   Article  10bis(3)(1)  
7.2702.   We now turn to whether, as alleged by Cuba and Indonesia, the TPP measures  compel 
acts of such a nature as to create confusion within  the meaning of Article  10bis(3)(1).5395 
Main arguments of the parties  
7.2703.   Cuba contends that the TPP measures , by eliminating all distinctive elements of tobacco 
packaging with the exception of the brand and variant name, which may only be printed in the 
prescri bed typeface and size, mandates acts that deliberately create confusion, in violation of 
Article  10bis(3)(1).5396 
7.2704.   Indonesia  argues that, as a result of the TPP measures , the packaging of tobacco 
products and the products themselves are stripped of any distinctiveness and each manufacturer's 
tobacco product looks essentially the same as its competitors.5397 It submits that this required 
uniformity constitutes an act of "such a nature as to create confusion" among the tobacco product 
offerings of different c ompetitors.5398 Without the distinctive elements of a normally branded 
tobacco product, it is difficult for competitors to distinguish their brands and for consumers to 
discern one brand from another. The permitted use of the brand name on packaging is insuff icient 
to prevent confusion among tobacco products, as there are a number of similar variations of brand 
and variant names that are already registered in Australia. In this regard, the TPP measures  
mandate private acts "of such a nature as to create confus ion" in the minds of consumers.5399  
7.2705.   Indonesia further argues that the confusion among brands created by the TPP measures  
frustrates the purpose of Article  10bis(3)(1) to protect competitors, especially those in the 
mid-priced and premium segment of the marke t, against unfair competition. Denied the means to 
distinguish their products from competitors, manufacturers have no incentive to compete on 
quality and are driven to compete on price. The e vidence of increased downtrading from premium 
brands to low -price brands shows that the TPP measures  are limiting competitive opportunities for 
producers of premium products. Downtrading harms competitors in the mid -priced and premium 
segment of the market that have invested in developing higher quality products. Indone sia 
contends that, "[i]n short, Australia's [T]PP measures rob tobacco product manufacturers of the 
ability to distinguish their products based on quality and therefore 'commoditize' the tobacco 
market".5400 Indonesia adds that "Australia sought to ensure tha t manufacturers cannot  compete 
on the basis of consumer perceptions of quality. And in fact, a stated goal of [T]PP was 'shattering 
the image of cigarettes as an ordinary consumer item'."5401  
7.2706.   The confusion among tobacco product brands created by the TPP meas ures further harms 
competitors and the public by encouraging illicit trade in tobacco products. Manufacturers of legal 
tobacco products are forced to compete against illicit, lower -priced products. Indonesia argues that 
"[t]his is exactly the kind of unfai r competition that Australia is obligated to protect against under 
                                                
5394 See the discussion of the order of analysis in para. 7.2691  above.  
5395 Australia describes the way in which it gives effect to its obligation under Article  10bis to assure 
effective protection against unfair competition in its first written submission, paras.  458-459. For a summary, 
see paras.  7.2780 -7.2781  above.  
5396 Cuba's second written submission, paras.  137-138, 141 and 145. See also Cuba's first written 
submission, paras.  385 and 383.  
5397 Indonesia's fir st written submission, para. 162. 
5398 Indonesia's first written submission, para. 163. 
5399 Indonesia's first written submission, paras.  165-167; and second written submission, para. 49. 
5400 Indonesia's first written submission, paras.  168-174. 
5401 Indonesia's firs t written submission, para. 174 (emphasis original) ( referring to  NPHT Technical 
Report 2, (Exhibits AUS -52, JE -12), p. vi). WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 788 - 
  Article  10bis".5402 Indonesia submits that "Australia has failed to provide effective protection 
against unfair competition by increasing the competitive opportunities for illicit tobacco prod ucts". 
It explains that "[b]y lowering the cost and difficulty of creating counterfeit tobacco packs, creating 
economies of scale for counterfeit production, and requiring the appearance of tobacco packaging 
to remain static over time, Australia's plain pa ckaging measures offer significant competitive 
advantage to manufacturers of illicit tobacco products to the detriment of legal products".5403 
7.2707.   Indonesia argues that the TPP measures  affect the legal mechanism available to 
trademark owners, because they make it more difficult to demonstrate that allegedly infringing 
marks are causing confusion. By eroding the distinctiveness of trademarks over time through 
non-use and by requiring tha t trademarks appear in an identical format, the TPP measures  
diminish the ability of trademark owners to successfully prosecute trademark infringement actions. 
Thus, by the operation of its TPP measures , Australia fails to provide effective protection agai nst 
acts of unfair competition in violation of Article  10bis.5404 
7.2708.   Indonesia stated that "PP is an act of 'such a nature as to create confusion' among 
competitors' tobacco products".5405 It clarified that the relevant "acts of unfair competition" are not 
regulato ry acts by Australia but the private acts by competitors in the marketplace presenting their 
competing products in virtually identical packaging.5406 
7.2709.   Indonesia submits that Australia compels the action that it is required to prohibit under 
Article  10bis(3)(1) . It has created confusion among competitors by mandating that tobacco 
manufacturers sell products that are uniform in appearance and in packaging and that look almost 
identical to those of their competitors.5407 In this regard, the TPP measures  mandate priva te acts 
"of such a nature as to create confusion" in the minds of consumers.5408 
7.2710.   Indonesia refers to Article  27 of the Vienna Convention, which provides that a party to an 
international treaty "may not invoke the provisions of its internal law as justificatio n for its failure 
to perform a treaty ". It adds that, in Mexico  – Telecoms , the panel found that Mexico had violated 
its WTO obligations by requiring anti -competitive practices that it was obligated to prevent under 
its GATS commitments.5409 
7.2711.   Australia  argues that, by its terms, Article  10bis(3)(1) prohibits acts that "mix up" the 
establishment, goods or commercial activities of a market actor with those of a rival 
competitor.5410 In order to establish a violation of Article  10bis(3)(1), the complainants w ould need 
to demonstrate that Australia has failed to prohibit acts that create confusion between the goods 
of one market actor and those of a rival competitor.5411 Australia contends that Indonesia has not 
even attempted to demonstrate that Australia has fai led to prohibit  such acts.5412 
7.2712.   Australia contends that the TPP measures  are not themselves an "act of competition", nor 
do they compel "acts of competition". Furthermore, even if they did compel such acts, Indonesia 
has failed to demonstrate that the TPP meas ures compel acts that "create confusion" between the 
goods of one market actor and those of a rival competitor as to the proper commercial source of 
the goods.5413 Indonesia has neither demonstrated that the measures have created confusion 
between competing t obacco products nor advanced arguments or evidence to establish how 
                                                
5402 Indonesia's first written submission, paras.  175-177 (referring to KPMG Report 2013 , (Exhibits 
HND-67, DOM -98, IDN -41), which reports an increase in illicit trade from 2012 to 2013).  
5403 Indonesia's response to Panel question No. 23, paras.  25-27 (referring to CMZ Report , (Exhibit 
DOM/HND -2), paras.  58-61 and 79 -84 and fn  91). 
5404 Indonesia's second written submission, para. 54. 
5405 Indonesia's first written submission, para. 167. 
5406 Indonesia's second written submission, para. 57 (emphasis original). See also ibid. paras.  48-49. 
5407 Indonesia's first written submission, para. 178. 
5408 Indonesia's second written submission, para. 49. 
5409 Indonesia's first written submission, para. 178 (referring to Panel Report, Mexico  – Telecoms , 
paras.  7.262 and 7.266).  
5410 Australia's first written submission, para. 461 ( referring to  the definition of "confuse" in Shorter 
Oxford English Dictionary, Vol. 1, AUS excerpts, Part 1, (Exhibit AUS -243), p. 489).  
5411 Australia's first written submission, para. 462. 
5412 Australia's second written submission, para. 47. 
5413 Australia's second written submission, para. 48. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 789 - 
  Australia's measure could  create confusion between competing tobacco products within the context 
of Australia's dark market. Indonesia has also failed to explain how, post -purchase, the pa ckaging 
and appearance of tobacco products create confusion between the goods of one tobacco producer 
and those of a rival competitor. Because the TPP measures  apply to all tobacco products for retail 
sale in Australia, it is implausible that consumers cou ld be confused about whether all tobacco 
products in Australia are those of a single market actor on the basis of their standardiz ed 
packaging and appearance. This is especially so when the measures permit the packaging of each 
tobacco product to clearly i dentify its particular brand, business or company name and any variant 
name. Indonesia has thus failed to establish a prima facie case of violation of Article  10bis(3)(1) of 
the Paris Convention .5414 
Analysis by the Panel  
7.2713.   Article  10bis(3) identifies certain types of acts of unfair competition, which in particular 
shall be prohibited. Its sub -paragraph (1) relates to "all acts of such a nature  as to create 
confusion  by any means whatever with the establishment, the goods, or the industrial or 
commercial activi ties, of a competitor ". (emphasis added)  
7.2714.   The focus of paragraph 3(1) is therefore on those acts that are of such a nature as to 
create confusion about a competitor's  products, establishment, or industrial or commercial 
activities.5415 A definition of "confusion" is "[t]he confounding or mistaking of one for another; 
failure to distinguish".5416 The ordinary meaning of "confusion" thus suggests that paragraph 3(1) 
refers to situations where an act of unfair competition is of such a nature that it results in 
confusion in the sense of mistaking between products or failure to distinguish between them. A 
definition of "of nature" is "of the type, form, or character of; similar to, like; equivalent to, 
classifiable as".5417 The ordinary meaning of "of such a nature" suggests that an act of unfair 
competition may fall under paragraph 3(1) if it is "of the type" of acts of unfair competition that 
result in confusion within the meaning of paragraph  3(1). It follows from the phrase "of such 
nature" that  it is not determinative whether an act of that type was committed in good faith.  
7.2715.   We recall that, as described in greater detail above, the TPP measures  prohibit the use of 
stylized word marks, composite marks and figurative marks and other decorative elements, both 
on tobacco retail packaging and tobacco products, and standardize the appearance of retail 
packaging. However, they permit the use of word ma rks and marks that denote the brand, 
business or company name, or the name of the product variant on tobacco retail packaging, so 
long as these trademarks appear in the form prescribed by the TPP Regulations .5418  
7.2716.   Indonesia first contended that the TPP measur es were an act of such a nature as to 
create confusion, within the meaning of paragraph  3(1), because the required uniformity of 
packaging and presentation of tobacco products allegedly, inter alia, drove manufacturers to 
compete on price, limited competit ive opportunities resulting in downtrading, and encouraged illicit 
trade.5419 It added that "the confusion among brands created by the TPP measures  frustrates the 
purpose of Article  10bis(3)(1) to protect competitors", resulting in a situation where tobacco 
manufacturers  have no incentive to compete on quality and are driven to compete on price, 
because consumers have no basis other than price upon which to make purchasing decisions 
absent the "information channel" that fully branded packaging provides.5420 In the course of the 
                                                
5414 Australia's first written submission, paras.  463-467. See also Australia's second written submission, 
para. 50. For the main arguments of the third parties, see section 7.3.6.3.2  above.  
5415 The WIPO commentary describes State practice by explaining that "[t]he test for the basic type of 
confusion  is whether the similar mark so resembles the protected mark that it is liable to con fuse a substantial 
number of average consumers as to the commercial source  of the goods or services". Response by WIPO to the 
Panel's request for fac tual information, letter dated 5 October 2015, Annex 8, International Bureau of WIPO, 
Protection Against Un fair Competition: Analysis of the Present World Situation , World Intellectual Property 
Organization (Geneva , 1994), para. 45. (emphasis original)  
5416 Oxford English Dictionary online, definition of "confusion", available at:  
<http://www.oed.com/view/Entry/39014?redirectedFrom=confusion#eid >, accessed  2 May 2017.  
5417 Oxford English Dictionary online, definition of "of (also in) the nature of", available at: 
<http://www.oed.com/view/Entry/125353?redirectedFrom=of+nature#eid34910817 > , accessed 2  May 2017.  
5418 For further details, see sections 2.1.2.3.3 and 2.1.2.4 above.  
5419 Indonesia's first written submission, paras.  162-177. 
5420 Indonesia's first written submission, para. 168. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 790 - 
  proceedings, it clarified that the acts of unfair competition at issue are not regulatory acts by 
Australia, but private acts by competitors in the marketplace when they present their competing 
products in virtually identical packaging.5421 In this regard, we recall our finding in para. 7.2699  
that the TPP measures  in themselves do not constitute an act of unfair competition.  
7.2717.   Indonesia a lso argues that the TPP measures  erode the distinctiveness of trademarks 
over time, thus making it more difficult for trademark owners to demonstrate that allegedly 
infringing marks are causing confusion.5422 In our view, this alleged impact of the regulatory  
environment relates to the operation of the TPP measures  themselves as a regulatory 
intervention.5423 In light of our finding in para. 7.2699  that the TPP measures  in themselves do not 
constitute an act of unfair competition, we do not consider such alleged impact to amount to an 
act of unfair competition within the meaning of Article 10bis, including its paragraph 3(1).  
7.2718.   As regards private acts by competitors allegedly compelled by the TPP measures , 
Indonesia and Cuba argue that Australia has created confusion among competitors by mandating 
that tobacco manufacturers sell products t hat are uniform in appearance and in packaging and that 
look almost identical to that of their competitors.5424 Indonesia elaborates that word marks 
themselves, particularly when presented in an identical format, are insufficient to differentiate one 
brand fr om another, and adds that retail packaging is otherwise stripped of all distinguishing 
characteristics. It submits that, in this regard, the TPP measures  mandate private acts "of such a 
nature as to create confusion" in the minds of consumers.5425  
7.2719.   Australia responds that, since the TPP measures  apply to all tobacco products for retail 
sale, it is implausible that consumers could be confused about whether all tobacco products in 
Australia are those of a single market actor on the basis of their standardiz ed pa ckaging and 
appearance.5426 
7.2720.   We are not persuaded that Cuba and Indonesia have demonstrated that compliance by 
market actors with the TPP measures  would constitute an act of unfair competition of such a 
nature as to create confusion in the minds of consumers w ithin the meaning of paragraph 3(1), or 
that the use, under the circumstances of the TPP measures , of a brand, business or company 
name and variant name in a standard format on retail packaging would not allow consumers to 
distinguish the commercial source  or the products themselves and thus create confusion about the 
establishment of competitors or the goods at issue and their associated qualities.  
7.2721.   We first note that all competitors on the Australian market have to comply with the same 
requirements on stan dardized retail packaging and presentation of tobacco products, and they do 
so within the context of Australia's longstanding comprehensive tobacco control policies and an 
environment of public education on the overall purpose of those policies.5427 To the ex tent that the 
confusion at issue would arise from the fact that a consumer would mistakenly assume that all 
competing products have identical characteristics or source because their external appearance is 
very similar, we are not persuaded that this would be the case where this similarity results from a 
well-publicized regulatory intervention within a comprehensive tobacco control policy and does not 
reflect a commercial choice by market actors to portray the products as having identical 
characteristics.  
                                                
5421 Indonesia's second written submission, para. 57. 
5422 Indonesia's second written submission, para. 54. Indonesia makes this argument in the context of  
its claim under Article  10bis of the Paris Convention  (1967). It refers to its arguments in the context of its 
claims under Articles  16.1 and 16.3 of the TRIPS Agreement for further explanations. Ibid. We recall that we 
have addressed the latter arguments  in the context of our analysis of its claims under Articles  16.1 and 16.3 of 
the TRIPS Agreement.  
5423 As we noted above, Indonesia clarified that, for the purposes of its claims, the relevant acts of 
unfair competition are the private acts by competitors in  the marketplace. Indonesia's second written 
submission, para. 57. 
5424 Indonesia's first written submission, para. 178. See also Cuba's second written submission, 
para. 137. 
5425 Indonesia's second written submission, para. 49. 
5426 Australia's first written submi ssion, paras.  463-467. See also Australia's second written submission, 
para. 50. 
5427 See also the information in sections 2.1.1 and 2.2 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 791 - 
  7.2722.   We also note that consumers can rely on the information permitted by the TPP measures  
through the brand, variant name and country of origin of the product, which remains available and 
can be verified through inspection at the purchase point, to distinguish c ompeting tobacco 
products from each other. To the extent that particular characteristics are in fact associated with 
tobacco products bearing a specific brand and variant name, the consumer would be in a position 
to rely on the use of these designations, t o distinguish these products from competing products on 
the market and to associate specific perceived characteristics of different products with these 
distinct brands.  
7.2723.   In light of the above, we are not persuaded that the complainants have demonstrated 
that consumers would be confused about the establishment, the goods, or the industrial or 
commercial activities of a competitor,  as a result of the requirement to present tobacco products 
for retail sale in a standardized form under the TPP measures . As a consequence, we are  also not 
persuaded that compliance by market actors with the requirements of the TPP measures  
constitutes an act of unfair competition of such a nature as to create confusion in the minds of 
consumers, within the meaning of paragr aph 3(1) of Article  10bis.5428 
7.2724.   We therefore find that Cuba and Indonesia have not demonstrated that the TPP measures  
compel market actors to engage in acts of unfair competition of such a nature as to create 
confusion within the meaning of paragraph  3(1). We therefore also find that they have not 
demonstrated that Australia, in maintaining these measures, fails to prohibit such acts, in violation 
of Article  10bis, paragraph 3(1).  
7.3.6.4.3.2   Article  10bis(3)(3)  
7.2725.   We now turn to whether the TPP measures  compel market actors to engage in acts which 
amount to misleading indications or allegations within the meaning of Article  10bis(3)(3), as 
alleged by Honduras, the Dominican Republic, Cuba, and Indonesia.  
Main arguments of the parties  
7.2726.   Honduras  submits that Article  10bis(3) sets out specific examples of acts of unfair 
competition. A measure that is inconsistent with one of the subparagraphs of Article  10bis(3) is by 
definition also inconsistent with Article  10bis(1). As Article  10bis(1) encompasses a broader 
universe of possible  violations than Article  10bis(3), it is possible, however, for a measure to be 
inconsistent with Article  10bis(1) but not to fall within the specific examples in Article  10bis(3).5429  
7.2727.   Honduras explains that this provision focuses on the trader making allega tions about its 
own products. The provision seeks to protect consumers and the broader public from being misled 
about the features or aspects of a product. Because Article  10bis(3)(3) defines a per se example of 
"unfair competition", it is not necessary to  show that the misleading indications have had an 
adverse effect on competitors; rather, the existence of the misleading indication is, in and of itself, 
sufficient to demonstrate the existence of "unfair competition" because the corresponding impact 
on co mpetitors is irrebuttably presumed.5430  
7.2728.   Honduras submits that the terms "indication" or "allegation" are broad and cover any 
form of statement, assertion or indication that communicates any category of information about a 
product (good), either in an absolut e sense or in relation to other goods in the market. They also 
cover omissions when these omissions create a particular impression in the mind of the consumer. 
Given their broad definition, they can also encompass impressions communicated through a 
product 's design.5431 
                                                
5428 We also recall that the acts listed in paragraph 3(1) are examples of acts of unfair competition as 
defined in pa ragraph 2. In this regard, we are not persuaded that the very act of putting onto the market 
products that comply with the regulatory requirements under the TPP measures  would amount to an act of 
competition contrary to honest commercial practices. In this regard, we refer to our discussion in para. 7.2792  
below.  
5429 Honduras's response to Panel question No. 15. 
5430 Honduras's first written submission, paras.  701-702. 
5431 Honduras's first written submission, paras.  707-708 and 711.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 792 - 
  7.2729.   The ordinary meaning of "mislead" is to "[l]ead astray in action or conduct; cause to have 
an incorrect impression or belief"; and "lead or guide in the wrong direction".5432 The words "liable 
to cause" imply that no proof of actual "mislead[ing]"  is required, as long as the indication or 
allegation has the potential  to mislead.5433  
7.2730.   The ordinary meaning of "course of trade" is in the process when trade is conducted. This 
encompasses each and every part of the process or activities through which a product is conveyed 
from the producer to the consumer, including aspects of post -sale activities relating to an already 
purchased unit of the product.5434 Honduras contends that Australia does not provide any textual 
basis for its argument that the term "cour se of trade" ends at the point of sale.5435 Indications or 
allegations that are made "in any commercial context" are covered by Article  10bis and need not 
be visible at the retail point of sale in order to be liable to mislead the public.5436 
7.2731.   Honduras submits th at "[t]he design of packaging, including the information or symbols 
and signs that are omitted, constitute 'indications or allegations'".5437 Under the TPP measures  – 
both the trademark restrictions and the formatting requirements – consumers are misled by 
uniform packaging into believing that all tobacco products are similar or same, and of similar or 
same quality. This belief is incorrect, because not all products are of the same or similar 
quality.5438 There are demonstrable differences in the quality, taste, composition and other 
physical properties of tobacco products.5439 As a result, consumers and the broader public are 
being "misled" and there is "unfair competition" within the meaning of Article  10bis(3)(3).5440 
Honduras asserts that Australia's suggestion that  as long as the brand name appears on the pack 
the consumer cannot be misled is in error. The brand name is deprived of its normal context and 
figurative elements that gives it the recognition in the eyes of the consumer.5441 
7.2732.   Honduras further argues that, bec ause consumers are misled into thinking that all 
tobacco products are essentially the same, they increasingly turn to price as an important or even 
sole criterion driving their purchasing choice. As a result, producers and offerors of higher -quality 
produc t are disproportionately disadvantaged by the TPP measures . This asymmetrical impact on 
competitors also gives rise to "unfair competition" within the meaning of Article  10bis(3)(3).5442  
7.2733.   The Dominican Republic  considers that Article  10bis(3) gives three spec ific examples of 
acts encompassed by the broader concept of "unfair competition" addressed in Article  10bis(1). A 
measure that is inconsistent with Article  10bis(3) is necessarily also inconsistent with 
Article  10bis(1). It is possible for a measure to be inconsistent with Article  10bis(1) without 
simultaneously being inconsistent with any of the subparagraphs of Article  10bis(3).5443 
7.2734.   The Dominican Republic argues that the three goals of the protection against unfair 
competition, namely protecting consumers, c ompetitors, and the public interest, are all apparent in 
Article  10bis(3)(3). The explicit purpose is to protect consumers from making decisions on the 
basis of misleading information, to their benefit and the benefit of the marketplace and public 
interest .5444 The requirement to present competing tobacco products in virtually identical 
packaging, with sticks of virtually identical appearance, is liable to mislead the public as to the 
"nature", "the manufacturing process" and "characteristics" of different cig ars and cigarettes, 
within the meaning of Article  10bis(3)(3), despite the fact that the brand and variant names 
                                                
5432 Honduras's first written submission, para. 712 (referring to  New Shorter Oxford English Di ctionary, 
HND Excerpts, (Exhibit HND -89), p. 1791).  
5433 Honduras's first written submission, para. 714. (emphasis original)  
5434 Honduras's first written submission, paras.  715-716. 
5435 Honduras's second written submission, para. 411. 
5436 Honduras's response to Panel question No. 20; and second written submission, paras.  411-414. 
5437 Honduras's first written submission, para. 721. 
5438 Honduras's first written submission, para. 719. 
5439 Honduras's response to Panel question No. 20. 
5440 Honduras's first written submission, paras.  724, 726 and 729 -730. 
5441 Honduras's response to Panel question No. 20. See also Honduras's response to Panel question 
No. 87. 
5442 Honduras's first written submission, paras.  731-733. 
5443 Dominican  Republic 's response  to Panel question No. 15. 
5444 Dominican  Republic 's first written submission, paras.  847 and 850. See also Dominican  Republic 's 
second written submission, para. 734. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 793 - 
  remain on packages. The TPP measures , by intention, force every tobacco product to look like the 
"lowest quality" products, regardless of their  actual quality. Were producers to conspire to mislead 
consumers in this way by presenting competing tobacco products in virtually identical packaging, 
with sticks of virtually identical appearance, Australia would be obliged to prevent such a 
conspiracy. By compelling conduct that it is required to prohibit, Australia violates 
Article  10bis(3)(3).5445 
7.2735.   In response to Australia, the Dominican Republic argues that the phrase "in the course of 
trade" in Article  10bis(3)(3) refers to commercial activities generally, and is not limited temporally 
such that it culminates at the point of sale. Even on Australia's narrow definition of "in the course 
of trade", the factual circumstances surrounding the purchase of tobacco p roducts in Australia do 
not remove the TPP measures  from view. Where point -of-sale bans are in operation the packaging 
is still visible to the consumer before the purchase is completed.5446 
7.2736.   In its view, t he term "the goods" in Article  10bis(3)(3) encompasses both the goods of 
the entity making the indication/allegation at issue, and the goods of a competitor.5447  
7.2737.   Cuba argues that the TPP measures  are targeted precisely at creating the erroneous 
impression that all tobacco products are equal in their characterist ics and taste because they are 
all equally harmful to health. They thus require indications that mislead the public as to the nature 
and characteristics of goods, in violation of Article  10bis(3)(3).5448  
7.2738.   Cuba contends that Australia's narrow reading of the p hrase "in the course of trade" is 
not supported by international trademark practice, and that the protections of Article  10bis 
continue to apply after the point of sale.5449 
7.2739.   Cuba understands Australia to suggest that the complainants have turned Article  10bis 
into a provision that prevents Members from imposing measures that affect "any aspect of 
competition", including a general prohibition on advertising, and responds that Article  10bis 
protects against "extreme" measures, such as a prohibition on the use of  marks and trademarks 
on tobacco products and their retail packaging. There is also no direct link between a general 
prohibition on advertising, applicable equally to all producers, and unfair competition.  Cuba 
contends that Australia has misrepresented th e complainants' arguments, which do not allege a 
positive right to use trademarks.5450 
7.2740.   Indonesia  argues that the TPP measures  are likely to mislead consumers in violation of 
Article  10bis(3)(3). Without the information channel provided by trademarks and other  packaging 
and product designs, consumers in Australia are led to believe incorrectly that the different brands 
of tobacco products all share the same quality, characteristics, and reputation.5451 Yet there are 
significant differences in quality among tobacco  products, including in the tobacco found in 
cigarettes sold in Australia.5452 Manufacturers use their packaging to communicate these 
differences in quality and differentiate their products.5453  
7.2741.   When every package and every product on the market looks indistinguishable from the 
next, it is likely to have a misleading effect on consumers. In fact, as it adopted the TPP measures , 
Australia commissioned research to "identify a pack colour that was th e least appealing, contained 
                                                
5445 Dominican  Republic 's first written submission, paras.  876-880 ( referring to  Panel Report, Mexico  –
 Telecoms , paras.  7.241 -7.244). See also Dominican  Republic 's response to Panel question No. 20, 
paras.  124-125. 
5446 Dominican  Republic 's second written submission, paras.  743 and 754 -757; and response to Panel 
question No. 20. 
5447 Dominican  Republic 's second written submission, paras.  744-745. 
5448 Cuba's second written submission, paras.  137, 141 and 145.  
5449 Cuba's second written submission, para. 148. 
5450 Cuba's second written submission, paras.  146-147. 
5451 Indonesia's first written submission, paras.  179-180 ( referring to  Parr et al. 2011a, (Exhibits 
AUS-117, JE -24(49)), p.  9); and second written submission, para. 50. 
5452 Indonesia's second written submission, para. 51. See also Indonesia's first written submission, 
paras.  171-172. 
5453 Indonesia's second writ ten submission, para. 51. See also Indonesia's first written submission, 
paras.  158 and 171.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 794 - 
  cigarettes that were lowest quality, was perceived to be most harmful to health and perceived as 
being the hardest to quit". Indonesia argues that "PP thus seeks to convey the message that every 
brand is the worst quality regar dless of its actual quality".5454  
7.2742.   In response to Australia, Indonesia submits that the phrase "in the course of trade" as 
used in sub -paragraph (3) should be construed broadly. Trademarks convey information to the 
public long before they reach the point of s ale, and do not cease to provide information to 
consumers once the underlying goods are purchased. WIPO's IP Handbook describes the phrase as 
"every act or operation that is aimed at, directly or indirectly, or that results from, directly or 
indirectly, bu ying and selling products or services in a professional manner". Indonesia argues 
that, even this definition may be too restrictive, as trademarks used in connection with charitable 
institutions are protectable under Article  10bis.5455 
7.2743.   Indonesia submits that Australia compels conduct that it has a duty to prohibit. In 
particular, through the TPP measures , Australia mandates trademark prohibitions and restrictions 
in the course of trade that are liable to mislead the public about the characteristics of tobacco 
products, contrary to its obligation under Article  10bis(3)(3) to prohibit such conduct.5456 
7.2744.   Australia  notes that, in contrast to Article  10bis(3)(1) and Article  10bis(3)(2), 
Article  10bis(3)(3) does not contain the words "of a competitor" and prohibits marke t actors from 
making misleading claims or assertions with respect to their own goods – i.e. claims or assertions 
by a market actor that entice  consumers to buy that actor's goods on false grounds.5457 In its 
view, by its terms, Article  10bis(3)(3) requires Me mbers to prohibit a market actor from "mak[ing] 
known" or making "claims" or "assertions" about "the nature, the manufacturing process, the 
characteristics, the suitability for their purpose, or the quantity" of the actor's own goods that – 
when used in co nnection with the buying or selling of those goods – would "lead astray" the public 
to purchase the goods on false grounds.5458 
7.2745.   Australia submits that to establish a violation of Article  10bis(3)(3), the complainants 
would need to demonstrate that it has fail ed to prohibit market actors from enticing consumers 
with indications or allegations about certain features of their goods during the buying or selling of 
those goods, which are liable to mislead the public.5459 The complainants have not demonstrated 
that Aus tralia fails to prohibit such acts of unfair competition.5460 Nor have they demonstrated that 
the TPP measures  are themselves an "act of competition" or that they compel "acts of 
competition".5461 
7.2746.   Australia contends that none of the complainants explains how the  alleged "misleading" of 
consumers occurs "in the course of trade", when the latter term is understood to refer to acts 
undertaken in connection with the buying and selling of goods for profit, which culminates at the 
point of sale.5462 Australia adds that, e ven if the alleged acts of competition compelled by the 
TPP measures  were "in the course of trade", the complainants have failed to demonstrate that the 
measures compel tobacco companies to "mislead" consumers via "indications" or "allegations" as 
to the " nature, manufacturing process, characteristics, suitability for purpose, or quantity" of their 
                                                
5454 Indonesia's first written submission, paras.  179-180 ( referring to  Parr et al. 2011a, (Exhibits 
AUS-117, JE -24(49)), p. 9); and second written submission, para. 50. 
5455 Indonesia's response to Panel question No. 20 (quoting WIPO IP Handbook, IDN excerpts, (Exhibit 
IDN-43), para. 2.872). The Panel notes that the cited paragraph is not included in the excerpts provided as 
Exhibit IDN -43. The referenced paragraphs were  submitted by the Dominican  Republic  in WIPO IP Handbook, 
Full Text, (Exhibit DOM -65). 
5456 Indonesia's first written submission, para. 181. Also in respect of this claim, Indonesia refers to 
Article  27 of the Vienna Convention and argues that Australia canno t avoid its international treaty obligations 
by invoking the requirements of its domestic law.  
5457 Australia's first written submission, para. 470 (referring to WIPO, Introduction to Intellectual 
Property , (Exhibit UKR -80), para. 12.65; and WIPO Protection Against Unfair Competition, (Exhibits AUS -536, 
DOM-139), para. 64). 
5458 Australia's first written submission, para. 471. 
5459 Australia's first written submission, para. 472. 
5460 Australia's second written submission, para. 53. For Australia's description of lega l mechanisms 
through which affected parties can prevent or obtain redress for false or misleading allegation, see 
para. 7.2780  below.  
5461 Australia's second written submission, para. 53. 
5462 Australia's first written submission, paras.  469, 311 and 473 -475. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 795 - 
  goods. T he complainants have failed to provide a compelling explanation for how preventing 
tobacco companies from using certain signs, trademarks and GIs constit utes an "indication" or 
"allegation" within the ordinary meaning of these terms.  
7.2747.   Australia agrees with the complainants that an "omission" could potentially constitute a 
misleading "indication" or "allegation". There can, however, only be deception in rela tion to an 
omission if the public, in the absence of express information, expects a certain characteristic to be 
present.5463 The complainants have presented no evidence to suggest that in the absence of 
certain signs, trademarks and GIs on tobacco products a nd their packaging, consumers have 
certain false affirmative expectations about the "nature, manufacturing process, characteristics, 
suitability for purpose, or quantity of those goods". The complainants have not explained, for 
example, how the absence of gold lettering, pink background, or italic script on tobacco product 
packaging would lead a consumer to have a false expectation about the objective information 
listed in Article  10bis(3)(3) in relation to the underlying product.5464  
7.2748.   Australia contends that the complainants have failed to ident ify any aspect of the 
standardiz ed packaging of tobacco products under Australia's measure that constitutes a positive 
indication or allegation about the "nature, manufacturing process, characteristics, suitability for 
purpose, or quantity" of tobacco products that is false and could mislead  consumers. Au stralia 
adds that, by standardiz ing the packaging, the measure removes  the ability of signs and 
trademarks to increase the appeal of tobacco products, distract from GHWs and mislead 
consumers as to the harms of smoking.5465, 5466 
Analysis by the Panel  
7.2749.   As discussed above, paragraph 3 of Article  10bis lists certain types of acts of unfair 
competition that are in particular to be prohibited. Its sub -paragraph  (3) concerns "indicat ions or 
allegations the use of which in the course of trade is liable to mislead the public as to the nature, 
the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of 
the goods".  
7.2750.   Whereas sub -paragraphs 3(1) an d 3(2) of Article  10bis concern confusion with or false 
allegations about the goods of a competitor , sub-paragraph 3(3) does not expressly refer to the 
goods of a competitor. This implies that the focus under this sub -paragraph includes indications 
and all egations that a market participant makes about its own goods.5467 The ordinary meaning of 
"mislead" is to " deceive  by giving incorrect information or a false impression".5468 It follows from 
the term "liable" that the provision covers deceptive allegations that have either misled the public 
or are likely to do so. The term "public" in turn implies a situation where such deceptive allegations 
are directed at the consumer.  
                                                
5463 Australia's second written submission, para. 57 (referring to  WIPO IP Handbook, HND excerpts, 
(Exhibit HND -40), para. 2.817).  
5464 Australia's second written submission, para. 57. 
5465 Australia's second written submission, para. 58. Australia adds in footnote 79 that the complainants 
have also largely ignored the fact that the TPP measures  allow a large range of information about tobac co 
products to be presented on tobacco packaging, including brand, business, company and variant names. 
Further, "variant name" is defined broadly in Subsection 4(1) of the TPP Act as:  
 
the name used to distinguish that kind of tobacco product from other tobacco products that are supplied 
under the same brand, business or company name, by reference to one or more of the following: (a) 
containing or not containing menthol; (b) being otherwise differently flavoured; (c) purporting to differ 
in strength; (d) having or not having filter tips or imitation cork tips; (e) being of different length or 
mass.  
 
TPP Act, (Exhibits AUS -1, JE-1). 
5466 For main arguments of the third parties, see section 7.3.6.3.2  above.  
5467 This is without prejudice to the question of whether sub -paragraph 3(3) also covers indications and 
allegations made about competitors' goods.  
5468 Oxford English Dictionary online, definition of "mislead", available at: 
<http://www.oed.com/view/Entry/119742?redirectedFrom=mislead#eid >, accessed  2 May 2017. (emphasis  
added)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 796 - 
  7.2751.   Honduras and the Dominican Republic consider that paragraph 3(3) of Article  10bis 
covers omis sions.5469 Honduras argues that it covers omissions when these omissions create a 
particular impression in the mind of the consumer.5470 Australia agrees with the complainants that 
an "omission" could potentially constitute a misleading "indication" or "allegati on"; in its view, 
however, there can only be deception in relation to an omission "if the public, in the absence of 
express information, expects a certain characteristic to be present".5471  
7.2752.   We agree with the parties that an omission of certain information may amount to a 
deceptive indication or allegation, where such omission, in the course of trade, is liable to mislead 
the consumer, in the sense of deceiving him or her by giving incorrect i nformation or a false 
impression. In that respect, we agree with Australia that deception could arise if the public, in the 
absence of express information, expects a certain characteristic to be present.  
7.2753.   The parties' views differ on the meaning of the term  "in the course of trade" in 
subparagraph 3(3) of Article  10bis. Australia considers that it refers to acts undertaken in 
connection with the buying and selling of goods for profit and culminates at the point of sale. The 
complainants offer broader definit ions and disagree that there is any temporal limitation to this 
phrase.5472 We recall that this term is used, in addition to Article  10bis(3)(3) of the 
Paris Convention  (1967) , in two other provisions of the TRIPS  Agreement  that are the subject of 
separate cl aims in these proceedings, namely Articles  16.1 and 20, as well as in Article  24.8 of the 
TRIPS  Agreement  and Article  10bis(3)(2) of the Paris Convention  (1967) . As we noted in our 
analysis of these terms under Article  20 of the TRIPS  Agreement , harmonious  interpretation 
requires that same or similar terms in different provisions of the same agreement should be 
presumed to have the same or similar meaning, much as the use of different terms creates a 
presumption that the terms were intended to have a differ ent meaning. For the reasons identified 
in that context, we do not find support in the text or context of Article  10bis(3)(3) for Australia's 
assertion that "in the course of trade" culminates or terminates at the point of sale.5473 
7.2754.   As described above, Hondur as initially contended that the TPP measures  are inconsistent 
with paragraph  3(3) on the grounds that they give rise to misleading indications and allegations 
because consumers are being misled about the true nature of tobacco products and the 
TPP measures  have an asymmetrical impact on competitors.5474 Later in the proceedings, 
Honduras clarified that it does not argue that a government's laws or regulations constitute acts of 
unfair competition as such. Rather, the acts of unfair competition at issue are tho se of private 
parties.5475 In this regard, we recall our finding in paragraph 7.2699  above that the TPP measures  
in themselves do not constitute an ac t of unfair competition.  
7.2755.   As regards acts amounting to misleading indications within the meaning of 
paragraph  3(3), the complainants argue that the use of standardized packaging and product 
appearance as required by the TPP measures , including the omission  of symbols and signs, 
wrongly signals to consumers that all tobacco products have the same nature, manufacturing 
process and characteristics, or are of similar or same quality. Honduras elaborates that the 
removal of brand imagery, as well as the impositi on of a uniform packaging design and stick 
requirements, will induce the consumers to erroneously believe that all cigarettes are essentially 
the same and that there are no quality differences between them.5476 The Dominican Republic 
adds that producers would  not be permitted to conspire to mislead consumers in this way by 
presenting competing tobacco products in virtually identical packaging, with sticks of virtually 
                                                
5469 Honduras's first written submission, para. 708; Dominican  Republic 's response to Panel question 
No. 15; and Dominican  Republic 's second written submission , para. 727  (asserting that both Article  10bis(1) 
and (3) are susceptible of breach by eithe r an act or an omission).  
5470 Honduras's first written submission, para. 708. 
5471 Australia's second written submission, para. 57 (referring to  WIPO IP Handbook, HND excerpts, 
(Exhibit HND -40), para. 2.817).  
5472 See, e.g. Honduras's first written submission, paras. 715-716; Dominican  Republic 's second written 
submission, paras.  743 and 754 -757; Cuba's second written submission, para. 148; and Indonesia's response 
to Panel question No. 20. 
5473 For the analysis of the term "in the course of trade" in the context of Article  20 of the TRIPS 
Agreement, see section 7.3.5.4.1.3  above.  
5474 Honduras's first written submission, paras.  718-734. 
5475 Honduras's second written  submission, para. 391. 
5476 Honduras's first written submission, para. 724. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 797 - 
  identical appearance. Cuba also relates the effect of the TPP measures  to the common law claim of 
"passing off". Indonesia elaborates that, without the information channel provided by trademarks 
and other packaging and product designs, consumers in Australia are led to believe incorrectly that 
the different brands of tobacco  products all share the same characteristics.  
7.2756.   In the Dominican Republic's view, the three goals of protection against unfair competition 
(i.e. the protection of competitors; the protection of consumers; and safeguarding competition in 
the public interest5477) are apparent in Article  10bis(3)(3), the explicit purpose of which is to 
protect consumers from making decisions on the basis of misleading information.5478 The 
Dominican Republic argues that, in the absence of branding signals on the packaging, consumers 
increasingly make purchases based on the price of the products rather than their qualities, 
reputation, and characteristics. T he Dominican Republic  further argues that the TPP measures  
require tobacco producers to indicate to consumers, through their packagi ng, that every brand is, 
in fact, "the least appealing" and with the "lowest quality", regardless of their actual quality.5479 
Indonesia argues that Australia sought, inter alia, to identify a pack colour that was the least 
appealing, and that "PP thus seeks to convey the message that every brand is the worst quality 
regardless of its actual quality".5480  
7.2757.   Australia responds that the complainants have failed to provide any evidence that in the 
absence of certain signs, trademarks and GIs on tobacco products and t heir packaging, consumers 
have certain false affirmative expectations about the "nature, manufacturing process, 
characteristics, suitability for purpose, or quantity of those goods"; nor have they identified any 
aspect of the sta ndardiz ed packaging and pro duct appearance that constitutes an indication or 
allegation that could mislead consumers about such properties of those goods. Australia further 
observes that, by standardizing the packaging, the TPP measures  remove the ability of signs and 
trademarks to increase the appeal of tobacco products, distract from GHWs and mislead 
consumers as to the harms of smoking.5481 Australia further explains that the design of the TPP 
legislation was informed by the research by GfK Bluemoon, which carried out a number of pha ses 
of market testing on GHWs and tobacco plain packaging to determine the most effective form of 
tobacco plain packaging, and "sought to identify one plain packaging design (colour, font type, 
font size) that would minimise appeal and attractiveness, whil st maximising perceived harm and 
the noticeability of the graphic health warnings".5482 
7.2758.    We understand the complainants to claim that the use of uniform packaging and 
appearance of tobacco products for commercial use in compliance with the TPP measures  amount s 
to use of indications or allegations that are, within the meaning of paragraph 3(3), liable to 
mislead the public as to the nature, manufacturing process and characteristics of different tobacco 
products on the market. In particular, the complainants con sider that, without design branding and 
                                                
5477 Dominican  Republic 's first written submission, paras.  839 and 847 (referring to WIPO Protection 
Against Unfair Competition, (Exhibit DOM -139), para. 33). The WIPO commentary elabor ates that the purpose 
of unfair competition law is to ensure fair and undistorted competition in the interest of all concerned . One 
party who is always concerned is the honest businessman , and a businessman 's standard of behavior logically 
serves as a star ting point. Certain practices may be generally accepted within a branch of business but 
nevertheless considered improper by other market participants. In such cases, there has to be some ethical 
correction  of the actual standards of behaviour. Ethical stan dards dictate in particular that the interests of 
consumers must not be unnecessarily impaired. One example given is the enticement of the consumer into 
harmful behaviour. Furthermore, there may be practices that at first sight are not prejudicial either t o other 
businessmen or to consumers, but nevertheless may have unwanted effects on the economy at large . The 
WIPO commentary concludes that "[w]hen determining 'honesty' in business dealings, all these factors have to 
be taken into account. In practice, th e concept of unfair competition has increasingly become a balancing of 
interests ." See Response by WIPO to the Panel's request for factual information, letter dated 5 October 2015, 
Annex 8, International Bureau of WIPO, Protection Against Unfair Competitio n: Analysis of the Present World 
Situation , World Intellectual Property Organization (Geneva , 1994), paras.  33-37. Similarly, Indonesia argues 
that Article  10bis protects competitors and consumers, and safeguards competition in the public interest. 
Indones ia's first written submission, para. 159 (referring to WIPO IP Handbook, IDN excerpts, (Exhibit 
IDN-43), para. 2.773).  
5478 Dominican  Republic 's first written submission, para. 850. 
5479 Dominican  Republic 's first written submission, para. 861. 
5480 Indonesia's first written submission, paras.  179-180 (referring to Parr et al. 2011a, (Exhibits 
AUS-117, JE -24(49)), p.  9). 
5481 Australia's second written submission, paras. 57 -58. 
5482 Australia's first written submission, paras.  118-119 and fn  185. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 798 - 
  packaging features, a tobacco manufacturer is not able to adequately communicate the differences 
in the characteristics of its products, which leads to a perception of quality convergence among 
consumers.5483 
7.2759.   As we foun d above5484, we do not exclude that an omission  of information may amount to 
an indication or allegation that is liable to mislead, where such omission, in the course of trade, 
deceives the consumer by giving incorrect information or a false impression. Howev er, we are not 
persuaded that the complainants have demonstrated that the absence of brand imagery on 
tobacco retail packaging or products in compliance with the TPP measures  amounts to such a 
situation. In particular, we are not persuaded that the absence  of brand imagery would mislead 
consumers by way of giving incorrect information or false impressions, or by creating any 
particular incorrect expectations in the minds of consumers about the nature, manufacturing 
process or characteristics of the product,  be they similar to or different from the characteristics of 
other corresponding products on the market.  
7.2760.   We first note that all competitors on the Australian market are required to comply with 
the same requirements on standardized tobacco packaging, and do  so within a longstanding 
overall policy context and an environment of public education around the issue.5485 We are not 
persuaded that the overall similarity of the external appearance of products and their packaging 
resulting from these requirements would b e liable to mislead consumers to erroneously believe 
that all competing products have identical characteristics or source, where this similarity results 
from a well -publicized regulatory intervention and does not reflect a commercial choice by market 
actors. 
7.2761.   We also note that the TPP measures  allow the use of word marks and marks that denote 
the brand, business or a company name, or the name of the product variant, on tobacco retail 
packaging, provided that they appear in the form prescribed by the TPP Regulations . This 
information is not, as such, liable to create false impressions or provide incorrect information to 
consumers. To the extent that consumers expect certain characteristics of tobacco products that 
are correctly communicated to them by an association with the identification of the commercial 
source – referred to as the guarantee function of trademarks in the context of trademark law – the 
TPP measures  allow these to be communicated through the use of the brand and variant names.  
7.2762.   The complainants have also not identified specific allegations or statements required by 
the TPP measures  that would mislead the consumer as to particular characteristics or qualities of 
tobacco products. Rather, they argue that the inability to use distinctive design features other than 
the brand and variant names leads to misleading consumers into thinking that all tobacco products 
have the same characteristics, and are unattractive.  
7.2763.   We also recall that the TPP measures  restrict the use of branding design features in order 
to reduce  the ability of the retail packaging of tobacco products, through these features, to mislead 
consumers about the harmful effects of smoking or using tobacco products.5486 At the same time, 
the measures allow the use of brand and variant names, which en able the consumer to identify the 
product at issue and associate it with a particular source. The measures thus operate in a manner 
that reflects both the consumer's interest in not being misled concerning the harmful effects of 
smoking, which are undisput ed, and the consumer's interest in not being misled about the 
product's characteristics. Also against this context, we are not persuaded that the uniformity of the 
                                                
5483 We reca ll that, in the context of its claim under Article  20 of the TRIPS Agreement, the 
Dominican  Republic  argues that consumers ' perceptions of the quality of competing brands are based on a 
combination of "functional benefits" and "intangible benefits" that th ey derive from each brand, and that the 
TPP measures ' disproportionate impact on the perceived intangible benefits of premium products translates 
into reduced loyalty and a reduced willingness to pay for the premium products. In that context, Australia 
explains that the TPP measures  ensure that tobacco manufacturers can continue to distinguish their products 
from those of other manufacturers in the course of trade by allowing them to use company, brand and variant 
names on tobacco retail packaging, includin g communicating product characteristics associated with the 
commercial source. Australia argues that it is precisely the "intangible benefits" referred to by the 
Dominican  Republic  that the TPP measures  are aimed at curtailing. See section " Main arguments of the parties " 
within section 7.3.5.5.3.2  above.  
5484 See para. 7.2752  above.  
5485 See para. 7.2721  above.  
5486 TPP Act, (Exhibits AUS -1, JE-1), Section 3.2(c).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 799 - 
  appearance of tobacco retail packaging and products resulting from the TPP measures , includi ng 
the removal of distinctive design features other than brand and variant names, has the effect of 
misleading consumers.5487 
7.2764.   We further note that Honduras, the Dominican Republic, Cuba,  and Indonesia have not 
sought to demonstrate that consumers have in fact  been unable to distinguish the commercial 
source of tobacco products of one undertaking from those of other undertakings (i.e. the identity 
of the source or maker of the product) or have been misled as to their characteristics as a result of 
the TPP measu res.5488  
7.2765.   In light of the above, we find that Honduras, the Dominican Republic, Cuba,  and 
Indonesia have not demonstrated that the TPP measures  compel market actors to engage in acts 
amounting to misleading indications or allegations within the meaning of Article 10bis(3)(3). We, 
therefore, also find that Honduras, the Dominican Republic, Cuba, and Indonesia have not 
demonstrated that Australia, in maintaining these measures, fails to prohibit such acts, in violation 
of Article  10bis, paragraph 3(3).  
7.3.6.4.3.3   Article  10bis(1) 
7.2766.   We now turn to whether the TPP measures , as alleged by Honduras, the Dominican 
Republic, and Cuba compel market actors to engage in acts of unfair competition, apart from those 
situations already discussed in the context of the complainants' claims under Article  10bis(3)(1) 
and 10 bis(3)(3), aga inst which a Member is bound to assure effective protection pursuant to 
Article  10bis(1). 
Main arguments of the parties  
7.2767.   Honduras  argues that the TPP measures  are inconsistent with Article  10bis(1) because 
they skew the conditions of competition to the adva ntage of producers providing low -price 
products and to the disadvantage of producers providing high -price products. This is because both 
the TPP trademark restrictions as well as the formatting restrictions oblige manufacturers of 
tobacco products to compe te in the Australian market in a manner that eliminates the possibility of 
achieving or maintaining product differentiation, and this systematically affects premium products 
and their producers more than lower quality products and producers. This direct, a nd profoundly 
                                                
5487 We also recall that the acts listed in paragraph 3(3) are examples of acts of unfair competition as 
defined in paragraph 2. In this regard, we are not persuaded that the very act of putting onto the market 
products that comply with the regulatory requirem ents under the TPP measures  would amount to an act of 
competition contrary to honest commercial practices. In this regard, we refer to our discussion in para. 7.2792  
below.  
5488 See the responses by Honduras, the Dominican  Republic , Cuba,  and Indonesia to Panel Question 
No. 168, which are reflected in paragraphs 7.2546 , 7.2552 , 7.2548 , and 7.2550  respectively. In their replies, 
Honduras, Cuba, and Indonesia argue that any such evidence would not be relevant to the resolution of the 
complainants' claims under the TRIPS Agreement, because there i s no specific requirement regarding the level 
of "actual confusion" or "sufficiency" for distinguishing products. As we noted in paragraph  7.2750  above, it 
follows from the term "liable" in Article 10 bis(3)(3) that the provision covers deceptive allegations that have 
either misled the public or are likely to do so. We also noted in paragraph 7.2761  that, to the extent that 
consumers expect certain characteristics of tobacco products that are correctly communicated to them by an 
association with the identification of the commercial source, the TPP measures al low these to be communicated 
through the use of the brand and variant names. In this regard, the lack of such evidence is one consideration 
in our overall assessment of whether the complainants have demonstrated that the TPP measures require 
market actors to engage in acts amounting to misleading indications or allegations within the meaning of 
Article  10bis(3)(3). Honduras thus observes that there has not been an empirical study assessing whether 
consumers have been unable to distinguish the commercial sou rce of tobacco products of one undertaking from 
that of other undertakings following the implementation of the TPP measures, but considers that such 
quantitative data would not assist the Panel in resolving the claims under the TRIPS Agreement in these 
proceedings. The Dominican  Republic and Indonesia further argue that evidence shows that word marks on 
tobacco products do not adequately distinguish commercial source, quality, characteristics and reputation, 
leading to downtrading. In this regard, we refer to our discussion on the evidence on the effect of the TPP 
measures on price competition and downward substitution in paragraphs 7.2572  and 7.2573  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 800 - 
  asymmetrical, impact of Australia's TPP measures  on the competitive dynamics in the market 
constitutes "unfair competition" in the Australian market.5489 
7.2768.   Honduras elaborates that the TPP measures  bring about unfair competition in the tobacco 
market in two steps. First, the TPP measures  remove branding from packaging, a key instrument 
for achieving brand differentiation. Branded packaging draws the attention of consumers in 
cluttered markets, and a cts as a cue of quality. The TPP measures  oblige producers of tobacco 
products to strip the packaging of their products of all brand imagery and distinctive fonts, while 
the physical appearance of the tobacco products is standardized through formatting req uirements. 
As a result, "premium and value brands will look identical (apart from the name)" and "the 
consumer will lose signals of quality".5490 
7.2769.   Second, reduced product differentiation results in a competitive disadvantage for 
premium brands, which are asymm etrically impacted as compared to lower -end brands, creating 
unfair competition.5491 Australian market data confirms that significant "downtrading" or 
"downward substitution" has taken place.5492 "In this manner, the [ TPP measures ] systematically 
distort the con ditions of competition to the detriment of a specific category of competitors. 
Producers of high -end brands are no longer able to operate in circumstances of 'fair' and 
'legitimate' competition."5493 Honduras adds that the "unfairness" of the conditions of co mpetition 
lies at the heart of the TPP measures , whose objectively discernible intent and design is to 
eliminate the key function of an  IP right , and is not merely an incidental effect of a good -faith 
effort to regulate competition.5494 
7.2770.   The Dominican Republic  considers that the acts of "unfair competition" at issue are the 
private acts of producers that present tobacco products in a virtually identical packaging to the 
packaging of competing tobacco products. The Dominican Republic does not argue that the 
TPP measures  are themselves "acts" of unfair competition, or direct its claims at "market 
conditions as such". Rather, through the TPP measures , Australia compels private acts of unfair 
competition and, thereby, fails to assure effective protection against suc h unfair competition, as 
evidenced, for example, by market conditions .5495 A WTO Member cannot compel the very acts of 
unfair competition that it must seek to prevent.5496 A Member's domestic law provides no excuse 
for violations of its WTO obligations.5497 
7.2771.   Under Article 10bis(1), the Dominican Republic argues that "[b]y establishing a regime in 
the marketplace whereby competing products are presented in a virtually identical manner, 
Australia is mandating 'act[s] of competition contrary to honest practices in indus trial or 
commercial matters' within the meaning of Article  10bis of the Paris Convention ".5498  
7.2772.   As regards the TPP measures ' impact on consumers, the Dominican Republic argues that 
the requirement that producers present all tobacco products in virtually ident ical packaging 
deprives consumers of the visual signals that are used by all consumers to distinguish among 
competing brands in terms of their qualities, reputation, and characteristics. In the absence of 
branding signals on the packaging, consumers increa singly make purchases based on price 
differences. This leads to convergence in the perceived qualities and characteristics of competing 
brands. The TPP measures  require tobacco producers to indicate to consumers, through their 
packaging, that every brand i s, in fact, "the least appealing" and with the "lowest quality", 
                                                
5489 Honduras's first written submission, para. 682. 
5490 Honduras's first written submission, paras.  684, 687, and 689 (referring to Steenkamp Report , 
(Exhibit DOM/HND -5), paras . 48-54 and 63 -64). 
5491 Honduras's first written submission, para. 687. 
5492 Honduras's first written submission, paras.  691-692 (referring to Steenkamp Report , (Exhibit 
DOM/HND -5), paras.  55-60; and IPE Report , (Exhibit DOM -100)).  
5493 Honduras's first written su bmission, para. 694. (emphasis original)  
5494 Honduras's first written submission, paras.  696 and 698.  
5495 Dominican  Republic 's second written submission, paras.  736 and 749; and response to Panel 
question No. 17. See also Dominican  Republic 's first written submission, para. 841 (defining the terms 
"assure", "effective", and "protection", as used in paragraph 1 of Article  10bis); second written submission, 
para. 729; and response to Panel question No. 15, para. 77. 
5496 Dominican  Republic 's firs t written submission, paras.  853 and 873.  
5497 Dominican  Republic 's closing statement at the second meeting of the Panel, para. 22. 
5498 Dominican  Republic 's first written submission, para. 856. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 801 - 
  regardless of their actual quality. The TPP measures  also prevent the communication to the 
consumers of the pronounced quality differences in the cigarette and cigar markets. Thus, in the 
Dominican Republic's view, the requirement to present competing tobacco products in virtually 
identical packaging, with sticks of virtually identical appearance, misleads consumers with respect 
to the qualities, reputation, and characteristics of the competin g brands.5499 
7.2773.   The TPP measures  deprive competing tobacco producers from competing for sales in the 
Australian marketplace based on differences in the nature, manufacturing process, or 
characteristics of their products, because they are deprived of the possibi lity to signal these 
differences due to the virtually identical presentation of tobacco products. The Dominican Republic 
argues that the requirements are particularly unfair to high -end producers that previously used 
branding to signal the enhanced qualities, reputation, and characteristics of their products, and 
asserts that the empirical evidence on downtrading shows that depriving producers of these 
signals immediately distorts the competitive landscape, with a significant shift from the high -end 
to the low -end.5500 With respect to the public interest, the TPP measures  preclude fair competition 
in the market based on the nature, characteristics, or manufacturing processes of the goods, 
thereby harming the fabric of the competitive structure in the mar ket.5501 
7.2774.   Cuba submits that a competitive environment in which rival manufacturers are required 
to present their goods to consumers in a visually undifferentiated manner results in a situation of 
"unfair competition".5502 In its view, the competitive situation in  Australia is "unfair" for four 
reasons.  
7.2775.   First, it is indistinguishable from the situation where one producer copies the "get up" of a 
rival producer, i.e. the general appearance or presentation of a product. The only difference is 
that, in the latter cas e, a situation of "passing off" arises as a result of voluntary decisions by 
economic actors while, in the former case, the adoption of a uniform "get up" is mandated by the 
Australian Government.5503  
7.2776.   Second, the competitive situation is unfair because produ cers cannot clearly communicate 
material information to consumers about their products. Outcomes in such a competitive 
environment are arbitrary because they do not fully reflect consumer preferences or producer 
efforts to develop and maintain quality.5504 
7.2777.   Third, the competitive situation is unfair because it seeks to create an erroneous belief 
among consumers that different products are similar. The resulting situation harms producers of 
premium products, and is particularly unfair to beneficiaries of GIs, such as Cuban producers of 
LHM cigar s, because social, economic, and cultural investments over a long period of time will go 
unrewarded.5505 
7.2778.   Fourth, the competitive situation is unfair because the TPP measures  compromise the 
ability of Cuban producers to protec t themselves against counterfeit trade by prohibiting the use of 
a number of specific safeguards and security features that Cuba has implemented to ensure the 
authenticity of its exports. By preventing the use of these safeguards, the TPP measures  make it 
easier for counterfeiters to repackage fake or non -Cuban cigars as authentic Cuban cigars and 
thereby divert trade away from Cuba.5506 
                                                
5499 Dominican  Republic 's first written submission, paras.  858-869 (re ferring to Steenkamp Report , 
(Exhibit DOM/HND -5), among other sources).  
5500 Dominican  Republic 's first written submission, paras.  870-871 (referring to IPE Report , (Exhibit 
DOM-100), Chapter 5).  
5501 Dominican  Republic 's first written submission, para. 872. 
5502 Cuba's first written submission, para. 382. (emphasis omitted)  
5503 Cuba's first written submission, para. 383. In support of its position, Cuba refers to Panel Report, 
Mexico  – Telecoms , para. 7.243. Cuba's first written submission, fn 428. 
5504 Cuba's first written submission, para. 384. 
5505 Cuba's first written submission, para. 385. 
5506 Cuba's first written submission, para. 386. Cuba explains that it requires that each box of Habanos 
cigars: (1) has a Habanos GI sticker affixed to it; (2) bears a n ink stamp indicating the factory as well as the 
month and year of production; and (3) is sealed with a Cuban Government Warranty Seal. The Cuban 
Government Warranty Seal is printed on synthetic, highly adhesive paper that self -destructs if tampered with 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 802 - 
  7.2779.   Cuba submits that "[t]his situation of unfair competition has arisen because Australia 
requires private actors to conduct th emselves in the manner prescribed by the TPP measures ". 
Accordingly, Australia has failed to comply with its obligation under Article  10bis to protect Cuban 
tobacco producers from unfair competition.5507 
7.2780.   Australia  responds that, in order to establish a prima facie case of violation of 
Article  10bis, the complainants would need to demonstrate that Australia has failed to assure 
effective protection against acts of competition by market actors that are intended to benefit such 
market actors by influencing consum ers on the basis of false or misleading representations. The 
complainants have failed to do so.5508 Australia submits that:  
[It] gives effect to its obligations under Article  10bis, properly interpreted,  by 
providing a range of legal mechanisms through which  affected parties can prevent or 
obtain redress for false or misleading representations, including:  
 a right of enforcement against trademark infringement ;5509 
 a general prohibition with respect to conduct in trade or commerce that is 
misleading or deceptive o r is likely to mislead or deceive ;5510 
 a prohibition with respect to false or misleading representations in connection 
with the supply, possible supply or promotion of goods (including statements 
concerning the place of origin of goods) ;5511 
 a prohibition with r espect to imports of goods bearing false or misleading 
trade descriptions (including in relation to the country or place in which the 
goods were made or produced) ;5512 and 
 common law protection for the reputation of a business through the tort of 
"passing off ", which can provide additional protection against 
misrepresentations.5513, 5514 
7.2781.   Australia's submits that the TPP measures  do not interfere with the ability of interested 
parties to prevent or obtain redress for false or misleading representations through these legal 
avenues.5515 
7.2782.   Australia argues that the complainants attempt to expand the meaning of any " act of 
competition" in Article  10bis(2) to encompass the regulatory environment  in which such acts take 
place. Furthermore, despite the fact that Article  10bis(2) explicitly defines what is "unfair" for the 
purposes of Article  10bis, the complainants' focus their arguments on th e ordinary meaning of the 
term "unfair" rather than the ordinary meaning of the term "honest".5516 By redefining "unfair 
competition" in this manner, Australia argues, the complainants' seek to read into Article  10bis(1) 
a positive right to use trademarks to advertise and promote products, on the basis that 
"competition" in the absence of such use is "unfair", and to transform Article  10bis(1) from a 
provision that requires Members to proscribe particular acts of dishonest commercial rivalry into 
                                                                                                                                                  
and includes several security features. Ibid. See also Cuba's opening statement at the second meeting of the 
Panel, paras.  17-18; and Cuba's response to Panel question No. 168. 
5507 Cuba's first written submission, para. 388. 
5508 Australia's first written submi ssion, para. 450. 
5509 (footnote original) Trade Marks Act 1995, (Cth), Exhibit AUS -244, Sections 20, 120(1) and 170. See 
also Annexure D: Protection of Trademarks and Geographical Indications in Australia.  
5510 (footnote original) Competition and Consumer Act 2 010 (Cth), Exhibit AUS -127, Section 18. See 
also Annexure D: Protection of Trademarks and Geographical Indications in Australia.  
5511 (footnote original) Competition and Consumer Act 2010 (Cth), Exhibit AUS -127, Subsection 29(1). 
See also Annexure D: Protecti on of Trademarks and Geographical Indications in Australia.  
5512 (footnote original) Commerce Trade Descriptions Act 1905  (Cth), Exhibit AUS -248, Section 9.  
5513 (footnote original) See Annexure D: Protection of Trademarks and Geographical Indications in 
Australia.  
5514 Australia's first written submission, para. 458. 
5515 Australia's first written submission, para. 459. 
5516 Australia's first written submission, para. 453. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 803 - 
  one that prev ents Members from imposing measures that affect any "aspect of competition", such 
as measures that restrict the use of trademarks or result in "any asymmetrical impact on different 
market participants". By departing from the meaning of "unfair competition"  in Article  10bis(2), 
the complainants are ignoring the plain text of Article  10bis.5517 
7.2783.   Australia adds that, although the complainants later in the proceedings appear to agree 
that regulations that affect general competitive conditions  do not fall within the  scope of 
Article  10bis, they continue to assert that evidence of general competitive conditions in the 
Australian market, such as alleged downtrading effects and alleged increases in illicit trade, is 
indicative  of the existence of dishonest commercial pr actices, rendering the measure inconsistent 
with Article  10bis(1). In relation to these assertions, the complainants have not demonstrated: (i) 
that there is any causal link between these alleged effects and tobacco plain packaging; and, 
crucially, (ii) th at these effects have been caused by "acts of competition" compelled by the 
measure that are "contrary to honest practices". With respect to this last point, the complainants 
have not demonstrated that the measure compels private actors to engage in acts o f competition  –
 that is, acts of "striving for custom" between rivals or attempts to increase market share by 
"offering the most favourable terms" – or that these acts of competition are "dishonest" or 
"untruthful". The complainants have presented no evide nce that consumers will confuse the goods 
of one tobacco manufacturer with the goods of another as a result of the TPP measures , and the 
complainants' contention that tobacco plain packaging will mislead consumers in relation to the 
objective characteristi cs of tobacco products is pure speculation. Australia contends that "[t] he 
complainants are simply asking the Panel to assume that there is some form of general forced 
commercial dishonesty arising from the tobacco plain packaging measure, and that these 
dishonest acts are the cause of any alleged brand switching or increases in illicit trade".5518 
7.2784.   Australia notes that the complainants argue that the TPP measures  violate Article  10bis 
by compelling  market actors to engage in acts of "unfair competition", relyi ng on the panel report 
in Mexico  – Telecoms . Australia responds that Mexico  – Telecoms is inapplicable to the present 
dispute.5519 The TPP measures  in no way  compel "act[s]" of "unfair competition" within the 
meaning of Article  10bis of the Paris Convention .5520 
7.2785.   It adds that, even if government regulations that compel private actors to engage in acts 
of competition could fall within the scope of Article  10bis, the complainants have failed to 
demonstrate that the TPP measures  in fact do so. The regulatory environm ent for the sale of 
tobacco products in Australia is shaped by a range of public health measures that "compel" 
relevant market actors to comply with specific requirements in the course of manufacturing, 
advertising and selling their tobacco products. Howev er, none of them – including the 
TPP measures  – compels market actors to engage in acts of "competition". Rather, the plain 
packaging design achieves its public health objectives by eliminating the ability of all tobacco 
companies to use figurative design elements to increase the appeal of the package or to create 
any positive association with the product. At the same time, the measures allow consumers to 
                                                
5517 Australia's first written submission, paras.  454-457 ( referring to  Honduras's first written submission, 
paras.  669 and 670). See also Australia's second written submission, para. 39. 
5518 Australia's second written submission, paras.  60-62. 
5519 In Mexico  – Telecoms , Mexico was found to have legally required the conduct it was specifically 
obligated to prevent. See, e.g. Panel Report, Mexico  – Telecoms , para. 7.262.  
5520 Australia's first written submission, paras.  451-452; and Australia's second written submiss ion, 
para. 40. Australia explains that the panel's analysis in Mexico  – Telecoms  must be understood against the 
backdrop of the telecommunications industry, which has a long history of state -owned and/or state -regulated 
monopolies (as in the case of Mexico ). The fact that the Federal Telecommunications Commission required 
Telmex (the dominant Mexican supplier) and other Mexican suppliers to engage in a price -fixing arrangement 
was clearly contrary to Mexico's commitment in its Reference Paper to maintain ap propriate measures to 
"prevent" major suppliers "from engaging in or continuing anti -competitive practices". This specific context was 
explicitly acknowledged by the panel, which noted that the measures at issue were "exceptional" and that its 
findings wer e "limited to the interpretation of Mexico's GATS obligations under Section 1 of its Reference Paper, 
with respect to the United States, and with respect to the very specific anti -competitive measures in the 
relevant market for telecommunications" . Panel R eport, Mexico  – Telecoms,  paras.  7.267 -7.268. Unlike 
Mexico's Reference Paper, Article  10bis is not concerned with the government's role as a regulator. It is 
concerned with the government's role as a provider of legal protections against acts of unfair co mpetition in 
the marketplace. The introduction of a general public health measure like the TPP measures  in no way engages 
this latter role of government and thus in no way falls within the scope of Article  10bis . Australia's second 
written submission, fn 54. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 804 - 
  continue to distinguish between different offerings in the market by reference to the brand and 
variant  names on the packaging.5521 
7.2786.   Furthermore, Australia considers that the complainants have failed to demonstrate that 
any alleged "acts of competition" compelled by the TPP measures  are acts of unfair competition 
within the meaning of Article  10bis(2) – that is, acts of competition that are "dishonest" or 
"untruthful".5522, 5523 
Analysis by the Panel  
7.2787.   Article  10bis(1) requires Members to assure to nationals of Members effective protection 
against unfair competition. An act of unfair competition is defined in paragrap h 2 as being " [a]ny 
act of competition contrary to honest practices in industrial or commercial matters".  
7.2788.   As we found in paragraph 7.2667  above, we  understand the definition in paragraph 2 as 
referring to something that is done by a market actor to compete against other actors in the 
market in a manner that is contrary to what would usually or customarily be regarded as truthful, 
fair and free from d eceit within a certain market. In the present disputes, the market at issue is 
the Australian market.  
7.2789.   We also recall our conclusion in paragraph 7.2679  above that, while a Member has to 
prohibit the types of dishonest practices enumerated in paragraph 3 of Article  10bis, the scope of 
other practices in industrial and commercial matters against which it is bound to assure effective 
protection pursuant  to its paragraph 1 needs to be considered within the legal system and 
conceptions of what constitutes an act contrary to what would usually or customarily be regarded 
as truthful, fair and free from deceit within the domestic market at issue, in this case  the 
Australian market.  
7.2790.   We recall that Cuba argues that a "competitive environment" as such – in the present 
case an environment where rival manufacturers are required to present their goods in a visually 
undifferentiated manner – may result "in a situatio n of 'unfair competition'". We also recall that, in 
respect of Article  10bis(1), Honduras initially argued that governmental regulation that skews the 
conditions of competition in favour of some competitors, and to the detriment of other 
competitors, is "unjust" and "not equitable", i.e. unfair. It elaborated that Article  10bis constrains a 
government's regulatory power in this regard to the extent that regulation has more than 
"incidental" impact on competition in the sense that it renders  competition unfair. Later in the 
proceedings, Honduras clarified that it does not argue that  a government's laws or regulations 
constitute acts of unfair competition, rather the acts of unfair competition are those of private 
parties. In this regard, we refer to our finding in paragraph 7.2699  above that the TPP measures  in 
themselves do not constitute an act of unfair competition.  
7.2791.   Honduras argues that the TPP restrictions oblige manufacturers of tobacco products to 
compete in the Australia n market in a manner that eliminates the possibility of achieving or 
maintaining product differentiation, which it argues constitutes acts of competition contrary to 
honest practices in industrial or commercial matters.5524 The Dominican Republic argues that "the 
particular acts of 'unfair competition' at issue in this dispute are the private acts of producers that 
present tobacco products in a virtually identical packaging to the packaging of competing tobacco 
products", which mislead consumers with respect t o the qualities, reputation, and characteristics of 
the competing brands. Through the mandated presentation, producers of tobacco products are 
giving misleading indications that their own brand does not differ from all competing brands on the 
market.5525 Cuba refers to the requirement that private actors conduct themselves in the manner 
prescribed under the TPP measures .5526 
                                                
5521 Australia's second written submission, paras.  41-43. 
5522 Australia's second written submission, paras.  41 and 44.  
5523 For the main arguments of the third parties, see section 7.3.6.3.2  above.  
5524 Honduras's first written submission, para. 682. 
5525 Dominican  Republic 's second written submission, paras.  749-751. 
5526 Cuba's first written submission, para. 382. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 805 - 
  7.2792.   We understand the complainants to argue that, by selling its products in compliance with 
the TPP measures  in a standardized packaging and pr oduct presentation, a market actor is 
compelled to engage in an act of unfair competition within the meaning of the definition contained 
in paragraph 2. We recall that the obligation under Article  10bis(1) is to provide effective 
protection against acts of  competition that are "contrary to honest practices in industrial and 
commercial matters". We are not persuaded that an act to sell products in compliance with the 
regulatory requirements under the TPP measures  constitutes such an act or that, in the conte xt of 
the Australian market, such an act would be contrary to what would usually or customarily be 
regarded as truthful, fair and free from deceit within the Australian market.5527 Specifically, where 
the similarities between the retail packaging result exclu sively from a regulatory intervention that 
is equally applicable to all products on the market, we are not persuaded that actions taken by 
market actors in order to comply with these requirements may be considered to constitute "acts of 
competition", to th e extent that they do not reflect actions of market actors to compete against 
each other in the marketplace.5528 
7.2793.   Honduras, the Dominican Republic and Cuba also argue that the TPP requirements 
deprive competing tobacco producers of the possibility to communica te product differences, due to 
the virtually identical presentation of tobacco products. In their view, these requirements are 
particularly unfair to high -end producers that previously used branding to signal the enhanced 
quality, reputation, and character istics of their products. Honduras and the Dominican Republic 
add that empirical evidence on "downtrading" shows that depriving producers of these signals 
immediately distorts the competitive landscape, with a significant shift from the high -end to the 
low-end.5529 In this respect, we recall our determinations above that there is some evidence, albeit 
limited, that together with enlarged GHW introduced on the same date, the TPP measures  appear 
to have had a negative impact on the ratio of higher - to low -priced  cigarette wholesale sales.5530 
However, we are not persuaded that this, in itself, demonstrates that an "unfair" impact arises for 
premium products as a result of the operation of the measures. To the extent that there are 
reasons to expect the TPP measures , in particular the removal of figurative features on tobacco 
products and their retail packaging, to have a stronger impact on the appeal of tobacco products 
for premium cigarettes, it is reasonable to expect that the reduction in the ratio of higher - to 
low-priced cigarette wholesale sales observed since the entry into force of the TPP measures  
results at least in part from the intended operation of the TPP measures  and their effect on the 
consumption of tobacco products more generally. This could be the case in particular where an 
important part of the value of premium products relies on the contribution of branding in building 
and maintaining positive and unique associations as a means to differentiate them from competing 
products.5531 We are therefore not persuaded that this effect in itself, in the circumstances of this 
case, is of such a nature as to reflect "unfair" treatment for premium products, and in particular 
amount to an act of unfair competition by a market actor.  
7.2794.   Bearing in mind the possibil ities permitted by the TPP measures  to differentiate the 
tobacco products in the market with the use of brand, company and variant names, we do not 
consider that the obligation to assure effective protection against unfair competition pursuant to 
Article  10bis(1) can be construed as requiring Australia to permit competing tobacco producers to 
use branding to signal such additional qualities. In particular, as described above, we are not 
persuaded that the complainants have demonstrated that the measures are  liable to create 
confusion in the consumer' s mind or mislead consumers as to the origin or characteristics of the 
products. In this respect, we also recall that the standardized packaging and product appearance 
mandated by the TPP measures , including the prohibition on the use of figurative and stylistic 
elements of trademarks, is specifically intended to reduce  the ability of the pack to mislead 
consumers in respect of the harmful effects of tobacco products.5532 This is, pursuant to 
Section  3(2) of the TPP Act, intended to contribute to the improvement of public health.5533 
                                                
5527 See our discussion of the meaning of the term "honest practices" in para. 7.2666  above.  
5528 See our discussion of the meaning of the term "act of co mpetition" in para. 7.2665  above.  
5529 Dominican  Republic 's first written submission, paras.  870-871 (referring to IPE Report, (Exhibit 
DOM-100), Chapt er 5).  
5530 Para. 7.1196  above.  
5531 Para. 7.1196  above. For further details,  see section 7.2.5.4.2.3  above.  
5532 TPP Act, (Exhibits AUS -1, JE-1), Section 3(2)(c).  
5533 We recall that, in the context of our analysis of the complainants' claims under Article  2.2 of the 
TBT Agreement  and Article  20 of the TRIPS Agreement, we concluded that we understand the objective 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 806 - 
  7.2795.   In light of the above, we find that Honduras, the Dominican Republic and Cuba have  not 
demonstrated that the TPP measures  require market actors to engage in such acts of unfair 
competition a gainst which Australia is bound to assure effective protection pursuant to 
paragraph  1 of Article  10bis. We therefore conclude that they have not demonstrated that the 
TPP measures  are inconsistent with Article  10bis(1).5534 
7.3.6.4.4   Overall conclusion  
7.2796.   In light of the  above, we find that the complainants have not demonstrated that the 
TPP measures  are inconsistent with Australia's obligations under Article  2.1 of the 
TRIPS  Agreement  in conjunction with Article  10bis of the Paris Convention  (1967) . 
7.3.7   Article  22.2(b) of th e TRIPS  Agreement  
7.3.7.1   Introduction  
7.2797.   We will now turn to the complainants' claims relating to the provisions of the 
TRIPS  Agreement  that concern the protection of GIs, which are addressed in Section 3 of Part II of 
the Agreement, in Articles  22 to 24. We will first address the claims under Article  22.2(b), and 
then turn to the claims under Article  24.3. 
7.2798.   Article  22.2(b) of the TRIPS  Agreement , which forms part of Article  22 entitled "Protection 
of Geographical Indications", reads as follows:  
2. In respect of geographical indications, Members shall provide the legal means 
for interested parties to prevent:  
 
… 
 
(b) any use which constitutes an act of unfair competition within the meaning 
of Article  10bis of the Paris Convention  (1967) . 
 
7.2799.   Honduras , the Dominican Republic , Cuba (by reference)5535, and Indonesia  (by 
reference)5536 claim that the TPP measures  are inconsistent with Article  22.2(b) of the 
TRIPS  Agreement . 
                                                                                                                                                  
pursued by Australia through the TPP measures  to be to i mprove public health by reducing the use of , and 
exposure to , tobacco products.  
5534 As regards alleged acts of such a nature as to create confusion or which involve indications or 
allegation liable to mislead the public within the meaning of paragraphs 3(1) and 3(3) of Article  10bis, we recall 
that Honduras, the Dominican  Republic , Cuba,  and Indonesia have made additional arguments in the context of 
their claims under those paragraphs, which we have addressed above.  
5535 See fn 4054 above. It should be noted that Ukraine did not make a claim under Article  22.2(b), and 
that Indonesia, in turn, supports the arguments presented by the Dominican  Republic  and Ukraine. On 14 
October 2015, the Panel requested Cuba to respond to the questions the Panel had addressed to Cuba on 11 
May 2015 (Panel question No. 138, referring to the relevant questions among Panel questions 1 -84). Cuba 
responded to these questions o n 28 October 2015 at the outset of the Panel's second meeting with the parties. 
It responded to Panel question No. 55 that "[i]n light of paragraph 9 of the Panel's Working Procedures, Cuba 
incorporates by reference and relies on the arguments and evidence  set out at paragraphs 772 -782 and 
785-786 of the first written submission of Honduras and at paragraphs 418 -423 of the second written 
submission of Honduras". As to the question of which paragraphs of Article  10bis of the Paris Convention  are 
relevant to its claim under Article  22.2(b) of the TRIPS Agreement, Cuba responded that it endorses the replies 
of both Honduras and the Dominican  Republic . Cuba's response to Panel question No. 50 (annexed to its 
response to Panel question No. 138). As to its other responses relating to Article  22.2(b), Cuba either provides 
its own responses (Panel question Nos. 44, 56, 109, 173 and 178), endorses the responses of Honduras (Panel 
question No. 52) or the Dominican  Republic  (Panel question No. 45) or th e responses of both Honduras and 
Dominican  Republic  (Panel question Nos. 47, 49 and 50).  
5536 In its first written submission, Indonesia indicates that it "supports the arguments presented by the 
Dominican  Republic  and the Ukraine with respect to … Articles  22.2(b) and 24.3 …". Indonesia's first written 
submission, para. 462. In response to a question from the Panel, it clarifies that the reference to Ukraine, 
which has not made any claims under Article  22.2(b), was a typographical error. Instead, "Indonesia s upports 
the claims of the Dominican  Republic , Honduras and Cuba". Indonesia's response to Panel question No. 57. It 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 807 - 
  7.2800.   Australia  asks the Panel to reject these claims in their entirety.  
7.3.7.2   Main arguments of the  parties  
7.2801.   Honduras  submits that Australia contravenes Article  22.2(b) because it fails to provide 
the legal means for interested parties to prevent use, with respect to GIs, constituting an act of 
unfair competition under Article  10bis(3)(3) of the Paris Convention .5537 
7.2802.    Honduras considers crucial the use of the words "any" and "[i]n respect of". 
Article  22.2(b) requires that an interested party should have the legal means to prevent any set of 
circumstances involving any kind of use related to GIs that would result in unfair competition. In 
Honduras's view, Article  22.2(b) does not require that the unfair  circumstances result from the use 
"of" a GI, e.g. the use of an existing GI owned by another party. Where the drafters of the 
TRIPS  Agreement  wished to refer to the "use of" some  IP right , they did so explicitly.5538 Honduras 
adds that the reference in Article 22.2(b) to use "[i]n respect of" GIs must mean something 
different than use "of" GIs. In Honduras's view, the term "[i]n respect of" denotes a broader range 
of use. Hence, any circumstance relating to the use "[i]n  respect of" GIs that has a bearing on 
competition and results in unfair competition within the meaning of Article  10bis of the 
Paris Convention  (1967)  must be subject to legal remedies that interested parties can pursue in a 
WTO Members' legal system.5539 
7.2803.   Recalling its interpretation of the conce pt of unfair competition under its claim concerning 
Article  10bis of the Paris Convention  (1967) , Honduras adds that Article  10bis – and the 
requirement of fair competition enshrined therein – is violated when competing commercial 
operators are unable to d ifferentiate their product offering in the marketplace, this impact is 
asymmetrical in that it produces greater effects on some than on other competitors, and this 
outcome is an intended objective of the measure rather than an incidental effect.5540 
7.2804.   As regard s Australia's argument that Article  22.2(b) concerns the prevention of certain 
acts by a third party rather than government regulatory measures, Honduras refers to its 
arguments relating to its claim under Article  10bis of the Paris Convention  (1967) .5541 
7.2805.   Honduras submits that Article  22.2(b) requires WTO Members to provide the legal means 
for interested parties to prevent certain acts, which logically also prevents WTO Members from 
mandating those acts through their domestic laws.5542 In this respect, Honduras r efers to its 
arguments concerning Article  10bis of the Paris Convention  (1967) .5543 
7.2806.   As regards use which constitutes an act of unfair competition under Article  10bis(3)(3) 
that Australia has, in Honduras's view, failed to prevent, Honduras makes the following  main 
arguments.5544 
7.2807.   First, Honduras argues that Australia mandates essentially uniform packaging of tobacco 
products and does not permit the owner of a GI to place its GI on the tobacco packaging. Hence, 
Australia is regulating the use of GIs in such a manne r that a GI – other than the country of origin 
                                                                                                                                                  
should be noted that Cuba, in turn, endorses the arguments by the Dominican  Republic , Honduras, Indonesia 
and Ukraine under Article  22.2(b).  In response to questions from the Panel, Indonesia clarifies that it supports 
the legal claims raised by other complainants "without raising any additional facts or arguments with respect to 
GIs". Indonesia's response to Panel question Nos. 43-52. 
5537 Hondu ras's first written submission, para. 938; and closing statement at the second meeting of the 
Panel, para. 13. In response to a question from the Panel, it elaborates that "Honduras's claim under 
Article  22.2(b) is that the plain packaging measures violate  Article  22.2(b) because they give rise to 'unfair 
competition' in respect of geographical indications in particular within the meaning of Article  10bis(1) ((as 
clarified by Article  10bis(2)) and 10 bis(3)(iii)." Honduras's response to Panel question No. 50. 
5538 Honduras's first written submission, para. 775. 
5539 Honduras's first written submission, paras.  776-777. 
5540 Honduras's first written submission, para. 779. 
5541 Honduras's second written submission, para. 422. 
5542 Honduras's first written submission, para. 778. 
5543 Honduras's first written submission, para. 778. 
5544 Honduras's first written submission, sub -heading preceding paras.  780-786. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 808 - 
  – cannot be used.5545 In response to Australia's description of how the TPP measures  operate in 
relation to GIs5546, Honduras argues that the range of "indications" potentially eligible for GI 
protection is thus muc h larger than what Australia permits to be affixed on a plain package. For 
instance, a GI that is not part of a brand or variant name, or that is a combination of pictorial and 
textual elements, cannot be displayed on the package. According to Honduras, it  is no saving 
grace for Australia's measure that it provides for the residual possibility to display a small potential 
subset of GIs, while it rules out most others.5547 
7.2808.   Second, Honduras argues that these severe limitations on the use of GIs result in an 
inability for the owners to communicate through their GIs differences in quality, taste and other 
physical characteristics to their consumers and to the broader public. Therefore, consumers of 
tobacco products will gain the erroneous impression that all tobacc o products from all geographical 
origins are the same and have the same characteristics. This perception, and its resulting impact 
on competition, is not "fair", because it goes to the detriment of owners of existing GIs who have 
invested time and resource s into establishing their GIs.5548 
7.2809.   Third, Honduras argues that this perception is unfair towards future  owners of potential 
GIs, because they will be unable to develop and establish GIs in the Australian market, thereby 
exploiting their potential competitive advantage. In particular, Honduras has in recent years been 
exploring the potential of certain of its GIs, such as for instance "Copán". However, the 
TPP measures  eliminate the possibility of establishing such a GI. According to Honduras, this 
amounts to a denial of conditions of fair competition and skews, ex ante , the conditions of 
competition in favour of producers that have not developed and that either do not intend to, or are 
structurally unable to, develop and use GIs.5549 
7.2810.   Honduras adds that Article  22.2(b) disciplines, through Article  10bis of the 
Paris Convention , not only the act of using an existing GI, but also the ability  to use any word or 
sign or trade d ress that has a bearing on the acquisition, existence or maintenance of a GI.5550 
7.2811.   In response to Australia's contention that the complainants' claims are based on reading 
a "right to use" into Article  22.2(b) where no such right exists5551, Honduras clarifies th at it is not 
postulating a "right to use".5552 Rather, its argument is based on an analysis of the text of 
Article  22.2(b) and Article  10bis.5553 The restrictions that Australia has imposed "[i]n respect of" 
GIs – namely, limiting the way these GIs can be displa yed and mandating a uniform trade dress – 
not only fail to prevent, but indeed mandate a situation in which the combined effect of acts by 
private actors gives rise to conditions of unfair competition. The uniform appearance of all 
packages "[i]n respect o f" GIs results in "indications or allegations" that convey to consumers of 
tobacco product the erroneous impression that all tobacco products from all geographical origins 
are the same and have the same characteristics.5554 This perception, and its resulting impact on 
competition, is not "fair", because it goes to the detriment of owners of existing GIs who have 
invested time and resources into establishing them and future owners of potential GIs who will be 
unable to develop and establish GIs in the Australia n market.5555 
7.2812.   The Dominican Republic  explains that differentiation through trademarks and GIs enables 
competitive opportunities by facilitating the development of consumer loyalty, and thereby 
sustaining market share and supporting price premiums. Interferenc e with the use of trademarks 
and GIs distorts the conditions of competition to the disadvantage of branded goods, in particular 
                                                
5545 Honduras's first written submission, para. 781. 
5546 Australia's first written submission, para. 483. 
5547 Honduras's second wri tten submission, para. 418. 
5548 Honduras's first written submission, para. 782. See also Honduras's second written submission, 
paras.  416 and 420.  
5549 Honduras's first written submission, paras.  782-784. See also Honduras's second written 
submission, para. 420. 
5550 Honduras's response to Panel question No. 49. 
5551 Australia's first written submission, paras.  484-485. 
5552 Honduras's second written submission, para. 419. 
5553 Honduras's second written submission, para. 421. 
5554 Honduras's second written submission, para. 419. 
5555 Honduras's second written submission, para. 420. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 809 - 
  premium branded goods.5556 The Dominican Republic submits that, although the TPP measures  
allow the display of a brand and variant name on retail packaging for tobacco products in a 
prescribed format, they prohibit the use of any aspect of a trademark or GI that involves design 
features. Yet, it is these design features that are regarded as "more effective and efficient 
communicators of brand values than the corresponding words".5557 As with trademarks, GIs are 
used in commerce to distinguish certain goods from other goods, although the basis of such 
distinction is limited to the geographical origin of the goods, and the qualities that de rive from that 
origin.5558 Without the ability to use trademarks or GIs in commerce, the benefits that warrant the 
international protection of trademarks and GIs disappear.5559 
7.2813.   The Dominican Republic submits that the ordinary meaning of " indication" in the 
definition of a GI in Article  22.1 is something that indicates or suggests, such as a sign. Thus, it is 
clear that GIs, as defined in Article  22.1, may encompass words as well as design elements.5560 
7.2814.   As regards Article  22.2(b), the Dominican Republic submits that the phrase "[i]n respect 
of" means "as regards", "as relates to", "with reference to", "by reason of", "because of", or "on 
account of".5561 As for "any use", according to the Dominican Republic, this phrase is not restricted 
to use of any particular type of indication or sign. Thus, the potentially problematic use disciplined 
by Article  22.2(b) is use of any indication or sign (whether or not that sign or indication is itself a 
GI) in relation to, or by reason of, GIs, not simply due to uses of GIs themselves, as Australia 
contends.5562 
7.2815.   Concerning the relationship of Article  22.2(b) of the TRIPS  Agreement  with Article  10bis 
of the Paris Convention  (1967) , as incorporated into the TRIPS  Agreement , the Dominican Republic 
argues that while the obligat ions under Article  10bis are the assurance of effective protection 
against unfair competition ( Article  10bis(1)) and the prohibition of three specified forms of unfair 
competition ( Article  10bis(3)), the chapeau  of Article  22.2 establishes the further requ irement with 
respect to GIs to provide "the legal means for interested parties" to prevent unfair competition, 
i.e. to make available a private right of action. According to the Dominican Republic, no such 
private right of action is specified in Article  10bis itself.5563 
7.2816.   The Dominican Republic explains  that its analysis on Article  22.2(b) relies in large part on 
its closely -related analysis with respect to Article  10bis(1) and 10 bis(3)(3) of the 
Paris Convention .5564 In particular, t he Dominican Republic recalls that, for the purposes of 
Article  10bis, an act may constitute an act of unfair competition regardless of whether the "unfair" 
act is done voluntarily, or whether it is mandated by law.5565 
7.2817.   The Dominican Republic submits that acts of "competition contrary to honest practices" 
with respect to GIs can be acts that mislead as to the geographical origin of a good, or encompass 
the use of signs that are liable to mislead the public as to the "characteristics" or "nature" of a 
good that are associated with a GI.5566 The Dominican Republic adds that p ursuant to 
Article  22.2(b), where a GI applies in relation to a good, WTO Members are, therefore, bound to 
provide interested parties with the legal means to prevent private actors from engaging in acts of 
unfair competit ion related to the origin of the good. Such acts of unfair competition include acts 
                                                
5556 Dominican  Republic 's first written submission, paras.  208-211. 
5557 Dominican  Republic 's first written submission, para. 212 (quoting Winer Report , (Exhibit UKR -9), 
para. 16). 
5558 Dominican  Republic 's first written submission, para. 226. 
5559 Dominican  Republic 's first written submission, para. 243. 
5560 Dominican  Republic 's first written submission, para. 889. 
5561 Dominican  Republic 's second written submission, para. 774 ( referring to  Oxford English Diction ary 
online, definition of "respect,  n.", available at: 
<http://www.oed.com/view/Entry/163779?rskey=uWPnla&result=1&isAdvanced=false&print >, accessed 
9 Septemb er 2015, (Exhibit DOM -331)).  
5562 Dominican  Republic 's second written submission, para. 774. 
5563 Dominican  Republic 's response to Panel question No. 49. 
5564 Dominican  Republic 's first written submission, para. 881. 
5565 Dominican  Republic 's second written submission , para. 762. See also Dominican  Republic 's first 
written submission, para. 903. 
5566 Dominican  Republic 's first written submission, para. 894. See also the Dominican  Republic 's second 
written submission, para. 762. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 810 - 
  that diminish consumers' understanding regarding the qualities, reputation, or other characteristics 
expected from a good with the protected origin.5567 
7.2818.   Referring to a GI from  the Dominican Republic, the Dominican Republic contends that the 
inability to use and develop the "Cigarro Dominicano" GI in the Australian market makes it 
impossible for consumers to learn to link that sign with the reputation for high -quality cigars tha t 
the Dominican Republic is known for around the world.5568 The Dominican Republic adds that other 
producers suffer from unfair competition in the marketplace due to their inability  to use their GIs, 
and the resulting loss in ability to communicate the qualit y differences that derive from that 
geographical origin.5569 
7.2819.   The Dominican Republic explains that paragraphs 2 and 3 of Article  10bis of the 
Paris Convention  are both relevant to its claim under Article  22.2(b) of the TRIPS  Agreement . 
Article  22.2(b) refers t o "any use which constitutes an act of unfair competition within the meaning 
of Article  10bis of the Paris Convention  (1967) ". By cross -referencing "act[s] of unfair competition" 
within the meaning of Article  10bis, generally, Article  22.2(b) implicates Article 10bis(2), which 
encompasses acts of competition that constitute acts of unfair competition, as well as 
Article  10bis(3), which identifies particular types of acts of unfair competition. For the purposes of 
the Dominican Republic's specific claims und er Article  22.2(b), Article  10bis(3)(3) describes the 
particular type of acts of unfair competition implicated by the TPP measures .5570 
7.2820.   The Dominican Republic argues that, by banning the display of GIs on tobacco packaging 
and products, Australia compels acts  that amount to unfair competition. By  compelling conduct 
that Australia is required to prohibit, the TPP measures  violate Australia's obligations under 
Article  22.2(b) of the TRIPS  Agreement , in conjunction with Article  10bis of the 
Paris Convention  (1967 ).5571 The Dominican Republic adds that, in its view, when a Member 
compels producers to present products without the use of GIs, it is mandating "act[s] of 
competition contrary to honest practices in industrial or commercial matters" within the meaning 
of Article  10bis of the Paris Convention  (1967) .5572 According to the Dominican Republic, such 
actions are particularly "unfair" because they serve to harm one class of producers (those who 
have developed GIs) to the benefit of a different class of producers (th ose who have not).5573 The 
Dominican Republic contends that the compulsory presentation of cigars without GIs serves to 
mislead consumers because they generally will be led to believe erroneously that geographical 
origin of the product makes no difference to the quality or characteristics of the products.5574 
Furthermore, competitors will be unable to command a price premium for premium products that 
would otherwise be labelled with GIs.5575 
7.2821.   The Dominican Republic submits that, through the mandated use of plain pack aging and 
the prohibition on use of GIs, competitors are compelled to use "indications or allegations … which 
in the course of trade [are] liable to mislead the public as to the nature … [or] characteristics" of 
the tobacco products, within the meaning of Article  10bis(3)(3) of the Paris Convention  (1967) . As 
                                                
5567 Dominican  Republic 's first written submission, para. 895. See also the Dominican  Republic 's second 
written submission, para. 763. 
5568 Dominican  Republic 's first written submission, para. 885. 
5569 Dominican  Republic 's first written submission, para. 886. 
5570 Dominican  Republic 's response to Panel question No. 50, paras.  223-224. The Dominican  Republic  
argues, in other words, that "when a Member compels producers to present products without the use of GIs, it 
is mandating 'act[s] of competition contrary to honest practices in indust rial or commercial matters', within the 
meaning of Article  10bis of the Paris Convention . The compulsory presentation of cigars without GIs serves to 
mislead consumers." Dominican  Republic 's response to Panel question No. 177, para. 215 (emphasis original) . 
See also Dominican  Republic 's second written submission, para. 779. 
5571 Dominican  Republic 's first written submission, para. 912. 
5572 Dominican  Republic 's first written submission, para. 903. 
5573 Dominican  Republic 's first written submission, para. 904. 
5574 Dominican  Republic 's first written submission, para. 905. See also the Dominican  Republic 's first 
written submission, para. 883; and second written submission, para. 778. 
5575 Dominican  Republic 's first written submission, para. 908. See also Dominican  Republic 's second 
written submission, paras.  778-779. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 811 - 
  such, Australia fails to "provide the legal means for interested parties" to prevent uses of 
designations or presentations on packaging that constitute such an act of unfair competition.5576 
7.2822.   Responding to  Australia's argument that the TPP measures  do not prohibit the use of GIs, 
the Dominican Republic responds that the limited exceptions to the prohibition on the use of GIs 
do not undermine the Dominican Republic's arguments, which concern the unfair compe tition 
resulting from the restrictions on the use of GIs under the TPP measures , not a ban on the use of 
GIs.5577 The Dominican Republic adds that the mandatory use of country names on tobacco 
products actually exacerbates  the violation of Article  22.2(b).5578 By requiring all cigar producers to 
identify their products with respect only to the country of manufacture, and not the additional 
elements associated with GIs, the TPP measures  mandate the use of indications that are, 
inter alia, liable to mislead as to t he different characteristics of different products coming from the 
same country.5579 
7.2823.   In response to Australia, the Dominican Republic clarifies that it does not assert that 
Article  22.2(b) establishes a right to use GIs. Rather, Article  22.2(b) provides inter ested parties 
with a right, with respect to GIs, to prevent uses by third parties that constitute acts of unfair 
competition.5580 
7.2824.   Cuba endorses and incorporates by reference the arguments by Honduras and the 
Dominican Republic.5581  
7.2825.   Cuba submits that its claim under Article  22.2(b) "covers GIs in general, as well as the 
specific 'Habanos' geographical indication". In its view, the distinction between GIs in general and 
specific GIs is irrelevant in the context of Article  22.2(b).5582 It argues that, like the Cuban 
Class 34 trademarks and the Habanos GI, the Cuban Government Warranty Seal is protected 
under trademark and unfair competition laws in export markets. It submits that the seal contains 
"graphic elements or indirect geographical indications" such as the graphic representation of the 
Cuban national shield and the image of the Cuban tobacco fields in which the Cuban national tree, 
the royal palm, may be seen. Cuba considers that the seal "qualifies as a geographical indication 
as its function is to guarantee authenticity and Cuban origin". For these reasons, Cuba considers 
that its claim under Article  22.2(b) also covers the Cuban Government Warranty Seal.5583 
7.2826.   Cuba submits that Sections 20(1) and 20(2) of the TPP Act impose a general pr ohibition 
on the display of all "marks" and "trade marks" on retail packaging unless they fall under the three 
exceptions under Section 20(3) that concern (i) a "brand, business or company name" and a 
"variant name" (as defined in Section 4(1) of the TPP Act); (ii) "the relevant legislative 
requirements"; or (iii ) "any other trade mark or mark permitted by the regulations". The effect of 
the requirements regarding the display of "brand, business, company" and "variant" names, as set 
out in Sections 20(3)(a)  and 21 of the TPP Act and Division 2.4 of the TPP Regulations , is that 
trademarks may only be displayed on the retail packaging of tobacco products to the extent that 
they comply with these requirements about typeface, font, case, colour and placement and  
maximum size. Section 21(4) of the TPP Act states that all "relevant legislative requirements", 
other than health warnings, must comply with the TPP Regulations . As to "other trade mark[s] or 
mark[s] permitted by the regulations", Division 2.3 of the TPP Regulations  allows for the display of 
                                                
5576 Dominican  Republic 's second written submission, para. 780. See also Dominican  Republic 's first 
written submission, paras.  906 and 912.  
5577 Dominican  Republic 's second written submission, para. 768 (responding to an argument made in 
Australia's first written submission, para. 483). See also Dominican  Republic 's response to Panel question 
No. 47. 
5578 Dominican  Republic 's second written submission, paras.  769 and 779.  
5579 Dominican  Republic 's second w ritten submission, para. 770. See also Dominican  Republic 's response 
to Panel question No. 54, para. 240. 
5580 Dominican  Republic 's second written submission, para. 771 (responding to an argument made in 
Australia's first written submission, para. 484).  
5581 For details, see fn 5535 above.  
5582 Cuba's response to Panel question No. 45 (annexed to its response to Panel question No. 138).  
5583 Cuba's response to P anel question No. 56 (annexed to its response to Panel question No. 138). Cuba 
provided this response on 28 October 2015 in response to Panel question No. 138 of 14 October 2015 
requesting Cuba to respond to the questions the Panel had addressed to it on 11 May 2015. In response to 
Panel question No. 87, Cuba submits that the Cuban Government Warranty Seal is also a trademark.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 812 - 
  eight categories of information.5584 With respect to cigars, the TPP Regulations  require that only a 
single cigar band may be placed on cigars, mandate the use of a uniform colour on cigar bands, 
and allow the display of (i) a brand, business or company name, (ii) a variant name and (iii) the 
country of origin information, on cigar bands; an alphanumeric code can be retained on the cigar 
band as well. The TPP measures  require that these signs and information are presented in a 
uniform typeface, font, colour and placement, and be within a maximum size on the cigar band.5585 
7.2827.   Cuba argues that the Habanos GI does not fall within the terms of the exception set out 
in Section 20(3)(a) of the TPP Act (for brand, business, company or variant names) because GIs 
are different from "brand names" as they designate a geographic origin rather than a particular 
source of supply. Even if the text "Habanos D.O.P" were to be accepted as a brand name, Cuban 
exporters would not be permitted to use  another brand name such as "Cohiba" or "Partagas" 
together with it on the retail packaging. In effect, the only relevant information about Cuban LHM 
cigars that can be included on retail packaging is a statement that the cigars are "Made in Cuba" 
and a st atement to the effect that the package contains handmade cigars.5586 
7.2828.   Cuba further argues that there is a substantial difference between the information 
conveyed to consumers by the Habanos GI relative to the information conveyed by the company 
name Habanos S. A. Not all cigars exported by Habanos S.A. may be included in the Habanos GI, 
which is reserved for the best Cuban cigars that meet strict quality standards.5587 Even if it were 
possible to mention "Habanos S.A." on the packaging, which Cuba asserts is not th e case5588, this 
wording would cover a much broader category than that of the cigars that can be included in the 
Habanos GI. The same applies to the wording "Made in Cuba", which would be applicable to all 
Cuban cigars. The text that currently appears on ciga rs with plain packaging in Australia (i.e. a 
reference to the Pacific Cigar Company, "made in Cuba" and "hand -made") cannot convey the 
same origin and quality information as the Habanos GI. Instead, the combination of these terms 
refers to a much wider gro up of cigars than those that may be included in the Habanos GI.5589 
7.2829.   Indonesia  supports the arguments raised by other complainants.5590 Responding to 
Uruguay's argument that Article  7 of the TRIPS  Agreement  is relevant for the interpretation of 
Article  22.2(b) and that the protection and enforcement of IP must promote social and economic 
welfare, and not the contrary5591, Indonesia adds that there are several issues relating to social 
and economic welfare at stake in this dispute. Indonesia argues that the economic implications of 
allowing Australia to compel a generic market based on the lowest standard of scrutiny available in 
WTO dispute settlement – a mere "rational connection" to a legitimate objective – would have 
broad negative consequences for the ec onomic welfare of WTO Members, including 
least-developed countries.5592 
7.2830.   Australia  argues that the ordinary meaning of the term "prevent" is "stop, hinder, avoid" 
or "forestall or thwart".5593 The ordinary meaning of the term "use" is "make use of (a thing), esp.  
                                                
5584 Cuba's first written submissi on, paras.  51-54 and fn  32. 
5585 Cuba's first written submission, para. 64. 
5586 Cuba's first written submission, paras.  68-71. Cuba adds that the Habanos GI does not fall within 
the terms of the exceptions set out in Sections 20(3)(b) and 20(3)(c) of the TPP Act, since there are no 
legislative requirements mandating that GIs be displayed and the TPP Regulations do not separately allow for 
the display of GIs. Likewise, Cuba argues that the Cuban Government Warranty Seal falls outside the limited 
list of exception s set out in Section  20(3) of the TPP Act because the seal is not a brand, business, company or 
variant name, there is no legislative requirement that the seal be used on retail packaging of tobacco products, 
and the TPP Regulations do not separately allow  for the use of the seal on retail packaging. The use of the seal 
on retail packaging is also banned on the basis that it amounts to a prohibited onsert.  
5587 Cuba's response to Panel question No. 189. 
5588 Cuba stresses that, instead of the company name "Habano s S.A.", the company name that appears 
on plain packaging in Australia is "Pacific Cigar Company", which appears as the company responsible for 
placing the product on the Australian market (which, in Cuba's opinion, must be domiciled in Australia in 
accord ance with the applicable Australian law). Cuba's response to Panel question No. 189. 
5589 Cuba's response to Panel question No. 189. 
5590 Indonesia's response to Panel question Nos. 43-52. For further details, see fn 5536 above.  
5591 Uruguay's third -party submission, para. 57. 
5592 Indonesia's response to Panel question No. 109. 
5593 Australia's first written submission, para. 479 ( referring to  Shorter Oxford Engli sh Dictionary, Vol. 2 
AUS excerpts, (Exhibit AUS -245), p. 2341).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 813 - 
  for a particular end or purpose; utilize, turn to account".5594 Australia adds that the subject matter 
that is "prevent[ed]" from "use" in Article  22.2(b) is "geographical indications", as is evident from 
the context provided by Article  22.2 itself – i.e. "[ i]n respect of geographical indications".5595 
Australia refers to the panel decision in EC – Trademarks and Geographical Indications (Australia) , 
which rejected the contention that "the obligation under Article  22.2 of the TRIPS  Agreement … is 
not limited to a ctions to protect GIs, but extends to any situation that concerns GIs".5596 Australia 
submits that, by its terms, Article  22.2(b) obliges Members to provide the legal means for 
interested parties to "stop" or "forestall" any "act of using" a GI that constitut es "an act of unfair 
competition" under Article  10bis of the Paris Convention .5597 
7.2831.   As regards the relevance of the interpretation of Article  10bis of the 
Paris Convention  (1967)  to the understanding of Article  22.2(b), Australia refers to its arguments 
addressing the complainants' claims under Article  10bis in conjunction with Article  2.1 of the 
TRIPS  Agreement . Specifically, Australia recalls that it has demonstrated that "unfair competition" 
refers to "any act  of competition that is contrary to honest practices in industrial or commercial 
matters", and covers conduct that is intended to benefit a market actor by influencing consumers 
on the basis of false or dishonest representations.5598 
7.2832.   In Australia's view, Article 22.2(b) therefore requires Members to provide the legal means 
for interested parties to prevent third parties from falsely or dishonestly using a GI to influence 
consumers to purchase goods that are not in fact identified by that GI.5599 According to Aust ralia, 
the protection provided under Article  22.2(b) is negative  in nature, consistent with the 
understanding that the TRIPS  Agreement  does not generally provide for the grant of positive rights 
to exploit or use certain subject matter, but rather provides  for the grant of negative rights to 
prevent certain acts.5600 Therefore, in order to establish a prima facie case of violation of 
Article  22.2(b), the complainants would need to demonstrate that Australia has failed to provide 
the legal means for interested parties to  prevent  the false or dishonest use of a GI by a third 
party.5601 
7.2833.   As regards how the TPP measures  operate in relation to GIs, Australia explains that the 
measures permit the use of GIs on the packaging of tobacco products, and on the bands of 
indivi dual cigars, if such indications are: (i) part of the brand or variant name of the product; or 
(ii) the country of origin of the product. In addition, GIs are permitted on tobacco product 
packaging if they are the place of packaging. Thus, Australia mainta ins, contrary to the 
complainants' assertions, the TPP measures  do not have the effect of banning the display of GIs on 
tobacco packaging and products.5602 
7.2834.   Australia argues that the complainants' claims under Article  22.2(b) are once again based 
on reading a "right of use" into a TRIPS  Agreement  provision where no such right exists.5603 
                                                
5594 Australia's first written submission, para. 479 ( referring to  Shorter Oxford English Dictionary, Vol. 2 
AUS excerpts, (Exhibit AUS -245), p. 3485).  
5595 Australia adds that "[t]his understanding is also consistent with the broader context of the provision. 
For example, Article  22.4 clarifies that the protection under Articles  22.1, 22.2, and 22.3 is 'applicable against 
a geographical indication  which, whi le literally true, would nevertheless constitute a false representation to the 
public'." Australia's first written submission, para. 479. (emphasis original)  
5596 Australia's response to Panel question No. 175 (quoting from Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , para. 7.712: "read in context, the obligation in Article  22.2 to provide 
certain legal means 'in respect of' GIs, is an obligation to provide for the protection of GIs. Australia's claim 
does not appear to concern the p rotection of GIs, but rather the protection of other subject matter against the 
protection of GIs. Therefore, it does not disclose a cause of action under Article  22.2." (The Panel understands 
that the quoted material originates from para.  7.714 of Panel R eport, EC – Trademarks and Geographical 
Indications (Australia) )). 
5597 Australia's first written submission, para. 480. 
5598 Australia's first written submission, para. 480 (referring to para. 499 of that submission).  
5599 Australia's first written submission, para. 481. 
5600 Australia's first written submission, para. 481 ( referring to  Panel Report, EC – Trademarks and 
Geographical Indications , para. 7.246, and further adding that this interpretation of Article  22.2(b) is 
consistent with observations of WIPO, and the  views of respected commentators).  
5601 Australia's first written submission, para. 482. 
5602 Australia's first written submission, para. 483 (referring to the Dominican  Republic 's first written 
submission, para. 912). See also Australia's response to Panel ques tion No. 59. 
5603 Australia's first written submission, para. 484. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 814 - 
  According to Australia, the complainants are attempting to insert into Article  22.2(b) a positive 
right for interested parties to use GIs to advertise and promote their tobacco pr oducts to 
consumers and to the broader public, on the basis that not  using a GI in this manner results in 
competition that is "unfair".5604 Australia recalls that, in addressing the complainants' claims under 
Article  10bis of the Paris Convention  (1967) , it h as already established that the complainants' 
claims of "unfairness" fall outside the definition of "unfair competition" within the meaning of 
Article  10bis.5605 
7.2835.   Australia further argues that the complainants contend that Article  22.2(b) prohibits 
Members fro m imposing restrictions on this alleged positive "right of use".5606 In Australia's view, 
the complainants' arguments are wholly unsupported by the text of Article  22.2(b).5607 According 
to Australia, Honduras and the Dominican Republic fundamentally ignore the negative nature of 
the protection provided by Article  22.2(b), and the fact that such protection is provided to 
interested parties  to prevent  false or dishonest use of GI s by third parties . A Member's refusal to  
allow the unfettered use of GIs by interested parties is not a violation of this provision.5608 
7.2836.   Australia submits that it has demonstrated that it meets its obligations under 
Article  22.2(b) of the TRIPS  Agreement , properly interpreted, in responding to the complainants' 
claims under Article  10bis of the Paris Convention  (1967)  in conjunction with Article  2.1 of the 
TRIPS  Agreement .5609 Australia argues that the legal mechanisms through which affected parties 
can prevent or obtain redress for acts of unfair competition in Australia provide the legal means for 
interested parties to prevent the false or dishonest use of GIs by third parties. The operation of 
these legal mechanisms is in no way affected by the TPP measures .5610 Australia adds that even if 
Article  22.2(b) were interpreted to require that Members provide the legal means to prevent the 
use of signs and indications (and not just GIs), the legal mechanisms through which Australia 
protects against unfair competition ar e not restricted to GIs and would also cover the use of other 
signs and indications. Australia's TPP measures  do not interfere with the ability of interested 
parties to prevent or obtain redress for false or misleading representations through these legal 
avenues.5611 
7.3.7.3   Main arguments of the third parties  
7.2837.   China  argues that the TPP measures  do not appear to be in violation of Article  22.2(b) . 
First, what shall be prevented under Article  22.2(b) is any use which constitutes an act of unfair 
competition within the m eaning of Article  10bis of the Paris Convention  (1967) . To the extent the 
TPP measures  are not an act of unfair competition within the meaning  of Article  10bis, they do not 
fall within the scope of Article  22.2(b). Second,  Article  22.2(b) requires Members to provide 
"the legal means for interested parties " to prevent  "any use " that constitutes an act of unfair 
competition. To the extent the interested parties have legal means under the Australian law to 
prevent or obtain redress for  the false , dishonest or illegal use of GIs by third parties , and that t he 
operation of these mechanisms is not affected by the TPP measures , the complainants have failed 
to establish a prima facie  case that Australia  acts inconsistently with Article  22.2( b).5612 
7.2838.   New Zealand  indicates that it agrees with Australia's interpretation of, and arguments in 
relation to, Article  22.2(b), and requests the Panel to reject the complainants' relevant claims.5613 
7.2839.   Singapore  argues that, i n the present context, t he question is whether Australia has 
provided the legal means to prevent the proscribed acts under Article  22.2(b). If a GI owner is 
able to prevent the proscribed acts through recourse to the legal means provided by Australia 
                                                
5604 Australia's first written submission, para. 484. 
5605 Australia's first written submission, para. 484 fn 677 (referring to paras.  454-457 of that 
submission).  
5606 Australia's first written submission, para. 484. 
5607 Australia's first written submission, para. 485. 
5608 Australia's first written submission, para. 485. 
5609 Australia's first written submission, para. 486 (referring to para. 458 of that submission).  
5610 Austral ia's first written submission, para. 487.  
5611 Australia's response to Panel question No. 175, para. 140. See also Australia's response to Panel 
question No. 178. 
5612 China's third -party submission, para. 63. 
5613 New Zealand's third -party submission, paras.  14-15 and 124.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 815 - 
  within its legal system and p ractice, there is no violation of Article  22.2(b).5614 Noting Honduras's 
assertion that the obligation to provide the legal means to prevent certain acts must, by logical 
extension, also prevent Members from mandating those acts through their domestic laws, 
Singapore submits that, even assuming, arguendo , that such an inference could be made, the 
TPP measures  do not mandate acts of unfair competition for the same reasons Singapore 
mentioned in respect of the claims brought under Article  10bis of the Paris Convention  (1967)  in 
conjunction with Article  2.1 of the TRIPS  Agreement .5615 First, in relation to the allegation that the 
TPP measures  are unfair because of the asymmetrical impact of the measures on some 
competitors in the market compared to others arising fro m the inability to differentiate one's 
product in the marketplace, Singapore submits that Article  10bis is not directed at market 
conditions as such, but acts of  commercial dishonesty involving misrepresentation.5616 Second, the 
TPP measures  do not compel act s that mislead consumers as to the nature or characteristics of 
tobacco products.5617 Referring to Australia's explanation of how the TPP measures  operate in 
relation to GIs, Singapore notes that the ability to distinguish the tobacco products of different 
undertakings is not extinguished by the TPP measures  through the use of brand, business or 
company names with variant names on the packaging. In this case , Singapore notes, Australia has 
also pointed out that t he TPP measures  permit the use of GIs on the pac kaging of tobacco 
products, and on the bands of individual cigars, if such indications are: (i) part of the brand or 
variant name of the product; or (ii) the country of origin of the product; in addition, GIs are 
permitted on tobacco product packaging if t hey are the place of packaging.5618 
7.2840.   Uruguay  argues that the right conferred under Article  22.2(b) is defined as a negative 
right to protect GIs against use by third parties. According to Uruguay, the limitations are based 
on a measure of general public health  policy recognized in the WTO Agreement s and 
recommended by the FCTC.5619 
7.2841.   Uruguay adds that Article  7 of the TRIPS  Agreement  is relevant for the interpretation of 
Article  22.2(b). In its view, Article  7 means that the protection and enforcement of IP must 
promote social and economic welfare, and not the contrary. Tobacco control policies promote 
social and economic welfare in the face of a public health problem which consumes substantial 
resources in the form of health treatments and premature deaths and is highly cost -intensive for 
society as a whole. For that reason, they also represent sound economic policy.5620 
7.2842.   Zimbabwe  argues that, in violation of Article  22.2(b), the TPP measures  do not provide 
any means to prevent the use of GIs.5621 Zimbabwe  adds tha t GIs are important indicators of the 
geographical origin of goods and the quality, reputation or characteristics essentially attributable 
to their origin. Further, similarly to trademarks, GIs are important for allowing consumers to 
distinguish products. Zimbabwe argues that the TPP measures  prevent the use of a word GI other 
than the name of the country at the expense of producers and consumers.5622 
7.3.7.4   Analysis by the Panel  
7.2843.   We recall that Article  22.2(b) of the TRIPS  Agreement , which forms part of Article  22 
entitled "Protection of Geographical Indications", reads as follows:  
2.  In respect of geographical indications, Members shall provide the legal means 
for interested parties to prevent:  
… 
                                                
5614 Singapore's third -party submission, para. 60. 
5615 Singapore's third -party submission, para. 60. 
5616 Singapore's third -party submission, para. 61. 
5617 Singapore's third -party submission, para. 62. 
5618 Singapore's third -party submission, para. 62 (refer ring to Australia 's first written submission, 
para. 483).  
5619 Uruguay's third -party submission, para. 56. 
5620 Uruguay's third -party submission, para. 57. 
5621 Zimbabwe's third -party submission, para. 43. 
5622 Zimbabwe's third -party submission, para. 43. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 816 - 
  (b) any use which constitutes an act of unfair competition within the meaning 
of Article  10bis of the Paris Convention  (1967) . 
7.2844.   The chapeau  of paragraph 2 of Article  22 establishes an obligation that applies " [i]n 
respect of geographical indications " (emphasis added). The ordinary meaning of the term "in 
respect of" is "as re gards, as relates to; with reference to".5623 In Article  22.2, this reference points 
expressly and exclusively to one particular category of IP, namely "geographical indications", the 
protection of which is the sole object of Article  22 of the TRIPS  Agreement . Article  22.1 defines 
"geographical indications", for the purposes of the TRIPS  Agreement , as:  
[I]ndications which identify a good as originating in the territory of a Member, or a 
region or locality in that territory, where a given quality, reputation or other 
characteristic of the good is essentially attributable to its geographical origin.  
7.2845.   As regards the scope of the obligation under Article  22.2 within Part II of the Agreement, 
the panel in EC – Trademarks and Geographical Indications (Australia)  accordingly found that, 
"read in the context, the obligation in Article  22.2 to provide certain legal means 'in respect of' 
GIs, is an obligation to provide for the protection of GIs".5624 
7.2846.   The chapeau  of Article  22.2 requires Members to provide, in respect o f GIs, "the legal 
means for interested parties to prevent " (emphasis added) certain uses of GIs that are specified in 
sub-paragraphs (a) and (b). Sub-paragraph (b) of Article  22.2, in particular, requires Members to 
provide, in respect of GIs, the legal me ans for interested parties to prevent "any use which 
constitutes an act of unfair competition within the meaning of Article  10bis of the 
Paris Convention  (1967) ".  
7.2847.   We recall that paragraph 2 of Article  10bis of the Paris Convention  (1967)  defines an act 
of unfair competition as "[a]ny act of competition contrary to honest practices in industrial or 
commercial matters". The wording of this definition is sufficiently broad to encompass dishonest 
practices in industrial and commercial matters that relate to GI s. 
7.2848.   As regards the types of uses in respect of GIs that may constitute an act of unfair 
competition, we refer to our general interpretative analysis of Article  10bis of the 
Paris Convention  (1967) , as incorporated through Article  2.1 of the TRIPS  Agreement .5625 We recall 
that we concluded that Article  10bis, as incorporated into the TRIPS  Agreement , requires a 
Member to assure effective protection against unfair competition. We also found that, while a 
Member is required to prohibit the types of acts of unfair competition enumerated in paragraph  3 
of Article  10bis, the scope of practices in industri al and commercial practices against which a 
Member is bound to assure effective protection needs to be considered in the context of the legal 
system and conceptions of what constitutes an act contrary to what would usually or customarily 
be regarded as tru thful, fair and free from deceit, within the domestic market at issue.5626 
7.2849.   While Article  10bis requires Members to assure effective protection against unfair 
competition, it is silent on the specific legal means Members may choose to assure such effective 
protection, except for requiring the prohibition of the particular acts of unfair competition identified 
in its paragraph 3.5627 As noted5628, Article  10bis has to be also read in the context of Article  1.1 of 
                                                
5623 Oxford English Dictionary online, definition of "in respect of", available at: 
<http://www.oed.com/view/Entry/163779?redirectedFrom=in+respect+of#eid177413 195>, accessed 
2 May 2017.  
5624 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.714  (footnote 
omitted) . See also fn 5596 above. We note that the parties have nuanced somewhat differently their respective 
understandings of the meaning of the term "in respect of". See the summaries of the main arguments of 
Honduras, the Dominican  Republic  and Australia in paras.  7.2802 , 7.2813 , and 7.2830  above.  
5625 See section 7.3.6.3.3  above.  
5626 See para. 7.2679  above. In this regard, we note that Honduras and the Dominican  Republic  build 
their claims relating to sub -paragraph (b) of  Article  22.2 on their arguments relating to their separate claims 
under Article  10bis of the Paris Convention  (1967). Australia also refers to its arguments responding to those 
claims relating to Article  10bis. 
5627 Paragraph 1 of Article  10bis requires that  the protection is "effective", and Article  10ter(1) of the 
Paris Convention  (1967) adds that "[t]he countries of the Union undertake to assure to nationals of the other 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 817 - 
  the TRIPS  Agreement , which provides that "Members shall  be free to determine the appropriate 
method of implementing the provisions of this Agreement within their own legal system and 
practice". This leaves it to each Member to choose the appropriate methods within its own legal 
system and practice to repress a ny such dishonest practices. The chapeau  of Article  22.2 of the 
TRIPS  Agreement , read together with its sub -paragraph (b), however, requires Members 
specifically to provide, in respect of GIs, " the legal means for interested parties to prevent " any 
use whi ch constitutes an act of unfair competition within the meaning of Article  10bis. As the 
Dominican Republic points out, Article  10bis, itself, does not specifically require a Member, when 
implementing its provisions, to provide such private right of action for interested parties under its 
domestic law. In addition, the terms "any use" clarify that the obligation relates specifically to the 
prevention of certain uses of GIs, namely all those that would constitute an act of unfair 
competition.  
7.2850.   With this gener al understanding of the obligation under Article  22.2(b) in mind, we 
consider the complainants' arguments that the TPP measures  are inconsistent with this provision.  
7.2851.   Their claims concern the impact of the TPP measures  in respect of GIs on all tobacco 
products.5629 As a preliminary matter, we therefore first consider how the TPP measures  operate in 
relation to the use of GIs on tobacco products and their retail packaging.  
7.2852.   As described above5630, trademarks and GIs are currently protected in Australia under the 
TM Act. Under the TM Act, a sign that constitutes a GI may be eligible for registration as a 
trademark.5631 To the extent that GIs are registered as trademarks in Australia, they are generally 
registered as certification trademarks. Collective trademarks may also provide protection for signs 
that are GIs in Australia. In the same way as with other registered trademarks, an owner of a 
registered certification or collective trademark is able to pursue infringement action against 
unautho rized use of a sign by third parties. Australia also maintains protection with respect to 
trademarks and GIs under other areas of Australian law, including under general consumer 
protection measures addressing misleading representations. The CCA establishe s a general 
prohibition on misleading or deceptive conduct in trade or commerce. Under the CTD Act, Australia 
also prohibits the importation of any good bearing a false trade description. Australia further 
maintains common law protection for the reputation  of a business through the tort of "passing off", 
which can provide additional protection against misrepresentations. Neither trademarks nor GIs 
are protected per se under this tort, but they may be probative with respect to the existence of, 
and damage to , a trader's reputation in the relevant market.5632 
7.2853.   As also described above5633, the TPP measures  regulate the appearance of trademarks 
and marks5634 on tobacco products and their retail packaging. As regards how the TPP measures  
operate in relation to GIs, Austral ia submits that the measures permit the use of GIs on the 
packaging of tobacco products, and on the bands of individual cigars, if such indications are: (i) 
part of the brand or variant name of the product; or (ii) the country of origin of the product. In 
addition, GIs are permitted on tobacco product packaging if they are the place of packaging.5635 A 
                                                                                                                                                  
countries of the Union appropriate legal remedies  effectively to repress all the acts referred to in Articles  9, 10 
and 10 bis". (emphasis added)  
5628 See paras.  7.2681 -7.2682  above.  
5629 Honduras's response to Panel question No. 44; Dominican  Republic 's response to Panel question 
No. 44; and Indonesia's response to Panel question No. 44. Honduras and the Dominican  Republic  add that, as 
a matter of commercial reality, GIs are more likely to be relevant for LHM cigars than for other tobacco 
products. Cuba submits that it has focused its claims on LHM cigars.  
5630 See section 2.3 above.  
5631 For example, the GI "Habanos" was registered as a trademark in Australia from 16 April 2010. See 
para. 7.2944  below.  
5632 For further details, see section 2.3 above.  
5633 See sections 2.1.2.3.3 and 2.1.2.4 above.  
5634 The definition of "mark" in Section 4 of the TPP Act reads as follows: "(a) includes (without 
limitation) any line , letters, numbers, symbol, graphic or image; but (b) (other than when referring to a trade 
mark) does not include a trade mark". TPP Act, (Exhibits AUS -1, JE-1) 
5635 Australia's first written submission, para. 483. Australia adds that TPP Regulation 2.3.1(c)  permits a  
"trade description"  statement on primary and secondary packaging and TPP Regulation 2.3.4 mandates the 
form of such a statement. See TPP Regulations, (Exhibits AUS -3, JE-2), Regulations 2.3.1 and 2.3.4. A "trade 
description" is required to appear on imported products pursuant to the CI Regulations  and must include the 
name of the country in which the product was made or produced and a true description of the product. See C I 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 818 - 
  GI is not otherwise permitted on the packaging.5636 Honduras submits that the TPP measures  
prohibit the display of a GI consisting of a non -word sign; or a GI cons isting entirely of a 
non-topographical term (that is not also the brand or variant name) or a topographical name other 
than the country of origin (a nd that is not also the brand or  variant name).5637 The Dominican 
Republic understands that the TPP measures  prohibit the display on tobacco packaging and 
products of any indications other than words (i.e. figurative GIs), and any words that qualify as 
GIs to the extent that they (i) do not constitute part of the brand or variety name, and (ii) consist 
of something  other than a country. They also curtail the use of GIs which consist of both words 
and images (similar to "composite" trademarks) by disallowing the use of such images; and curtail 
the use of words that qualify as GIs and that can be used as brand or vari ant names or simply 
constitute the name of the country due to the TPP requirements on the format.5638 Cuba and 
Indonesia endorse the above explanations by Honduras and the Dominican Republic.5639 
7.2854.   We understand that the parties agree that the TPP measures  prohibi t the use of any 
stylized or figurative elements contained in a GI or figurative signs constituting a GI on tobacco 
retail packaging and products. We also understand that they agree that the TPP measures  permit 
the use of a word constituting a GI on tobacc o retail packaging and on cigar bands to the extent 
that it is part of the brand, business or company name, or the variant name of the tobacco 
product5640, provided that it appears in the form prescribed by the TPP Regulations . We note that 
neither Section 4 nor Section 20(3) of the TPP Act defines the term "brand name".5641 In 
particular, on its face, in permitting the use of "the brand name", the TPP Act does not 
differentiate between brand names that are composed either of a single or multiple words, or on 
the basis of whether or not such a word or words are protected as a trademark, a GI or both, or 
not protected under any form of IP rights in Australia. We further note that the definition of a 
"variant name" in Section 4(1) of the TPP Act is narrow and most G Is are unlikely to fall under 
it.5642 Where a GI is the same as the name of the country of origin of the product, its use is also 
permitted, in the form prescribed by the TPP measures , on the tobacco retail packaging5643 and on 
cigar bands.5644  
                                                                                                                                                  
Regulations, (Exhibits AUS -251, DOM -155, CUB -1), Regulations 7 and 8. See also CTD Act, (Exhibit AUS -248); 
and Australia's first written submission, para. 483 fn 675. Australia notes that the use of country names on 
tobacco products is a requirement cont ained in other legislation which predates the introduction of the 
TPP measures , and that the TPP measures  simply mandate the form in which such information appears. 
Australia's comment s on the Dominican  Republic 's response to Panel question Nos. 174 and 17 7. 
5636 Australia's response to Panel question No. 59. 
5637 Honduras's response to Panel question No. 47. 
5638 Dominican  Republic 's response to Panel question No. 47. 
5639 Cuba's and Indonesia's responses to Panel question No. 47. Cuba nonetheless argues that the 
display of the specific GI "Habanos" is prohibited. For discussion, see para. 7.2855  below.  
5640 Section 20(3)(a) of the TPP Act, (Exhibits AUS -1, JE-1) an d Regulation 3.2.1(3)(a) of the TPP 
Regulations, (Exhibits AUS -3, JE-2). 
5641 While the TPP Act does not define the term "brand name", we note that the CI Regulations provide 
that "[i]n these regulations, unless the contrary intention appears: … brand  includes any mark, device, name, 
word, letter, numeral or symbol and any combination consisting of two or more of those things". CI 
Regulations, (Exhibit s AUS-251, DOM -155, CUB -1), Section 5(1).  (emphasis original)  
5642 Section 4(1) of the TPP Act defines "v ariant name" name as follows: " variant name  for a tobacco 
product means the name used to distinguish that kind of tobacco product from other tobacco products that are 
supplied under the same brand, business or company name, by reference to one or more of t he following: (a) 
containing or not containing menthol; (b) being otherwise differently flavoured; (c) purporting to differ in 
strength; (d) having or not having filter tips or imitation cork tips; (e) being of different length or mass."  
5643 The TPP Act permits the appearance on the retail packaging of tobacco products of "the relevant 
legislative requirements" (Section 20(3)(b)), provided they comply with any requirements prescribed by the 
regulations (Section 21(4)). Section 4 of the TPP Act defines "releva nt legislative requirement" to include "a 
trade description", which in turn is defined to mean "any trade description that is required to appear on the 
retail packaging of tobacco products by regulations made under the Commerce (Trade Descriptions) Act 190 5". 
TPP Act, (Exhibits AUS -1, JE-1). See also Regulations 2.3.1(c) and 2.3.4 of the TPP Regulations, (Exhibits 
AUS-3, JE-2). The CI Regulations, which, by their own terms, were "made under the Commerce (Trade 
Descriptions) Act 1905", require that "the trad e description shall contain, in prominent and legible characters: 
(i) the name of the country in which the goods were made or produced". This requirement applies specifically 
to "cigars, cigarettes, manufactured tobacco, cigarette papers and cigarette tube s", prohibiting the importation 
of such products into Australia "unless there is applied to those goods a trade description in accordance with 
these regulations". CI Regulations, (Exhibit s AUS-251, DOM -155, CUB -1), cover page and Regulations  8(c)(i) 
and 7( 1)(n). See also CTD Act (Exhibit AUS -248), Section  7(1). 
5644 TPP Regulations, (Exhibits AUS -3, JE-2), Regulation 3.2.1(3)(b).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2855.   Cuba specifies that , with regard to the products covered by its claim under 
Article  22.2(b), it considers that the TPP measures  in some cases prohibit and in others curtail the 
use of GIs depending on the type of the GI. Cuba, however, asserts that, in the specific case of t he 
GI "Habanos", there is a total prohibition.5645 Cuba submits that this is because the GI "Habanos" 
does not fall within the permitted uses of trademarks and marks under Section  20(3)(a) of the 
TPP Act as a brand, business, company or variant name, because GIs are different from "brand 
names" as they designate a geographic origin rather than a particular source of supply.5646 Cuba 
adds that, even if the text "Habanos D.O.P" were to be accepted as a brand n ame, Cuban 
exporters would not be permitted to use it with another brand name such as "Cohiba" or 
"Partagas".5647 Honduras adds that, to the extent that a GI is entirely or only partially 
"co-extensive" with the brand or variant name, its display may be curta iled.5648 
7.2856.   We note that it is not in dispute that the TPP measures  prohibit the display of the label for 
the "Habanos" GI with its figurative elements as depicted in Figure 20 below.5649 We are not 
persuaded, however, that Cuba has established that the TPP measures  prohibit the use of the word 
"Habanos" to the extent it is part of the brand name.5650 As we noted above, neither Section 4 nor 
Section  20(3) of the TPP Act defines th e term "brand name"5651 and, on its face, the TPP Act does 
not determine what word or words a competitor may choose as its brand name. In this regard, the 
parties have not established how they believe the TPP measures  restrict a competitor's freedom to 
choose  which name to use as a brand name for its products, and the implications they may have in 
situations where a word consisting of a GI is used entirely or partially in conjunction with another 
word used as a brand name. In particular, we do not have evidenc e before us that the term "brand 
name" should be interpreted under Australian domestic law to exclude a combination of words. We 
note in this respect that while the TPP Act does not define the term "brand name", the Commerce 
(Imports) Regulations 1940  (Cth) (CI Regulations) provide that "[i]n these regulations, unless the 
contrary intention appears: … brand  includes any mark, device, name, word, letter, numeral or 
symbol and any combination consisting of two or more of those things".5652  
                                                
5645 Cuba's response to Panel question No. 47 (annexed to its response to Panel question No. 138).  
5646 Cuba's first written submission, paras. 68-71. We note that "Habanos" is registered as a composite 
trademark in Australia. See Cuba's first written submi ssion, Annex 1, Part 1, item 19. S ee also para. 7.2944  
below . Cuba does not contest that words contained in composite trademarks can be used as brand names 
under the TPP measures . See, e.g. Cuba's first written submission, para. 307. 
5647 Cuba's first written submission, paras.  68-71. We note that in its response to Panel question No. 44, 
Cuba refers to "Cohiba" as an example of the Cuban tobacco manufacturers' GIs. Cuba, however, does not 
contest that "Cohiba" can be used as a brand name under the TPP measures . In its response to P anel question 
Nos. 87 and 167 and in paragraph 31 of its comments on Australia's response to Panel question Nos. 166, 170 
and 204, Cuba refers to "Cohiba" as a trademark. Cuba lists "Cohiba" and "Partagas" as Cuban Class 34 
trademarks in its first written submission, Annex 1, Part 1, item 6 and items  32 and 33, respectively.  
5648 Honduras's response to Panel question No. 47. 
5649 We note some variability in the use of the terminology by the parties. Cuba also claims that the 
TPP measures  violate Article  IX:4 of t he GATT  1994 because "they prohibit the use of the Habanos GI ". Cuba's 
first written submission, para. 427 (emphasis added). In that context, Cuba explains that "[t]he Habanos GI is 
a 'label' or 'inscription' ". Cuba's first written submission, para. 420 (e mphasis added). In its response, Australia 
explains that it understands that Cuba argues that " 'Habanos' label  can no longer be affixed". Australia's first 
written submission, para. 744 (emphasis added). In that context, Australia refers interchangeably to  "the 
prohibition on the use of the ' Habanos' label '" (Australia's first written submission, para. 753; and Australia's 
second written submission, para. 581) (emphasis added); "the removal of the mark 'Habanos' " (Australia's 
second written submission, para. 594.) (emphasis added); and "the prohibition on the use of the mark 
'Habanos'", (Australia's second written submission, para. 588). It clarifies that "[t]he mark 'Habanos' is 
prohibited from use on tobacco packaging if it is not part of the brand, busine ss or company name, or variant 
name of the product". Australia's second written submission, fn 644. We understand that these references by 
Australia to the prohibition of the "label" or "mark" "Habanos" refer to the composite "Habanos" GI, or the 
Habanos l abel, including its figurative elements, as presented in Figure 20 below, thus not contradicting 
Australia's position that the TPP measures  do not prohibit the use of  the word "Habanos" if it is part of the 
brand name.  
5650 Cuba also questions whether or not the company name "Habanos S.A." can be displayed on tobacco 
packaging and products. It adds that, even if it were possible to mention that company name, it would cove r a 
broader category of cigars than the Habanos GI. Cuba's response to Panel question No. 189. 
5651 See para. 7.2854  above.  
5652 CI Regulations, (Exhibit s AUS-251, DOM -155, CUB -1), Section 5(1).  (italics original; bolding 
omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.3.7.4.1   Whether the TPP measu res amount to unfair competition by creating unfair 
conditions of competition in respect of GIs  
7.2857.   In the context of its claim under Article  22.2(b) of the TRIPS  Agreement , Honduras 
referred to its interpretation of the concept of unfair competition under its  separate claims 
concerning Article  10bis, as incorporated into the TRIPS  Agreement , and argued that Article  10bis 
may be violated as a result of a government regulation having an asymmetrical impact on 
competitors and that Australia violated its obligatio ns under Article  22.2(b) because, inter alia, the 
TPP measures  skewed the conditions of competition.5653 Honduras, however, clarified that it does 
not argue that a government's laws or regulations constitute acts of unfair competition but rather 
that the relevant acts of unfair competition remain those of private parties.5654  
7.2858.   In this regard, we recall that, in  the context of our analysis under Article  10bis of the 
Paris Convention  (1967) , as incorporated through Article  2.1 of the TRIPS  Agreement , we 
determined that an act of unfair competition is defined in Article  10bis(2) as " [a]ny act of 
competition contrar y to honest practices in industrial or commercial matters". As explained, we 
understand the terms "competition" and "act of competition", in the context of "industrial or 
commercial matters", to refer to something that is done by a market actor to compete against 
other actors in the market.5655 The term "act of competition", therefore does not, in our view, 
include laws and other instruments that a Member adopts to regulate the market, or the overall 
regulatory environment within which the market operates.5656 We also found, as a result, that the 
TPP measures  in themselves do not constitute an act of unfair competition within the meaning of 
Article  10bis of the Paris Convention  (1967) .5657 Consistent with that finding, we also find that the 
phrase "an act of unfair c ompetition within the meaning of Article  10bis of the 
Paris Convention  (1967) " in Article  22.2(b) of the TRIPS  Agreement  does not include laws and 
other instruments that a Member adopts to regulate the market, or the overall regulatory 
environment within w hich the market operates. The TPP measures  in themselves, therefore, do not 
constitute "an act of unfair competition" as referred to in Article  22.2(b).  
7.2859.   Honduras also argued that Australia fails to provide the legal means for interested parties 
to prevent use which constitutes an act of unfair competition under Article  10bis(3)(3), inter alia 
because, pursuant to the TPP measures , existing GIs cannot be used and future owners of 
potential GIs are unable to develop and establish GIs.5658 Likewise, the Dominican Republic argued 
that producers suffer from unfair competition in the marketplace due their inability to use their 
GIs.5659 Australia responded that the protection provided under Article  22.2(b) is negative in 
nature, and does not prov ide for the grant of a positive right to use a GI.5660 In response, the 
Dominican Republic clarified that it does not assert that Article  22.2(b) establishes a right to use 
GIs; rather, Article  22.2(b) provides interested parties with a right, with respect to  GIs, to prevent 
uses by third parties that constitute acts of unfair competition.5661 Likewise, Honduras clarified that 
it is not postulating a "right to use". It rather argues that the uniform appearance of packages 
required under the TPP measures  conveys t o consumers an erroneous impression that all tobacco 
products from all geographical origins are the same and have the same characteristics5662, and 
that this perception, and its resulting impact on competition, is not "fair", because it goes to the 
detriment of owners of existing GIs who have invested time and resources into establishing them 
and future owners of potential GIs who will be unable to develop and establish GIs in the 
Australian market.5663 
                                                
5653 See paras.  7.2802 -7.2804  above.  
5654 Honduras's second written submission, para. 391. 
5655 See para. 7.2665  above.  
5656 See para. 7.2698  above. This is without prej udice to the question of under what circumstances a 
Member itself can be considered to compete as a market actor in the market, an issue that has not been raised 
under the present disputes.  
5657 See para. 7.2699  above.  
5658 Honduras's first written submission, paras.  781-782. 
5659 Dominican  Republic 's first written submission, para. 886. 
5660 Australia's first written submission, para. 481. 
5661 Dominican  Republic 's second written submission, para. 771. 
5662 Honduras's second written submission, para. 419. 
5663 See paras.  7.2807 -7.2811  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
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  7.2860.   We agree with the parties that Article  22.2(b) obliges Membe rs to provide, in respect of 
GIs, the legal means for interested parties to prevent uses by third parties that constitute acts of 
unfair competition. We  recall that the chapeau  of Article  22.2 requires Members to provide, in 
respect of GIs, "the legal mean s for interested parties to prevent " (emphasis added) certain uses 
of GIs that are specified in sub -paragraphs (a) and (b). The ordinary meaning of the verb 
"prevent" is "to preclude, stop, or hinder", or "to stop, keep, or hinder (a person or thing) from 
doing something".5664 Members are, consequently, obliged to provide, pursuant to Article  22.2(b), 
legal means for interested parties to "prevent", i.e. stop or hinder, in respect of GIs, any use which 
constitutes an act of unfair competition within the meanin g of Article  10bis of the 
Paris Convention  (1967) . Therefore, Article  22.2(b) does not confer on interested parties a positive 
right or entitlement to use GIs.  
7.2861.   As noted above, Honduras argues that the TPP measures  result in a perception, and a 
related impact on competition, to the detriment of owners of existing and potential future GIs, 
which is not "fair".5665 This argument focuses on the TPP measures  themselves as a regulatory 
intervention, and whether the resultin g regulatory environment can be seen as unfair, rather than 
on acts of competition carried out by market actors. As described above, Honduras clarified 
however that it does not argue that a government's laws or regulations constitute acts of unfair 
competi tion. Rather, the relevant acts of unfair competition remain those of private parties.5666 We 
recall our finding above that the TPP measures  in themselves do not constitute an "act of unfair 
competition", as referred to in Article  22.2(b).5667 Accordingly, we do  not consider further whether 
the TPP measures  themselves as a regulatory intervention, or the regulatory environment resulting 
from the restrictions that the measures impose on the use of GIs and their figurative elements, are 
"fair".  
7.3.7.4.2   Whether the TPP meas ures compel acts by market participants in respect of 
GIs that constitute acts of unfair competition that Australia is obliged to prohibit  
7.2862.   The complainants argue that the TPP measures  compel market participants to engage in 
the types of acts of unfair comp etition listed in Article  10bis(3)(3) of the 
Paris Convention  (1967) .5668 They allege that Australia, in doing so, violates its obligations under 
Article  22.2(b) of the TRIPS  Agreement , in conjunction with Article  10bis of the 
Paris Convention  (1967) . We note  that the complainants' arguments that Australia fails to provide, 
pursuant to Article  22.2(b), legal means for interested parties to prevent any use which constitutes 
a type of an act of unfair competition listed in Article  10bis(3)(3) parallel their argu ments under 
their claims under Article  10bis(3)(3) itself, except that the arguments focus specifically on any 
use in respect of GIs which constitutes an act of unfair competition.  
7.2863.   We will first consider whether the TPP measures  compel market actors to eng age, in 
respect of GIs, in any acts of unfair competition within the meaning of Article  10bis of the 
Paris Convention  (1967) , in relation to which Australia is obliged, pursuant to Article  22.2(b) of the 
TRIPS  Agreement , to provide the legal means for inte rested parties to prevent. If we find that the 
TPP measures  do compel market actors to engage, in respect of GIs, in such acts of unfair 
competition, we will then consider whether, in compelling these acts, Australia fails to provide the 
legal means for in terested parties to prevent such acts, in violation of Article  22.2(b).  
7.2864.   Honduras argues that the TPP restrictions on the use of GIs, namely the restrictions on 
how they can be displayed and the uniform trade dress – not only fail to prevent but mandate a 
situation in which the combined effect of acts by private actors gives rise to conditions of unfair 
                                                
5664 Oxford English Dictionary online, definition of "prevent", available at: 
<http://www.oed.com/view/Entry/151073?rskey=CZwcU6&result=2#eid >, accessed  2 May 2017. (emphasis 
original)  
5665 Honduras's second written submission, para. 420. 
5666 Honduras's second written submission, para. 391. 
5667 See para. 7.2699  above.  
5668 We note that Honduras and the Dominican  Republic  are not challenging the pre -existing legal means 
through which Australia has implemented its obligations under Article  10bis. Australia has summarized the way 
it gives effect to its obligations under Article  10bis in its first written submission, paras.  458-459. See also 
paras.  2.89-2.93 above describing general consumer protection measures addressing misleading 
representations in Australia.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 822 - 
  competition.5669 The Dominican Republic argues that, t hrough the mandated use of plain 
packaging and the prohibition on use of GIs, competitors are compelled to  use indications that are 
liable to mislead the public as to the nature or characteristics of the tobacco products.5670 In the 
Dominican Republic's view, c onsumers generally will be led to believe erroneously that 
geographical origin of the product makes no d ifference to the quality or characteristics of the 
products, and competitors will be unable to command a price premium for premium products that 
would otherwise be labelled with GIs.5671 The Dominican Republic adds that the limited exceptions 
to the prohibiti on on the use of GIs do not undermine its arguments, which concern the unfair 
competition resulting from the restrictions on the use of GIs under the TPP measures .5672 Australia 
responds that the complainants' arguments are unsupported by the text of Article  22.2(b), and 
ignore both the negative nature of the protection provided by Article  22.2(b) and the fact that such 
protection is provided to interested parties to prevent false or dishonest use of GIs by third 
parties; a Member's refusal to allow the unfett ered use of GIs by interested parties is not a 
violation of this provision.5673 
7.2865.   We understand that, in essence, the complainants claim that the act of selling a tobacco 
product in compliance with the TPP measures  amounts to an act of unfair competition under 
Article  10bis of the Paris Convention  (1967) , in particular a misleading indication or allegation 
within the meaning of its paragraph 3(3), in that a market actor, by selling such a product in 
compliance with the TPP restrictions on the use of GIs as part of the uniform packaging and 
product presentation required by the TPP measures , will make, at least in some cases, an 
indication or allegation that is liable to mislead the public as to the geographical origin of that 
product or the product characteristics  attributable to that geographical origin.  
7.2866.   The complainants have not identified any specific indications or allegations required by 
the TPP measures  in respect of GIs that would be liable to mislead the public within the meaning of 
Article  10bis(3)(3). As we found in the context of our analysis under Article  10bis(3)(3)5674, we do 
not exclude that an omission  of information may amount to an indication or allegation that is liable 
to mislead, where such omission, in the course of trade, deceives the consumer by  giving incorrect 
information or a false impression. However, we are not persuaded that the complainants have 
demonstrated that the absence of a GI or its figurative elements on tobacco retail packaging or 
products as a result of the TPP measures  would amo unt to an indication or allegation liable to 
mislead consumers within the meaning of Article  10bis(3)(3). In particular, we are not persuaded 
that this absence would mislead consumers by way of giving incorrect information or false 
impressions, or by creat ing any particular incorrect expectations in the minds of consumers about 
the nature, manufacturing process or characteristics of the product, be they similar to or different 
from the characteristics of other similar products on the market.  
7.2867.   We recall in t his respect that, as described above5675, the TPP measures  permit the use of 
a term constituting a GI on tobacco retail packaging and cigar bands to the extent it is part of the 
brand, business or company name, provided that the GI appears in the form prescri bed by the 
TPP Regulations . The use of a GI as a brand name, or as a business or company name, within the 
TPP restrictions thus allows competitors to identify the geographical origin of the tobacco product, 
which also enables consumers to associate it with  a given quality, reputation or other 
characteristics that is essentially attributable to its geographical origin. Furthermore, the 
complainants have not sought to demonstrate that consumers, as a result of the TPP restrictions 
on the use of GIs, have in f act been misled, or have been unable to identify the geographical origin 
of the good, including characteristics essentially attributable to that origin.  
7.2868.   We also note that all competitors on the Australian market are required to comply with 
the same requir ements on standardized tobacco packaging, and do so within a longstanding 
                                                
5669 Honduras's second written submission, para. 419. 
5670 Dominican  Republic 's second written submission, para. 780. 
5671 Dominican  Republic 's first writ ten submission, para. 908. See also Dominican  Republic 's second 
written submission, paras.  778-779. 
5672 Dominican  Republic 's second written submission, para. 768. See also Dominican  Republic 's response 
to Panel question No. 47. 
5673 Australia's first written su bmission, paras.  484-485. 
5674 See para. 7.2752  above.  
5675 See para. 7.2854  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 823 - 
  overall policy context and an environment of public education around the issue.5676 We are not 
persuaded that the similarity of the external appearance of products and their packaging w ould be 
liable to mislead consumer to erroneously believe that all competing tobacco products have 
identical characteristics or origin, where this similarity results from a well -publicized regulatory 
intervention and does not reflect a commercial choice by  market actors to portray the products as 
having identical characteristics. The limitations placed on display and physical access to these 
products suggests, also, that, when deciding on a purchase, consumers would normally refer to 
other sources of inform ation about the product and not rely entirely on the packaging or the band 
applied to the product itself.  
7.2869.   In light of the above, we are not persuaded that the complainants have demonstrated 
that the public would be liable to be misled about product charact eristics within the meaning of 
Article  10bis(3)(3) in respect of GIs as a result of the requirement to present tobacco products for 
retail sale in a standardized form under the TPP measures . As a consequence, we are  also not 
persuaded that actions undertak en by market actors in order to comply with the regulatory 
requirements of the TPP measures  constitute acts of unfair competition amounting to indications or 
allegations the use of which is liable to mislead the public within the meaning of Article  10bis(3)(3) 
in respect of GIs.5677 
7.2870.   We, therefore, find that the complainants have not demonstrated that the TPP measures  
compel market actors to engage in acts of unfair competition that would amount to misleading 
indications or allegations within the meaning of paragraph 3(3) of Article  10bis of the 
Paris Convention  (1967)  in respect of GIs.5678 We, therefore, also find that the complainants have 
not demonstrated that Australia, in maintaining these measures, fails to provide the legal means 
for interested parties to prevent such acts in respect of GIs, in violation of Article  22.2(b) of the 
TRIPS  Agreement . 
7.2871.   We note that the p arties have presented arguments concerning the scope of the definition 
of a GI contained in Article  22.1 of the TRIPS  Agreement , including Cuba's argument that the 
Cuban Government Warranty Seal qualifies as a GI. Given our findings in paragraphs 7.2860  and 
7.2870  above, we do not find it nece ssary to address the parties' arguments concerning the scope 
of the definition of a GI and whether the Cuban Government Warranty Seal is protected as a GI in 
Australia.  
7.3.7.5   Conclusion  
7.2872.   In light of the above, we find that the complainants have not demonstrated t hat the 
TPP measures  are inconsistent with Australia's obligations under Article  22.2(b) of the 
TRIPS  Agreement . 
7.3.8   Article  24.3 of the TRIPS  Agreement  
7.2873.   We will now turn to the complainants' claims under Article  24.3 of the TRIPS  Agreement . 
It reads as follows : 
                                                
5676 See para. 7.2721  above.  
5677 As we also observed in para. 7.2763  above in the context of Article  10bis(3)(3), one of the objects 
of the TPP measures  is to remove branding design features to reduce the ability of the retail p ackaging of 
tobacco products, through these features, to mislead consumers about the harmful effects of smoking or using 
tobacco products. At the same time, the measures allow the use of brand and variant names and the country 
of origin which allow the con sumer to identify the product at issue and associate it with a particular origin. The 
measures thus operate in a manner that reflects both the consumer's interest in not being misled concerning 
the harmful effects of smoking, which are undisputed, and the consumer's interest in not being misled about 
the product's characteristics. Also against this context, we are not persuaded that the uniformity of the 
appearance of tobacco retail packaging and products as a result of the TPP measures , including the remov al of 
distinctive design features other than brand and variant names, has the effect of misleading consumers in 
respect of GIs.  
5678 We also recall that the acts listed in paragraph 3(3) are examples of acts of unfair competition as 
defined in paragraph 2 of Article  10bis. In this regard, as discussed in para. 7.2792  above, we are not 
persuaded that the very act of putting onto the market products that comply with the regulatory requirements 
under the TPP measures  would amount to an act of competition contrary to honest commercial practices.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 824 - 
  In implementing this Section, a Member shall not diminish the protection of 
geographical indications that existed in that Member immediately prior to the date of 
entry into force of the WTO Agreement .5679 
7.2874.   Honduras , the Dominican Republic , Cuba, and Indonesia  (by reference)5680 claim that the 
TPP measures  are inconsistent with Article  24.3 of the TRIPS  Agreement . More specifically, 
Honduras  and the Dominican Republic  argue that the TPP measures  are inconsistent with 
Article  24.3 because they diminish the  protection afforded to GIs that existed in Australia 
immediately prior to 1 January 1995.5681 Cuba argues that the TPP measures  are inconsistent with 
Article  24.3 because they diminish the level of protection Australia accorded to the "Habanos" GI 
by elimina ting the ability of Cuban exporters to affix that GI on exports of LHM cigars as of 
1 December 2012.5682 
7.2875.   Australia  asks the Panel to reject these claims in their entirety.  
7.3.8.1   Main arguments of the parties  
7.2876.   Honduras  argues that the definition of a GI contained in Article  22.1 of the 
TRIPS  Agreement  is not restricted to words and can, in principle, include anything identifying a 
good as originating in a particular territory, region or locality. Thus, the term "indication" includes 
design elements, logos, symbols, im ages, and possibly colours. Even a word that is not a priori  a 
topographical name can constitute a GI. Whether a given sign or word functions as a GI is a 
question of national law and consumer perception. The continued use of GIs, and the consequent 
reinfo rcement in the eyes of the consumer, is essential for effective protection.5683 
7.2877.   Honduras submits that Article  24.3 is a standstill provision, the purpose of which is to 
prevent WTO Members from reducing the level of protection they afforded to GIs prior to th e date 
of entry into force of the WTO Agreement , where that level exceeds the minimum standard of 
protection under the TRIPS  Agreement .5684 
7.2878.   Honduras argues that the meaning of the introductory phrase "[i]n implementing this 
Section" is that "any measure that impacts upon GIs or the system of GI protection affects the 
'implementation' of Section 3 on the protection of geographical indications".5685 Honduras adds 
that the precise meaning of this phrase was clarified by the panel in EC – Trademarks and 
Geographical Indications .5686 
7.2879.   Honduras argues that the term "protection" refers to the "defence" or the "support", 
"assistance" or the act of "keeping safe" that WTO Members provide to GIs under their domestic 
laws.5687 In Honduras's view, footnote 3 to the TRIPS  Agreement  provides context for 
understanding the term "protection" in Article  24.3. Honduras argues that, under footnote 3, "the 
term 'protection' includes matters affecting the 'availability', 'acquisition' and 'maintenance' of 
intellectual property rights. In other  words, the use of geographical terms when developing a GI, 
                                                
5679 The term "this Section" refers to Section 3, entitled "Geographical Indications".  
5680 In its first written submiss ion, Indonesia indicates that it "supports the arguments presented by the 
Dominican  Republic  and the Ukraine with respect to … Articles  22.2(b) and 24.3 …." Indonesia's first written 
submission, para. 462. In response to a question from the Panel, it clari fies that the reference to Ukraine, 
which has not made any claims under Article  24.3, was a typographical error. Instead, "Indonesia supports the 
claims of the Dominican  Republic , Honduras and Cuba". Indonesia's response to Panel question No. 57. In 
response to questions from the Panel, Indonesia clarifies that it supports the legal claims raised by other 
complainants "without raising any additional facts or arguments with respect to GIs". Indonesia's response to 
Panel question Nos. 43-52. 
5681 Honduras's first written submission, para. 938; and closing statement at the second meeting of the 
Panel, para. 15. See also Dominican  Republic 's first written submission, para. 932. 
5682 Cuba's first written submission, para. 365. 
5683 Honduras's first written su bmission, paras.  740-743. 
5684 Honduras's first written submission, para. 738. 
5685 Honduras's second written submission, para. 430. 
5686 Honduras's response to Panel question No. 180 (referring to Panel Report, EC – Trademarks and 
Geographical Indications (Australia) , paras.  7.631 -7.632).  
5687 Honduras's first written submission, para. 759. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 825 - 
  as well as the continued use of that geographical indication once it has been established, is part of 
the 'protection' granted by the regulator to geographical indications."5688 
7.2880.   According to Honduras, it follows from the phrase "that existed in that Member 
immediately prior to the date of entry into force of the WTO Agreement ", and its French and the 
Spanish versions, that what WTO Members are precluded from diminishing is the lev el of 
protection of GIs as a whole, and not merely the protection of specific GIs. In this regard, 
Honduras disagrees with the conclusions of the panel in EC – Trademarks and Geographical 
Indications (Australia)  that Article  24.3 requires WTO Members not t o roll back the protection of 
the individual GIs that existed prior to 1995, rather than the system of protection as a whole.5689  
7.2881.   In support of its position, Honduras argues that the phrase "that existed" is 
grammatically linked to the term "protection" and not to the term "geographical indications". 
Second, according to Honduras, w here the drafters wanted to refer to "individual geographical 
indications" they did so explicitly, for instance, Article  24.4 refers to "a particular geographical 
indication of ano ther Member identifying wines and spirits". Third, Honduras contends that the 
"broader policy -based reasoning" of the panel in EC – Trademarks and Geographical Indications 
(Australia)  is flawed.5690 In this regard, Honduras argues that the combined effect of the minimum 
standards of protection for GIs as well as the stand -still obligation "implies precisely  that Members 
do not have an automatic or unconditional right to 'implement[] the same minimum standards of 
protection as other Members'".5691 Honduras adds th at it sees nothing a priori  objectionable in 
policy terms to require a Member to continue the level of GI protection that existed prior to 1995, 
where that standard was above and beyond the minimum standard required by the 
TRIPS  Agreement .5692 Fourth, as rega rds the reference by the panel in EC – Trademarks and 
Geographical Indications to the use of the term "system" in Article  14.4 of the TRIPS  Agreement , 
Honduras argues that the "system" mentioned in Article  14.4 "denotes a qualitatively different 
normative framework or mechanism  to safeguard the rights of an IP holder", likewise, the 
"system" referred to in Article  27.3(b) is "a qualitatively different alternative 'system'" contrasted 
with the standard patent system.5693 Finally, the ruling of that panel "would  also have the highly 
questionable effect of privileging geographical indications from developed countries".5694 
7.2882.   Honduras submits that Australia protects GIs (other than those for wines) through its 
general legislation on misleading and deceptive business pra ctices. Honduras notes that, in a 
document filed with the TRIPS Council in 1999, "Australia described the legal means for interested 
parties under then existing Australian law to prevent  misleading use as to the place of origin of a 
good", and adds that "[ t]his statement suggests that, prior to January 1995, Australian law 
protected geographical indications by permitting  their owners to" use and maintain already 
established GIs on their products; use a word or non -word indication so as to develop GIs by 
placing these indications on the product; avail themselves of legal remedies against misleading use 
by other producers of designations that suggested that the good originated in a different place; 
and obtain a so -called certification mark.5695 
7.2883.   Honduras contends that the TPP measures  have diminished the above -mentioned 
protection that existed immediately prior to the entry into force of the WTO Agreement  on 
1 January  1995 because it is no longer possible  for the owner/beneficiary of a GI (i) to use, 
develop, and maintain a word GI other than the name of a country; (ii) to use, develop, and 
maintain a non -word GI; and (iii) to attach to a tobacco product a registered certification 
trademark that contains a GI.5696 
                                                
5688 Honduras's first written submission, para. 760. 
5689 Honduras's first written submission, paras.  744-746. 
5690 Honduras's second written submission, paras.  434-435. In this reg ard, Honduras refers to Panel 
Report, EC – Trademarks and Geographical Indications (Australia) , paras.  7.634 and 7.635. See also 
Honduras's first written submission, paras.  747-755. 
5691 Honduras's first written submission, para. 752. 
5692 Honduras's first writt en submission, para. 755. 
5693 Honduras's first written submission, para. 756. (emphasis original)  
5694 Honduras's first written submission, para. 757. 
5695 Honduras's first written submission, paras.  765-767. (emphasis added)  
5696 Honduras's first written submission, paras.  768-771. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 826 - 
  7.2884.   Responding to Australia's argument th at there was no protected "right to use" under 
Australian law in relation to GIs prior to 1 January 1995, Honduras contends that Australia bases 
its argument on a distortion of Honduras's argument, alleging that Honduras claims a "right to 
use" a trademark  or a GI.5697 Honduras adds that "Australia builds up a strawman and then 
proceeds to knock it down. The question is not whether a 'right to use' a GI existed before 1995. 
The question is what the term ' protection'  in Article  24.3 means and what type and degr ee of 
'protection' was offered to GIs under Australian law before 1995." Honduras adds that "[i]n the 
light of footnote 3 of the TRIPS  Agreement , the term 'protection' should be read as including the 
ability to use distinctive marks in order to achieve GI status. In addition, the term 'protection' 
refers to the ability to effectively enforce the rights to prevent misleading or other use of 
indications that reduce the strength of the intellectual property right."5698 Honduras contends that 
Australia does not de ny that, before 1995, a GI could be used on tobacco products both in word 
and non -word form. Indeed, the ability to use GIs was thus part of the system of protection of GIs 
prior to 1995. This ability to use GIs is no longer available for tobacco -related G Is since 
1 December 2012.5699 Honduras adds that, since 1 December 2012, however, the level of 
protection has been reduced below the pre -1995 level because no new GIs can be developed and 
because existing GIs cannot be maintained at the level of strength dete rmined by the GI holder. 
Hence, the enforcement power of the GI holder today is thus far less than it was before 1995.5700 
7.2885.   Furthermore, Honduras notes that Australia relies on the fact that GIs can also be 
protected as trademarks. Honduras contends that "Aust ralia fails to acknowledge that Section 20 
[of the TM Act] provides for the exclusive right 'to use the trade mark', including a trademark 
containing a GI. That right 'to use the trade mark' existed under domestic law before 1995 and 
also formed part of th e system of protection for GIs. That right no longer is protected for 
tobacco -related GIs today, in violation of Article  24.3 of the TRIPS  Agreement ."5701 
7.2886.   The Dominican Republic  submits that Article  24.3 is a stand -still provision that constrains 
the right of  a Member to reduce the protection of GIs that existed in that Member prior to the date 
that the WTO Agreement  entered into force, i.e. 1  January 1995.5702 
7.2887.   The Dominican Republic argues that the introductory phrase "[i]n implementing this 
Section" refers to any act or omission that affects the implementation of a provision in Section 3, 
which encompasses Articles  22 to 24 of the TRIPS  Agreement , as well as additional protections for 
GIs. In its vi ew, this covers the means by which a Member gives full effect to such provisions, as 
well as any acts or omissions by which a Member fails to do so, wholly or partially.5703 The 
Dominican Republic adds that, in EC – Trademarks and Geographical Indications , the European 
Communities argued that Article  24.3 provided an exception to its obligations under Article  16.1 
with respect to trademarks, to the extent that there was a conflict between Article  16.1 and the 
obligation to maintain the level of GI protection t hat existed at the time of entry into force of the 
WTO Agreement . In response, the United States argued that Article  24.3 does not create an 
exception from the obligation of implementing sections of the TRIPS  Agreement  other than 
Section  3. It was in this context that the panel, noting that Article  16.1 was part of Section 2, 
found that Article  24.3 "does not apply to measures adopted to implement provisions outside 
Section 3".5704 
7.2888.   The Dominican Republic argues that, in this context, the term "protection" refe rs to the 
safeguarding of GIs. In its view, footnote 3 of the TRIPS  Agreement , which forms part of the 
context, provides that the word "protection" includes "matters affecting the acquisition, scope, 
maintenance and enforcement of intellectual property rig hts". It argues that, thus, a Member is 
prohibited from reducing or lessening the scope of GI rights, and also the ability of interested 
                                                
5697 Honduras's second written submission, para. 436. 
5698 Honduras's second written submission, para. 437. 
5699 Honduras's second written submission, para. 438. 
5700 Honduras's second written submission, para. 439. 
5701 Honduras's second written submission, para. 440. (footnote omitted)  
5702 Dominican  Republic 's first written submission, para. 914. 
5703 Dominican  Republic 's second written submission, para. 798. 
5704 Dominican  Republic 's response to Panel question No. 51, para. 232 (referring to Panel Reports, EC –
 Trademarks and Geographical Indications (US) , para. 7.632; and EC – Trademarks and Geographical 
Indications (Australia) , para. 7.632).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 827 - 
  parties to acquire, maintain, and enforce GI rights, in the domestic legal system of that Member, 
relative to the situa tion immediately prior to 1 January 1995.5705 
7.2889.   It adds that the meaning of the term "protection" must be understood in view of the 
context of Article  22 of the TRIPS  Agreement . Referring to the definition of a GI in Article  22.1, it 
argues that in order for co nsumers to learn to link between (a) the indication, (b) the GI, and (c) 
the "given quality, reputation or other characteristic" that is "essentially attributable" to that 
origin, those producers must sufficiently use those indications in relation to the a ssociated goods. 
The ability of producers to establish and maintain the links between (a), (b), and (c), such that an 
indication can fulfil the definition of a GI, is essential to the protection of GIs in terms of the 
acquisition, scope, maintenance, and e nforcement of those rights. If the ability to use is 
diminished or removed, the protection afforded to indications is equally diminished. The Dominican 
Republic adds that "[t]o be clear, [it] is not arguing that Article  22.1 of the TRIPS Agreement , 
itself,  requires that all Members provide interested parties with an affirmative right to establish or 
maintain, through use, geographical indications in their territory". Instead, the Dominican Republic 
argues that the phrase "protection of geographical indicati ons that existed" in Article  24.3 
grandfathers a Member's level of protection of GIs, prior to 1 January 1995, including the scope of, 
maintenance of, enforcement of, and ability to acquire, GIs through the use of those indications. 
Restrictions or prohibi tions on the use of GIs on products "diminish[es]" such "protection" of GIs. 
Thus, under the proper interpretation of Article  24.3, all GIs, regardless of whether they existed 
prior to 1995, must be accorded at least the level of protection that existed in  the Member's legal 
system prior to the entry into force of the WTO Agreement . The Dominican Republic adds that 
"[t]his could include, where applicable in a given Member prior to 1995, the ability of indications to 
become geographical indications in the fi rst place (i.e., acquisition), and to maintain and enforce 
their status as geographical indications, through use".5706 
7.2890.   In its view, the phrase "protection of geographical indications" refers to the overall level 
of GI protection that "existed" under the Membe r's legal system prior to 1995. While there is some 
ambiguity in the English text of the provision, the equally authentic French and Spanish versions 
remove such ambiguity. Specifically, the verb "existed", when viewed in the authentic French and 
Spanish v ersion of the TRIPS  Agreement , is in the singular, which accords with the singular word 
"protection", as opposed to the plural "geographical indications". Hence, the obligation applies to 
the level of "protection" that existed in the domestic legal system prior to 1 January 1995, and not 
to the protection of individual "geographic indications" that existed prior to that date.5707 It adds 
that when the drafters of the Agreement intended to cover only individual GIs, as opposed to 
systems of protection, they kne w how to make that clear.5708 In its view, it is sensible and logical 
that the drafters would not want Members to use the implementation of the TRIPS  Agreement  
obligations on GIs as a means for lowering the overall level of GI protection.5709 Furthermore, the 
Dominican Republic contends that an interpretation of Article  24.3 that would focus on 
grandfathering individual GIs, rather than the overall level of GI protection in a given Member, 
would benefit GIs from developed countries, to the disadvantage of GIs fro m developing 
countries;5710 this would lead to discriminatory treatment of GIs from certain countries as 
compared to GIs from other countries, which would be a de facto  violation of the MFN treatment 
under Article  4 of the TRIPS  Agreement .5711 
7.2891.   The Dominican Repu blic submits that, prior to 1995, GIs in Australia could be used freely 
by interested parties on tobacco products, including on the packages and on the sticks, in order to 
acquire, maintain, and, ultimately, to enforce GIs. There were no specific restricti ons on such use 
in Australia. Furthermore, interested parties could prevent the use by others of signs that misled 
the public as to the geographical origin of the goods, by either instituting proceedings for passing 
off, or pursuant to the provisions of Pa rt V of Australia's Trade Practices Act 1974. Moreover, in 
                                                
5705 Dominican  Republic 's first written submission, paras.  916-917. 
5706 Dominican  Repub lic's first written submission, paras.  919-922. ( emphasis original; footnotes 
omitted)  
5707 Dominican  Republic 's first written submission, para. 918. (footnotes omitted)  
5708 Dominican  Republic 's second written submission, para. 791. 
5709 Dominican  Republic 's second written submission, para. 793. 
5710 Dominican  Republic 's second written submission, para. 795. 
5711 Dominican  Republic 's second written submission, para. 796. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 828 - 
  certain situations, interested parties could also protect GIs in Australia, prior to 1995, through 
registration as a certification mark.5712 
7.2892.   The Dominican Republic contends that the TPP measures  have significantly diminished the 
protection of GIs by preventing the use of GIs on tobacco packages or sticks (subject to a small 
exception for country names on cigar bands and the side of cigarette packages). Specifically, prior 
to 1 January 1995 (and p rior to implementation of the TPP Act), tobacco producers could develop 
and maintain GIs (including, but not limited to, those protected as certification marks) in Australia 
by using them on their packaging and sticks. But, under the TPP measures , such use  is prohibited 
or, in the case of the name of the country of origin, severely restricted. The Dominican Republic 
submits that, by allowing unlimited use of GIs, within the meaning of Article  22.1, on tobacco 
products prior to 1995, Australia had provided a  level of protection that allowed for indications to 
acquire, maintain, and, ultimately to enforce, their status as a GI. By contrast, when Australia 
prohibited and severely restricted use of GIs on tobacco products through the TPP measures  
(subject to a s mall exception), it severely diminished such "protection", as interested parties are 
no longer able to use indications in a manner that will allow for indications to acquire, maintain, or 
enforce their status as GIs.5713 
7.2893.   Commenting on Australia's argument tha t "[n]either now, nor at the time of entry into 
force of the TRIPS  Agreement , was a right to use a geographical indication protected under 
Australian law",5714 the Dominican Republic submits that "[w]hile Australia appears to be correct 
that, at the time of e ntry into force of the TRIPS Agreement , there was no formal 'right to use' 
geographical indications codified in Australian law, this does not provide a defense to Australia's 
violation of Article  24.3 of the TRIPS Agreement ". It adds that "Australia, howev er, appears to 
argue that 'protection' in the context of Article  24.3 is limited to something that is a formal 
'protected legal right' in a Member, and that Article  24.3 cannot include protection that may arise 
or develop through less formal means, includi ng market freedoms". The Dominican Republic adds 
that "[w]hether that use was legally guaranteed, or simply permitted, in Australia makes no 
difference for purposes of Article  24.3, as such use was the means by which GIs on tobacco 
products were previously  acquired or maintained, and consequently enjoyed a higher level of 
'protection'."5715 The Dominican Republic contends that Australia draws a "false distinction" 
between market freedom and right of use, and argues that "[i]t is immaterial whether such GI 
protection was enabled through a 'right of use' or through a 'market freedom'".5716 
7.2894.   Cuba claims that Australia has failed to comply with Article  24.3 because it has 
diminished the level of protection that it accords to the Habanos GI.5717 It argues that the Habanos 
GI meets the definition of a GI in Article  22.1 of the TRIPS  Agreement .5718 This definition does not 
limit protection of GIs only to verbal or word elements or designations but also to images or any 
other GIs which "identify good a s originating in the territory of a Member, or a region or locality in 
that territory, where a given quality, reputation or other characteristic of the good is essentially 
attributable to its geographical origin". These can be signs such as the Habanos des ignation of 
origin and design, the Cuban  Government Warranty Seal5719, and the Cuban tobacco 
manufacturers' GIs, including Cohiba5720, Hoyo de Monterrey, Cabanas, Cuaba, San Cristobal de la 
Habana, whose graphic or word elements constitute indicators of origin a nd communicate the 
singularity and characteristics of the good due to that origin.5721 
                                                
5712 Dominican  Republic 's first written submission, paras.  925-927. 
5713 Dominican  Republic 's first  written submission, paras.  928-930. See also Dominican  Republic 's 
second written submission, paras.  807-808. 
5714 Australia's first written submission, para. 502. 
5715 Dominican  Republic 's response to Panel question No. 48. 
5716 Dominican  Republic 's second written submission, paras.  804-805. 
5717 Cuba's first written submission, paras.  365 and 378.  
5718 Cuba's first written submission, para. 366. 
5719 In response to Panel question No. 87, Cuba submits that the Cuban Government Warranty Seal is 
also a tradem ark. 
5720 In its response to Panel question Nos. 87 and 167 and in paragraph 31 of its comments on 
Australia's response to Panel question Nos. 166, 170 and 204, Cuba refers to "Cohiba" as a trademark. In its 
response to Panel question No. 44, Cuba refers to "the Indian Head image of the Cohiba trademark" as an 
example of "graphic elements or indirect geographical indications".  
5721 Cuba's response to Panel question No. 44 (annexed to its response to Panel question No. 138).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 829 - 
  7.2895.   Cuba argues that t he ordinary meaning of the words "[i]n implementing this Section" in 
the three official languages of the WTO confirms that any measure affecting the imple mentation or 
application of the protection of GIs falls within the scope of Article  24.3.5722 
7.2896.   Cuba argues that "[t]he ability to utilise a geographical indication within the territory of 
the WTO Member is a necessary component of the analysis of whether it is  'protected ' within that 
territory". It further argues that, in assessing the "protection" of a particular GI within a 
jurisdiction one must consider both the question of whether holders of the GI can prevent 
unauthorised use by third parties as well as th e question of whether the GI can be used to 
designate protected products within that jurisdiction. Cuba contends that "it would be incongruous 
to contend that a geographical indication is protected within the territory of a WTO Member if it is 
not, and can not be used within that territory by holders or beneficiaries of the geographic 
indication." Cuba adds that its conclusion is consistent with the ordinary meaning of the term 
"protect", and supported by footnote 3 in the TRIPS  Agreement , which indicates th at "matters 
affecting the use of intellectual property" are relevant to any assessment of the level of 
"protection" of  IP right s.5723 Cuba submits that "[g]enerally speaking, protection means 'right to 
use' a geographical name".5724  
7.2897.   Cuba argues that " Article  24.3 requires a standstill with respect to any and all legal 
mechanisms for the protection of GIs prior to 1995".5725 
7.2898.   Cuba submits that "[t]he factual position with respect to the Habanos GI is that 
immediately prior to 1 January 1995, Cuban exporters were able  to use that geographical 
indication in its original form on the packaging of LHM Cigars sold in the Australian market. But, 
following the full implementation of the [T]PP Measures on 1 December 2012, Cuban exporters are 
no longer able to use that geograph ical indication (in its original form or even in a modified form) 
on boxes of LHM Cigars sold in the Australian market."5726 
7.2899.   Cuba argues that this implies that Australia has diminished the level of protection that it 
provides to the Habanos GI in comparison t o the level that was provided within its territory prior to 
1 January 1995. It adds that, prior to 1 January 1995, the Habanos GI benefited from the common 
law "freedom to use any word or device in association with the provision of goods or services".5727 
7.2900.   Cuba further elaborates that "Habanos" has built a reputation that is entitled to the 
common law protection against passing off in Australia, and argues that the inability to use the 
Habanos GI for LHM cigars because of the TPP measures  will inevitably weaken  the reputation of 
the Habanos GI in Australia and thereby lead to a reduction or limitation of the scope for effective 
legal action against passing off in the event of any improper or fraudulent appropriation of the 
Habanos GI by a third party for other p roducts. Over time, the Habanos GI will lose its reputation 
and thus the protection under common law. Consequently, the TPP measures  will inevitably 
diminish the protection enjoyed by the Habanos GI prior to 1  January  1995, and thus violate 
Article  24.3 of  the TRIPS  Agreement .5728 
7.2901.   Cuba concludes that Australia has diminished the level of protection that it accords to the 
Habanos GI by eliminating the ability of Cuban exporters to affix the Habanos GI on exports of 
LHM cigar s.5729 It adds that, w ith regard to Article 24.3, the TPP measures  reduce the protection of 
the GIs associated with Cuban premium cigars by preventing the use of identifiers of the product 
with the geographical origin that attributes to it specific characteristics and qualities, through the 
exclusion of graphic elements or indirect GIs, such as the graphic representation of the Cuban 
national shield or the royal palm of which the Cuban Government Warranty Seal is comprised, or 
                                                
5722 Cuba's response to Panel question No. 179. 
5723 Cuba's first written submission, paras.  370-372. (emphasis original)  
5724 Cuba's first written submission, para. 373 ( referring to  Audier Protection of GIs, (Exhibit CUB -49), 
p. 7). 
5725 Cuba's response to Panel question No. 46 (annexed to its response to Panel question No. 138).  
5726 Cuba's first written submission, para. 374. See also ibid. paras.  368-369 (referring to paras.  66-71). 
5727 Cuba's first written submission, paras.  375-376 ( referring to  JTI v. Commonwealth, (Exhibits 
AUS-500, CUB -50), paras.  76-77 (per Gummow J)).  
5728 Cuba's response to Panel question Nos. 43 and 44  (annexed to its response to Panel question 
No. 138). 
5729 Cuba's first written submission, para. 378. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 830 - 
  the image of the Pinar del Rio tobacco fields in the Vegas Robaina trademark, or the Indian Head  
image of the Cohiba trademark, all of which was possible even prior to the entry into force of the 
TRIPS  Agreement .5730  
7.2902.   Australia  submits that the definition of a GI in Article  22.1 of the TRIPS  Agreement  is not 
in dispute in the current proceedings. In par ticular, it does not contest Honduras's position that a 
"non-topographical" name may be capable of meeting that definition. This is, however, not a 
relevant consideration, since Australia's argument that the complainants' claims under Article  24.3 
must fai l is not dependant on whether or not relevant GIs are "topographical".5731 
7.2903.   Australia argues that t he scope of Article  24.3 is limited by the introductory phrase "[i]n 
implementing this  Section". As noted by the panel in EC – Trademarks and Geographical 
Indica tions (Australia),  this means that Article  24.3 "does not apply to measures adopted to 
implement provisions outside Section 3".5732 In its view, a  measure adopted to implement Part II, 
Section 3 of the TRIPS  Agreement  would be a measure that " provide[s] the l egal means for 
interested parties to prevent" the use of a GI in the manner described in Article  22. At the time of 
entry into force of the TRIPS  Agreement , under Australian law, GIs were primarily protected 
against acts of misleading conduct or unfair com petition through statutory and common law 
consumer protections laws. In order to implement the TRIPS  Agreement , Australia enacted the 
TM Act, Section 61 of which specifically implements Australia's obligations with respect to GIs, to 
the extent not already  conferred under existing law. Unlike Section 61 of the TM Act, the purpose 
of the TPP measures  is not to " provide the legal means for interested parties to prevent" the use of 
a GI in the circumstances described in Article  22 of the TRIPS  Agreement . Accordingly, Australia 
submits that Article  24.3 is inapplicable in relation to the TPP measures .5733 
7.2904.   Even if the Panel were to conclude that Article  24.3 were applicable, however, Australia 
argues that the complainants have failed to demonstrate that the l evel of protection for individual 
GIs has been diminished by virtue of the TPP measures . It notes that the panel in EC –
 Trademarks and Geographical Indications (Australia) explained that the reference in the provision 
to "the protection of geographical in dications that existed in that Member immediately prior to the 
date of entry into force of the WTO Agreement " must be understood as a reference to the state of 
protection of individual GIs  prior to 1  January 1995.5734 
7.2905.   Australia argues that the protections whi ch cannot be "diminished" for the purposes of 
Article  24.3 are those that "existed in that Member immediately prior" to 1 January 1995. These 
protections may be greater than the minimum level of protection that Members are required to 
provide to GIs under the TRIPS  Agreement . Australia agrees that if a Member were protecting a 
right to use an individual GI prior to 1 January 1995, then that Member would not be permitted to 
diminish the protection for that GI by prohibiting its use when implementing Part II,  Section 3 of 
the TRIPS  Agreement . It adds that the complainants have, however, failed to demonstrate that 
these are the circumstances confronting the Panel in relation to the complainants' claims under 
Article  24.3.5735 
7.2906.   Australia notes that only Cuba has ide ntified a specific GI, "Habanos" (registered 
trademark 1356832), and alleged that the level of protection provided with respect to that GI has 
been diminished by the TPP measures . Australia responds that "[t]he geographical indication 
'Habanos' was registe red as a trademark in Australia from 16  April 2010, and thus was not 
'protected' in the Australian market as a trademark under the Trade Marks Act prior to that 
date".5736 
7.2907.   It continues that, to the extent that "Habanos" had a reputation in Australia before 19 95, 
it would have been protected against acts of misleading conduct or unfair competition under 
                                                
5730 Cuba's response to Panel question No. 44 (annexed to its response to Panel question No. 138).  
5731 Australia's response to Panel question No. 58. 
5732 Australia's first written submission, para. 489 (referring to Panel Report, EC – Trademarks and 
Geographical Indications, (Australia), para. 7.632).  
5733 Australia's first written submission, para. 493. 
5734 Australia's first written submission, paras.  494 and 490 (referring to Panel Report, EC – Trademarks 
and Geographical Indications (Australia), para. 7.636).  
5735 Australia's response to Panel question No. 43. 
5736 Australia's first written submission, para. 494. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 831 - 
  common law through the tort of passing off and through statutory consumer protections. Such 
statutory and common law protections have not been diminished by the  implementation of the 
TPP measures .5737 It adds that "[t]o the extent that Cuba is able to prove that 'Habanos' was 
entitled to any common law or statutory protections in Australia prior to 1 January 1995, such 
statutory and common law protections have not b een diminished by the implementation of the 
tobacco plain packaging measure".5738 Accordingly, Australia asserts that there is no basis for 
Cuba's claim that the TPP measures  have diminished Australia's "protection" of the GI "Habanos" 
from that which existed  prior to 1 January 1995.5739 
7.2908.   Australia argues that neither the Dominican Republic nor Honduras alleges that the level 
of protection for individual GIs has been diminished by virtue of the TPP measures . This is because 
the complainants disagree with the panel  in EC – Trademarks and Geographical Indications 
(Australia)  that such a demonstration is required. Rather, the complainants maintain that the 
proper analysis under Article  24.3 is in relation to a "system of protection in a Member", and not 
individual GIs . Australia argues that, for the reasons articulated by the panel in EC – Trademarks 
and Geographical Indications (Australia) , the complainants' interpretation of Article  24.3 is flawed. 
A standstill provision that applies only to the specific GIs that wer e protected in a Member prior to 
the entry into force of the TRIPS  Agreement  is different in both purpose and effect to a provision 
that applies to a Member's entire system of protection. Precluding the diminution of protection 
provided to existing GIs ser ves the purpose of protecting existing property rights and ensuring 
that the minimum standards introduced by the TRIPS  Agreement  do not have the unintended 
consequence of removing protections already provided by a national system in respect of such GIs. 
In contrast, a standstill provision that pertains to an entire system of protection would have the 
effect of creating a two -tiered system of protection for GIs, wherein those Members that previously 
provided a system of protection for GIs would be required in perpetuity to maintain a higher level 
of protection than the minimum standards provided in the TRIPS  Agreement . Australi a submits 
that this cannot have been the intention of the drafters.5740 
7.2909.   Even if the Panel were to agree with the complainants that the reference to "the 
protection of geographical indications" in Article  24.3 is a reference to a Member's "system of 
protection ", Australia maintains that the complainants have still failed to establish a prima facie 
case under their own interpretation of the scope of Article  24.3. In order to substantiate their 
allegation that, in prohibiting the use of GIs on the packaging of to bacco products, Australia has 
diminished the level of protection provided to GIs, the complainants would need to demonstrate 
that prior to 1  January 1995, there was a protected "right of use" under Australian law in relation 
to GIs. Australia asserts that the complainants have failed to do so, because no such "right of use" 
was protected prior to the entry into force of the TRIPS  Agreement .5741 
7.2910.   Australia argues that "[t]he complainants confuse the ability to use a geographical 
indication under Australian law w ith the right to use a geographical indication under Australian 
law". Australia notes that, for example, the Dominican Republic argues that "[p]rior to 1995, GIs 
in Australia could be used freely by interested parties on tobacco products, including on the sticks, 
in order to acquire, maintain, and, ultimately, to enforce GIs". Australia contends that what the 
Dominican Republic is referring to is a general market freedom, not a protected legal right.5742 
7.2911.   Australia explains that under Australian law, GIs are pr imarily protected through the 
trademarks system, as well as through statutory and common law consumer protection laws. 
Neither now, nor at the time of entry into force of the TRIPS  Agreement , was a right to use a GI 
protected under Australian law. "Rather,  under the [TM Act], if a GI was registered as a 
trademark, then the owner of the GI had negative rights to prevent  certain uses and to obtain 
remedies in respect of infringement.5743 These rights continued to exist in Australia following the 
                                                
5737 Australia's first written submission, para. 494. 
5738 Australia's second written submission, para. 71. (footnotes omitted)  
5739 Australia's first written submission, para. 494. 
5740 Australia's first written submission, paras.  496-497. 
5741 Australia's first  written submission, paras.  499-500 (referring to Annexure D of Australia's first 
written submission).  
5742 Australia's first written submission, para. 501 ( referring to  the Dominican  Republic 's first written 
submission, para. 925). ( emphasis original; footnote omitted)  
5743 (footnote original) Trade Marks Act 1995  (Cth), Exhibit AUS -244, Section 20 and Part 12, 
Subsections 120 -130.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 832 - 
  adoption of the TRIPS  Agreement , consistent with the requirements in Article  22, and these rights 
continue to exist today following the introduction of the [TPP measures ]."5744 Australia argues that, 
in light of the fact that the protection provided to GIs under Australian l aw prior to 1 January 1995 
did not include the protection of a "right to use" a GI, Article  24.3 is not relevant to the Panel's 
consideration of Australia's TPP measures . 
7.2912.   Responding to Honduras5745, Australia explains that GIs may be accorded statutory 
protec tion through the protection afforded to certification trademarks  under the TM Act. 
Sections  171 and 20(1) of that Act grant the owners of registered trademarks and certification 
trademarks respectively exclusivity of use , which is enforced through the righ t to pursue 
enforcement action against infringement by third parties. These rights are negative rights of 
exclusion —a registered trademark owner or registered certification trademark owner is not granted 
a right to use its trademark in Australia. The ability to use a trademark is a market freedom, not a 
protected right in Australia. In JTI v. Commonwealth  the High Court of Australia recently affirmed 
that the nature of the rights granted in Austral ia to owners of trademarks (under both common 
law and statute) are negative rights of exclusion. For example, Justice Crennan held: "[t]he 
exclusive right to use the mark is a negative right to exclude others from using it". These negative 
rights to restra in infringement are reflected in the first and every subsequent piece of Australian 
legislation that provides for the registration of trademarks.5746 
7.3.8.2   Main arguments by the third parties  
7.2913.   Argentina  argues that a  grammatical analysis of Article  24.3 of the Spani sh version of the 
TRIPS  Agreement  reveals that the purpose of the obligation not to diminish protection is "la 
protección de las indicaciones geográficas que existía en él inmediatamente antes de la fecha de 
entrada en vigor del acuerdo sobre la OMC ". In this analysis, "protección " is the nucleus and  "de 
las indicaciones geográficas … ", the indirect modifier. Consequently, Argentina disagrees with 
Australia and believes that the purpose of the obligation not to diminish protection concerns the 
protec tion of GIs in general. Argentina understands that the English version of the Agreement may 
leave some room for "ambiguity" in that the relative subordinate clause "that existed" could refer 
either to "the protection of geographical indications" or "geogra phical indications" taken 
individually. However, the Spanish text leaves no room for doubt: if the intention had been to refer 
to "geographical indications" the text would read "que existían"  rather than " que existía",  thereby 
clearly pointing to the gener al state of protection of GIs as the object of the obligation not to 
diminish protection. This interpretation is corroborated by the French version of the Article.5747 
7.2914.   It is Argentina's understanding that regardless of the legal framework establishing the 
protection – whether it is what Australia calls "general market freedom" or the system of 
protection of GIs under the TM Act, Article  24.3 of the TRIPS  Agreement  establishes an obligation 
not to diminish the protection of GIs as from the date mentioned therei n.5748 
7.2915.   China  argues that Article  24.3 concerns the pre -existing higher protection level of GIs in 
that Member. Assuming that the protection of GIs under Section 3, Part II of the TRIPS  Agreement  
refers only to negative rights, i.e. rights to prevent third par ties' illegal use of GIs, it does not 
necessarily follow  that the pre -existing protection of GIs in a Member is limited to negative rights. 
To the extent that the pre -existing protection in a Member include s the right to use GIs, the 
Member is not permitted to diminish the protection by prohibiting the use of GIs .5749 
7.2916.   New Zealand  indicates that it agrees with Australia's interpretation of, and arguments in 
relation to Article  24.3, and requests the Panel to reject the complainants under it.5750 
                                                
5744 Australia's first written submission, para. 502. (emphasis original)  
5745 See para. 7.2885  above.  
5746 Australia's response to Panel question No. 184 ( referring to  JTI v. Commonwealth, (Exhibits 
AUS-500, CUB -50), p p. 728-729, para. 248). For further information about the nat ure of the rights granted 
under the Trade Marks Act, Australia refers to section D of Annexure D to Australia's first written submission.  
5747 Argentina's third -party submission, paras.  29-31. 
5748 Argentina's third -party submission, para. 34. 
5749 China's third -party submission, para. 66. 
5750 New Zealand's third -party submission, paras.  14-15 and 124.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 833 - 
  7.2917.   Singapore  argues that Article  24.3 is only breached when a GI in existence in Australia 
prior to 1 January 1995 now enjoys lesser protection in Australia than before that date. Only Cuba 
has identified a specific GI, "Habanos", allegedly receiving diminished protect ion as a result of the 
adoption of the TPP measures ; and even then, the "Habanos" trademark was registered in 
Australia from 16 April 2010, well after the 1 January 1995 cut -off date mentioned in Article  24.3. 
By failing to demonstrate the existence prior to 1 January 1995 of a GI in Australia, the 
complainants have failed to satisfy the temporal requirement of Article  24.3 
7.2918.   It adds that, if Article  24.3 were to be held to apply to the level of protection of GIs that 
existed in a Member prior to 1 January 19 95, then the inquiry must necessarily turn to the 
protection that existed in Australia at the relevant time. To the extent that no such right of use 
existed under Australian law prior to 1 January 1995, the protection of GIs in Australia has not 
been dimin ished by the TPP measures  and there would be no violation of Article  24.3.5751 
7.2919.   Uruguay  argues that it is not aware of a GI for cigarettes whose use is actually being 
affected. The impact on GIs on other tobacco products is almost irrelevant and it has not been 
shown that they have been affected. The TPP measures  do not prevent the use of GI s. The 
limitations are based on a measure of general public health policy recognized in the 
WTO Agreement s and recommended by the FCTC.5752 
7.2920.   Zimbabwe  argues that, in violation of Article  24.3, the TPP measures  diminish the 
protection of GIs that existed in Aus tralia before the entry into force of the WTO Agreement . It 
contends that the TPP measures  prevent the use of a word GI other than the name of the country 
at the expense of producers and consumers.5753 
7.3.8.3   Analysis by the Panel  
7.2921.   We start our analysis by assessing the scope of Article  24.3 in light of two interpretative 
issues raised by the parties. The first issue is the meaning of the introductory phrase "[i]n 
implementing this Section", in light of Australia's argument that the TPP measures  are not covered 
by the obligation under Article  24.3 on the grounds that they were not adopted for the purpose of 
providing the legal means for interested parties to prevent certain acts in respect of GIs. The 
second issue is whether the oblig ation under Article  24.3 concerns the protection of individual GIs 
or the system of protection of GIs. We will then turn to the parties' arguments concerning 
Australia's domestic law and whether the protection provided under it, to the extent it is relevan t 
for the claims under Article  24.3, has been diminished as a result of the TPP measures . 
7.3.8.3.1   Whether the TPP measures  are covered by Article  24.3 
7.2922.   We recall that Article  24.3 of the TRIPS  Agreement  reads as follows:  
In implementing this Section, a Member shall  not diminish the protection of 
geographical indications that existed in that Member immediately prior to the date of 
entry into force of the WTO Agreement . 
7.2923.   As described above, in Australia's view, Article  24.3 only covers a measure that 
"provide[s] the le gal means for interested parties to prevent" the use of a GI in the manner 
described in Article  22; therefore, the obligation does not cover the TPP measures  since they were 
not adopted for that purpose. In the complainants' view, the phrase covers any mea sure that 
affects the protection of GIs.  
7.2924.   Article  24.3 appears in Section 3 of Part II of the TRIPS  Agreement , entitled 
"Geographical Indications", which comprises Articles  22-24. By its express terms, the obligation in 
Article  24.3 relates to the implement ation of "this Section". This reference is therefore not limited 
to measures that implement the specific obligation to "provide the legal means for interested 
                                                
5751 Singapore's third -party submission, paras.  65-66. 
5752 Uruguay's third -party submission, paras.  56-57; and third -party statement, para. 18. 
5753 Zimbabwe's third -party submission, para. 43. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 834 - 
  parties to prevent" the use of a GI within the meaning of Article  22.2. Rather, it relates to the  
implementation of the provisions of Section 3 of Part II as a whole, namely Articles  22 to 24.  
7.2925.   The relevant findings in the panel reports in EC – Trademarks and Geographical 
Indications  referred to by the parties are consistent with this conclusion. That  panel found that the 
scope of the obligation under Article  24.3 is limited by the introductory phrase "[i]n implementing 
this Section"5754 and that Article  24.3 does not apply to measures adopted to implement provisions 
outside  Section 3.5755 Specifically, the question addressed by that panel in relation to the scope of 
the obligation in Article  24.3 was whether Article  24.3 imposes an exception to the obligation to 
provide trademark rights under Article  16.1.5756 The panel's interpretation cited above must be 
understood in that context, namely indicating that Article  24.3 does not apply to measures to 
implement the provisions of sections of Part II of the TRIPS  Agreement  other than Section 3; in 
particular, Article 24.3 does not provide limitations to the rights conferred to the owner of a 
registered trademark pursuant to Article  16, which is contained in Section 2 of the Agreement. 
That panel's findings, therefore, do not support Australia's position that Article  24.3 only covers a 
measure that provides the legal means for interested parties to prevent the use of a GI within the 
meaning of Article  22.2, to the exclusion of measures that implement other provisions of Section 3 
of the TRIPS  Agreement .  
7.2926.   In light of th e above, we find that the obligation in Article  24.3 applies to a measure that 
implements any of the provisions of Section 3 of Part II of the TRIPS  Agreement . Accordingly, its 
application is not limited to measures that implement the obligation to provide  the legal means for 
interested parties to prevent the use of a GI within the meaning of Article  22.2. We, therefore, do 
not exclude the applicability of Article  24.3 to the TPP measures  on the grounds that those 
measures were not adopted for the purpose o f implementing the obligation under Article  22.2.  
7.3.8.3.2   Whether the obligation concerns individual GIs or the system of protection  
7.2927.   The parties agree that, as determined by the panel in EC – Trademarks and Geographical 
Indications , the wording "shall not diminis h" indicates that Article  24.3 of the TRIPS  Agreement  is 
a standstill provision, and that it is mandatory.5757 They, however, disagree on whether the 
obligation under Article  24.3 refers to the system of protection of GIs under the domestic law of 
Australia i mmediately prior to 1 January 1995 or to the protection of individual GIs that were 
protected under Australia's domestic law at that time.  
7.2928.   As described above, the complainants  argue that the obligation concerns the system of 
protection, while Australia co nsiders that it concerns the protection of individual GIs. In support of 
its position, Australia refers to the findings of the panel in EC – Trademarks and Geographical 
Indications . Honduras and the Dominican Republic disagree with those findings.  
                                                
5754 Panel Reports, EC – Trademarks and Geographical Indications (US) , para. 7.632; and EC –
 Trademarks and Geographical Indications (Australia) , para. 7.632.  
5755 Panel Reports, EC – Trademarks and Geographical Indications (US) , para. 7.632; and EC –
 Trademarks and Geographical Indications (Australia) , para. 7.632.  
5756 Panel Report, EC – Trademarks and Geographical Indications (US) , para. 7.627. In that dispute, the 
United States and Australia claimed, inter alia , that EC Council Regula tion (EEC) No. 2081/92 of 14 July 1992 
on the protection of geographical indications and designations of origin for agricultural products and foodstuffs 
("Regulation") was inconsistent with Article  16.1 of the TRIPS Agreement because it did not ensure that  a 
trademark owner may prevent uses of GIs which would result in a likelihood of confusion with a prior 
trademark. The Regulation provided for "coexistence" between a GI registered under it and a prior trademark, 
allowing such GI and the prior trademark to  be used concurrently to a certain extent. The European 
Communities argued that Article  24.3 of the TRIPS Agreement required it to maintain such coexistence. It is in 
this context that the panel determined that the scope of the obligation under Article  24.3 does not extend to 
measures adopted to implement provisions other than those in Section 3 of Part II. The panel also found that, 
although the Regulation allowed the registration of a GI even when it conflicted with the prior trademark, the 
Regulation was  sufficiently constrained to qualify as a "limited exception" to trademark rights. The panel 
concluded that "with respect to the coexistence of GIs with prior trademarks, the Regulation is inconsistent 
with Article  16.1 of the TRIPS Agreement but, on the b asis of the evidence presented to the Panel, this was 
justified by Article  17 of the TRIPS Agreement".   
5757 Panel Reports, EC – Trademarks and Geographical Indications (US) , para. 7.633; and EC –
 Trademarks and Geographical Indications (Australia) , para. 7.633.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 835 - 
  7.2929.   In that dispute, the United States5758 and Australia5759 took the view that Article  24.3 
applies to individual GIs, while the European Communities considered that it applies to the general 
level of protection. The relevant part of the panel's analysis reads as follows:  
Turning to the ordinary meaning of the terms used in the rest of the provision, the 
principal verb is "shall not diminish". This indicates that this is a standstill provision, 
and that it is mandatory. The parties do not agree on the meaning of the object of 
that verb, which is the phrase "the protection of geographical indications" as qualified 
by the final relative clause. In the English version of the text, that phrase could refer 
either to "the protection of GIs" as a whole, or to "the protection" of in dividual GIs. In 
the French and Spanish versions, which are equally authentic, the verb "existed" in 
the relative clause is in the singular, which indicates that the "protection of 
geographical indications" must be interpreted as a whole. It is unclear in all three 
versions whether this refers to the legal framework or system of protection in a 
Member that existed immediately prior to 1 January 1995, or to the state of GI 
protection in a Member that existed at that time in terms of the individual rights whi ch 
were protected.  
If Article  24.3 referred to a system of protection in a Member, this would have two 
important consequences. First, as a mandatory provision, it would prevent a Member 
which had a system that granted a higher level of protection than that  provided for in 
the TRIPS  Agreement  from implementing the same minimum standards of protection 
as other Members, even if it wished to do so. For example, in the European 
Communities, Article  14 of the Regulation entered into force in 1993 but was amended 
in April 2003 in respect of trademark rights acquired through use. To the extent that 
those amendments diminished the general level of protection of GIs under the 
European Communities' system,  they would be inconsistent with Article  24.3 on its 
own view.  
Second, a standstill provision for a system of protection would exclude from the scope 
of Section 3 not only individual rights already in force under that system as at the 
date of entry into fo rce of the WTO Agreement , but also rights subsequently granted 
under that system in perpetuity. This would be a sweeping exclusion which would 
grow, rather than diminish, in importance, as an increasing number of GIs were 
protected under the prior legislat ion. The Panel is reluctant to find such an exclusion in 
the absence of any clear language to that effect, and none has been drawn to its 
attention. In this respect, it can be noted that the TRIPS  Agreement  does contain an 
exclusion for a type of system (i n respect of phonograms) in Article  14.4 but it is 
optional, it clearly refers to a "system" and it is subject to a proviso against abuse. 
Article  24.3 contains none of these features.  
For these reasons, the Panel interprets the phrase "the protection of g eographical 
indications that existed in that Member immediately prior to the date of entry into 
force of the WTO Agreement " to mean the state of protection of GIs immediately prior 
to 1 January 1995, in terms of the individual GIs which were protected at t hat point in 
time.5760 
7.2930.   Honduras, the Dominican Republic,  and Cuba disagree with these conclusions.  
7.2931.   With respect to the text of Article  24.3, while recognizing that there is some ambiguity in 
the English text of the provision, Honduras and the Dominican Repub lic argue that the equally 
authentic French and Spanish versions remove such ambiguity. In that regard, we agree with the 
above analysis of the panel in EC – Trademarks and Geographical Indications , which concluded 
that it remains unclear in all three lang uage versions whether "protection of geographical 
indications" refers to the legal framework or system of protection in a Member that existed 
                                                
5758 Panel Report, EC – Trademarks and Geographical Indications (US) , para. 7.627.  
5759 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.627.  
5760 Panel Reports, EC – Trademarks and Geographical Indications , paras.  7.633 -7.636.  (emphasis 
original; footnotes omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 836 - 
  immediately prior to 1 January 1995, or to the state of GI protection in a Member that existed at 
that time in res pect of the individual rights which were protected.  
7.2932.   As regards the context, Honduras and the Dominican Republic argue that when the 
drafters wanted to refer to individual GIs they did so explicitly; for instance, Article  24.4 refers to 
"a particular geogra phical indication".5761 Honduras adds that the use of the term "system" in 
Articles  14.4 and 27.3(b) does not provide contrary contextual guidance since, in its view, the 
term in both cases refers to qualitatively different normative frameworks.5762 We are not 
persuaded , however, that it necessarily follows from the absence of an express reference to the 
protection of "individual" GIs in Article  24.3 that it must be interpreted to refer to a "system" of 
protection of GIs. Like the panel  in EC – Trademarks and Geo graphical Indications5763, we note 
that when the TRIPS  Agreement  excludes a type of system in Article  14.4, it uses the term 
"system". Another standstill provision in Article  65.5 required a Member that was availing itself of 
certain transitional periods to e nsure that "any changes in its laws, regulations and practice … 
[did] not result in a lesser degree of consistency with the provisions of this Agreement". The 
consistency of any changes in a Members' laws, regulations and practice with the provisions of th e 
TRIPS  Agreement  would normally relate to the level of protection available under such laws, 
regulations and practice rather than the protection of an individual copyright work, patent, 
trademark, GI, or other object of IP protection.  
7.2933.   As regards the object and purpose of this provision, we agree with Australia that the 
purpose of Article  24.3, as a standstill provision, is to ensure that, in giving effect to its obligations 
under Section 3 to provide protection for GIs, a Member does no t undermine pre -existing property 
rights in specific GIs that were protected in a Member prior to the entry into force of the 
TRIPS  Agreement .5764 This is also consistent with the purpose of the subsequent paragraphs 4 to 8 
of Article  24, which are intended t o safeguard the continued exploitation, in certain circumstances, 
of specific prior GIs, trademarks, customary terms and persons' names. We understand that the 
purpose of all of these paragraphs is to preserve interests in such pre -existing specific 
subjec t-matter, including property rights and interests in their continued exploitation. This purpose 
suggests to us that, read in context, the obligation under Article  24.3 should be understood to 
relate to the preservation of specific protected interests that were already in existence at the time 
of entry into force of the TRIPS  Agreement . 
7.2934.   Such a reading is also consistent with a harmonious interpretation of the various parts of 
the TRIPS  Agreement  taken as a whole.5765 In particular , we must seek an interpretatio n that 
reconciles a Member's obligations in respect of GIs under Section 3 with those in respect of 
trademarks under Section 2 of Part II, as well as any other provisions of the TRIPS  Agreement . 
7.2935.   In this respect, we note that the situation discussed by the panel in EC – Trademarks and 
Geographical Indications  in its findings cited above draws attention to a potential conflict between 
Sections 2 and 3 in a situation where bringing a Member's pre -existing system of protection of GIs 
into compliance with its tr ademark obligations under Section 2 would require diminishing the 
protection of GIs under that system. As described by that panel, an interpretation of Article  24.3 
as referring to a pre -existing protection system for GIs as a whole – rather than to the pr e-existing 
protection of individual pre -existing GIs – could effectively prevent that Member from complying 
with its trademark obligations under Section 2. If over time, interested parties sought protection 
for an increasing number of GIs under such prior system of that Member, the conflict with that 
Member's obligation to protect prior trademarks would be exacerbated. In contrast, by preserving 
the protection of those individual GIs that were already protected before the entry into force of the 
TRIPS  Agree ment, the interpretation adopted by the panel in EC – Trademarks and Geographical 
Indications  avoids potential conflict with a Member's other obligations under that Agreement while 
being in keeping with the purpose of paragraph 3 and the subsequent paragra phs of Article  24, 
which we see as intended to safeguard interests in pre -existing subject matter, including prior 
property rights and interests in their continued exploitation.  
                                                
5761 Honduras's first written submission, para. 749. See also Dominican  Republic 's second written 
submission, para. 791. 
5762 Honduras's first written submission, para. 756. 
5763 Panel Reports, EC – Trademarks and Geographica l Indications , para. 7.635.  
5764 Australia's first written submission, para. 496. 
5765 Appellate Body Report, Korea  – Dairy , para. 81. See also, in respect of the TRIPS Agreement, Panel 
Report, US – Section 110(5) Copyright Act , fn 49. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 837 - 
  7.2936.   In light of the above, we find that the phrase "the protection of geographical indications 
that existed in that Member immediately prior to the date of entry into force of the 
WTO Agreement " means the state of protection of GIs immediately prior to 1 Janua ry 1995 in 
terms of the individual GIs which were protected at that point in time in a particular Member.  
7.3.8.3.3   Whether Australia has diminished the protection of GIs through the 
TPP measures  
7.2937.   We now turn to whether, in adopting the TPP measures , Australia has diminished the 
protection of GIs that existed in Australia immediately prior to 1 January 1995.  
7.2938.   As described above, the complainants claim that the TPP restrictions on the use of GIs on 
tobacco products and packaging have diminished such p rotection. We understand that the 
complainants are not asserting that, pursuant to Article  22 of the TRIPS  Agreement , Members 
would be required to provide a right to use a GI.5766 Rather, the claim is that the protection of GIs 
under Australia's domestic law immediately prior to 1 January 1995 entailed the right or ability to 
use a GI, and that it is this element of domestic protection that has been diminished as a result of 
the restrictions on the use of GIs that results from the TPP measures . Australia agree s that, if a 
Member was protecting a right to use with respect to an individual GI under its domestic law prior 
to 1 January 1995, that Member would not be permitted to diminish the protection of that GI by 
prohibiting its use when implementing Section 3 o f the TRIPS  Agreement . Australia contests, 
however, the proposition that any such right to use existed under its domestic law at that point of 
time.5767 
7.2939.   To address the complainants' claims, we need to consider the protection of GIs as it 
existed under Austral ian law prior to 1 January 1995, and whether this has been diminished as a 
result of the operation of the TPP measures  in relation to GIs. To inform this assessment, we first 
describe the basis for the protection of GIs in Australia and the operation of th e TPP measures  in 
relation to GIs.  
7.2940.   As described in greater detail above5768, trademarks and GIs are currently protected in 
Australia under the TM Act. Australia explains that it adopted the TM Act to implement its 
obligations under the TRIPS  Agreement , and t hat its Section 61 specifically implements the 
obligations with respect to GIs to the extent not already conferred under existing law.5769 Under 
the TM Act, a sign that constitutes a GI may be eligible for registration as a trademark. To the 
extent that GIs a re registered as trademarks in Australia, they are generally registered as 
certification trademarks. Collective trademarks may also provide protection for signs that are GIs 
in Australia. In the same way as with other registered trademarks, an owner of a r egistered 
certification or collective trademark is able to pursue infringement action against unauthorized use 
of a sign by third parties. Australia also maintains protection with respect to trademarks and GIs 
under other areas of Australian law, including  under general consumer protection measures 
addressing misleading representations. The CCA establishes a general prohibition on misleading or 
deceptive conduct in trade or commerce. Under the CTD Act, Australia also prohibits the 
importation of any good be aring a false trade description. Australia further maintains common law 
protection for the reputation of a business through the tort of "passing off", which can provide 
additional protection against misrepresentations. Neither trademarks nor GIs are protec ted per se 
                                                
5766 See Honduras's second wr itten submission, paras.  419 and 421; and Dominican  Republic 's second 
written submission, para. 771. Although Cuba argues that whether a GI can be utilized is a necessary 
component of the analysis of whether it is protected in a Member (Cuba's first writte n submission, para. 370), 
in the context of its claim under Article  22.2(b) it specifically incorporates Honduras's argument that it is not 
postulating a right to use a GI. See Cuba's response to Panel question No. 55 (annexed to its response to Panel 
question No. 138) (incorporating Honduras's arguments in its second written submission, paras.  419 and 421). 
In this respect, we recall our finding in para. 7.2860  above that, under Article  22.2(b), the obligation on 
Members is to provide legal means for interested parties to prevent, in respect of GIs, any use which 
constitutes an act of unfair competition; it doe s not confer on interested parties a positive right or entitlement 
to use GIs.  
5767 Australia's response to Panel question No. 43. 
5768 See section 2.3 above.  
5769 Australia's first written submission, para. 493. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 838 - 
  under this tort, but they may be probative with respect to the existence of, and damage to, a 
trader's reputation in the relevant market.5770 
7.2941.   We recall that, as described above5771, the TPP measures  regulate the appearance of 
trademarks and marks5772 on tobacco retail packaging and products. The TPP measures  prohibit 
the use on tobacco retail packaging and products of any stylized or figurative elements contained 
in a GI or figurative signs constituting a GI. They permit the use of a word constituting a G I on 
tobacco retail packaging and on cigar bands to the extent it is part of the brand, business or 
company name, or the name of the product variant5773, provided that it appears in the form 
prescribed by the TPP Regulations . We note that neither Section 4 nor Section 20(3) of the TPP Act 
defines the term "brand"5774; in particular, on its face, in permitting the use of "the brand", the 
TPP Act does not differentiate between brands that are composed of a single or multiple words , or 
on the basis of whether or not such a word or words are protected as a trademark, a GI or both, or 
not protected under any form of IP right s in Australia. We further note that the definition of a 
"variant name" in Section 4(1) of the TPP Act is narrow  and most GIs are unlikely to fall under 
it.5775 Where a GI is the same as the country of origin of the product, its use is also permitted, in 
the form prescribed by the TPP measures , on tobacco retail packaging5776 and on cigar bands.5777  
7.2942.   We recall our finding ab ove that the phrase "the protection of geographical indications 
that existed in that Member immediately prior to the date of entry into force of the 
WTO Agreement " in Article  24.3 refers to the state of protection of GIs immediately prior to 1 
January 1995  in respect of individual GIs which were protected at that point in time in a particular 
Member.  
7.2943.   As Australia points out5778, only Cuba has identified a specific GI, namely "Habanos", that 
it claims was protected in Australia immediately before 1 January 1995 . Cuba explains that 
"Habanos" identifies handmade cigars originating in Cuba that have been produced according to 
specific standards, and the quality and reputation of which is attributable to their geographic 
origin.5779 Cuba argues that "Habanos" benefited  from the protection that was available for GIs in 
Australia at that time and that, since then, its protection has been diminished as a result of the 
TPP measures , and that Australia has thus failed to comply with Article  24.3.5780 We therefore 
                                                
5770 For further details, see section 2.3 above.  
5771 See sections 2.1.2.3.3 and 2.1.2.4 above. See also our discussion in paras.  7.2854 -7.2856  above.  
5772 The definition of "mark" in Section 4 of the TPP Act reads as follows: "(a) includes (without 
limitation) any line, letters, numbers, symbol, graphic or image; but (b) (other than when referring to a trade 
mark) does not include a trade mark". TPP Act, (Exhibits AUS -1, JE-1). 
5773 TPP Act, (Exhibits AUS -1, JE-1), Section 20(3)(a); and TPP Regulations, (Exhibits AUS -3, JE-2), 
Regulation 3.2.1(3)(a).  
5774 While the TPP Act does not define the term "brand name", we note that the CI Regulations provide 
that "[i]n these regulations, unless the contrary intention appears: … brand  includes any mark, device, name, 
word, letter, numeral or symbol and any combination consisting of two or more of those things". 
CI Regulations, (Exhibit s AUS-251, DOM -155, CUB -1), Section 5(1).  (emphasis original)  
5775 See fn 5642 above for the def inition of a "variant name" as contained in the TPP Act, (Exhibits 
AUS-1, JE-1), Section 4(1).  
5776 TPP Regulations (Exhibits AUS -3, JE-2), Regulation s 2.3.1(c) and 2.3.4.  
5777 TPP Regulations (Exhibits AUS -3, JE-2), Regulation 3.2.1(3)(b).  
5778 Australia's first w ritten submission, para. 494. 
5779 Cuba's first written submission, para. 367. 
5780 Cuba claims that Australia has failed to comply with Article  24.3 because it has diminished the level 
of protection of the "Habanos" GI. Cuba's first written submission, paras.  365 and 378. In response to Panel 
question No. 44, Cuba argues that the definition of a GI in Article  22.1 covers, in addition to "Habanos", the 
Cuban  Government Warranty Seal and the Cuban tobacco manufacturers' GIs, including "Cohiba" "Hoyo de 
Monterr ey", "Cabanas", "Cuaba", and "San Cristobal de Habana". It also refers to graphic elements, such as 
the graphic representation of the Cuban national shield, the royal palm, etc., of which the Cuban Government 
Warranty Seal is comprised, the image of the Pinar del Rio tobacco fields in the Vegas Robaina trademark, and 
the Indian Head image of the Cohiba trademark. It, however, does not advance a claim that such GIs existed 
in Australia on 1 January 1995. In its response to Panel question No. 46, Cuba only refers  to the GI "Habanos". 
Cuba lists "Cohiba" "Cuaba", "Hoyo de Monterr ey" and "San Cristobal de la Habana" as Cuban Class  34 
trademarks in its first written submission, Annex 1, Part 1, items 6; 7 and 8; 20; and 44, respectively.  
In response to Panel question  No. 46, seeking clarification of any individual GIs that the complainants 
consider relevant to their claims under Article  24.3, Honduras, the Dominican  Republic  and Indonesia (by 
reference to its response to Panel question No. 44) confirm that their claims under this provision concern the 
overall level of GI protection rather than the protection of specific GIs.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 839 - 
  consider wheth er the protection that "Habanos" enjoys as a GI in Australia has been diminished 
since 1 January 1995.  
7.2944.   Australia submits that the GI "Habanos" was registered as a trademark in Australia from 
16 April 2010 (registered trademark 1356832) and, therefore, was not protected as a trademark 
under the TM Act prior to that date.5781 Cuba does not contest that date of registration of the GI 
"Habanos" as a trademark.5782 To the extent that "Habanos" was not protected as a trademark in 
Australia prior to 1 January 1995, Article 24.3 does not apply to the protection that "Habanos" 
currently enjoys in Australia pursuant to its registration as a trademark from 16 April 2010.5783 
7.2945.   Australia adds that, to the extent that Cuba is able to prove that "Habanos" was entitled 
to any common law or statutory protections in Australia prior to 1 January 1995, such statutory 
and common law protections have not been diminished by the implementation of the 
TPP measures .5784 
7.2946.   Cuba's claim in relation to the GI "Habanos" raises two questions. The first i s whether the 
protection that any GI (including, to the extent that it was protected at the time, "Habanos") could 
have enjoyed under statutory or common law immediately before 1  January 1995 has been 
diminished as a result of the TPP measures . This assess ment would involve establishing, insofar as 
necessary, what the protection was at that time and what it is at the present time under 
Australia's relevant domestic law, and comparing the two. The second question is whether we have 
adequate evidence before u s to conclude that "Habanos" was in fact protected in Australia as a GI 
immediately before that date and, thus, entitled to benefit from that protection.  
7.2947.   We first consider whether the protection enjoyed by GIs under statutory or common law 
in Australia im mediately before 1 January 1995 has diminished as a result of the TPP measures , 
assuming arguendo  that "Habanos" was protected as a GI under these instruments. If we conclude 
that the protection of GIs has been diminished under such statutory and common la w protections, 
we will then address the second question of whether "Habanos" was in fact protected in Australia 
as a GI at that time.  
7.2948.   We recall that the claims of Honduras, the Dominican Republic and Indonesia under 
Article  24.3 concern the overall level o f GI protection rather than the protection of any specific GIs. 
They, however, overlap with Cuba's claim concerning the GI "Habanos", to the extent that the 
success of this claim hinges on whether the overall level of GI protection under the statutory and 
common law protections in Australia (and as a result, the protection provided to "Habanos" under 
                                                
5781 Australia's first written submission, para. 494. 
5782 Cuba refers to the same registration of "Habanos" as a composite trademark in its first written 
submission, Annex 1, Part 1, item 19.  
5783 We note that, although Honduras has not identified any specific GI that was protected as a 
trademark in Australia prior to 1995, it advances arguments concerning the protection of GIs as trademarks in 
Austral ia. Honduras contends that Section 20 of Australia's TM Act provides an exclusive right to use a 
trademark, including one containing a GI, and that this right to use has been diminished for tobacco -related 
GIs. Honduras's second written submission, para. 440. Australia responds that Sections  171 and 20(1) of the 
TM Act grant the owners of registered trademarks and certification trademarks, respectively, exclusivity of use, 
which is enforced through the right to pursue enforcement action against infringement  by third parties. 
Australia explains, with reference to a ruling by the High Court of Australia in JTI v. Commonwealth , that the 
nature of the rights granted in Australia to owners of trademarks under both common law and statute are 
negative rights of exc lusion. Australia's response to Panel question No. 184. We note that the panel in US –
 Zeroing (EC) , recalling that prior panels and the Appellate Body have treated questions relating to the content 
and interpretation of domestic law as questions of fact, noted that "[o]ne aspect of this is the need for an 
international tribunal to take account of decisions of domestic courts on the meaning of municipal law". Panel 
Report, US – Zeroing (EC) , para. 7.53. In the present disputes, Honduras has not demonstrated  that, contrary 
to Australia's explanations and the recent decision of the High Court of Australia, an owner of a trademark 
would have had a positive right to use its trademark in Australia before 1 January 1995. We also note that a 
complainant, namely Ind onesia, refers to Australia as "a market with no positive right to use a trademark". 
Indonesia's second written submission, para. 89. In light of the above, we, therefore, note that, even if the 
complainants had identified a GI that was protected as a trad emark in Australia prior to 1  January 1995, the 
TPP measures  could not have diminished their protection in violation with Article  24.3 in respect of a right to 
use a trademark which Honduras has not shown to have existed under Australia's law prior to 1 Ja nuary 1995.  
5784 Australia's second written submission, para. 71. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 840 - 
  these instruments) has been diminished as a result of the TPP measures .5785 In examining Cuba's 
claim, we will, therefore, take into consideration the arguments o f all complainants concerning the 
overall GI protection under Australia's statutory and common law protections, prior to 1 January 
1995, as well as Australia's responses.  
7.2949.   Cuba argues that "the ability to utilise" a GI is a necessary component of the analys is of 
whether that GI is "protected"5786, and that "protection means 'right to use' a geographical 
name".5787 It asserts that, immediately prior to 1 January 1995, Cuban exporters were able to use 
the GI "Habanos" in its original form on the packaging of LHM cig ars sold in the Australian market 
but, as a result of the TPP measures , they are no longer able to use that GI (in its original form or 
in a modified form) on boxes of LHM cigars sold in the Australian market. Cuba claims that, prior 
to 1995, the GI "Haban os" benefited from the common law freedom to use any word or device in 
association with the provision of goods or services.5788 Australia responds that any statutory and 
common law protections to which GI "Habanos" might have been entitled prior to that date have 
not been diminished by the implementation of the TPP measures . In particular, neither now, nor at 
that time, was a right to use a GI protected under Australian law. In Australia's view, the 
complainants confuse the ability to use a GI under Australian  law with the right to use a GI under 
Australian law.5789 It adds that, in JTI v . Commonwealth , the High Court of Australia recently 
affirmed that the nature of the rights granted in Australia to owners of trademarks (under both 
common law and statute) are negative rights of exclusion.5790 
7.2950.   Australia adopted its TM Act of 1995 to implement its obligations under the 
TRIPS  Agreement  with respect to GIs to the extent not already conferred under existing law.5791 
Prior to 1995, GIs already benefited from statutory cons umer protection law and common law 
remedies. We understand that these legal remedies have the effect of addressing various forms of 
misleading representations that can include misuse of GIs.5792 Since these laws and legal remedies 
variously aim at the suppres sion of misleading representations, from a consumer perspective, and 
preventing the misappropriation of a trader's goodwill, we understand that they do not stipulate 
how terms can or should be used legitimately as a condition of protection against misuse. Cuba 
has not identified any particular statutory law under which, prior to 1995, the interested party in 
the GI "Habanos" would have had a legally recognized right or entitlement to use that GI. Rather, 
we understand Cuba to assert that such right arose un der the common law, since it recognizes 
"freedom to use any word or device in association with the provision of goods or services".5793 
Cuba, however, has not explained how such freedom to use any word or device would amount to a 
legally protected right or en titlement to use such a word or device free from any restrictions found 
in other applicable laws. Cuba has, therefore, not demonstrated that, under the statutory or 
common law protections available prior to 1995, interested parties would have had, in respe ct of 
                                                
5785 We note that, normally, the protection available to an individual GI under domestic law is afforded 
by means of an overall system of protection of GIs that includes a determination of the sco pe of the rights 
afforded to protected GIs, and the nature and extent of exceptions to those rights. To the extent that an 
individual GI was protected at any stage under such a general system of protection, any diminution of the state 
of protection afforde d to such an individual GI would generally flow from a broader adjustment to the overall 
system of protection. Therefore, in practice, the question of whether the protection of an individual GI has 
been diminished normally depends on whether the protection  afforded to GIs under such legal system has been 
diminished.  
5786 Cuba's first written submission, para. 370. 
5787 Cuba's first written submission, para. 373 ( referring to  Audier, Protection of GIs, (Exhibit CUB -49), 
p. 7). In the cited passage, Audier describe s the protection of geographical names in France and the EC by 
stating that "[g]enerally speaking, protection means 'right to use' a geographical name with the consequence 
that sometimes it is forbidden to use it".  
5788 Cuba's first written submission, paras.  374-376. 
5789 Australia's first written submission, para. 501. 
5790 Australia's response to Panel question No. 184, para. 166 (referring to JTI  v. Commonwealth, 
(Exhibits AUS -500, CUB -50), para. 248 (Crennan J)).  
5791 Australia's first written submission, para. 493. 
5792 See paras.  2.89-2.93 above.  
5793 Cuba's first written submission, para. 376 ( referring to  from JTI  v. Commonwealth , (Exhibits 
AUS-500, CUB -50), para. 76 (Gummow J) ). We note that the phrase cited by Cuba is preceded by the phrase 
"absent some prohibiti ons elsewhere in the common law or in statute". In paragraph 76 of that judgement, 
Judge Gummow  notes with approval the proposition contained in the oral submission by the Queensland 
Solicitor -General that "absent some prohibitions elsewhere in the common law or in statute, there was at 
common law a freedom to use any word or device in association with the provision of goods or services". The 
Solicitor -General further submitted that "that common law freedom was not proprietary in nature".  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 841 - 
  GIs, a legally protected right to use their GIs. Even assuming, arguendo , that the remedies under 
such statutory or common law protections against misleading representations would have been 
available in respect of the GI "Habanos" immediately before 1 January 1995, Cuba has not 
demonstrated that Cuban exporters would have had a legally protected right in Australia to use the 
GI "Habanos" in its original form on the packaging of LHM cigars at that time. Even if Cuban 
exporters could have used, at that time, the GI "Habanos" in the marketplace without 
contravening applicable laws, that capacity cannot be conflated with a positive, legally recognized 
right to use the GI under Australian law.5794 
7.2951.   Honduras submits that the question is not whether a " right to u se" a GI existed under 
Australia's domestic law prior to 1995.5795 It argues, instead, that the term "protection" in 
Article  24.3 should be read in the light of footnote 3 of the TRIPS  Agreement  to include, inter alia, 
the ability to use  distinctive marks in order to achieve GI status, and the ability to effectively 
enforce the rights to prevent misleading or other use of indications that reduce the strength of  IP 
rights.5796 It adds that the ability to use GIs was part of the system of protection of GIs prior to 
1995.5797 It contends that "[s]ince 1  December 2012, however, the level of protection has been 
reduced below the pre -1995 level because no new GIs can be developed and b ecause existing GIs 
cannot be maintained at the level of strength determined by the GI holder".5798  
7.2952.   We recall that we found in paragraph 7.2950  that Cuba has not demonstrated that, under 
the statutory or common law protections applicable to GIs in Australia prior to 1995, interested 
parties would have had, in respect of GIs, a legally protected right to use their GIs. In our view, 
Honduras has not adeq uately explained how an ability to use a GI would amount to a protected 
right, and has not demonstrated that, under such statutory or common law protections applicable 
to GIs prior to 1995, interested parties would have had, in respect of GIs, a legally pr otected 
ability to use their GIs, which would thus fall under the term "protection" within the meaning of 
Article  24.3 of the TRIPS  Agreement .  
7.2953.   We further note that Honduras also argues that, in the light of footnote 3 of the 
TRIPS  Agreement , the term "pro tection" in Article  24.3 should be read as including the ability to 
use distinctive marks in order to achieve GI status.5799 We note that, by its own terms, footnote 3 
defines the term "protection" for the purposes of the national and MFN treatment obligation s under 
Articles  3 and 4 of the TRIPS  Agreement .5800 In our view, this definition, which is relevant for the 
purpose of interpreting the scope of the international obligations under the TRIPS  Agreement , does 
not provide guidance on the factual assessment of t he state of Australia's domestic law as it 
existed prior to the entry into force of the WTO Agreement . It, therefore, does not support 
construing an ability to use a GI in the Australian market as a legally protected right under 
Australian law.  
7.2954.   The Dominic an Republic argues that Australia draws a "false distinction" between a 
market freedom and a right to use. It submits that , immediately before the entry into force of the 
TRIPS  Agreement , there was no "formal 'right to use'" GIs under Australian law . However, it 
argues that this does not provide a defence to Australia's alleged violation of Article  24.3. The 
Dominican Republic contends that it is immaterial whether such GI protection was enabled through 
                                                
5794 Put another way,  the scope of legal protection afforded to GIs in Australia under the applicable laws 
and legal remedies at the relevant time cannot be construed as a legal right to make use of a GI in any 
particular way.  
5795 Honduras's second written submission, para. 437. Honduras initially argued that, prior to 
1 January  1995, Australian law protected GIs by permitting their owners to use them. Honduras's first written 
submission, para. 767. 
5796 Honduras's second written submission, para. 437. 
5797 Honduras's second written su bmission, para. 438. 
5798 Honduras's second written submission, para. 439. 
5799 Honduras's second written submission, para. 437. 
5800 Footnote 3 to the TRIPS Agreement reads as follows: "For the purposes of Articles  3 and 4, 
'protection' shall include matters affec ting the availability, acquisition, scope, maintenance and enforcement of 
intellectual property rights as well as those matters affecting the use of intellectual property rights specifically 
addressed in this Agreement." The panel in Indonesia  – Autos  explained that "[a]s is made clear by the 
footnote to Article  3 of the TRIPS Agreement, the national treatment rule set out in that Article  does not apply 
to use of intellectual property rights generally but only to 'those matters affecting the use of intellectual 
property rights specifically addressed in this Agreement'". Panel Report, Indonesia  – Autos , para. 14.275.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 842 - 
  a "right of use" or through a "market freedom".5801 The D ominican Republic has not, however, 
demonstrated that the general market freedoms to which it refers, within which market actors who 
held GIs operated within the Australian market prior to 1995, amounted to legally protected rights 
or entitlements under Au stralian law at that time.5802  
7.2955.   Cuba advances a further argument relating to Australia's common law protection against 
passing off. Cuba submits that "Habanos" has built a reputation that is entitled to the common law 
protection against passing off. Cuba argu es that "the inability to use the Habanos GI for LHM 
cigars" will over time weaken the reputation of the Habanos GI in Australia and thereby lead to a 
reduction or limitation of the scope for effective legal action against passing off. Cuba contends 
that t he TPP measures  will thus inevitably diminish the protection the GI "Habanos" enjoyed prior 
to 1 January  1995, and thus violate Article  24.3 of the TRIPS  Agreement .5803 Australia retorts that 
no aspects of the TPP measures , including the prohibitive aspects of the measures, interfere with 
the operation of the common law action of passing off. Australia adds that governments are not 
obliged to create or permit the market conditions which give rise to an action for passing off.5804 
7.2956.   We understand that Cuba is not a rguing that Australia's common law action of passing off 
as such would have been systematically weakened as a result of the TPP measures . Rather, it 
argues that "the inability to use the Habanos GI for LHM cigars" "inevitably" weakens the 
reputation of the  GI "Habanos", thus making it more difficult to take action against passing off for 
that specific GI. We recall that the obligation of each Member under Article  24.3 is to not diminish 
"the protection of geographical indications that existed in that Member  immediately prior to the 
date of entry into force of the WTO Agreement ", which we found in paragraph 7.2936  to refer to 
the state of protection of GIs immediately prior to 1 January 1995 in terms of the individual GIs 
which were protected at that point in time in a particular Member. To the extent that "Habanos" 
was protected as a GI in Australia prior to 1995, it would have benefited from statutory consumer 
protection law and common law remedies addressing various forms of misleading representations, 
which may include misuse of GIs.5805 The complainants have not shown that such protection would 
have been diminished, in general or specifically in respect  of "Habanos". In particular, assuming 
that such legal remedies were available to "Habanos" GI prior to 1995, Cuba has not demonstrated 
that these remedies entailed a legally protected entitlement to use "Habanos" GI for the purposes 
of maintaining the str ength of its protection against passing off. We understand that the way in 
which an interested party uses its GI within the applicable market regulations to maintain the 
reputation of that GI is not part of the legal protection that Australia provides unde r that domestic 
legal instrument and, consequently, not covered by the term "protection" in Article  24.3. We find, 
therefore, that Australia is not obliged, pursuant to Article  24.3, to create, permit or maintain the 
market conditions which may give rise t o an action for passing off.  
7.2957.   In light of the evidence before us, we find that the complainants have not demonstrated 
that the protection that GIs enjoyed under the Australian law, including under general consumer 
protection measures addressing misleading r epresentations or the common law tort of passing off, 
immediately before 1  January 1995 has been diminished as a result of the TPP measures . 
7.2958.   In light of this finding, we do not consider it necessary to address the question of whether 
we have adequate evide nce before us to conclude that "Habanos" was protected as a GI in 
Australia immediately before 1 January 1995 within the meaning of Article  24.3. 
                                                
5801 Dominican  Republic 's second written submission, paras.  804-805; and response to Panel question 
No. 48. 
5802 We note that the TRIPS Agreement itself makes a distinction between IP regulations and other areas 
of regulation. As noted by the panel in EC – Trademarks and Geographic al Indications , the principles in 
Article  8 of the TRIPS Agreement "reflect the fact that the TRIPS Agreement does not generally provide for the 
grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negativ e 
rights to prevent certain acts. This fundamental feature of intellectual property protection inherently grants 
Members freedom to pursue legitimate public policy objectives since many measures to attain those public 
policy objectives lie outside the scop e of intellectual property rights and do not require an exception under the 
TRIPS Agreement." Panel Reports, EC – Trademarks and Geographical Indications  (US), para. 7.210; and EC – 
Trademarks and Geographical Indications (Australia) , para. 7.246.  
5803 Cuba's  response to Panel question No. 43 (annexed to its response to Panel question No. 138).  
5804 Australia's response to Panel question No. 185. 
5805 See paras.  2.89-2.93 above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 843 - 
  7.3.8.4   Conclusion  
7.2959.   In light of the above analysis, we find that the complainants have not demonstrated that 
the TPP measures  are inconsistent with Australia's obligations under Article  24.3 of the 
TRIPS  Agreement . 
7.4  Article  IX:4 of the GATT 1994  
7.2960.   Article  IX:4 of the GATT 1994 provides that:  
The laws and regulations of Members relating to the marking of imported products 
shall be such as to permit compliance without seriously damaging the products, 
or materially reducing their value, or unreasonably increasing their cost.5806 
7.2961.   Cuba, the sole complainant bringing this claim, argues that the TPP measures  violate 
Article  IX:4 of the GATT 1994. Australia rejects Cuba's claim and maintains that the TPP measures  
are not inconsistent with Article  IX:4, and would, in any event, be justified by Article  XX(b) of the 
GATT 1994.  
7.4.1   Main arguments of the parties5807 
7.2962.   Based on the ordinary meaning of the terms "mark" and "origin", Cuba argues that the 
TPP measures , insofar as they limit the use of the Habanos GI (and GIs more generally), are 
measures that affect "marks" and, by extension, the "marking" of tobacco products.5808 Cuba adds 
that tobacco products produced in Australia are not associated with any GIs, thus the restraints 
imposed by Australia on the display of GIs on tobacco product packaging can only apply to 
imported products. Accordingly, Cuba maintains, Australia' s prohibition on the display of GIs is a 
measure which relates exclusively to the marking of "imported products" and, therefore, falls 
within the scope of Article  IX:4 of the GATT 1994.5809 According to Cuba, the TPP measures  violate 
Article  IX:4 of the GATT 1994 because they materially reduce the value of Cuban LHM cigars by 
prohibiting the Habanos GI and the Cuban Government Warranty Seal5810 from being affixed on 
the packaging of tobacco products from Cuba.5811  
7.2963.   Cuba does not dispute that the TPP measures  allow t he country of origin (e.g. "Made in 
Cuba") to be indicated on Cuban LHM cigars.5812 Its claim relates to what it describes as a 
prohibition of the Habanos GI and the Cuban Government Warranty Seal under the TPP measures . 
According to Cuba, the assumption that  GIs are, as a general matter, associated with price 
premiums has been endorsed in academic research and by authoritative bodies such as the Food 
and Agriculture Organization of the United Nations (FAO). By the same token, Cuba argues, a 
                                                
5806 Pursuant to paragraph 1(a) of the GATT 1994:  
 
The General Agreement on Tariffs and Tr ade 1994 ("GATT 1994") shall consist of: (a) the 
provisions in the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to 
the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of 
the United Nations Co nference on Trade and Employment (excluding the Protocol of Provisional 
Application), as rectified, amended or modified by the terms of legal instruments which have 
entered into force before the date of entry into force of the WTO Agreement .  
 
Paragraph 2( a) of the GATT 1994 includes the following Explanatory Note: "The references to 'contracting 
party' in the provisions of GATT 1994 shall be deemed to read 'Member'."  
5807 The parties' more detailed arguments are available in their executive summaries in Annex  B. 
5808 Cuba's first written submission, para. 420. 
5809 Cuba's first written submission, para. 421. 
5810 Cuba's response to Panel question No. 79 (annexed to its response to Panel question No. 138).  
5811 Cuba's first written submission, para. 419; and Cuba's respon se to Panel question No. 138. 
5812 According to Cuba, "[i]n effect, the only relevant information about Cuban LHM Cigars that can be 
included on retail packaging is a statement that the cigars are 'Made in Cuba' and a statement to the effect 
that the package contains handmade cigars. Furth er information cannot be conveyed to the consumer." Cuba's 
first written submission, para. 71 (footnotes omitted) ( referring to  CI Regulations, (Exhibits AUS -251, 
DOM-155, CUB -1), Regulation 8(c)(i), read with TPP Regulations, (Exhibits AUS -3, JE-2), Regul ation 2.3.4, and 
CI Regulations, (Exhibits AUS -251, DOM -155, CUB -1), Regulation 8(c)(ii) (requiring a "true description")). See 
also Cuba's response to Panel question No. 189. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 844 - 
  prohibition on the  display of an existing GI limits the ability of exporters to charge a price premium 
and is likely to reduce the value of affected products compared to what they would otherwise 
be.5813 Cuba adds that Australia's prohibition on the display of the Habanos GI a nd the Cuban 
Government Warranty Seal5814 will inevitably give rise to consumer uncertainty about the 
authenticity of the products that they are purchasing5815, and  such consumer uncertainty is likely 
to be particularly acute in circumstances where a GI that has  been used for decades is abruptly 
removed from the market.5816 According to Cuba, it follows that the effect of prohibiting the 
display of the Habanos GI and the Cuban Government Warranty Seal5817 will be to reduce the 
value of Cuban LHM cigar s (relative to the  value that they would enjoy if the Habanos GI could be 
displayed on the retail packaging of Cuban LHM cigar s).5818 
7.2964.   Australia  argues that Cuba's claim is "without merit"5819 for three reasons. First, Cuba has 
failed to demonstrate that Article  IX of the GATT 199 4 applies to marking of products generally. 
In particular, Cuba has failed to demonstrate that origin marking refers to "something narrower" 
than the country of origin, such  as the "factory or region of origin".5820 Second, Cuba has failed to 
show that Article IX applies also to prohibitions on the use of certain markings, and not just to 
requirements to affix marks of origin on imported products.5821 Third, Cuba has not demonstrated 
that the value of Cuban LHM cigars has been "materially reduced" as a result of the 
TPP measures .5822 Australia adds that Article  IX does not create a right for a Member to apply a 
particular marking to a product just because the Member considers that the mark will allow it to 
increase the price it charges for the product.5823 Australia sub mits that Cuba's argument, 
if accepted, would result in Article  IX:4 of the GATT 1994 creating a "right to use" for GIs. 
In circumstances where the TRIPS  Agreement  does not confer such a "right of use", it is untenable 
that Article  IX:4, which does not eve n mention GIs, creates such a right. In particular, if all GIs 
confer a price premium, as Cuba contends, then any prohibition on the use of a GI would, 
according to Cuba, reduce the value of the product and fall afoul of Article  IX:4.5824 
7.2965.   Australia adds that,  although Cuba states that its claim under Article  IX:4 also extends to 
the Cuban Government Warranty Seal, it has not made any arguments or provided any evidence 
to substantiate this claim, and has not made a prima facie  case in relation to it.5825 According  to 
Australia, Cuba provides no evidence or arguments to demonstrate that the inability to use the 
Cuban Government Warranty Seal, and in particular the images on that seal, have led to a 
material reduction in the value of the Cuban LHM cigars. All of Cuba 's arguments relate to its 
inability to use the mark "Habanos" and the alleged impact of this on the value of its LHM cigars. 
The only mention of the Cuban Government Warranty Seal in the context of Article  IX:4 is a 
response to a Panel question, in which Cuba simply states that its claim extends to the Seal.5826 
Australia adds that Cuba does not explain why the Cuban Government Warranty Seal falls within 
the disciplines of Article  IX:4, apart from stating that the seal contains "indirect GIs" (" indicaciones 
geograficas indirectas ") in the form of images of the Cuban coat of arms, Cuban tobacco fields and 
the national tree of Cuba, the royal palm. According to Australia, the marking "Cuba", which is 
included in the Cuban Government Warranty Seal, is permitted on plain packaged cigars and does 
not appear to be the subject of Cuba's complaint. Rather, Cuba's complaint appears to be that 
certain pictures, such as palm trees, are no longer permitted on its packages. However, it is clear 
that the disciplines of Article IX do not extend to pictorial markings simply because they may be 
symbols of a particular country.5827 
                                                
5813 Cuba's first written submission, para. 423. 
5814 Cuba's response to Panel questio n No. 79 (annexed to its response to Panel question No. 138).  
5815 Cuba's first written submission, para. 425. 
5816 Cuba's first written submission, para. 426. 
5817 Cuba's response to Panel question No. 79 (annexed to its response to Panel question No. 138).  
5818 Cuba's first written submission, para. 426. 
5819 Australia's second written submission, para. 573. 
5820 Australia's first written submission, paras.  750-752. 
5821 Australia's first written submission, paras.  745-749.  
5822 Australia's second written submission, paras.  579-585. 
5823 Australia's first written submission, para. 749. 
5824 Australia's second written submission, para. 582. 
5825 Australia's comments on complainants' responses to Panel question Nos. 192, 194 and 195, and 
fn 315. 
5826 Australia's comments on Cuba's responses to Panel question Nos. 187-191 and 193.  
5827 Australia's comments on Cuba's responses to Panel question Nos. 187-191 and 193.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 845 - 
  7.2966.   Should the Panel rule that Cuba has nonetheless proven a violation of Article  IX:4 of the 
GATT  1994, Australia  argues that the TPP measures  are justifie d by the exception under 
Article  XX(b) of the GATT 1994 because they are necessary to protect human life or health.5828 
In support of this conditional defence, Australia references its arguments under Article  2.2 of the 
TBT Agreement .5829 
7.2967.   Cuba contests that its Article  IX:4 claim would be "without  merit"5830 or that the 
TPP measures  would ultimately be justified by the exception under Article  XX(b) of the GATT 
19945831, as advanced by Australia. In this regard, Cuba references its arguments under Article  2.2 
of the TBT Agreement , pointing out that the burden of proof under Article  XX(b) lies with Australia 
despite the similarity between the legal standards under the two provisions.5832 
7.4.2   Main arguments of the third parties5833 
7.2968.   Canada submits that Cuba mischaracterizes the natur e of the obligation under 
Article  IX:4.5834 It is only marks of origin, not the universe of markings on goods, which are 
disciplined by Article  IX:4.5835 According to Canada, the phrase "permit compliance" in Article  IX:4 
is the essential, operating element of t he provision. It illustrates the purpose of Article  IX:4, which 
is to discipline how compliance with a marking requirement may be prescribed.5836 As Article  IX:4 
does not discipline whether or to what extent Members may require such markings on imported 
produ cts5837, according to Canada, a prohibition or restriction on the use of a mark of origin does 
not violate Article  IX:4.5838 
7.2969.   China argues that Members do not have unlimited discretion to adopt public health 
measures. Public health measures that may be inconsiste nt with provisions of the GATT 1994, 
such as Article  IX:4, may be justified under Article  XX(b) of the GATT 1994, according to China.5839 
7.2970.   Addressing the concurrent application of the TBT and TRIPS  Agreement s, the 
European  Union argues that origin marking is s omething not expressly mentioned in the definition 
of a technical regulation in the TBT Agreement , whereas origin marking and issues of origin are 
specifically regulated by Article  IX of the GATT and by the Agreement on Rules of Origin, 
respectively.5840 
7.2971.   New Zealand requests that the Panel reject Cuba's claim under Article  IX:4 of the 
GATT.5841  
7.4.3   Analysis of the Panel  
7.2972.   Cuba's claim under Article  IX:4 of the GATT 1994 relates to the treatment, under the 
TPP measures , of two specific signs: (i) the sign that Cuba describes as the Habanos GI; and (ii) 
the Cuban Government Warranty Seal. Cuba argues that the TPP measures , insofar as they limit 
the use of these signs, affect the "marking of imported products" within the meaning of 
Article  IX:4, and "materially reduce the value" of Cuban LHM cigars, in violation of Article  IX:4.  
7.2973.   We find it useful first to explore what the two specific sings invoked by Cuba consist of, 
and to clarify the manner in which the TPP measures  affect the use of these signs.5842 
                                                
5828 Australia's first written submission, paras.  754-760. 
5829 Australia's first written submiss ion, paras.  754-761, in particular paras.  757-758. 
5830 Cuba's second written submission, paras.  396-400. 
5831 Cuba's second written submission, paras.  401-413. 
5832 Cuba's response to Panel question No. 132. 
5833 The executive summaries of the third parties' argument s are contained in Annex C.  
5834 Canada's third-party submission, para. 103. 
5835 Canada's third-party submission, para. 104. 
5836 Canada's third-party submission, para. 105. 
5837 Canada's third-party submission, para. 105. 
5838 Canada's third-party submission, para. 108. 
5839 China's third -party submission, para. 7. 
5840 European Union's third -party submission, para. 44. 
5841 New Zealand's third -party submission, para. 124. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 846 - 
  7.4.3.1   The Habanos sign and the Cuban Government Warranty Seal  
7.2974.   Cuba describes the Habanos sign as follows:  
As a result of Cuba's efforts to protect and promote its cigar industry and exports, 
the term " Habanos " has become known world wide to describe large, high -quality 
hand-made cigars of Cuban provenance. The term itself originates from the name of 
the city of Havana (or Habana , in Spanish), from which Cuban cigars have been 
exported for centuries. " Habano " (or " habanos " in plural) m eans simply from 
Habana .5843  
7.2975.   In relation to this, the following sign is registered as a composite trademark in Australia:  
Figure 18: The Habanos composite trademark registered in Australia  
 
Source:  Cuba's first written submission, Annex 1, Part 1, Item No.  19. 
 
7.2976.   In addition, Cuba indicates that on 27  December 1967, under the "Lisbon Agreement for 
the International Registration of Appellations of Origin " (Lisbon Agreement), it registered the term 
"Habanos  Denominacion de Origen Protegida (D.O.P.)".5844 Cuba refers to this as the 
"Habanos  GI".5845 
7.2977.   Further, as Cuba explains, in 1994, Corporación Habanos S.A. began applying, to the 
upper corners of its LHM cigar  boxes, "the Habanos GI, in label form", displaying a coloured 
composite mark consisting of the word "Habanos" and an image of chevrons forming a leaf5846, i.e. 
a label containing the above -mentioned Habanos composite trademark registered in Australia:  
Figure 19: The Habanos label applied to the upper corners of Cuban LHM cigar boxes 
starting in 1994  
 
Source:  Cuba's first written submission, Annex 1, Part 2, para.  5. 
 
7.2978.   Cuba adds that in 2004, this label was modified as shown below in Figure 205847, i.e. into 
a label containing both the above composite trademark and the term "Denominación de Origen 
Protegida (D.O.P.)" registered under the Lisbon Agreemen t:  
                                                                                                                                                  
5842 In doing so, we make no determination on whether, and if so, how what Cuba describes as the 
"Habanos G I" is protected as a GI in Australia, and will refer to it as the "Habanos sign". We also make no 
determination as to whether the Cuban Government Warranty Seal is protected as a GI in Australia.  
5843 Cuba's first written submission, Annex 1, Part 2, para. 1. 
5844 Cuba's first written submission, Annex 1, Part 2, para. 3. 
5845 Cuba's first written submission, Annex 1, Part 2, para. 3. 
5846 Cuba's first written submission, Annex 1, Part 2, para. 5. 
5847 Cuba's first written submission, Annex 1, Part 2, para. 6. 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 847 - 
  Figure 20: The Habanos label applied to the upper corners of Cuban LHM cigar boxes 
since 2004  
 
Source:  Cuba's first written submission, para.  67, Illustration 4.  
 
7.2979.   Cuba references this label as "the Habanos GI label"5848, and defines it also as the 
"Habanos  GI".5849  
7.2980.   In response to a question by the Panel, Cuba confirmed that its claim also relates to the 
Cuban Government Warranty Seal, insofar as its use is also prohibited by the TPP measures .5850 
The Cuban Government Warranty Seal is depicted in the following figure:  
Figure 21: The Cuban Government warranty seal  
 
Source:  Cuba's first written submission, para.  67, Illustration 3.  
 
7.2981.   Cuba describes the function of the Cuban Government Warranty Seal as being to  
guarantee authenticity and Cuban origin.5851 In particular:  
This Seal provides a guarantee of provenance and authenticity for consumers, as well 
as allowing tracking and source identification for Cuban exporters. It contains graphic 
elements or indirect geographical indications such as the graphic representation of the 
Cuban national shield and the image of the Cuban tobacco fields in which the Cuban 
national tree, the royal palm, may be seen.5852 
7.2982.   Cuba adds that the Cuban Government Warranty Seal is affixed in Cuba to boxes of 
original Cuban cigars, and incorporates security functions such as a hologram and a unique 
barcode for  the tracing and tracking of each individual cigar box . As the Cuban Government 
Warranty Seal has a self -destructing function and the Seal cannot be re -affixed once broken, it can 
indicate to customers whether an attempt has been made to open the box prior to retail sale. In 
other words, an  unbroken Cuban Government Warranty Seal guarantees that the box to which it is 
                                                
5848 Cuba's fi rst written submission, Annex 1, Part 2, para. 6. 
5849 Cuba's first written submission, para. 68 and Illustration 4. As noted, Cuba refers to the registration 
of the term "Habanos" under the Lisbon Agreement also as "Habanos GI".  
5850 Cuba's response to Panel qu estion No. 79 (annexed to its response to Panel question No. 138).  
5851 Cuba's response to Panel question No. 56 (annexed to its response to Panel question No. 138).  
5852 Cuba's responses to Panel question No. 56 (annexed to its response to Panel question No. 138) and 
No. 79. 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 848 - 
  affixed has not been opened  or has not been tampered with at any time between leaving the 
manufacturer in Cuba until the time it reaches the consumer at the point of sale.5853 
7.2983.   Cuba claims in general terms that the Cuban Government Warranty Seal is "protected 
under trademark and unfair competition laws in export markets".5854 However, Cuba provides no 
further indication as to whether the Cuban Government Warranty Seal is protected in Australia as 
a trademark, GI or otherwise.  
7.4.3.2   The impact of the TPP measures  on the use of the Haban os sign and the Cuban 
Government Warranty Seal  
7.2984.   Cuba argues that, as a result of the TPP measures , Cuban cigar exporters cannot affix 
either what it describes as the "Habanos  GI"5855, or the Cuban Government Warranty Seal on their 
cigar boxes sold in Australia .5856 Cuba adds that the only relevant information about Cuban LHM 
cigars that can be included on retail packaging is a statement that the cigars are "Made in Cuba" 
and a statement to the effect that the package contains handmade cigars.5857 
7.2985.   We understand that, as a result of the TPP measures , the Habanos sign and the Cuban 
Government Warranty Seal cannot appear in their above -described composite form on boxes of 
Cuban cigars or on cigars sold in Australia. The  TPP Act prohibits all marks5858 and trademarks on 
tobac co products5859 and packaging5860, and the exceptions from this general prohibition do not 
cover composite signs.5861 Nor can the Habanos sign or the Cuban Government Warranty Seal be 
affixed as physical labels on Cuban cigar boxes, given  the prohibition of onserts  on tobacco 
packaging and the limited exceptions to such prohibition.5862  
7.2986.   As for the non -figurative, word elements of the Habanos sign and the Cuban Government 
Warranty Seal, we refer to our earlier analysis under Article  22.2(b) of the TRIPS  Agreement . 
We noted that, while the TPP Act does not define the term "brand name", the  CI Regulations  
provide that "[i]n these regulations, unless the contrary intention appears: … brand  includes any 
mark, device, name, word, letter, numeral or symbol and any combination consisting of two or 
more of those things".5863 We concluded that we are not persuaded that Cuba has established that 
the TPP measures  prohibit the use of the word "Habanos" , to the extent that it may be part of the 
brand name.5864 For the same reasons, we find that Cuba has not established that other word 
elements of what Cuba describes as the "Habanos GI", e.g. "D.O.P.", or of the Cuban Government 
Warranty Seal, e.g. the word "Cuba", may not appear as part of the brand name.  
7.2987.   We further note that it is undisputed that an indication of the country of origin of tobacco 
products covered by the TPP measures  is "a requirement contained in other legislation which 
                                                
5853 Cuba's response to Panel question No. 173. 
5854 Cuba's first written submission, para. 21; Cuba's second written submission, para. 23; and Cuba's 
response to Panel question No. 56 (annexed to its response to Panel question No. 138).  
5855 See paras.  7.2976 , 7.2978  and 7.2979  above.  
5856 Cuba's first written submission, paras.  66-70. 
5857 Cuba's first written submission, para. 71 (referring to  CI Regulations, (Exhibits AUS -251, DOM -155, 
CUB-1), Regulation 8(c)(i), read with TPP Regulations,  (Exhibits AUS -3, JE-2), Regulation 2.3.4, and CI 
Regulations , (Exhibits AUS -251, DOM -155, CUB -1), Regulation 8(c)(ii) (requiring a "true description")).  
5858 The TPP Act defines "mark" as a concept that "(a) includes (without limitation) any line, letters, 
numbers, symbol, graphic or image; but (b) (other than when referring to a trade mark) does not include a 
trade mark". TPP Act, (Exhibits AUS -1, JE-1), Section 4(1), de finition of "mark".  
5859 See TPP Act, (Exhibits AUS -1, JE-1), Section 26.  
5860 See TPP Act, (Exhibits AUS -1, JE-1), Sections 20(1) -(2). 
5861 See TPP Act, (Exhibits AUS -1, JE-1), Sections 20(3) and 21(1). See TPP Regulations, (Exhibits 
AUS-3, JE-2), Divisions 2.3, 2 .4 and 3.2.  
5862 The TPP Act defines onsert as "any thing affixed or otherwise attached to packaging (within the 
ordinary meaning of the word), but does not include the lining of a cigarette pack if the lining complies with the 
requirements of this Act." TPP Act, (Exhibits AUS -1, JE-1), Section 4(1), definition of "onsert". According to the 
TPP Act, "[t]he retail packaging of tobacco products (within the meaning of any of paragraphs (a) to (d) of the 
definition of retail packaging) must not have any inserts or  onserts, other than as permitted by the 
regulations." TPP Act, (Exhibits AUS -1, JE-1), Section  23. See also TPP Regulations, (Exhibits AUS -3, JE-2), 
Division 2.6.  
5863 CI Regulations, (Exhibits AUS -251, DOM -155, CUB -1), Section 5(1).  
5864 See para. 7.2856  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 849 - 
  predates the introdu ction of the tobacco plain packaging measure", and  "[t]he  tobacco plain 
packaging measure simply mandates the form in which such information appears".5865 
7.2988.   As described by Australia, "TPP Regulation 2.3.1(c) permits a 'trade description' 
statement on primary a nd secondary packaging and TPP Regulation 2.3.4 mandates the form of 
such a statement."5866 For the purposes of tobacco plain packaging, the TPP Act defines a 
"trade  description" as "any trade description that is required to appear on the retail packaging of 
tobacco products by regulations made under the Commerce (Trade Descriptions) Act 1905 ".5867 In 
turn, Australia's  CI Regulations , which were, by their own terms, "made under the Commerce 
(Trade  Descriptions) Act 1905 "5868, require that "the trade description shal l contain, in prominent 
and legible characters: (i) the name of the country in which the goods were made or 
produced."5869 Under the  CI Regulations , this requirement applies specifically to "cigars, cigarettes, 
manufactured tobacco, cigarette papers and cigar ette tubes", prohibiting the importation of such 
products into Australia "unless there is applied to those goods a trade description in accordance 
with these regulations."5870  
7.2989.   "[A] trade description" is encompassed in the TPP Act's definition of "relevant le gislative 
requirement"5871, which "may appear on the retail packaging of tobacco products"5872, provided it 
"compl[ies] with any requirements prescribed by the [TPP R]egulations".5873 The TPP Regulations  
stipulate that such legislative requirement, in turn, may not  be obscured by other elements 
appearing on retail packaging of tobacco products.5874  
7.2990.   In short, the TPP Act allows for, and circumscribes , the manner in which the indication of 
the country of origin, e.g. in the form "Made in Cuba", may be present on tobacco retail packaging 
(along with brand and variant names). Likewise, as regards cigars, the  TPP Regulations  stipulate 
that the name of the country in which the cigar was made or produced may appear on the cigar 
band once, in a specific font and colour.5875 
7.2991.   Having clarified the operation of the TPP measures  in respect of the signs that are the 
object of Cuba's claim as well as concerning the indi cation "Made in Cuba", we turn to its claim 
that the TPP measures  violate Article  IX:4 of the GATT 1994.  
7.2992.   Article  IX:4 reads:  
The laws and regulations of Members relating to the marking of imported products 
shall be such as to permit compliance without seri ously damaging the products, or 
materially reducing their value, or unreasonably increasing their cost.  
7.2993.   In relevant part, the text of Article  IX:4 has two main components:  
                                                
5865 Australia's comments on the Dominican  Republic 's responses to Panel question Nos. 174 and 177. 
In particular, according to Australia, "[a] 'trade description' is required to appear o n imported products 
pursuant to the Commerce (Imports) Regulations 1940  (Cth) and must include the name of the country in 
which the product was made or produced and a true description of the product (see  Commerce (Imports) 
Regulations 1940  (Cth), Exhibit A US-251, Regulations 7 and 8). See also Commerce Trade Descriptions Act 
1905 (Cth), Exhibit AUS -248." Australia's first written submission, para. 483 fn 675. 
5866 Australia's first written submission, para. 483 fn 675 ( referring to  TPP Regulations, (Exhibits  AUS-3, 
JE-2), Regulations 2.3.1 and 2.3.4).  
5867 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1).  
5868 CI Regulations, (Exhibits AUS -251, DOM -155, CUB -1), cover page.  
5869 CI Regulations, (Exhibits AUS -251, DOM -155, CUB -1), Regulation 8(c)(i).  
5870 CI Regulations, (Exhibits AUS -251, DOM -155, CUB -1), Regulation 7(1)(n). See also CTD Act, 
(Exhibit AUS -248), Section 7(1).  
5871 TPP Act, (Exhibits AUS -1, JE-1), Section 4(1).  
5872 TPP Act, (Exhibits AUS -1, JE-1), Section 20(3)(b).  
5873 TPP Act, (Exhibits AUS -1, JE-1), Section 21(4).  
5874 See TPP Regulations, (Exhibits AUS -3, JE-2), Regulations 2.3.1(5)(a), 2.4.2(3)(d), 2.4.3(1)(a), 
2.4.4(2)(a), and 2.6.3(3).  
5875 TPP Regulations, (Exhibits AUS -3, JE-2), Regulations 3.2.1(3)(b) and 3.2.1(5).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 850 - 
  a. "[t]he laws and regulations of Members relating to the marking of imported products" , 
which identifies the scope of the obligation, namely the types of measures and signs 
covered by this provision; and  
b. "shall be such as to permit compliance without … materially reducing the[] value 
[of imported products]", which spells out the specific ob ligation under Article  IX:4 that 
Cuba invokes in its claim.  
7.2994.   Accordingly, we assess (i) whether the TPP measures  constitute "laws and regulations of 
Members relating to the marking of imported products" and are covered by the scope of 
Article  IX:4, and, if so, (ii) whether the TPP measures  are "such as to permit compliance without … 
materially reducing the[] value [of imported products]", i.e. of Cuban LHM  cigars.  
7.4.3.3   Whether the TPP measures  constitute "laws and regulations … relating to the 
marking of imported  products"  
7.2995.   Article  IX:4 governs "[t]he laws and regulations of Members relating to the marking of 
imported products". We first explore the meaning of this term, in accordance with customary rules 
of treaty interpretation. In light of this interpretation, w e assess whether the TPP measures  fall 
within the scope of this phrase.  
7.4.3.3.1   The phrase "[t]he laws and regulations of Members relating to the marking of 
imported products" in Article  IX:4 
7.2996.   We explore the meaning of the term "[t]he laws and regulations of Member s relating to 
the marking of imported products" contained in Article  IX:4 of the GATT 1994 in accordance with 
applicable rules of interpretation.  We consider in that context a Decision on Marks of Origin 
adopted by the GATT CONTRACTING PARTIES in 1958, as well as, as relevant, negotiating history 
of Article  IX:4 as a supplementary means of interpretation.  
7.4.3.3.1.1   General rule of interpretation  
7.2997.   We start interpreting the phrase "[t]he laws and regulations of Members relating to the 
marking of imported products" by es tablishing its ordinary meaning:  
a. The term "laws and regulations" has been interpreted as "cover[ing] rules that form part 
of the domestic legal system of a WTO  Member, including rules deriving from 
international agreements that have been incorporated into the domestic legal system of 
a WTO  Member or have direct effect according to that WTO Member's legal system".5876 
b. The term "relating to"  is defined as "hav[ing] some connection with, be[ing] connected 
to".5877 
c. The term "marking" is defined as "[t] he action of putting a mark, marker, token, 
indicator, etc., on something. In extended use: the action of distinguishing, identifying, 
or giving emphasis to something", and also as "[a] mark or pattern of marks".5878  
                                                
5876 Appellate Body Report, Mexic o – Taxes on Soft Drinks , para. 79 (concerning the meaning of "laws 
and regulations" in Article  XX(d) of the GATT 1994).  
5877 Appellate Body Reports, China  – Raw Materials , para. 355 (concerning the dictionary definition 
of "relat[e] to" in Article  XX(g) of the GATT  1994).  
5878 Oxford English Dictionary online, definition of "marking, n.", available at: 
<http://www.oed.com/view/Entry/114193?rskey=N3MVZI &result=1&isAdvanced=false#eid >, accessed 2  May 
2017. In this regard, we note our earlier finding that the TPP measures  deal with symbols and marking, and 
thus lay down product characteristics, within the sense of Annex 1.1 to the TBT Agreement . See para. 7.158  
above . We consider this to be a distinct matter from the scope of Article  IX:4 of the GATT 1994. We note in 
this regard that the TBT Agreement  is intended to  provide disciplines in respect of technical regulations, 
standards and related conformity assessment procedures in general. Annex 1 of the TBT Agreement  contains 
definitions for both "technical regulation" and "standard", both of which make clear that inter alia , "labelling 
and marking requirements" are covered by these provisions.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 851 - 
  d. The verb "import" is defined as "[t]o bring  in or caus e to be brought in (a commodity, 
merchandise, goods, etc.) from another country or territory for use or resale in the 
domestic market."5879 
e. The dictionary meaning of the term "product" was established as referring generally to 
"a thing produced", whereas "in a trade sense" it has been defined as "an article or 
substance that is manufactured or refined for sale (more recently also applied to 
services)".5880 We consider that in the context of the GATT 1994, which is the very first 
agreement contained in Annex 1A to  the WTO Agreement  entitled 
Multilateral  Agreements on Trade in Goods, the term "product" is synonymous with 
"goods". The Ad Note to Article  XVII:2 of the GATT 1994 defines "goods" as "limited to 
products as understood in commercial practice, and is not in tended to include the 
purchase or sale of services."  
7.2998.   Accordingly,  the phrase "[t]he laws and regulations of a Member relating to the marking 
of imported products" refers to rules of a WTO  Member's domestic legal system connected to the 
action of putting a mark on goods introduced into the territory of such Member from another 
country or WTO Member.  
7.2999.   The phrase "[t]he laws and regulations of Members relating to the marking of imported 
products" must be understood in its specific context. We note in this respe ct that Article  IX:4 is 
part of Article  IX of the GATT 1994, entitled "Marks of Origin". This term is not defined in either 
the GATT  1994 or any other part of the WTO Agreement .5881 Relevant dictionary definitions of the 
noun "mark" are "[a] sign, a token, an  indication"5882, and "[a]  device, stamp, brand, label, 
inscription, etc., on an article, animal, etc., identifying it or its holder, or indicating ownership, 
origin, quality, etc."5883 In turn, the dictionary definition of the word "origin" is "[t] hat from whic h 
anything originates, or is derived; source of being or existence; starting point."5884 Thus, the 
ordinary meaning of "mark of origin" encompasses a sign, a token, an indication, a device, a 
stamp, a brand, a label, or an inscription on a product identifying  from where such product 
originates.  This context informs the scope of Article  IX:4 of the GATT 1994, by  circumscribing it to 
the laws and regulations of a Member relating to certain types of marking of imported products, 
i.e. those markings that indicate the origin of imported products.  
7.3000.   Further context is provided by the phrase "permit compliance without" in Article  IX:4. 
In this regard, we agree with Canada that this phrase suggests that the purpose of Article  IX:4 is 
not to discipline whether Members ma y require marks of origin but to discipline how compliance 
with origin marking requirements may be prescribed.5885 
7.3001.   We note, as additional context, the structure and additional paragraphs of Article  IX, 
which lay down a set of disciplines for Members regulatin g marks of origin. Paragraphs 1 and 5 of 
Article  IX use the terms "marking requirements", whereas Article  IX:3 refers to "required marks". 
This suggests that Article  IX as a whole relates to laws and regulations that require the use of 
marks of origin on imported products. As observed by the Appellate  Body, Article  IX of the 
GATT  1994 reflects the legitimacy of providing origin information to consumers through mark of 
origin requirements:  
                                                
5879 Oxford English Dictionary online, definition of "import, n.", available at: 
<http://www.oed.com/view/Entry/92550?rskey=QWA9QN&result=2&isAdvanced=false#eid >, accessed 
2 May 2017.  
5880 Panel Report, China  – Publications and Audiovisual Products , para. 7.1340.  
5881 The Agreement on Rules of Origin does not provide a definition of marks or origin.  
5882 The New Shorter Oxford English Dictionary on Historical Principles, L. Brown (ed.) (Oxford University 
Press, 1993), Vol. 1, p. 1698.  
5883 Oxford English Dictionary online, definition of "mark, n.1", available at: 
<http://www.oed.com/view/Entry/114169?rskey=CUyzXR&result=1&isAdvanced=false#eid >, accessed 
2 May 2017.  
5884 Oxford English Dictionary online, definition of "ori gin, n.", available at: 
<http://www.oed.com/view/Entry/132561?rskey=89FKkc&result=1&isAdvanced=false#eid >, accessed 
2 May 2017.  
5885 Canada's third -party subm ission, para. 105. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 852 - 
  [S]upport for the legitimate nature of the objective of providing information to 
consumers on origin is also found elsewhere in the covered agreements, in particular 
in Article  IX of the GATT 1994. This provision, entitled "Marks of O rigin", expressly 
recognizes the right of WTO Members to require that imported products carry a mark 
of origin. … Article  IX does indicate that requiring origin labelling for imported goods 
is, at least in some circumstances and for some definitions of "or igin", considered 
under WTO law to be a permissible means of regulating trade in goods.5886 
7.3002.   This interpretation is underscored by the object and purpose of Article  IX:4 of the 
GATT  1994. Linking the objectives of Article  IX:4 and Article  IX:25887, the  Appellate  Body 
understood these two provisions as serving to limit the impact of the use of marks of origin  with 
regard to exporters:  
We note that Article  IX:2 calls for a reduction of difficulties and inconveniences that 
laws and regulations relating to marks of or igin may cause to exporters. Furthermore, 
Article  IX:4 requires that compliance with such laws and regulations should be 
possible without materially reducing the value of the products, or unnecessarily 
increasing the cost of the products. Hence, these prov isions call for a limitation of the 
impact of the use of marks of origin .5888 
7.3003.   As noted, this objective is also reflected in the requirement under Article  IX:4 that laws 
and regulations relating to the marking of imported products "shall be such as to permit 
compliance  without" (emphasis added) causing the specific negative effects identified in the 
subsequent portions of Article  IX:4, including materially reducing the value of imported 
products.5889 We read this phrase as balancing the legitimacy of providing origin information to 
consumers through marks of origin requirements5890 with the need to limit the impact that 
compliance with those requirements has on exporters.5891 As explained below, in light of the 
linkages between the objectives of these two provisions, we read Article  IX:4 as laying down one 
of a number of specific disciplines contained in Article  IX for reducing to a minimum the difficulties 
and inconveniences that laws and regulations relating to marks of origin may cause to the 
commerce and industry o f exporting countries.  
7.3004.   Read in the context of the title, structure and text of Article  IX of the GATT  1994 taken as 
a whole, we therefore understand the scope of Article  IX:4 as covering the rules of a 
WTO Member's domestic legal system connected to the ma rking of goods imported from another 
country or WTO Member identifying the origin of such goods.  
7.3005.   This interpretation is further informed by a decision on Marks of Origin adopted by 
GATT  CONTRACTING PARTIES in 1958. The negotiating history of Article  IX:4 f urther confirms this 
interpretation. We  shall now turn to these.  
                                                
5886 Appellate Body Reports, US – COOL , para. 445. (footnote omitted)  
5887 Article  IX:2 of the GATT 1994 provides that "[t]he Members recognize that, in adopting and 
enforcing laws and regulations relating to marks of origin, the difficulties and inconveniences which such 
measures may cause to the commerce and industry of exporting countries should be reduced to a minimum, 
due regard being had to the necessity of protecting consumers against fraudulent or misleading indications." 
We are reprodu cing here the relevant provision of the GATT 1947, as incorporated into the GATT 1994. 
Paragraph 2(a) of the GATT 1994 includes the following Explanatory Note: "The references to 'contracting 
party' in the provisions of GATT 1994 shall be deemed to read 'M ember'."  See fn 5806. 
5888 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. ( italics 
original; underlining added)  
5889 Indeed, in the context of another provision of the GATT 1994, Article  III:8, the Appellate Body 
underscored that the scope of a provision needs to be interpreted holistically, including by recourse to other 
terms contained in the same and related provisio ns: "Article  III:8(a) contains several elements describing the 
types and the content of measures falling within the ambit of the provision. … We consider that Article  III:8(a) 
should be interpreted holistically. This requires consideration of the linkages between the different terms used 
in the provision and the contextual connections to other parts of Article  III, as well as to other provisions of the 
GATT 1994." Appellate Body Reports, Canada  – Renewable Energy / Canada  – Feed-in Tariff Program , 
para. 5.57. 
5890 Appellate Body Reports, US – COOL , para. 445. 
5891 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 853 - 
  7.4.3.3.1.2   The 1958 Decision on Marks of Origin  
7.3006.   Australia refers to a GATT  document adopted by the CONTRACTING PARTIES in 1958 
(1958 GATT Decision)5892, which it argues constitutes a subsequent agreement i n the sense of 
Article  31(3)(a) of the Vienna  Convention on the Law of Treaties5893, relevant for the interpretation 
of the scope of Article  IX:4.5894 
7.3007.   The 1958 GATT Decision contains a Report by the GATT  Working Party on Trade and 
Customs Regulation s, as adopted by the CONTRACTING PARTIES on 21 November 1958. This 
report contains a "Recommendation on Marks of Origin" in which "[t]he  CONTRACTING PARTIES 
recommend the adoption of [a series of] rules on Marks of Origin".5895 
7.3008.   The 1958 GATT Decision cannot, i n our view, be considered to be a subsequent 
agreement within the meaning of Article  31(3)(a) of the Vienna  Convention, as argued by 
Australia.5896 The 1958  GATT Decision was not adopted by WTO Members but by GATT 
CONTRACTING PARTIES, and the "relevant covere d agreement"5897 to be interpreted in the WTO 
context is not the GATT  1947 but the GATT  1994, which is "legally distinct" from the GATT  1947. 
7.3009.   We consider it appropriate, however, to take due account of this Decision, to the extent 
that it may inform our under standing of the terms of Article  IX:4, including its scope of 
                                                
5892 Marks of Origin, Report by the Working Party as adopted by the CONTRACTING PARTIES at their 
meeting of 21 November 195 8, GATT document L/912/Rev.1, (1958 GATT Decision), (Exhibit AUS -294).  
5893 See Australia's first written submission, para. 751 fn 1003.  
5894 According to Australia, the 1958 GATT Decision supports the interpretation that Article  IX of the 
GATT 1994 applies only to country of origin markings. See Australia's first written submission, paras.  750-752, 
in particular para. 751 and fn 1003; and 1958 GATT Decision, (Exhibit AUS -294).  
5895 1958 GATT Decision, (Exhibit AUS -294), p. 2.  
5896 According to Article  31(3)(a) of the Vienna Convention, "[t]here shall be taken into account, 
together with the context: (a) any subsequent agreement between the parties regarding the interpretation of 
the treaty or the application of its provisions". The Appe llate Body identified two criteria "[b]ased on the text of 
Article  31(3)(a) of the Vienna Convention": "[A] decision adopted by Members may qualify as a 'subsequent 
agreement between the parties' regarding the interpretation of a covered agreement or the a pplication of its 
provisions if: (i) the decision is, in a temporal sense, adopted subsequent to the relevant covered agreement; 
and (ii) the terms and content of the decision express an agreement  between Members on the interpretation  or 
application  of a p rovision of WTO law." Appellate Body Report, US – Clove Cigarettes , para. 262 (emphasis 
original) . See also Appellate Body Report, US – Tuna II , paras.  371-372. In regard to the second criterion, the 
Appellate Body held that "by referring to 'authentic int erpretation', the [International Law Commission]  reads 
Article  31(3)(a) as referring to agreements bearing specifically upon the interpretation of a treaty". Appellate 
Body Reports, EC – Bananas III ( Article  21.5 – Ecuador II) / EC  – Bananas III ( Article  21.5 – US), para. 390. 
See also Appellate Body Report, US – Clove Cigarettes , para. 265; and Appellate Body Report, US – Tuna II , 
para. 372. According to the Appellate Body, "[t]he extent to which [a specific d]ecision will inform the 
interpretation and ap plication of a term or provision of [a covered a]greement in a specific case … will depend 
on the degree to which it 'bears specifically' on the interpretation and application of the respective term or 
provision." Appellate Body Report, US – Tuna II , para. 372 ( referring to  Appellate Body Report, US – Clove 
Cigarettes , para. 265, in turn quoting Appellate Body Reports, EC – Bananas III ( Article  21.5 – Ecuador II) / 
EC – Bananas III ( Article  21.5 – US), para. 390). Australia contends that the 1958 GATT Decis ion fulfils the 
first criterion identified by the Appellate Body, i.e.  the decision is, in a temporal sense, adopted subsequent to 
the relevant covered agreement. Australia's response to Panel question No. 83. We disagree. Although the 
1958 GATT Decision w as adopted more than a decade after the signature of the GATT 1947, the GATT 1947 
was terminated "one year after the date of entry into force of the WTO Agreement ". Transitional Co -Existence 
of the GATT 1947 and the WTO Agreement : Decision of 8 December 19 94 adopted by the Preparatory 
Committee for the WTO and the Contracting Parties to the GATT 1947, GATT document PC/12, para. 3. The 
1958 GATT Decision was not adopted by WTO Members but by the GATT CONTRACTING PARTIES, and the 
"relevant covered agreement" (Appellate Body Report, US – Clove Cigarettes , para. 262) to be interpreted in 
the WTO context is not the GATT 1947 but the GATT 1994, which i s "legally distinct" from the GATT 1947. 
According to Article  II:4 of the WTO Agreement , "[t]he General Agreement on Tariffs and Trade 1994 as 
specified in Annex 1A (hereinafter referred to as 'GATT 1994') is legally distinct from the General Agreement on 
Tariffs and Trade, dated 30 October 1947, annexed to the Final Act Adopted at the Conclusion of the Second 
Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as 
subsequently rectified, amended or modified (herein after referred to as 'GATT 1947')." As  the 1958 GATT 
Decision precedes the GATT 1994 by decades, it is not temporally subsequent to Article  IX:4 of the GATT 1994. 
Accordingly, and without assessing whether the above -mentioned second criterion is fulfilled,  we do not 
consider the 1958 GATT Decision to be a subsequent agreement within the meaning of Article  31(3)(a) of the 
Vienna Convention concerning the interpretation of Article  IX:4 of the GATT 1994.  
5897 See Appellate Body Report, US – Clove Cigarettes , para. 262. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 854 - 
  application.5898 There are at least two further ways in which GATT  1947 sources may gain legal 
relevance in the WTO: (i)  as "other decisions of the CONTRACTING PARTIES" incorporated into the 
GATT  1994 on the basis of its paragraph  1(b)(iv); or (ii) as guidance pursuant to Article  XVI:1 of 
the WTO Agreement .5899 We do not consider the 1958 GATT Decision to have been incorporated 
into the GATT  1994 under its paragraph 1(b)(iv).5900 However, we consider that  it constitutes 
guidance under Article  XVI:1 of the WTO Agreement5901 that is relevant for the interpretive issue 
before us.5902  
7.3010.   Article  XVI:1 provides that "[e]xcept as otherwise provided under this Agreement or the 
Multilateral Trade Agreements, the WTO shall  be guided by the decisions, procedures and 
customary practices followed by the CONTRACTING PARTIES to GATT  1947 and the bodies 
established in the framework of GATT  1947." While the guidance provided by decisions of the 
CONTRACTING PARTIES in accordance wi th Article  XVI:1 is not legally binding, it should "provide[] 
direction to the WTO" in that "the WTO 'shall be guided' by that decision".5903 
                                                
5898 Although the parties did not present specific arguments in this regard, we recall that:  
 
The principle of jura novit curia  has been articulated by the International Court of Justice as 
follows:  
 
It being the duty of the Court itself to ascertain and apply the relevant law in the given 
circumstances of the case, the burden of establishing or proving rules of international law 
cannot be imposed upon any of the parties, for the law lies within the judicial knowledge 
of the Court.  
 
(International Cou rt of Justice, Merits, Case Concerning Military and Paramilitary Activities in and 
against Nicaragua  (Nicaragua v. United States of America ), 1986 ICJ Reports, p. 14, para. 29 
(quoting International Court of Justice, Merits, Fisheries Jurisdiction Case  (United Kingdom of 
Great Britain and Northern Ireland v. Iceland ), 1974 ICJ Reports, p. 9, para. 17)) 
 
Appellate Body Report, EC – Tariff Preferences , para. 105 fn 220. 
5899 According to the Appellate Body, these provisions "bring the legal history and experienc e under the 
GATT 1947 into the new realm of the WTO in a way that ensures continuity and consistency in a smooth 
transition from the GATT 1947 system"; and "[t]his affirms the importance to the Members of the WTO of the 
experience acquired by the CONTRACTI NG PARTIES to the GATT 1947 – and acknowledges the continuing 
relevance of that experience to the new trading system served by the WTO." Appellate Body Report, Japan  –
 Alcoholic Beverages II , p. 13, DSR 1996:I, 97, p.  108. See also Appellate Body Report, US – FSC, 
paras.  108-109.  
5900 Under Article  1(b)(iv) of the GATT 1994, the GATT 1994 "shall consist of" inter alia : "(b) the 
provisions of the legal instruments set forth below that have entered into force under the GATT 1947 before 
the date of entry into force of the WTO Agreement : … (iv) other decisions of the CONTRACTING PARTIES to 
GATT 1947". Although the 1958 GATT Decision constitutes a decision of the CONTRACTING PARTIES, not all 
such decisions are covered by paragraph 1(b)(iv) of the GATT 1994. As  explained in a previous dispute, "in 
order for a decision of the CONTRACTING PARTIES to GATT  1947 to be a part of GA TT 1994 within the 
meaning of paragraph 1(b)(iv), it must be a legal instrument within the meaning of the chapeau  to paragraph 
1, i.e., it must be a formal legal text which represented a legally binding determination in respect of the rights 
and/or obligat ions generally applicable to all contracting parties to GATT 1947". Panel Report, US – FSC, 
para. 7.63. This was upheld on appeal. See Appellate Body Report, US – FSC, paras.  78 and 108 -114. We do 
not consider the 1958 GATT Decision to fall into this categ ory. The 1958 GATT Decision contains rules that the 
CONTRACTING PARTIES merely " RECOMMEND the adoption of". 1958 GATT Decision, (Exhibit AUS -294), p. 2. 
Also, the recommended rules, including the points referenced by Australia, repeatedly use "should" – rather 
than the type of "mandatory language which usually characterizes binding legal instruments". Panel Report, 
US – FSC, para. 7.65. Accordingly, we do not consider the 1958 GATT Decision to be part of the GATT 1994 by 
virtue of the latter's paragraph  1(b)(iv). 
5901 Pursuant to Article  XVI:1 of the WTO Agreement , "[e]xcept as otherwise provided under th[e WTO] 
Agreement or the Multilateral Trade Agreements [contained in Annexes  1-3 to the WTO Agreement ], the  WTO 
shall be guided by the decisions, procedures an d customary practices followed by the CONTRACTING PARTIES 
to GATT 1947 and the bodies established in the framework of GATT  1947."  
5902 As the Appellate Body indicated, the assessment does not end with finding that a specific decision 
may constitute guidance within the sense of Article  XVI:1 of the WTO Agreement . In addition, the meaning of 
such guidance and its substantive relevance for the specific legal question and the specific provision of the 
covered agreement at issue also need to be ascertained. See Appellate Body Report, US – FSC, 
paras.  115-119. 
5903 Panel Report, US – FSC, para. 7.78 (footnotes omitted). The  consideration that "ado pted panel 
reports should be taken into account 'where they are relevant to a dispute' … applies equally to any other 
decision, procedure or customary practice of the CONTRACTING PARTIES to GATT 1947". Panel Report, US –
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 855 - 
  7.3011.   One category of GATT instruments covered by Article  XVI:1 is "decisions" of the 
CONTRACTING PARTIES. The 1958 GATT Decision was adopted by the CONTRACTING PARTIES on 
21 November 1958.5904 The second recital of the Recommendation on Marks of Origin contained in 
this Decision states that the Recommendation's purpose is to "facilitate the att ainment  of the 
objectives of the Ge neral Agreement"5905, thus linking the purpose of this Decision, and the 
Recommendation on Marks of Origin it contains, to the attainment of the objectives of the GATT.  
7.3012.   The first recital of the Recommendation on Marks of Origin notes that "in  Article  IX of 
GATT the contracting parties recognize that, in adopting and enforcing laws and regulations 
relating to Marks of Origin, the difficulties and inconveniences which such measures may cause to 
the commerce and industry of exporting countries should be reduced to a minimum and that they 
have agreed on certain basic principles for the carrying out of this idea".5906 The language of this 
recital is thus similar to the text of paragraph 2 of Article  IX5907. The final phrase of the same 
recital ("and … certain basic princ iples for the carrying out of this idea") references other 
paragraphs of Article  IX, including paragraph 4. Indeed, in light of the linkages between the 
objectives of these two provisions5908, we read Article  IX:4 as laying down one of a number of 
specific disciplines contained in Article  IX for reducing to a minimum the difficulties and 
inconveniences that laws and regulations relating to marks of origin may cause to the commerce 
and industry of exporting coun tries. 
7.3013.   The structure of the operative part of the Recommendation confirms that its main 
purpose, and thus of Article  IX:4 with which it is intrinsically linked, is to address certain negative 
effects on international trade that may result from Members' law s and regulations requiring the 
marking of imported products. Points  1-4 of the Recommendation on Marks of Origin limit the 
situations and ways in which origin marks would be required5909, whereas points 5 -6 of the 
Recommendation on Marks of Origin elaborate on the kind of marking that should be "sufficient" 
for the purposes of point 4.5910 Further points of the of the Recommendation on Marks of Origin 
                                                                                                                                                  
 FSC, para. 7.78 (footnotes omitted) . See also Appellate Body Reports, US – FSC, paras.  79, 104 and 115; and 
EC – Poultry , para. 80. 
5904 1958 GATT Decision, (Exhibit AUS -294), title. As  explained in a previous dispute, " Article  XVI:1 of 
the WTO Agreement  on its face is not limited to decisions  in the form of 'legal instruments', but rather applies 
to all decisions by the CONTRACTING PARTIES to GATT  1947 … as well as to procedures and customary 
practices of the CONTRACTING PARTIES". Panel Report, US – FSC, para. 7.77 (footnote omitted) . See also  ibid. 
para. 7.65. 
5905 1958 GATT Decision, (Exhibit AUS -294), p. 2. 
5906 1958 GATT Decision, (Exhibit AUS -294), p. 2. 
5907 Article  IX:2 provides that "[t]he Members recognize that, in adopting and enforcing laws and 
regulations relating to marks of origin, the dif ficulties and inconveniences which such measures may cause to 
the commerce and industry of exporting countries should be reduced to a minimum, due regard being had to 
the necessity of protecting consumers against fraudulent or misleading indications." See fn 5806 above.  
5908 See para. 7.3002  above.  
5909 According to points 1 -4 of the Recommendation on Marks of Origin:  
 
1. Countries should scrutinize carefully their existing laws and regulations with a view to reducing as 
far as they po ssibly can the number of cases in which marks of origin are required , and to limit the 
requirements of marks of origin to cases where such marks are indispensable for the information of 
the ultimate purchaser.  
2. The requirement of marks of origin should not be applied in a way which leads to a general 
application to all imported goods, but should be limited to cases where such a marking is considered 
necessary.  
3. If marks of origin are required , any method of legible and conspicuous marking should be accepted 
which will remain on the article until it reaches the ultimate purchaser.  
4. The national provisions concerning marks of origin should not contain any other obligation than the 
obligation to indicate the origin of the imported product .  
 
1958 GATT Decision, (E xhibit AUS -294), p. 2. (emphasis added)  
5910 According to points 5 -6 of the Recommendation on Marks of Origin : 
 
5. Countries should accept as a satisfactory marking the indication of the name of the country of origin 
in the English language introduced by the wor ds "made in".  
6. Commonly -used abbreviations, which unmistakably indicate the country of origin, such as UK and 
USA, should be considered a satisfactory replacement for the full name of the country concerned.  
 
1958 GATT Decision, (Exhibit AUS -294), p. 3. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 856 - 
  contained in the 1958 GATT Decision provide additional expressions of the aforementioned purpose 
of Article  IX:4.5911 
7.3014.   The Recommendation on Marks of Origin contained in the 1958 GATT Decision thus 
reflects the concern that any burden or nuisance arising for exporters from their compliance with 
laws and regulations relating to marks of origin should be limited to a mini mum. As relevant 
guidance for the WTO, this  confirms that the purpose of Article  IX:4 is to prevent excessive 
burdens arising from compliance with marks of origin requirements adopted by a Member, that 
could jeopardize exporters' interests in marketing the ir goods in that Member's territory.  
7.4.3.3.1.3   Negotiating history  
7.3015.   This interpretation is further confirmed by the negotiating history of Article  IX:4.5912 
Australia  refers in this regard to a summary of the history of Article  IX prepared by the 
GATT  Secretariat in 195 6, according to which mark of origin requirements had been originally 
imposed by countries "to  protect the domestic producer by branding the foreign product as 
foreign".5913 Further, Australia invokes the report of the Economic Committee of the League of 
Nations, upon which Article  37 of the Havana Charter for an International Trade Organization 
(Havana Charter), the  predecessor to Article  IX of the GATT  1947, was based.5914 
7.3016.   The first of these documents is a summary of the history of Article  IX, prepared by the 
GATT Secretariat in 1956 (1956 GATT Secretariat Note).5915 At the outset, this Note identifies the 
root of the marks of origin "problem", that later gave rise to Article  IX: 
                                                
5911 For instance, the introduction to the 1958 GATT Decision adds that "the recommendation that 
national provisions concerning marks of origin should not contain any other obligation than the obligation to 
indicate the origin of the imported product (point 4 of the Recommendation) has to be interpreted so as to 
invite countries to keep such requirements separate from requirements introduced for other purposes, e.g. to 
protect the health of the population, etc." 1958 GATT Decision, (Exhibit AUS -294), p. 1. In turn, points 7 -12 of 
the Recommendation on Marks of Origin specify exemptions from product marking requirements, such as: 
marking the container (as  opposed to marking the product) ( ibid. p. 3, points 7 -8); imports for 
non-commercial personal use (ibid.  p. 3, point 9); original  "objets d'art" (ibid.  p. 3, point 10); and goods in 
transit and goods while in bond or otherwise under customs control (ibid. p. 3, point 11). Point 12 of the 
Recommendation on Marks of Origin allows for further flexibility by sug gesting that "in  exceptional cases the 
application of a mark of origin should be permitted under customs supervision in the importing country". Ibid.  
p. 3. In turn, point 14 limits penalties to the situations foreseen in paragraph 5 of Article  IX, includin g when 
"the required marking has been intentionally omitted", whereas point  13 introduces additional flexibility by 
carving out "[t]he re -exportation of products which cannot be marked under customs supervision" from 
situations subject to penalties. Ibid. p. 3. Further, point  15 sets forth a transparency requirement "[w]hen a 
government introduces a system of marking, or makes it compulsory for a new product", and point 16 foresees 
the possibility of recourse to dispute settlement under Article  XXII of the GATT "with a view to the possible 
removal of the difficulties encountered" "when an importing country is not in a position to comply with any one 
of the above recommendations". Ibid.  p. 4. 
5912 Article  32 of the Vienna Convention provides that "[r]ecourse may  be had to supplementary means 
of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order 
to confirm the meaning resulting from the application of article 31, or to determine the meaning when the 
interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result 
which is manifestly absurd or unreasonable." The Appellate Body has held that, similar to the general rule of 
treaty interpretation as set out in Article 31 of the Vienna Convention, the supplementary means of treaty 
interpretation as set out in Article  32 of the same Convention "ha[ve] attained the status of a rule of customary 
or general international law" in the sense of Article  3.2 of the DSU. Appell ate Body Report, Japan  – Alcoholic 
Beverages II , p. 10, DSR 1996:I, 97 , p. 104  (quoting Appellate Body Report, US – Gasoline , p. 17, DSR 
1996:I, p. 3). The Appellate  Body has had recourse to supplementary means of treaty interpretation to confirm 
a certain interpretation reached in accordance with the general rule of treaty interpretation, whilst explicitly 
recognizing that this was not "strictly neces sary". See, e.g. Appellate Body Report, US – Carbon Steel , 
paras.  89-90. 
5913 GATT Secretariat, Marks of Origin: Note by the GATT Secretariat Concerning the ICC Proposal, GATT 
document L/556, (1956 GATT Secretariat Note), (Exhibit AUS -295), p. 1. 
5914 League of Nations Economic Committee, Report to the Council on the Work of the Thirty -Fifth 
Session, h eld at Geneva from 18 to 22 June 1931, League of Nations document C.427.M.177.1931.II.B  
(24 June 1931) , (1931 League of Nations Report), (Exhibit AUS -296). 
5915 1956 GATT Secretariat Note , (Exhibit AUS -295). We address the 1956 GATT Secretariat Note not as 
negotiating history per se  but as an indication of the negotiating history of Article  IX of the GATT 1994 . As 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 857 - 
  The requirement of marks of origin to protect the domestic producer by branding the 
foreign product as foreign became a problem after the First World War. In May 1927 
the International Economic Conference took up this question and tried to discredit 
marking requirements which had a protective effect through being difficult or 
impossible o f compliance.  
… 
The League of Nations did not succeed in arriving at a definite recommendation. 
And its Economic Committee, reporting in 1931, had to be content with "hearing the 
experts" and presenting "an account of their discussions, together with the 
conclusions to be drawn from them". This report, however, contained an almost 
complete enumeration of the problems involved.  
The … draft charter of 1946 for an international trade organization included an article 
on "marks of origin" based on the main princ iples brought out by the League's experts 
in 1931. This article was taken over in GATT with slight changes… and thus became 
Article  IX which contains the existing obligations of the contracting parties.5916 
7.3017.   The 1956 GATT Secretariat Note adds that " Article  IX contains most of the principles 
suggested by the League Committee in 1931, namely: … [t]he recommendation providing for a 
marking requirement which avoids ' seriously damaging the product or materially reducing its value 
or unreasonably increasing its co st'".5917  
7.3018.   The second document invoked by Australia is the 1931 Report of the League of Nations 
Economic Committee (1931  League of Nations Report) referred to in the passage cited above. It 
notes that:  
It appears impossible to refuse States the right to take  measures to enable the 
consumer to distinguish home from foreign merchandise, but the means to be 
employed by States for this purpose should be such as to reduce to a minimum the 
difficulties and inconvenience which the regulations may cause to the commer ce and 
industry of exporting countries.5918 
7.3019.   The 1931 League of Nations Report also records that "[t]he  remarks of the experts 
convinced [the  Economic Committee] of the importance of the question of marks of origin" as 
"[t]hey revealed that the complaints aris ing out of [domestic] legislation on this subject and the 
application of its provisions are becoming more frequent and more numerous", and domestic 
"legislation on marks of origin is tending to become more severe".5919 
7.3020.   This negotiating history confirms that t he object of Article  IX, of which Article  IX:4 is a 
part, is generally to address, and minimize, the inconveniences and burdens that may arise from 
compliance with laws and regulations relating to origin marking. Specifically, the purpose of 
Article  IX:4 i s to prevent exporters' interests in marketing their goods in an importing Member's 
territory from being jeopardized by excessively cumbersome or costly marks of origin 
requirements adopted by such Member.  
7.3021.   In light of the text, context, object and purpose of Article  IX:4, and taking into account 
the guidance provided by the 1958 GATT Decision of the CONTRACTING PARTIES on Marks of 
                                                                                                                                                  
Australia explained, it submitted the 1956 GATT Secretariat Note as a "convenient summary of the history 
leading up to the inclusion of Article  IX in the GATT 1947". Australia's response to Panel question No. 84. 
5916 1956 GATT Secretariat Note, (Exhibit AUS -295), paras.  3, 5 and 6. In fact, Article  IX:4 is identical to 
Article  37.4 of the Havana Charter . Under Article  37.4 of the Havana Charter, "[t]he laws and regulations of 
Members relating to the marking of imported products shall be such as to permit compliance without seriously 
damaging the produ cts or materially reducing their value or unrea sonably increasing their cost."  
5917 1956 GATT Secretariat Note, (Exhibit AUS -295), para. 7. 
5918 1931 League of Nations Report, (Exhibit AUS -296), Appendix III (Report on Marks of Origin), 
Section III (Rights of St ates).  
5919 1931 League of Nations Report, (Exhibit AUS -296), Appendix III (Report on Marks of Origin), 
Section VI (Tendency to Increase the Severity of Legislation concerning Marks of Origin).  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 858 - 
  Origin and the negotiating history of Article  IX, we conclude that the phrase "[t]he laws and 
regulations of Members relating to  the marking of imported products" does not encompass all laws 
and regulations relating to the marking of imported products generally but rather covers those 
setting out the conditions for complying with requirements for "marks of origin", i.e. signs, toke ns, 
devices, stamps, brands, labels or inscriptions on products identifying where such products 
originate.  
7.4.3.3.2   Whether the TPP measures , insofar as they restrict the use of the Habanos 
sign and Cuban Government Warranty Seal, constitute "laws and regulations …  relating 
to the marking of imported products"  
7.3022.   Having clarified the meaning of the phrase "[t]he laws and regulations of Members 
relating to the marking of imported products" under Article  IX:4, we address whether the 
TPP measures , and specifically the as pects identified by Cuba, i.e. the restrictions imposed through 
the TPP measures  on the use of the Habanos sign and the Cuban Government Warranty Seal, fall 
within this scope.  
7.3023.   Cuba argues that the TPP measures , "insofar as they limit the use of the Habanos  GI 
(and geographical indications more generally)", are measures that affect "marks" and, by 
extension, the "marking" of tobacco products.5920 Further, Cuba argues that tobacco products 
produced in Australia are not associated with any GIs, thus the restraint s imposed by Australia on 
the display of GIs on tobacco product packaging can only apply to imported products. Accordingly, 
Cuba maintains, Australia's prohibition on the display on GIs is a measure which relates exclusively 
to the marking of "imported pro ducts" and, therefore, falls within the scope of Article  IX:4 of the 
GATT  1994.5921 
7.3024.   Australia considers Cuba's claim under Article  IX:4 to be "without merit"5922, in particular 
because Cuba has failed to demonstrate that origin marking refers to "something narrower" than 
the country of origin, such  as the "factory or region of origin".5923 Second, according to Australia, 
Cuba has failed to show that Article  IX applies to prohibitions on the use of marks of origin, and 
not just to requirements to affix such mark s on imported products.5924 Australia adds that Cuba 
does not explain why the Cuban Government Warranty Seal falls within the disciplines of 
Article  IX:4, apart from stating that the seal contains "indirect GIs" (" indicaciones geograficas 
indirectas ") in the form of images of the Cuban coat of arms, Cuban tobacco fields and the national 
tree of Cuba, the royal palm.5925 
7.3025.   We have found that the TPP measures  limit the use of the Habanos  sign and of the Cuban 
Government Warranty Seal, in that they prevent the use of any non -word component of these 
signs and regulate the manner in which words that are part of a brand name or are otherwise 
permitted or required by separate legislation, may appear on tobacco products and their retail 
packaging.5926  
7.3026.   In light of its text, co ntext, object and purpose, as confirmed also by its negotiating 
history, we have concluded that the phrase "[t]he laws and regulations of Members relating to the 
marking of imported products" is limited to laws and regulations setting out requirements for 
"marks of origin", i.e. signs, tokens, devices, stamps, brands, labels or inscriptions on products 
identifying where such products originate. We understand, therefore, that the obligation expressed 
in Article  IX:4 focuses on compliance with laws and regula tions establishing an obligation to affix 
marks of origin. However, this does not imply that aspects of other laws and regulations could not 
fall under the obligation of Article  IX:4 insofar as they prescribe requirements that must be 
complied with for the  marking of imported products, e.g. in what form marks of origin should 
appear. In these proceedings, Cuba's claim under Article  IX:4 of the GATT  1994 is based 
exclusively on the argument that, as a result of the TPP measures , Cuban cigar exporters cannot 
                                                
5920 Cuba's first written submission, para. 420. 
5921 Cuba's first writ ten submission, para. 421. 
5922 Australia's second written submission, para. 573. 
5923 Australia's first written submission, paras.  750-752. 
5924 Australia's first written submission, paras.  745-749. 
5925 Australia's comments on Cuba's responses to Panel question Nos. 187-191 and 193.  
5926 See section 7.4.3.2  above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 859 - 
  use the Habanos sign or affix the Cuban Government Warranty Seal on their cigar boxes sold in 
Australia. We do not agree with Cuba that these elements of the TPP measures , that lay down 
limitations for market operators' use of certain signs, constitute req uirements for the marking of 
imported products of the type covered by Article  IX:4.  
7.3027.   As described, we understand Article  IX:4 as laying down one of a number of specific 
disciplines on Members, contained in Article  IX of the GATT  1994, for reducing to a min imum the 
difficulties and inconveniences that laws and regulations relating to marks of origin may cause to 
the commerce and industry of exporting countries.5927 Further, we have found that the phrase 
"shall be such as to permit compliance without", and in pa rticular the words "permit compliance", 
suggest that  the purpose of Article  IX:4 is not to discipline whether or to what extent Members 
may require marks of origin but to discipline how compliance with origin marking requirements 
may be prescribed.5928 Specif ically, as described above, Article  IX:4 serves to prevent exporters' 
interests in marketing their goods in an importing Member's territory from being jeopardized by 
excessively cumbersome or costly marks of origin requirements applied to such products. 
According to the Appellate Body, Article  IX:4 " call[s] for a limitation of the impact of the use of 
marks of origin."5929 As we understand it, therefore, Article  IX:4 of the GATT  1994 does not serve 
to address a limitation imposed on the use of marks of origin.  
7.3028.   In the present case, while the TPP measures  allow the indication of the country of origin 
on tobacco products, in accordance with separate Australian legislation requiring such origin 
marking on imported products, we are not pe rsuaded that the limitations they impose on the use 
of the Habanos sign and the Cuban Government Warranty Seal constitute "laws and regulations 
relating to the marking of imported products" within the meaning of Article  IX:4. Accordingly, we 
conclude that the TPP measures , insofar as they restrict the ways in which exporters may use the 
signs identified by Cuba, do  not constitute "laws and regulations" of the type covered by 
Article  IX:4, and are therefore not within the scope of this provision.  
7.3029.   In light o f this finding, we need not consider Cuba's argument that the restraints imposed 
by Australia on the display of GIs on tobacco product packaging only apply to imported products 
because tobacco products produced in Australia are not associated with any GIs.  We merely note 
that the TPP measures  apply without distinction to domestic and imported products. We also 
refrain from addressing how GIs relate to marks of origin within the meaning of Article  IX5930 and 
whether the composite form of the Habanos sign or the  Cuban Government Warranty Seal amount 
to GIs . For the same reasons, we need not explore further Australia's argument that Article  IX:4 
covers only marks of origin "requirements" (as opposed to prohibitions of marks of origin)5931, or 
whether Article  IX:4 app lies only to "country of origin" markings and not to "something narrower", 
such as the "factory or region of origin".5932 
7.3030.   In light of our determination that the TPP measures , insofar as they restrict the ways in 
which exporters may use the Habanos sign and th e Cuban Government Warranty Seal, do not 
constitute "laws and regulations relating to the marking of imported products" covered by 
Article  IX:4, we need not consider further whether the value of Cuban LHM cigars has been 
"materially reduced" as a result of  compliance with these requirements.5933 In any event, as 
                                                
5927 See para. 7.3020  above.  
5928 See paras.  7.3000  and 7.3003  above . 
5929 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. (emphasis 
added)  
5930 We note that the term "geographical indications" has a specific meaning under Article  22.1 of the 
TRIPS Agreement. Article  22.1 of the TRIPS Agreement provides that "[g]eographical indications are, for  the 
purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a 
region or locality in that territory, where a given quality, reputation or other characteristic of the good is 
essentially attributable to its geographical origin." We have found that the TPP measures , insofar as they 
restrict the ways in which exporters may use the signs identified by Cuba, do not constitute "laws and 
regulations" of the type covered by Article  IX:4, and are therefore not wi thin the scope of this provision. 
Accordingly, we do not find it necessary to explore how this definition relates, as a general matter, to marks of 
origin and the scope of Article  IX:4 of the GATT 1994.  
5931 Australia's first written submission, para. 745. 
5932 Australia's comments on Cuba's responses to Panel question Nos. 187-191 and 193.  
5933 Given our conclusion  that the TPP measures , insofar as they restrict the ways in which exporters 
may use the Habanos sign and the Cuban Government Warranty Seal, do not cons titute "laws and regulations" 
of the type covered by Article  IX:4, we do not address Australia's argument that Cuba does not explain why 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 860 - 
  explained in the next section, even assuming that relevant aspects of the TPP measures  were to be 
considered to fall within the scope of Article  IX:4, we are not convinced that Cuba has shown that 
the TPP measures  are such as to not permit compliance with them without materially reducing the 
value of Cuban LHM cigars. We now turn to this point.  
7.4.3.4   Whether the TPP measures  are "such as to permit compliance without 
materially reducing the value" of Cuban LHM  cigars  
7.3031.   Article  IX:4 provides that "[t]he laws and regulations of Members relating to the marking 
of imported products shall be such as to permit compliance without seriously damaging the 
products, or materially reducing their value, or unreasonably incre asing their cost."5934 Article  IX:4 
thus identifies three types of impacts of laws and regulations relating to the marking of imported 
products that must not arise from compliance with such laws and regulations. Cuba's claim is 
based on the second of these, i.e. the requirement that com pliance be permitted without 
"materially reducing the value" of imported products.  
7.3032.   Cuba argues that the TPP measures  materially reduce the value of Cuban LHM cigars in 
two ways. First, Cuba argues that the prohibition on affixing the Habanos  sign and the Cuban 
Government Warranty Seal on tobacco products and packaging strip Cuban LHM cigars from the 
added value that GIs command, by limiting the ability of exporters to charge a price premium for 
Cuban LHM cigars.5935 Second, Cuba argues that Australia's prohib ition on the display of the 
Habanos sign and the Cuban Government Warranty Seal inevitably gives rise to consumer 
uncertainty about the authenticity of the products that they are purchasing.5936 According  to Cuba, 
this will constrain the ability of Cuban expo rters to charge premium prices for Cuban LHM 
cigars.5937 
7.3033.   Both of these arguments are predicated on a certain understanding of the term 
"materially reducing the[] value [of imported products]" in Article  IX:4 of the GATT  1994. 
We, therefore, first explore the meaning of this term to  identify the type of situations Article  IX:4 
of the GATT  1994 serves to prevent.  
                                                                                                                                                  
the Cuban Government Warranty Seal falls within the disciplines of Article  IX:4, apart from stating that the seal 
conta ins "indirect GIs" (" indicaciones geográficas indirectas ") in the form of images of the Cuban coat of arms, 
Cuban tobacco fields and the national tree of Cuba, the royal palm. Australia's comments on Cuba's responses 
to Panel question Nos. 187-191 and 193.  
5934 Pursuant to paragraph 1(a) of the GATT 1994:  
 
The General Agreement on Tariffs and Trade 1994 ("GATT 1994") shall consist of: (a) the 
provisions in the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to 
the Final Act Adopted at th e Conclusion of the Second Session of the Preparatory Committee of 
the United Nations Conference on Trade and Employment (excluding the Protocol of Provisional 
Application), as rectified, amended or modified by the terms of legal instruments which have 
entered into force before the date of entry into force of the WTO Agreement .  
 
Further, paragraph 2(a) of the GATT 1994 includes the following Explanatory Note: "The references to 
'contracting party' in the provisions of GATT 1994 shall be deemed to read 'Mem ber'."  
5935 Cuba's first written submission, paras.  422-424. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138). Cuba explains that the primary rationale for investing in a 
geographical indication scheme is to realise higher value from consumers. According to Cuba, by the same 
token, a prohibition on the display of an existing geographical indication limits the ability of exporters to charge 
a price premium and is likely to reduce the value of affected produc ts (compared to what they would otherwise 
be). Cuba's first written submission, para. 423. According to Cuba, a prohibition on the display of an existing 
geographical indication, such as "Habanos", limits the ability of exporters to charge a price premium and is 
therefore likely to materially reduce the value of affected products. Cuba's response to Panel question No. 137 
(referring to  Cuba's first written submission, paras.  423 and 425). Likewise, Cuba argues that by distorting 
Cuban intellectual property (in particular, the Cuban Class 34 Trademarks, the Habanos GI and the Cuban 
Government Guarantee Seal), Australia's measures will affect the Cuban industry's ability to char ge a 
premium. Cuba's first written submission, para. 24. See also Cuba 's response to Panel question No. 191. 
5936 Cuba's first written submission, para. 425. See also Cuba's responses to Panel question Nos. 79 and 
191. 
5937 Cuba's first written submission, para. 425. See also Cuba's responses to Panel question Nos. 79 and 
191. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 861 - 
  7.4.3.4.1   The meaning of the term "materially reducing the[] value [of imported 
products]"  
7.3034.   Article  IX:4 of the GATT  1994 requires that laws and regulations rela ting to the marking 
of imported products permit compliance without "materially reducing their value". We shall 
interpret this term in accordance with the applicable customary rules of interpretation, taking into 
account, as relevant, the guidance provided by the 1958 GATT Decision.  
7.3035.   The verb "reduce" is defined as "[t]o contract, condense; to make smaller, diminish" and 
"[t]o bring down or diminish to … a smaller number, amount, quantity, extent, etc., or to a single 
thing; … to bring down to a simpler form."5938 Dictionary definitions of the noun "value" include: 
"[w]orth or quality as measured by a standard of equivalence" and "[t]he  material or monetary 
worth of something; the amount at which something may be estimated in terms of a medium of 
exchange, a s money or goods, or some other similar standard."5939 
7.3036.   Importantly, Article  IX:4 qualifies the term "reducing the[] value [of imported products]" 
by using the word "materially". We therefore need to give meaning and effect to this word.5940 
According to Cuba, th e term "materially" in Article  IX:4 must be understood in its ordinary 
meaning, i.e. "in a significant way".5941 According to Australia, the term "materially" means 
"substantially, considerably".5942 Dictionary definitions of "materially" include: "[t]o a materi al or 
important extent; significantly, substantially, considerably", "[b]y, with, or in respect of matter or 
physical substance; physically", and "[w]ith regard to the matter or the material aspect of 
something, as opposed to the form or formal aspect".5943 The ordinary meaning of the term 
"material" as used in Article  12.2 of the Anti -Dumping Agreement was established as: "important, 
essential, relevant".5944  
7.3037.   Therefore, we consider that a "material" reduction in value is an important and relevant 
reduction; in other words, a reduction that is significant and substantial. We agree with 
Australia5945 that the other adverbs in Article  IX:4 ("without seriously  damaging the products … or 
unreasonably  increasing their costs") also indicate that Article  IX:4 tolerates cer tain negative 
consequences of laws and regulations relating to the marking of imported products, and serves to 
prevent such consequences only insofar as they reach a certain "material" degree.  
7.3038.   We also note, as context, the phrase "permit compliance" in Article IX:4. In balancing the 
legitimacy of providing origin information to consumers through mark of origin requirements, on 
the one hand, with the need to limit the impact that the use of marks of origin has on exporters, 
on the other hand5946, we have found  this phrase  to suggest that  the purpose of Article  IX:4 is not 
to discipline whether Members may regulate marks of origin but to discipline how compliance with 
laws and regulations relating to origin marking may be prescribed. Taking guidance from the 
                                                
5938 Oxford English Dictionary online, definition of "reduce, v.", available at: 
<http://www.oed.com/vi ew/Entry/160503?rskey=VWcAPS&result=2#eid >, accessed  2 May 2017. (emphasis 
omitted)  
5939 Oxford English Dictionary online, definition of "value, n.", available at: 
<http://www.oed.com/view/Entry/221253?rskey=JLphH1&result=1&isAdvanced=false#eid > , accessed 
2 May 2017. Likewise, an earlier dispute considered the following dictionary definitions of the noun "value": 
"The term 'value' … is defined in the Oxford En glish Dictionary  as '[t]hat amount of a commodity, medium of 
exchange, etc., considered to be an equivalent for something else' and the term 'value' is defined in the Black's 
Law Dictionary  as '[t]he monetary worth or price of something; the amount of good s, services or money that 
something will command in an exchange'." Panel  Report, Colombia  – Ports of Entry , para. 7.82 (footnotes 
omitted) . 
5940 As described by the Appellate Body, "[o]ne of the corollaries of the 'general rule of interpretation' in 
the Vienna Convention is that interpretation must give meaning and effect to all terms of a treaty. An 
interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty 
to redundancy or  inutility." Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, 3, p. 21  (footnote 
omitted). See also Appellate Body Report, Canada  – Dairy , para. 135. 
5941 Cuba's response to Panel question No. 137. 
5942 Australia's response to Panel question No. 137. 
5943 Oxford English Dictionary onl ine, definition of "materially, adj.", available at: 
<http://www.oed.com/view/Entry/114931?redirectedFrom=materially#eid >, accessed  2 May 2017.  
5944 Panel Report, EC – Tube or Pipe Fittings , para. 7.423.  
5945 Australia's response to Panel question No. 137. 
5946 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 862 - 
  Recommendation on Marks of Origin contained in the 1958 GATT Decision , which seeks to limit any 
nuisance arising for exporters from their compliance with laws and regulations relating to marks of 
origin to a minimum5947, we found that the purpose of Article  IX:4 is to prevent exporters' 
interests in marketing their products in an importing Member's territory from being jeopardized by 
any excessive burden or cost arising from compliance with marks of origin requirements adopted 
by such Member.5948 
7.3039.   In our view, this o bject and purpose of Article  IX:4 also provides guidance as to what 
may constitute a material reduction in the value of imported products and, therefore, a breach of 
Article  IX:4 of the GATT  1994. As noted, the Appellate Body linked the objectives of Article IX:4 
and Article  IX:2, and understood these two provisions as serving to limit the impact that the use of 
marks of origin may have on exporters:  
We note that Article  IX:2 calls for a reduction of difficulties and inconveniences that 
laws and regulations  relating to marks of origin may cause to exporters. Furthermore, 
Article  IX:4 requires that compliance with such laws and regulations should be 
possible without materially reducing the value of the products, or unnecessarily 
increasing the cost of the pro ducts. Hence, these provisions call for a limitation of the 
impact of the use of marks of origin .5949 
7.3040.   We noted that the Appellate Body described the objective of Article  IX:4 in that it " call[s] 
for a limitation of the impact of the use of marks of origin"5950 and, therefore, does not serve to 
address, or call for, a limitation of any impact on the use of marks of origin.5951 Against this 
background we have concluded that the TPP measures , insofar as they restrict the ways in which 
exporters may use the signs iden tified by Cuba, are not within the scope of Article  IX:4. In our 
view, this purpose also informs our interpretation of what constitutes a material reduction in the 
value of imported products. Since Article  IX:4 of the GATT  1994 does not protect the use of 
origin -related signs on products per se, it also does not protect the added value or price premium 
that the use of such origin -related signs may accord to imported products, or the ensuing private 
interest to affix such signs on imported products. In light  of the primary purpose of Article  IX:4 to 
limit any nuisance arising for exporters from their compliance with mark of origin requirements, 
this provision, in our view, cannot at the same time be read to safeguard any value that private 
parties might deriv e from the use of marks of origin or other origin -related signs themselves.  
7.3041.   In light of the above , we thus understand that Article  IX:4 does not protect against any 
reduction in the value of imported products, but only against a material reduction in valu e, i.e. a 
reduction in value above a certain "material" degree.5952 Further, in protecting against such a  
material reduction in value caused by compliance with Members' marking requirements, 
Article  IX:4 of the GATT  1994 is not concerned with safeguarding any added value or price 
premium that the use of such origin -related signs may accord to imported products.  
7.3042.   In light of the above considerations, we conclude that the phrase "materially reducing 
the[] value [of imported  products]" in Article  IX:4 of the GATT  1994 does not cover, or protect 
against, the type of situation argued by Cuba in the context of its Article  IX:4 claim. We therefore 
find that Cuba has not demonstrated that the value of Cuban LHM cigars has been mat erially 
                                                
5947 See section 7.4.3.3.1.2  above.  
5948 See para. 7.3014  above.  
5949 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. 
(emphasis  original ; underlin ing added ) 
5950 Appellate Body Reports, US – COOL ( Article  21.5 – Canada and Mexico) , para. 5.356. 
(emphasis  added)  
5951 In making this finding, we reiterate that we do not address whether the Habano s sign and the 
Cuban Government Warranty Seal amount to marks of origin within the meaning of Article  IX:4 of the GATT 
1994.  
5952 Cuba argues that the term "material" does not imply a higher evidentiary threshold, as the burden 
of proof to prove a material re duction of the value of imported products continues to rest on the complainant. 
Cuba's response to Panel question No. 191. We agree with Cuba that the standard allocation of burden of proof 
is not affected by the term "materially" in Article  IX:4; a violation of this provision needs to be demonstrated 
by the complainant. At the same time, to do so, the complainant will have to show more than just any 
reduction in value; it has to show that the value of imported products is being "materially" reduced i n the 
sense explained above.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 863 - 
  reduced in the sense of Article  IX:4 of the GATT  1994 by virtue of the limitations on affixing the 
Habanos sign or the Cuban Government Warranty Seal on Cuban LHM cigars.  
7.3043.   Having made this finding, we nonetheless find it appropriate to consider the evidence 
submitted by Cuba in regard to each of the two lines of its argument that the value of Cuban LHM 
cigars has been materially reduced as a result of the TPP measures , namely, first, that Cuban LHM 
cigars are stripped from the added value that GIs co mmand and, second, that the TPP measures  
create consumer uncertainty about the authenticity of Cuban LHM cigars.  
7.4.3.4.2   Whether Cuban LHM cigars are stripped from added value, thus leading to a 
material reduction of their value in the sense of Article  IX:4 
7.3044.   As ex plained, Cuba argues that the prohibition on affixing the Habanos sign and the 
Cuban Government Warranty Seal on tobacco products and packaging will strip Cuban LHM cigars 
from the added value that GIs command by limiting the ability of exporters to charge  a price 
premium for Cuban LHM cigars.5953 According to Cuba, this will "materially reduce" the value of 
Cuban LHM cigars within the meaning of Article  IX:4 of the GATT  1994.5954 
7.3045.   Cuba submits four pieces of evidence to demonstrate such a material reduction in va lue. 
Three of these are documents relating generally to the added value provided by GIs: a scientific 
meta-analysis of GI food valuation studies addressing what drives the premium for origin -based 
labels (Deselnicu et al. Meta-Analysis)5955, an extract from a  book on the law of GIs 
(Gangjee  Book)5956, and a guide published by the FAO concerning the promotion of quality linked 
to geographical origin and sustainable GIs (FAO  Guide).5957 Cuba argues that these three 
documents endorse "[t]he assumption that geographical  indications are, as a general matter, 
associated with price premiums".5958 As the fourth piece of evidence, Cuba submits a 2012 study 
commissioned by the European Union (2012 EU GI Study)5959 concluding that GIs confer a value 
premium rate of 2.23.5960 According t o Cuba, this 2012 EU GI Study shows that the use of a GI is 
associated with a price increase of 223% for food and agricultural products in the 
European  Union.5961  
7.3046.   Before examining this evidence, we note that Cuba's argument is predicated on the 
assertion tha t the TPP measures  prohibit the use of Habanos sign and the Cuban Government 
Warranty Seal.  We have, however, found that the TPP measures  neither terminate the 
pre-existing, separate requirement to show the name of the country in which the product was 
made  or produced (e.g. "Made in Cuba"),  nor require or prohibit all aspects of what Cuba describes 
as the Habanos GI, or of the Cuban Government Warranty Seal. Specifically, we recall our earlier 
                                                
5953 Cuba's first written submission, paras.  422-424. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138). Cuba explains that the primary rationale for investing in a 
geographical indication scheme is to realise higher value from consumers. According to Cuba, by the same 
token, a prohibition on the display of an existing geographical indication limits the ability of exporters to charge 
a price premium and is likely to reduce the val ue of affected products (compared to what they would otherwise 
be). Cuba's first written submission, para. 423. According to Cuba, a prohibition on the display of an existing 
geographical indication, such as "Habanos", limits the ability of exporters to ch arge a price premium and is 
therefore likely to materially reduce the value of affected products. Cuba's response to Panel question No. 137 
(referring to  Cuba's first written submission, paras.  423 and 425). Likewise, Cuba argues that by distorting 
Cuban i ntellectual property (in particular, the Cuban Class 34 Trademarks, the Habanos GI and the Cuban 
Government Guarantee Seal), Australia's measures will affect the Cuban industry's ability to charge a 
premium. Cuba's first written submission, para. 24. See a lso Cuba 's response to Panel question No. 191. 
5954 Cuba's first written submission, paras.  422-424. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5955 O. Deselnicu, M. Costanigro, D. Souza -Monteiro, and D . McFadden , "A Meta -Analysis of Geographical 
Indication Food Valuation Studies: What Drives the Premium for Origin -Based Labels?", Journal of Agricultural 
and Resource Economics , Vol. 38, No. 2 (2013) p p. 204-219, (Deselnicu et al. Meta -Analysis), (Exhibit  
CUB-34). 
5956 Dev Gangjee, Relocating the Law of Geographical Indications  (Cambridge University Press, 2012), 
pp. 281-283, (Gangjee Book), (Exhibit CUB -10). 
5957 FAO Guide, (Exhibit CUB -31). 
5958 Cuba's first written submission, para. 423. 
5959 2012 EU GI Study, (Exhibit  CUB-36).  
5960 Cuba's first written submission, para. 423. 
5961 Cuba's first written submission, para. 423. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 864 - 
  determination that we do not understand the use of the term "Hab anos" as a brand name or part 
of a brand name, to be prohibited. We also recall that the indication of the country of origin is 
permitted under the TPP measures . We understand the indication "handmade" also to be 
permitted.5962  
7.3047.   Cuba refers to a "meta -analysis of studies estimating the premiums for agricultural 
products differentiated by Geographical Indication (GI)"  conducted by Deselnicu et al. (Deselnicu 
et al. Meta-Analysis).5963 This analysis covers "food" GIs, without specific reference to tobacco or  
tobacco products.5964 It focuses on European GIs and European consumers.5965 Further, while 
conducting a meta -analysis of studies covering various regions, the  Deselnicu et al. Meta-Analysis 
emphasises the importance of distinguishing among specific products an d markets5966, and 
indicates that the institutional framework of a given market also significantly influences price 
premiums.5967 Although the Deselnicu et al. Meta-Analysis notes that "[t]he average percentage 
premium for Gls is 15.1%"5968, it cautions against gen eralized interpretations.5969 In fact, the 
Deselnicu et al. Meta-Analysis does not suggest that all GIs command a price premium in all 
markets. It notes that "[t]he percentage premium for all Gls varies widely from a minimum 
of -36.7%  for Provolone Valpadana Cheese to +181.9% for Valle d'Aosta Fromadzo Cheese in 
Italy"5970, and refers to "a premium/ discount  with respect to a generic, non -GI, products".5971 The 
Deselnicu et al. Meta-Analysis excludes country -of-origin labels.5972 
                                                
5962 See Cuba's frist written submission, para. 71, explaining that "handmade" is still permitted because 
Regulation 8(c)(ii) of the CI Regulations requires a "true description" on imported products. This explanation of 
the operation of the TPP measures  has not been challenged by Australia.  
5963 Deselnicu et al. Meta-Analysis, (Exhibit CUB -34), p. 204. 
5964 Deselnicu et al. Meta-Analysis, (Exhibit CUB -34), Table 1, p. 209. The Deselnicu et al. Meta -Analysis 
explains that "[f]rom a statistical viewpoint, it would be ideal to have all product categories represented within 
each GI -based quality assurance scheme, with similar frequencies. Instead, PDO [i.e. prot ected designation of 
origin] protected products are mostly cheese, followed by wine, olive oil, fruits and vegetables, and meat. The 
majority of PGI -certified [i.e. protected geographical indication] products in our sample are meats, followed by 
grains and  olive oil, while GI trademarks are mostly used with wine products (73%), as well as fruits and 
vegetables, such as Washington apples and Idaho potatoes." Ibid. p. 211. (footnote omitted)  
5965 The Deselnicu et al. Meta -Analysis notes that "the majority of stu dies in th[e  reviewed] sample 
(55%) are based on valuations by European consumers, followed by studies of North and Central American 
products (31%), and then Australian and New Zealand studies (14%)". Deselnicu et al. Meta -Analysis, (Exhibit 
CUB-34), p. 209. 
5966 According to the  Deselnicu et al. Meta -Analysis, "[t]he systematic analysis of the existing body of 
research on GI premiums unequivocally confirmed our original observation: while  GIs constitute an effective 
differentiation instrument in food markets,  the magnitude of the price premium associated with GIs varies 
rather significantly across products and markets". Deselnicu et al. Meta -Analysis, (Exhibit CUB -34), 
pp. 214-215. 
5967 According to the Deselnicu et al. Meta -Analysis:  
 
The relationship between in stitutional framework regulating GIs and price premiums is especially 
relevant for its implications on food marketing policies. In  Europe, more stringent regulations for 
the PDO designation appear to secure a higher price premium than its less stringent 
quality-assurance counterpart (PGI). Stricter regulations may signal increased benefits to 
consumers in the form of food safety, quality assurance, and stronger cultural or heritage 
connection, prompting a higher willingness to pay for products that are more  closely regulated.  
 
Deselnicu et al. Meta-Analysis, (Exhibit CUB -34), p. 215. 
5968 Deselnicu et al. Meta-Analysis, (Exhibit CUB -34), p. 209. 
5969 According to the  Deselnicu et al. Meta -Analysis, "[w]hile these results appear evident, their 
interpretation should  be approached more cautiously: an overly literal interpretation of the estimates' 
magnitudes is not advisable given the aggregate and heterogeneous nature of our data". Deselnicu et al. 
Meta-Analysis, (Exhibit CUB -34), p. 215. The Deselnicu et al. Meta -Analysis adds that, "[w]hile the mean 
[willingness to pay] is positive, indicating that consumers are generally willing to pay more for GI products, 
there is a great deal of variability in the reported premiums". Ibid. p. 209. 
5970 Deselnicu et al. Meta -Analysi s, (Exhibit CUB -34), p. 209. (emphasis added)  
5971 Deselnicu et al. Meta -Analysis, (Exhibit CUB -34), p. 207. (emphasis added)  
5972 The Deselnicu et al. Meta -Analysis states that "[s]tudies estimating consumer valuation of country 
of origin labels (COOL) were exc luded from the sample because the link between geographic name and specific 
growing conditions (the concept of terroir) was considered too weak". Deselnicu et al. Meta -Analysis, (Exhibit 
CUB-34), p. 207. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 865 - 
  7.3048.   Further, the Deselnicu et al. Meta-Analy sis notes that the price premiums commanded by 
GIs are affected by coexistence with brand names of more expensive products.5973 We note in this 
regard that Cuba does not contest that the TPP measures  allow the continued use of brand names 
on Cuban LHM cigars5974, nor does Cuba explain how any price premium commanded by any GIs 
would be affected by the continued use of brand names on the packaging of Cuban LHM cigars.  
7.3049.   We consider that, even assuming that the Habanos sign and the Cuban Government 
Warranty Seal wer e considered to constitute a GI, the Deselnicu et al. Meta-Analysis has limited, if 
any, relevance for Cuba's claim that compliance with restrictions on the use of these signs under 
the TPP measures  leads to a material reduction of the value of LHM cigars on the Australian 
market. The study makes clear, in particular, that any premium value commanded by a specific GI 
depends on the circumstances of a given market. The GIs analyzed in the study do not relate to 
tobacco products and relate to the European mar ket. It is not clear therefore that the findings of 
this study shed any light on the question before us.  
7.3050.   Cuba also refers to a book on GIs, the Gangjee Book. The extracts of this book presented 
by Cuba note that "there is the hypothesis that consumers valu e and are willing to pay premiums 
for IGO [i.e.  indications of geographical origin] labelled products", and record "cautious optimism" 
concerning this hypothesis, based on "preliminary research".5975 The Gangjee Book adds that 
"there  is some evidence, predominantly from Europe, that consumers are attracted to regional 
products":5976 "[i]n 14 out of 18 cases, the price of a PDO/PGI product is higher than the price of 
its comparator product" and "[t]he pos itive price premium ranges from 5% in the cases of Sitia 
Lasithi Kritis, Jamón de Teruel … and Turrón de Alicante/Jijona to 300% in the case of Volaille de 
Bresse."5977  
7.3051.   We consider that these elements have limited, if  any, relevance for Cuba's demonstration 
that the value of LHM cigars has been "materially reduced" as a result of compliance with the 
requirements of the TPP measures . As some of the passages cited above illustrate, the findings at 
issue mostly concern European GIs assessed in the European conte xt. Like the Deselnicu et al. 
Meta-Analysis, the excerpts from the Gangjee Book submitted by Cuba do not mention, let alone 
address tobacco or tobacco products. Further, the above -quoted extract on European GIs suggests 
that any price premium is specific t o the GI product. The  fact that 14 out of the 18 cases assessed 
entailed a higher price for the GI products could also imply that 4 of those 18 cases did not 
necessarily entail any price premium.  
7.3052.   Likewise, we consider that the FAO Guide is of limited, if any, relevance for Cuba's 
demonstration. The FAO Guide is a general "guide for promoting quality linked to geographical 
origin and sustainable Geographical Indications".5978 It does not specifically address either tobacco 
and tobacco products, or the Australi an context.5979 Further, in  referencing value creation more 
                                                
5973 As the Deselnicu et al. Meta -Analysis states, "[a] ccording to our estimates, there is a relatively 
strong, inversely proportional relationship between the use of firm branding and the GI premium …, which is 
robust to the type of consumer population (rest of the world vs, European only). … When purchasing more 
expensive products (such as wine and olive oil), the incentive to learn about differences in quality across brand 
names is more pronounced, allowing brand names to capture a larger share of the reputation premium." 
Deselnicu et al. Meta -Analysis, (Exh ibit CUB -34), p. 215. 
5974 Cuba's response to Panel question No. 189. 
5975 Gangjee Book, (Exhibit CUB -10), p. 281. 
5976 Gangjee Book, (Exhibit CUB -10), p. 282. Further, the Gangjee Book notes that "[a] growing body of 
empirical research considers the impact of PDO [i.e. protected designation of origin] or PGI [i.e. protected 
geographical indication] labels upon the consumer's willingness to pay higher prices ", specifying that the 
"drivers for this demand" are varied and "are thought to include rising incomes, concerns about food quality 
and safety, a demand for superior or specific organoleptic quality, the roles of such products as symbols of 
cultural herita ge, a desire for authenticity and to enable purchases in support of national producers". The 
Gangjee Book adds that "this consumer demand is correlated with the ability to charge a premium for the 
product, as  several case studies have demonstrated", in  particular in the European context. Ibid. p. 282. 
5977 Gangjee Book, (Exhibit CUB -10), p. 282. 
5978 The subtitle of the FAO Guide reads: "A guide for promoting quality linked to geographical origin and 
sustainable geographical indications". FAO Guide, (Exhibit CUB 31), cover page . 
5979 The product -specific portions of the FAO Guide dealing with price differences amount to case studies 
related to the "[i]nfluence of reputation on price formation" in the context of pummelo fruit produced in a 
specific region of Thailand (FAO Guide, p. 21, case study 4), and a box containing a comparison of prices 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 866 - 
  generally, the FAO Guide states that "[o]rigin -linked products have the potential  to create added 
value through market".5980 The FAO Guide adds that "[t]he value creation process requires" certain 
actions, such as "the co -ordination of small -scale actors (horizontal and vertical relations along the 
supply chain)".5981 As its subtitle indicates, one  of the purposes of the FAO Guide is to assist 
countries in realizing such value creation.5982 
7.3053.   As Cuba notes5983, the 2012 EU GI Study concludes that "[t]he value premium rate of GI 
products was estimated at 2.23, which means that GI products were sold 2.23 times as high as 
the same quantity of non -GI products".5984 However, as the 2012 EU GI Study points out, this is a 
"whole value premium rate in the EU  27 for GI products".5985 As the 2012 EU GI Study explains, 
"[b]ehind that average, there was a variety of situations".5986 While noting these variations and 
specificities, the 2012 EU GI Study does not refer or relate to the Aust ralian context.5987 Nor does 
the 2012 EU GI Study make any mention of tobacco or tobacco products.5988 Accordingly, the 2012 
EU GI Study also has limited, if any, relevance for Cuba's marks of origin claim.  
7.3054.   In light of the above, we conclude that even if this ev idence were considered to show 
that, in specific contexts or as a matter of principle, GIs may command a price premium, such 
evidence is not sufficiently consistent or specific to support Cuba's argument that the Habanos sign 
or the Cuban Government Warran ty Seal would entail an added value of an identifiable magnitude 
for imported Cuban LHM cigars in the Australian market or to demonstrate that compliance with 
the TPP requirements in relation to the use of such signs would have  led to a material reduction in 
the value of Cuban LHM cigars in Australia within the meaning of Article  IX:4 of the GATT  1994. 
7.3055.   We also note in this respect Cuba's own description of the capacity of the term "Habanos" 
in conveying the specific associations that Cuba indicates constitu te the added value of the 
designation of a LHM Cuban cigar as "Habanos":  
As a result of Cuba's efforts to protect and promote its cigar industry and exports, 
the term "Habanos " has become known worldwide to describe large, high -quality 
hand-made cigars of  Cuban provenance.5989  
7.3056.    As described above, we consider that the term "Habanos" may be used as a brand name 
or part of a brand name. Therefore, to the extent that this term itself, as Cuba indicates, is 
associated with "large, high quality hand -made ci gars o f Cuban provenance", Cuba  retains the 
ability, under the TPP measures , to convey these characteristics.  
7.3057.   Similarly, we note the observations in Parr et al. 2011b, which is discussed further below, 
that for frequent and connoisseur cigar smokers, "[t]he bra nd name is taken as a sign of 
authenticity or legitimacy of the product".5990 To the extent, therefore, that the Cuban Government 
                                                                                                                                                  
between origin -differentiated and non -origin differentiated roasted coffees on international markets, depending 
on the type and origin of the coffees. FAO Guide, (Exhibit CUB -31), p. 20, Box 2.  
5980 FAO Guide, (Exhibit CUB -31), p. 20. (emphasis added)  
5981 FAO Guide, (Exhibit CUB -31), p. 22. 
5982 FAO Guide, (Exhibit CUB -31), cover page.  
5983 Cuba's first written submission, para. 423. 
5984 2012 EU GI Study, (Exhibit CUB -36), p. 4. 
5985 2012 EU GI S tudy, (Exhibit CUB -36), p. 71. 
5986 2012 EU GI Study, (Exhibit CUB -36), p. 71. Indeed, the 2012 EU GI Study dedicates several pages 
to "the great diversity of situations, according to schemes and to [EU] Member States" (ibid. p. 71), 
addressing, for instance,  "[v]alue premium rates by class of agricultural products and foodstuffs" (ibid. p. 72) 
and the differences in "[v]alue premium rate of GIs products per category and Member State". Ibid. p. 77. The 
2012 EU GI Study adds further specificity in describing the "[v]alue premium rate by national sector" by noting 
that "[u]ndoubtedly, the value premium rate reflects national GI sectors' structures and history". Ibid. p. 81. 
5987 As the 2012 EU GI Stud y notes, "[t]he data presented … are based on European and national 
statistics". 2012 EU GI Study, p. 4. See also the reference to the "[s]ales value of GI products in the EU 27". 
2012 EU GI Study, (Exhibit CUB -36), Chap.  2, title.  
5988 The 2012 EU GI Study d eals with " agricultural products and foodstuffs, wines, aromatised wines and 
spirits protected by a geographical indication". 2012 EU GI Study, (Exhibit CUB -36), cover page and title.  
5989 Cuba's first written submission, Annex 1, Part 2, para. 1. (emphasis added)  
5990 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p.  10. Likewise, as regards less frequent cigar 
smokers, Parr et al. 2011b emphasises the importance of brand association and branding for less frequent 
cigar smokers: "More so than the more frequent smokers, the less frequent smokers take particular interest in 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 867 - 
  Warranty Seal guarantees the authenticity of the Cuban origin of a cigar, it appears that this 
function may still be performed th rough the use of a relevant brand name, in combination with the 
indication of country of origin (e.g. "Made in Cuba"), which is required, under separate legislation, 
to appear on cigars or packages, and is also permitted under the TPP measures .  
7.3058.   Overall, t herefore, we are not persuaded that Cuba has demonstrated that the 
restrictions imposed under the TPP measures  on the use of the Habanos sign and the Cuban 
Government Warranty Seal strip Cuban LHM cigars of relevant added value such that compliance 
with th em would lead to a material reduction in their value within the meaning of Article  IX:4.  
7.4.3.4.3   Whether the TPP measures  create consumer uncertainty about the 
authenticity of Cuban LHM cigars, thus leading to a material reduction of their value  
7.3059.   As noted, Cuba also claims that the value of Cuban LHM cigars has been materially 
reduced as a result of the alleged prohibition, under the TPP measures , on affixing the Habanos 
sign and the Cuban Government Warranty Seal on tobacco products and packaging,  because this 
will, according to Cuba, inevitably give rise to consumer uncertainty about the authenticity of the 
products that they are purchasing.5991 According  to Cuba, this will constrain the ability of Cuban 
exporters to charge premium prices for Cuban L HM cigars in Australia.5992  
7.3060.   Cuba refers5993 to Parr et al. 2011b, according to which frequent smokers of premium 
cigars were concerned that plain packaging would interfere with their ability to verify the quality 
and legitimacy of the cigars that they purchase.5994 Cuba references5995 the words of one consumer 
interviewed by GfK Blue Moon: "How do I know the guy in the shop isn't selling me a $10 cigar for 
$50?!".5996 According to Cuba, it is indisputable that consumer uncertainty about the quality of 
products on offer l eads to lower valuations of those products, and consumer uncertainty is likely to 
be particularly acute in circumstances where a GI that has been used for decades is abruptly 
removed from the market.5997 
7.3061.   We note that, more generally, Cuba calls into question the reliability of Parr et al. 
2011b5998, arguing that it utilised an inadequate sample5999 and suffered from methodological 
flaws.6000 As both Cuba6001 and Australia6002 point out, for the purposes of Parr et al. 2011b, cigar 
                                                                                                                                                  
the branding and packaging of cigar tubes. … The branding also has a strong effect on their perceptions of 
quality in regards to their purchases… ." Ibid. p. 10. 
5991 Cuba's first wr itten submission, para. 425. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5992 Cuba's first written submission, para. 425. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5993 Cuba's first written submission, para. 425. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5994 Parr et al. 2011b, (Exhibits  AUS-219, JE -24(50)), pp.  10, 11, 42, 44 and 47.  
5995 Cuba's first written submission, para. 425. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5996 Parr et al. 2011b, (Exhibits  AUS-219, JE -24(50)), p.  42. 
5997 Cuba's first written submission, para. 426. See also Cuba's response to Panel question No. 79 
(annexed to its response to Panel question No. 138).  
5998 As regards the alleged methodological flaws, Cuba contends that Parr et al. 2011b, inter alia, asked 
the wrong questions: for example, the intervi ewers asked respondents to compare images of digitally created, 
unbranded, plain pack cigar tubes, carrying a full health warning, with images of existing branded cigar tubes 
with no health warning. Cuba's first written submission, para. 425. See also ibid . paras.  263-268; Honduras's 
first written submission, paras.  530-537; Honduras's second written submission, paras.  127-128; and 
Dominican  Republic 's first written submission, paras.  627-639. 
5999 As regards the allegedly inadequate sample, Cuba notes that Pa rr et al. 2011b elicited responses 
from only eight LHM Cigar smokers, none of whom were selected randomly to participate in the resear ch. Cuba 
argues that it goes without saying that a study in which only eight people were interviewed should not be used 
to draw conclusive findings. Cuba's first written submission, para. 264. 
6000 Cuba's first written submission , para. 266 (referring to Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)), p p. 18-19). Cuba adds that the interviewers also presented respondents with a plain pack cigar 
band that did not display any information at all and asked them to compare it with a fully branded band. Given 
that cigar bands under the TPP measures  do convey some (albeit limited) information, Cuba alleges that this 
particular measure  is unlikely to have the same effect on LHM Cigar smokers in the real world as predicted by 
Parr et al. 2011b. Cuba's first written submission, para. 267. 
6001 Cuba's first written submission, para. 267. (footnote omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 868 - 
  smokers were shown a plain packaged cigar ba nd which did not display any information at all. As 
Australia notes6003, it was in reaction to such a completely plain cigar band6004, that some frequent 
cigar smokers expressed concern about being able to make informed purchases6005, because such 
smokers assess th e authenticity of the product by reference to the brand name of the product.6006 
Indeed, according to Parr et al. 2011b, for more frequent and connoisseur cigar smokers "[t]he 
brand name is taken as a sign of authenticity or legitimacy of the product" and "[t ]his information 
is most often contained on the cigar band".6007 Likewise, Parr et al. 2011b emphasises the 
importance of brand association and branding for less frequent cigar smokers, especially on cigar 
tubes:  
More so than the more frequent smokers, the l ess frequent smokers take particular 
interest in the branding and packaging of cigar tubes. … The branding also has a 
strong effect on their perceptions of quality in regards to their purchases and as such 
the plain packaged tube has a marked effect on the  perceived appeal of cigar 
smoking.6008 
7.3062.   We agree with Australia6009 that the reactions of cigar smokers to a completely plain cigar 
band are not an accurate reflection of the impact of the TPP measures , to the extent that the 
                                                                                                                                                  
6002 Australia's second written submiss ion, para. 584 (referring to Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)), p p. 10 and 42).  
6003 Australia's second written submission, para. 584 (referring to Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)), p p. 10 and 42).  
6004 According to Parr et al. 201 1b, "[f]or frequent smokers the band is one of the first places they go to 
when looking at a cigar, so they immediately noticed the difference with the plain pack band", and "[f]or 
frequent and connoisseur cigar smokers the plain packaging band would have no effect on the overall appeal or 
attractiveness of cigar smoking, but these smokers felt the plain packaging lowered the overall perceived 
desirability of any given particular cigar as they could not discern any product information." Furthermore:  
 
Both f requent and less frequent smokers reported currently leaving the band on their cigars with 
none reporting that they removed it. However, there were differing perceptions of the purpose of 
the band, and reactions to the plain pack band were largely driven b y those perceptions. As 
shown to respondents, the plain pack band had no warning statement or image on it but rather 
consisted only of the band in the plain pack colour obscuring the branded band underneath. Both 
frequent and less frequent cigar smokers re ported that it stands out significantly, especially in 
comparison to the existing bands.  
 
Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 42. 
6005 One of the main conclusions of Parr et al. 2011b is that "the plain packaging colour and design, 
across RYO [i.e. roll your own], cigarillos and premium cigars, [would be] minimising appeal and perceptions of 
quality". This conclusion is based in part on the finding that:  
 
For more frequent cigar smokers, rather than the packaging it is the cigar bands, which act as 
markers of legitimacy and carry essential product information, in particular for single sale loose 
cigars. Frequent and connoisseur smokers fe el the bands are an essential means of identifying 
what product they want to purchase and consume. As such, introduction of the plain pack band 
was felt likely to lower the ability of this category of consumers to purchase products they felt 
informed about  and felt confident were legitimate. This suggests a need to make product 
information available by some other means at and after point of sale.  
 
Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 42. As regards "more frequent and connoisseur cigar 
smoker s", Parr et al. 2011b adds that plain packaged cigar "tubes did not have the same impact in terms of 
lowering appeal or attractiveness of cigar smoking". According to Parr et al. 2011b, for more frequent and 
connoisseur cigar smokers "[t]he brand name is t aken as a sign of authenticity or legitimacy of the product" 
and "[t]his information is most often contained on the cigar band". Parr et al. 2011b adds that "[a]s such a 
plain pack band (which did not display any information) obscuring the branded band has  a more significant 
impact as it deprives [more frequent cigar smokers] of the product information which they use to inform their 
purchases", which in turn "lowers the desirability of any given particular cigar as they are unable to verify the 
product they  are receiving as opposed to lowering the overall appeal of cigar smoking which remains high". 
Ibid. p. 10. This summary of key findings in Parr et al. 2011b does not amount to the Pa nel necessarily  
accepting such findings as well -founded.  
6006 Australia's se cond written submission, para. 584 (referring to Parr et al. 2011b, (Exhibits AUS -219, 
JE-24(50)), p. 10). 
6007 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 10. 
6008 Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 10. 
6009 Australia's second written submission, para. 584. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 869 - 
  measures allow cigar bands to be mar ked with the brand, company or business name and variant 
name, as well as the name of the country in which the cigar was produced.6010 The same applies to 
Parr et al. 2011b's findings concerning less frequent cigar smokers6011 insofar as the cigar tubes 
shown in  the Report were completely free6012 from the kind of information that may continue to 
appear on cigar tubes under the TPP measures .6013 Therefore, as Australia points out, Parr et al. 
2011b does not support the contention that consumers would be uncertain about the authenticity 
of the product in circumstances when cigar packaging, including cigar bands and cigar tubes, may 
still be labelled with brand and variant names and "Made in Cub a".6014  
7.3063.   For the same reasons, and without assessing the reliability of Parr et al. 2011b in more 
detail, we do not agree with Cuba that the alleged shortcomings of Parr et al. 2011b are 
"separate" and "something different" from the point argued by Cuba, "nam ely the fact that 
interviewees were worried that plain packaging would affect their ability to verify the genuineness 
of cigars".6015 As Cuba noted, the packaging of cigars is materially different under TPP measures  
from what was depicted in Parr et al. 2011b  and those aspects that appear to have led 
respondents, in the context of Parr et al. 2011b, to have doubts about the authenticity of the 
product (i.e. the absence of any brand information on the cigar band itself) have in fact not been 
implemented in the TPP measures .6016 
                                                
6010 See section 2.1.2.4.2 and Fig ure 9 above.  
6011 As regards less frequent cigar smokers, Parr et al. 2011b emphasises the importance of brand 
association and branding, especially on cigar tubes:  
 
More so th an the more frequent smokers, the less frequent smokers take particular interest in 
the branding and packaging of cigar tubes. Their smoking is largely driven by social occasions 
within which the 'presenting' or giving of cigars can play a major role in th e perceived appeal. 
The branding also has a strong effect on their perceptions of quality in regards to their purchases 
and as such the plain packaged tube has a marked effect on the perceived appeal of cigar 
smoking. It significantly deglamourises the eve nt and reduces their appeal as gifts or when 
presenting them to friends. The lack of brand association for the plain packaged products, in 
contrast with existing products, leaves them nothing 'to go on' bar the colour of the tube. This 
was described as 'mu ddy', 'tar like' and highly unappealing. This lack of appeal is strongly tied to 
a perception of low quality.  
 
Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), p. 10. 
6012 According to Parr et al. 2011b, "[t]he images of mock up cigar tubes only featured the health 
warning statement 'Smoking cigars causes lung cancer'." Parr et al. 2011b, (Exhibits AUS -219, JE -24(50)), 
p. 18. It continued:  
 
In the case of cigar tubes it was  not possible to produce images of branded products that would 
show both the health warning in full as well as the brand. This was due to the specification that 
the health warning take up 60% of the circumference and 95% of the length of the tube. It was 
determined that images showing only the health warning or branding in part would not be useful 
for research purposes. In addition, time constraints meant it was not possible to create physical 
mock ups of cigar tubes. Therefore, the comparison was between i mages of a digitally created 
plain packaged cigar tube with the full health warning and images of existing branded cigar tubes 
with no health warning.  
 
Ibid. p p. 18-19. 
6013 See para. 2.27 and Fig ure 5 above.  
6014 Australia's second written submission, para. 584. See also paras.  2.27 and 2.36 above.  
6015 Cuba's response to Panel question No. 187. 
6016 Cuba argues that:  
 
With respect to cigars, the PP Regulations require that only a single cigar band may be placed on 
cigars, and mandate the use of a uniform colour on ci gar bands (Pantone 448C). The [T]PP 
Measures allow for the display of: (1) a brand, business or company name; (2) a variant name; 
and (3) the country of origin information, on cigar bands. An alphanumeric code can be retained 
on the cigar band as well. The  [T]PP Measures require that these signs and information are 
presented in a uniform typeface, font, colour and placement, and be within a maximum size on 
the cigar band.  
 
Cuba's first written submission, para. 64. (footnotes omitted)  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 870 - 
  7.3064.   Further, we agree with Australia6017 that Parr et al. 2011b does not include any 
statements to the effect that the alleged removal of the Habanos sign results in any uncertainty 
about the product, much less that any such removal would result in  a level of uncertainty that 
would lead to a material reduction in the value of Cuban LHM cigars in Australia. We note that, 
likewise, the study does not address the perceived effects of the alleged removal of the Cuban 
Government Warranty Seal from Cuban LHM cigars.  
7.3065.   Cuba points out that its argument is not based solely on the effect of the TPP measures  
relating to the genuineness of the product but also on the effect on the price Cuban producers can 
command for their product.6018 In response to a request for clarification by the Panel, Cuba states 
that it "agrees with Honduras that, although the complainants have not submitted empirical data 
on a 'downtrading' effect with respect to cigars, the economic reasons for the downtrading that 
currently affects cigare ttes also apply to the cigar market in Australia".6019  
7.3066.   We note that in response to the Panel6020, Cuba states that it cannot provide any value 
and volume data because it "does not have access" to "the data on retail sales of Cuban LHM 
cigars in Australia as wel l as other markets for purposes of a comparison".6021 Instead, Cuba 
argues that "a slow erosion of the unique position of Cuban LHM cigars is, however, inevitable if 
the plain packaging measures remove the last means of communicating with clients".6022 However, 
as explained above, the TPP measures  do not prevent certain information, including information 
considered as important by the cigar smokers surveyed by GfK  Blue Moon, as reported in Parr 
et al. 2011b, from appearing on cigar bands and cigar tubes, which, a ccording to Parr et al. 2011b, 
were perceived as relevant places of product information by frequent and less frequent cigar 
smokers, respectively. We also note that, separately, Cuba  submitted sales data by the main 
Australian importer of Cuban LHM cigars6023 to show that "there does not appear to have been any 
decrease in monthly sales of LHM Cigars after December 2012, not least when the 
post-implementation sales volumes are compared to monthly sales in the two years immediately 
prior to the introduction of the [T]PP Measures." Cuba adds that, "[i]ndeed, it appears that sales of 
LHM Cigars have marginally increased since December  2012."6024 Further, according to Cuba, the 
same sales information in half -yearly, rather than monthly, format "clearly illustrates the  
consistency of sales volumes over time … and the apparent increase in sales of LHM Cigars in the 
post-implementation period".6025 
7.3067.   Accordingly, we conclude that Cuba has not demonstrated that the TPP measures ' 
limitations on the use of the Habanos sign and th e Cuban Government Warranty Seal on tobacco 
retail packaging and products create consumer uncertainty about the authenticity of Cuban LHM 
cigars in a way that would materially reduce the value of such cigars in Australia within the 
meaning of Article  IX:4 of the GATT  1994. 
7.4.4   Conclusion  
7.3068.   We have determined that the TPP measures , insofar as they limit the use of the Habanos 
sign or the Cuban Government Warranty Seal, do not constitute "laws and regulations relating to 
the marking of imported products" within th e meaning of Article  IX:4. Even assuming that they 
were covered by Article  IX:4, we  have additionally found that Cuba has not demonstrated that the 
value of the Cuban LHM cigars has been materially reduced within the meaning of Article  IX:4 of 
                                                
6017 Australia's second w ritten submission, para. 584. 
6018 Cuba's response to Panel question No. 187. 
6019 Cuba's response to Panel question No. 192. 
6020 Panel question No. 193 to Cuba reads: "Please explain whether volumes and values of sales of 
Cuban cigars in Australia, including Cuba n LHM cigars, and Cuban LHM cigars carrying the Habanos GI and/or 
the Cuban Government Warranty Seal have changed as a result of the plain packaging measures, and whether 
the price of cigars in the above product categories has changed as a result of the pl ain packaging measures."  
6021 Cuba's response to Panel question No. 193. 
6022 Cuba's response to Panel question No. 193. 
6023 In particular, the sales data relates to Pacific Cigar Company's (PCC) "wholesale sales of LHM Cigars 
in Australia between January 2009 and July 2014. The PCC data is considered to be a relevant measure of 
consumption of LHM Cigars, as it is estimated tha t PCC have held a market share of approximately 70% of 
total LHM Cigar sales made in Australia over this time period." Cuba's first written submission, para. 159. 
6024 Cuba's first written submission, para. 160 and Fig ure 25. 
6025 Cuba's first written submission , para. 161 and Fig ure 26. WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 871 - 
  the GATT  1994 as a result of the TPP measures ' limitations on the use of the Habanos sign and the 
Cuban Government Warranty Seal on tobacco retail packaging and products.  
7.3069.   Accordingly, we conclude that Cuba has not demonstrated that the TPP measures  are 
inconsistent w ith Article  IX:4, insofar as they limit the use of the Habanos sign and the Cuban 
Government Warranty Seal on tobacco products and packaging.  
7.3070.   As a consequence, we need not address Australia's arguments, or Cuba's arguments in 
response, that the measures a re justified under Article  XX(b) of the GATT  1994.  
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- HND-872 - 
 
  8  COMPLAINT BY HONDURA S (DS435): CONCLUSIO NS AND RECOMMENDATIO NS 
8.1.  For the reasons set forth in this Report , the Panel concludes that:  
a. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  2.2 of the TBT Agreement ; 
b. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  2.1 of the TRIPS  Agreement  in conjunction with 
Article  6quinquies  of the Paris Convention  (1967) ; 
c. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  15.4 of the TRIPS  Agreement ; 
d. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  16.1 of the TRIPS  Agreement ; 
e. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  20 of the TRIPS  Agreement ; 
f. Honduras has not demonstrated that the TPP measure s are inconsistent with Australia's 
obligations under Article  2.1 of the TRIPS  Agreement  in conjunction with Article  10bis of 
the Paris Convention  (1967) ; 
g. Honduras has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  22.2(b) of the TRIPS  Agreement ; and  
h. Honduras has not  demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  24.3 of the TRIPS  Agreement . 
8.2.  The Panel declines  to rule on Honduras's claims under Article  3.1 of the TRIPS  Agreement , 
Article  2.1 of the TBT Agreement , and Article  III:4 of the GATT  1994, in relation to which Honduras 
presented no arguments.  
8.3.  In light of these findings, the Panel also declines Honduras 's request that the Panel 
recommend, in accordance with Article  19.1 of the DSU, that the DSB request Australia to bring 
the measures at issue into conformity with the TRIPS  Agreement  and the TBT Agreement . 
 
_______________  
 
 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- DOM-872 - 
 
  8  COMPLAI NT BY THE DOMINICAN REPUBLIC (DS 441): CONCLUSIONS AND 
RECOMMENDATIONS  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. in respect of Australia's preliminary ruling request the Panel concludes that : 
i. Australia failed to demonstrate that the terms "including", "complement " and "add 
to", as used in the Dominican Republic's panel request, are, on their face, 
inconsistent with the requirement under Article  6.2 of the DSU to identify the specific 
measures at issue.  
b. in respect of the Dominican Republic's claims regarding the TPP measures , the Panel 
concludes that:  
i. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  2.2 of the TBT Agreement ; 
ii. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  15.4 of the TRIPS  Agreement ; 
iii. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  16.1 of the TRIPS  Agreement ; 
iv. the Dominic an Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  20 of the TRIPS  Agreement ; 
v. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations un der Article  2.1 of the TRIPS  Agreement  in 
conjunction with Article  10bis of the Paris Convention  (1967) ; 
vi. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  22.2(b) of the 
TRIPS  Agreement ; and 
vii. the Dominican Republic has not demonstrated that the TPP measures  are 
inconsistent with Australia's obligations under Article  24.3 of the TRIPS  Agreement . 
8.2.  The Panel declines to rule on the Dominican Republic's claims under Article  2.1 of the 
TRIPS Agreement  in conjunction with  Article  6quinquies of the Paris Convention  (1967) , Article  3.1 
of the TRIPS  Agreement , Article  2.1 of the TBT Agreement , and Article  III:4 of the GATT  1994 in 
respect of which the Dominican Republic presented no arguments.  
8.3.  In light of the above findings, the Panel also declines the Dominican Republic's request that 
the Panel recommend to the DSB that Australia be required to bring its TPP measures  into 
conformity with the above -mentioned provisions of the TRIPS  Agreement  and the TBT Agreement . 
 
_______________  
 
 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- CUB-872 - 
 
  8  COMPLAINT BY CUBA (D S458): CONCLUSIONS A ND RECOMMENDATIONS  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. in respect of Australia's preliminary ruling request, the Panel concludes that:  
i. Australia fai led to demonstrate that Cuba's claims under Article  16.3 of the 
TRIPS  Agreement  and Article  6bis of the Paris Convention  (through Article  2.1 of the 
TRIPS  Agreement ) fall outside its  terms of reference;  
ii. it was unnecessary to make a determination as to whether its claims under 
Article  15.1 and 17 of the TRIPS  Agreement  are properly before the Panel;  
iii. it was unnecessary to determine whether Cuba's panel request "presents the 
problem clearly" in relation to it s claims under Article  15.1 and 17 of the 
TRIPS  Agreement ; and 
iv. Australia failed to demonstrate that the terms "including", "complement" and "add 
to", as used in Cuba's panel request, are, on their face, inconsistent with the 
requirement under Article  6.2 of the DSU to identify the specific measures at issue.  
b. in respect of Cuba's claims regarding the TPP measures , the Panel concludes that:  
i. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  2.2 of the TBT Agreement ;  
ii. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  2.1 of the TRIPS  Agreement  in conjunction with 
Article  6quinquies  of the Paris Convention  (1967) ; 
iii. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  15.4 of the TRIPS  Agreement ; 
iv. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  16.1 of the TRIPS  Agreement ; 
v. Cuba has not demo nstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  16.3 of the TRIPS  Agreement ; 
vi. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  20 of the TRIPS  Agreement ; 
vii. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  2.1 of the TRIPS  Agreement  in conjunction with Article  10bis 
of the Paris Convention  (1967) ; 
viii. Cuba has not demonstrated that the TPP measures  are inc onsistent with Australia's 
obligations under Article  22.2(b) of the TRIPS  Agreement ; 
ix. Cuba has not demonstrated that the TPP measures  are inconsistent with Australia's 
obligations under Article  24.3 of the TRIPS  Agreement ; and 
x. Cuba has not demonstrated that  the TPP measures  are inconsistent with Australia's 
obligations under Article  IX:4 of the GATT  1994. 
8.2.  The Panel declines to rule on Cuba's claims under Article  2.1 of the TRIPS  Agreement  in 
conjunction with Article  6bis of the Paris Convention  (1967) , Article  3.1 of the TRIPS  Agreement , 
Article  2.1 of the TBT Agreement , and Article  III:4 of the GATT  1994, in respect of which Cuba 
presented no arguments.  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- CUB-873 - 
 
  8.3.  In light of the above findings, the Panel also declines Cuba's request that the Panel 
recommend, in a ccordance with Article  19.1 of the DSU, that the DSB request Australia to bring its 
measures into conformity with the TRIPS  Agreement , the TBT Agreement  and the GATT  1994. 
 
_______________  
 
 
 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- IDN-872 - 
 
  8  COMPLAINT BY I NDONESIA (DS467): CO NCLUSIONS AND RECOMM ENDATIONS  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. in respect of Australia's preliminary ruling request, the Panel concludes that:  
i. Australia failed to demonstrate that the terms "including", "complement" and "add 
to", as used in Indo nesia's panel request, are, on their face, inconsistent with the 
requirement under Article  6.2 of the DSU to identify the specific measures at issue.  
b. in respect of Indonesia's claims regarding the TPP measures , the Panel concludes as 
follows:  
i. Indonesia has  not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  2.2 of the TBT Agreement ; 
ii. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  15.4 of the TRIPS  Agreement ; 
iii. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  16.1 of the TRIPS  Agreement ;  
iv. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  16.3 of the TRIPS  Agreement ; 
v. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  20 of the TRIPS  Agreement ; 
vi. Indonesia has not demonstr ated that the TPP measures  are inconsistent with 
Australia's obligations under Article  2.1 of the TRIPS  Agreement  in conjunction with 
Article  10bis of the Paris Convention  (1967) ; 
vii. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  22.2(b) of the TRIPS  Agreement ; and 
viii. Indonesia has not demonstrated that the TPP measures  are inconsistent with 
Australia's obligations under Article  24.3 of the TRIPS  Agreement . 
8.2.  The Panel declines to rule on Indonesia's  claims under Article  1.1 of the TRIPS  Agreement , 
Article  2.1 of the TRIPS  Agreement  in conjunction with Article  6quinquies of the Paris Convention  
(1967), Article  3.1 of the TRIPS  Agreement , Article  2.1 of the TBT Agreement , and Article  III:4 of 
the GATT  1994, in respect of which Indonesia presented no arguments.  
8.3.  In light of the above findings, the Panel also  declines Indonesia's request that the Panel find 
that the TPP measures  are inconsistent with Australia's obligations under Article  XXIII:1(a) of  the 
GATT  1994 because it has nullified or impaired benefits accruing directly or indirectly to Indonesia 
under the TBT Agreement . 
8.4.  In light of these findings, the Panel also declines Indonesia's request that the Panel 
recommend that Australia bring its mea sures into conformity with its obligations under the 
TRIPS  Agreement  and the TBT Agreement . 
 
_______________  
 
  
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 874 - 
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 874 - TABLE A: PAPERS INCL UDED IN A PRIMARY TP P LITERATURE REVIEW AND/OR EXHIBIT JE -24 
Exhibit #  Paper  TPP Literature Reviews  Main Outcomes1 
  Peer Review 
Project2 Kleijnen 
Systematic 
Review3 Klick TPP 
Literature 
Report4 Stirling 
Review5 Stirling 
Review 2013 
Update6 Chantler 
Report7 Appeal  Warnings  Perceptions 
of Harm & 
Strength  
AUS-557, 
JE-24(63)  Wakefield et al. 2012  X X X  X X Y Y Y 
JE-24(41)  McCool et al. 2012  X X X  X X Y Y Y 
JE-24(56)  Scheffels, J; Saebo, G. Perceptions of Plain and 
Branded Cigarette Packaging Among Norwegian 
Youth and Adults: A Focus Group Study. Nicotine 
& Tobacco Research; 2013; 15(2):450 -456. X X X  X X Y Y Y 
AUS-155, 
JE-24(44)  Moodie  et al. 2011  X X X X  X Y Y Y 
AUS-154, 
JE-24(25)  Germain et al. 2010  X X X X  X Y Y Y 
AUS-162, 
JE-24(24)  Gallopel -Morvan et al. 2013  X X X X  X Y Y Y 
AUS-176 Gallopel -Morvan et al. 2010     X  X Y Y Y 
                                                
1 Entries in this column derive from the Stirling Review and/or the Chantler Report. See Chantler Report, (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, 
pp. 60-62; and Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Table 4.1.  Where there are disagreements among reviewers as to whether an underlying study considered 
a particular outcome, this is indicated with a *. Papers for which there are no entries in the "Main Outcomes" column were either not reviewed by th e Stirling Review or the 
Chantler Report, or were deemed by the Stirling Review or the Chantler Report to not address any of the three outcomes listed . 
2 See Peer Review Report , (Exhibit DOM/HND -3), Appendix B.  
3 See Kleijnen Systematic Review , (Exhibit DO M/HND -4), Appendix 2, p p. 103-104. 
4 See Klick TPP  Literature Report, (Exhibit UKR -6), pp. 17-58. 
5 See Stirling Review, (Exhibits AUS -140, HND -130, CUB -59), Section 6, p p. 91-95. 
6 See Stirling Review 2013 Update , (Exhibits AUS -216, CUB -60), p p. 15-18. 
7 See Chantler  Report , (Exhibits AUS -81, CUB -61), Annex D, p p. 50-55, and Annex E, p p. 60-62.  
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 875 - 
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 875 - Exhibit #  Paper  TPP Literature Reviews  Main Outcomes1 
  Peer Review 
Project2 Kleijnen 
Systematic 
Review3 Klick TPP 
Literature 
Report4 Stirling 
Review5 Stirling 
Review 2013 
Update6 Chantler 
Report7 Appeal  Warnings  Perceptions 
of Harm & 
Strength  
JE-24(12)  Centre for Behavioural Research in Cancer. 
Health warnings and contents labelling of 
tobacco products: review, research, 
recommendations. Specifically paper 13: 
"Adolescents ' reactions to cigarette packs 
modified to increase extent and impact of health 
warnings" Carlton, Australia: Centre for 
Behavioural Research in Cancer; 1992.  X X X X  X Y Y  
AUS-161, 
JE-24(60)  Van Hal et al . 2012 X X X X  X Y Y * 
AUS-185, 
JE-24(43)  Moodie and Mackintosh 2013  X X X  X X Y Y  
JE-24(48)8 Northrup and Pollard 1995  X X X X   Y Y  
AUS-145, 
JE-24(53)  Rootman and Flay 1995  X X X X   Y Y  
AUS-209, 
JE-24(27)  Goldberg et al. 1999  X X X X   Y Y  
AUS-221, 
JE-24(26)  Goldberg et al. 1995  X X X X   Y Y  
AUS-136, 
JE-24(9)  Borland et al. 2013  X  X  X X Y Y  
AUS-173 White 2011   X  X  X Y  Y 
AUS-137, 
JE-24(20)  Ford et al. 2013 a X X X  X X Y  Y 
AUS-184, 
JE-24(64)  Wakefield et al. 2013  X X X  X X Y  Y 
AUS-175, 
JE-24(10)  Borland and Savvas 2013b  X X X  X X Y  Y 
                                                
8 Compare with ISR newsletter, (Exhibit AUS -146).   
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 876 - 
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 876 - Exhibit #  Paper  TPP Literature Reviews  Main Outcomes1 
  Peer Review 
Project2 Kleijnen 
Systematic 
Review3 Klick TPP 
Literature 
Report4 Stirling 
Review5 Stirling 
Review 2013 
Update6 Chantler 
Report7 Appeal  Warnings  Perceptions 
of Harm & 
Strength  
AUS-166, 
JE-24(29)  Hammond et al. 2009  X X X X  X Y  Y 
AUS-158, 
JE-24(31)  Hammond et al. 2013b  X X X X  X Y  Y 
AUS-149, 
JE-24(62)  Wakefield et al. 2008  X X X X  X Y  Y 
AUS-156, 
JE-24(17)  Doxey and Hammond  2011 X X X X  X Y  Y 
AUS-157, 
JE-24(30)  Hammond et al. 2011  X X X X  X Y  Y 
AUS-174, 
JE-24(45)  Moodie et al. 2012  X X X X  X Y  Y 
AUS-152, 
JE-24(23)  Gallopel -Morvan et al. 2012  X X X X  X Y  Y 
AUS-189, 
JE-24(42)  Moodie and Ford 2011  X X X X  X Y  Y 
AUS-150, 
JE-24(3)  Bansal -Travers et al. 2011  X X X X  X Y  Y 
JE-24(21)  Ford et al. 2013b  X  X  X X Y  Y 
AUS-148, 
JE-24(34)  Hoek et al. 2011  X X X X  X Y   
AUS-229, 
JE-24(58)  Thrasher et al. 2011  X X X X  X Y   
AUS-163, 
JE-24(35)  Hoek et al. 2012  X X X X  X Y   
AUS-151, 
JE-24(16)  Donovan 1993  X X X X  X Y   
AUS-142, 
JE-24(14)  Centre for Health Promotion 1993  X X X X   Y   
AUS-143, 
JE-24(7)  Bondy et al. 1994  X X  X  X Y    
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 877 - 
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 877 - Exhibit #  Paper  TPP Literature Reviews  Main Outcomes1 
  Peer Review 
Project2 Kleijnen 
Systematic 
Review3 Klick TPP 
Literature 
Report4 Stirling 
Review5 Stirling 
Review 2013 
Update6 Chantler 
Report7 Appeal  Warnings  Perceptions 
of Harm & 
Strength  
JE-24(33)  Hoek et al. 2009  X X  X  X Y   
JE-24(51)  Pechey et al. 2013  X    X X *   
JE-24(59)  Uppal et al. 2013    X  X X Y   
JE-24(52)  Ramunno, S; Mandeville, KL; Yarrow, K. The 
effect of plain cigarette packaging on attention 
to health warnings; The Lancet; 2012; 380:S5.  X X X  X X  Y  
AUS-200, 
JE-24(40)  Maynard et al. 201 3 X X X  X X  Y  
AUS-203, 
JE-24(1)  Al-hamdani 2013  X X X  X X  Y  
AUS-147, 
JE-24(4)  Beede et al. 1990  X X X X  X  Y  
AUS-202, 
JE-24(6)  Beede and Lawson 1992  X X X X  X  Y  
AUS-199, 
JE-24(47)  Munafò et al. 2011  X X X X  X  Y  
AUS-179, 
JE-24(19)  Environics 2008a   X  X  X   Y 
JE-24(18)  Environics 2008b   X  X  X   Y 
AUS-177, 
JE-24(32)  Hammond et al. 2013a  X X X       
JE-24(38)  Lund and Scheffels 2013  X X X       
JE-24(2)  Arora et al. 2013  X X X       
AUS-160, 
JE-24(66)  White et al. 2012  X X X       
AUS-228, 
JE-24(54)  Rousu and Thrasher 2013  X X X       
AUS-198, 
JE-24(13)  CBRC 1992  X X  X  X    
JE-24(55)  Scheffels and Lund 2013  X X         
  WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 878 - 
 
WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R  
 
- 878 - Exhibit #  Paper  TPP Literature Reviews  Main Outcomes1 
  Peer Review 
Project2 Kleijnen 
Systematic 
Review3 Klick TPP 
Literature 
Report4 Stirling 
Review5 Stirling 
Review 2013 
Update6 Chantler 
Report7 Appeal  Warnings  Perceptions 
of Harm & 
Strength  
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