[Ip-health] The Lancet: Philip Morris versus Uruguay: health governance challenged

thiru at keionline.org thiru at keionline.org
Fri Sep 17 04:03:56 PDT 2010

The Lancet, Volume 376, Issue 9744, Pages 852 - 853, 11 September 2010

Philip Morris versus Uruguay: health governance challenged
Original Text
Raphael Lencucha


The following correspondence highlights a recent case that could bear on
the health-trade dialogue. On Feb 19, 2010, Philip Morris presented a case
against Uruguay under a Switzerland—Uruguay Bilateral Investment
Treaty.[4]  Philip Morris is challenging Uruguay's decision—a party to the
FCTC—to increase the coverage on tobacco packs of tobacco-warning labels
to 80% and to require the use of coloured or plain packaging. According to
Investment Arbitration Reporter, Philip Morris argues that these measures
infringe on their intellectual property rights and hamper their
competitiveness in the Uruguayan market.[5]  The company investigated the
case against plain packaging well before the Uruguay case was filed. Legal
consultants for the company issued a report on July 23, 2009, stating that
“A plain packaging measure would
create a two-tier system: one which
severely restricts the use of trademarks and is only applicable to tobacco
companies, and another which affords the minimum standards of protection
to all other products. Such discriminatory treatment of trademarks is
expressly prohibited by the TRIPS Agreement.”[6]

Plain packaging has become a salient issue for the tobacco industry given
that countries, such as Australia, have begun to adopt it as a
tobacco-control measure.[7]  Bilateral Investment Treaties (BIT), unlike
those under the World Trade Organization framework, often incorporate
intellectual property provisions within the specific agreement. A UN
report noted that “The impact of having IP [intellectual property]
included in the definition of investment is that it could potentially
subject IP to the general guarantees afforded to investors under the
[and] could provide a legal basis to foreign investors for a cause of
action against the host country for failing to protect their IP.”[8]  In
Article 1 of the Treaty, the term “investment” includes “copyrights,
industrial property rights (such as patents of inventions, utility models,
industrial designs or models, trade or service marks, trade names,
indications of source or appellation of origin)”.[4]


4 Anon. Switzerland and Uruguay: agreement on the reciprocal promotion and
protection of investments (with protocol).
http://untreaty.un.org/unts/120001_144071/26/2/00021341.pdf. (accessed
April 4, 2010).

5 Peterson LE. Uruguay: Philip Morris files first-known investment treaty
claim against tobacco regulations. Investment Arbitration Reporter.
http://www.bilaterals.org/spip.php?article16921. (accessed July 20, 2010).

6 LALIVE. Why plain packaging is in violation of WTO members'
international obligations under TRIPS and the Paris Convention.
(accessed June 16, 2010).

7 The Lancet. Plain cigarette packs in Australia. Lancet 2010; 375: 1580.

8 UN Conference on Trade and Development. Intellectual property provisions
in international investment arrangements.
http://www.unctad.org/en/docs/webiteiia20071_en.pdf. (accessed May 15,

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