The Dominican Republic and Honduras both appealed a Panel Report that came after Honduras challenged the Dominican Republic's general measures relating to the import and sale of imported cigarettes. The Dominican Republic contended that the Panel erred in finding that its tax stamp requirement was not justified, and Honduras contended that the Panel erred in finding that the Dominican Republic's bond requirement does not accord less favorable treatment to imported cigarettes than to domestic products. The Appellate Body upheld the Panel Report's decision on both issues.
Honduras v. Dominican Republic, WT/DS302/AB/R, World Trade Organization (WTO) Appellate Body Report (2005).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Regulatory measures may lead to an increase in illegal sales, such as counterfeit products. The industry may also argue that such illicit trade will reduce tobacco tax revenue.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"With respect to the trade impact of the measure, the Panel noted that the tax stamp requirement did not prevent Honduras from exporting cigarettes to the Dominican Republic and that its exports had increased significantly over recent years. Accordingly, the Panel assumed "that the measure has not had any intense restrictive effects on trade." As far as the third factor is concerned, the Panel noted the Dominican Republic's claim that "the tax stamp requirement secures compliance with its tax laws and regulations generally, and more specifically with the provisions governing the Selective Consumption Tax." The Panel, however, was of the view that the tax stamp "In assessing whether a WTO-consistent measure was reasonably available, the Panel in the present case discussed the factors identified by the Appellate Body in previous appeals, namely, the importance of the interests protected by the tax stamp requirement, its trade impact and its contribution to the realization of the end pursued. As regards the first factor, "the Panel [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 evasion." The Panel also recognized that "the collection of tax revenue (and, conversely, the prevention of tax evasion) is a requirement was of limited effectiveness in preventing tax evasion and cigarette smuggling. According to the Panel, requiring that tax stamps be affixed in the Dominican Republic under the supervision of the tax authorities "in and of itself, would not prevent the forgery of tax stamps, nor smuggling and tax evasion." In this respect, the Panel indicated that other factors, such as security features incorporated into the tax stamps, or police controls on roads and at different commercial levels, would play a more important role in preventing forgery of tax stamps, tax evasion and smuggling of tobacco products. Having considered the importance of the interests protected by the tax stamp requirement, its trade impact, and its contribution to the realization of the end pursued, we are of the view that the Panel conducted an appropriate analysis, following the approach set out in the Appellate Body Reports in Korea – Various Measures on Beef and in EC – Asbestos, and affirmed in US - Gambling. We see no error in the approach taken by the Panel or in the results of its analysis. We note that, in this particular case, the Panel's conclusion concerning the contribution of the measure to the realization of the end pursued is based on findings of fact (limited effectiveness of the tax stamp requirement in preventing forgery, smuggling and tax evasion; greater effectiveness and efficiency of measures such as security features incorporated into the tax stamps or police controls) that have not been challenged under Article 11 of the DSU and, therefore, fall outside the scope of appellate review."
"On the second factor—the importance of the interests protected by the measure—the Dominican Republic reiterates that the tax stamp requirement is designed to secure tax compliance and prevent deceptive practices, and that these interests are important. The Dominican Republic notes that the Panel acknowledged that the prevention of tax evasion is an important interest and recalls the Appellate Body's view that the "more vital or important those common interests or values are, the easier it would be to accept as 'necessary' a measure designed as an enforcement instrument." The Dominican Republic adds that the link between cigarette smuggling and public health is well-established; consequently, as the tax stamp requirement aims to prevent the smuggling of cigarettes, it also helps to ensure the health and well-being of citizens, "both of which are interests of fundamental and critical importance". The Dominican Republic argues that, in the overall weighing and balancing, it should be easier to accept the tax stamp requirement as a "necessary" enforcement instrument because of the value and importance of the interests it protects."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The Dominican Republic and Honduras both appealed a Panel Report that came after Honduras challenged the Dominican Republic's general measures relating to the import and sale of imported cigarettes. The Dominican Republic contended that the Panel erred in finding that its tax stamp requirement was not justified, and Honduras contended that the Panel erred in finding that the Dominican Republic's bond requirement does not accord less favorable treatment to imported cigarettes than to domestic products. The Appellate Body upheld the Panel Report's decision on both issues.