435 441 458 467r e

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1 WT/DS435/R, WT/DS441/R WT/DS458/R, WT/DS467/R 28 June 2018 Page: (18 - 1/884 4061 ) Original: English AUSTRALIA CERTAIN MEASURES CON CERNING TRADEMARKS, – PACKAGING IONS AND OTHER PLAIN GEOGRAPHICAL INDICAT BLE TO TOBACCO PRODU CTS AND PACKAGING REQUIREMENTS APPLICA REPORT S OF THE PANEL S [[***]] SCI redacted , as indicated Note: the form of a single document constituting four separate Panel Reports: These Panel Reports are in WT/DS435/R, WT/DS441/R, WT/DS458/R, and WT/DS467/R. The cover page, preliminary pages, 7 , appendices, and sections 1 through 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, , which WT/DS458/R, and WT/DS467/R, with the following excep tions: section 8 on page HND - 87 2 bears the document symbol for and contains the Panel's conclusions and recommendations in the Panel Report on 8 on page DOM - 87 2 , which bears the document symbol for and WT/DS435/R; secti s in the nel Report WT/DS44 1/R; section 8 contains the Panel's conclusions and recommendation Pa - 87 2 – CUB - 8 on pages CUB 3 , which bears the document symbol for and contains the Panel's 7 conclusions Panel Report WT/DS458/R ; and section 8 on page and recommendations in the - IDN 2 , which bears the document symbol for and contains the Panel's conclusions and 87 recommendations in the Panel Report WT/DS467/R. The appendices and t he annexes, which are part of the Reports, are circulated in separate documents: WT/DS435/R /Supp l .1 , Panel 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) .

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3 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 3 TABLE OF CONTENTS ... ... ... 13 LIST OF APPENDICES ... ... ... ... LIST OF ANNEXES ... 14 ... ... ... ... 15 LIST OF TABLES ... ... ... LIST OF FIGURES 15 ... ATIONS USED IN THESE REPORTS ... ... 16 MAIN ABBREVI ... ... IN THESE REPORTS 20 MAIN EXHIBITS CITED ... THESE REPORTS ... ... ... 54 MAIN CASES CITED IN INTRODUCTION ... ... ... ... 63 1 1.1 Complaint by Honduras ... ... ... 63 ... ... ... 63 1.2 Complaint by the Dominican Republic ... ... ... ... 63 1.3 Complaint by Cuba Complaint by Indonesia ... ... ... 63 1.4 Panel establishment and composition ... ... 1.5 63 ... 1.5.1 Honduras ... ... ... ... 63 ... Dominican Republic ... 1.5.2 ... .. 64 ... 1.5.3 Cuba ... ... ... 64 ... 1.5.4 Indonesia ... 65 ... ... 1.5.5 ocedural agreement between Australia, Ukraine, Honduras, the Dominican Pr ... ... 65 ... Republic, Cuba, and Indonesia Panel proceedings ... ... ... ... 1.6 66 General ... ... ... 66 1.6.1 ... Preliminary rulings on the Panel's terms of reference ... ... 67 1.6.2 1.6.3 Working procedures on stri ctly confidential information (SCI) ... ... 6 8 ... Requests for enhanced third - party rights 1.6.4 ... ... 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 Request for information from the International Bureau of WIPO ... .. 72 1.6.7.2 73 1.6.7.3 ... ... ... Data requests by the parties 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 rst written submission submitted by Australia in the context of its fi ... ... 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 83 1.6.8.1 Additional comments relating Dr Chipty's Third Rebuttal Report ... ..

4 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 4 1.6.8.2 Implementation Review ... 84 Additional comments relating to Australia's Post - 84 FACTUAL ASPECTS ... ... ... ... 2 The measures at issue ... ... ... 2.1 84 measures ... Preparation, adoption, and entry into force of the TPP 85 2.1.1 ... The TPP measures ... ... 2.1.2 ... 87 ... 2.1 Introduction ... ... ... ... 87 2.1. Act ... ... ... 88 2.1.2.2 "Objects" of the TPP ... ... 89 2.1.2.3 Requirements for retail packaging of tobacco products Physical features of retail packaging ... ... ... 90 2.1.2.3.1 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 ... ... ... ... 92 2.1.2.3.4 Wrappers ... ... ... 93 Inserts and onserts 2.1.2.3.5 Other requirements concerning retail packaging ... 2.1.2.3.6 93 ... Summary of requirements on retail packaging ... ... 93 2.1.2.3.7 Requirements for the appearance of tobacco products ... 2.1.2.4 98 ... 2.1.2.4.1 Requirements with respect to cigarettes ... ... 98 Requirements with respect to cigars ... ... ... 99 2.1.2.4.2 Summary of requirements on the appearance of tobacco products ... 2.1.2.4.3 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 ... ... ... ... The TMA Act 102 2.1.2.8 Regulatory impact analysis ... 2.1.2.9 ... 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 ... ... . 106 Taxation measures 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 ... ground ... ... ... Back 114 2.4.1 Structure and governance ... 2.4.2 ... 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) ... ... ... 119 120 3.2 Dominican Republic (DS441) ... ... ...

5 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 5 Cuba (DS458) ... ... ... ... 120 3.3 Indonesia (DS467) ... ... ... ... 121 3.4 ... ... ... ... 121 3.5 Australia ARGUMENTS OF THE PAR TIES ... ... ... 122 4 RD PARTIES ... ... ... 122 5 ARGUMENTS OF THE THI ... ... ... ... 122 INTERIM REVIEW 6 Introduction ... ... ... 6.1 122 ... Requests for review of section 7.1 (Order of Analysis) ... 123 6.2 ... Requests for review of section 7.2.5.1 6.3 measures pursue a (Whether the TPP "legitimate objective") ... ... ... ... 123 (Whether the TPP measures are "in 6.4 Requests for review of section 7.2.5.2 ... accordance with relevant international standards" under Article 2.5 (second sentence)) 123 (The degree of contribution of the TPP 6.5 Requests for review of section 7.2.5.3 ... ... ... measures to their objective) 124 Requests for review of section 7.2.5.3.5.2 (First mechanism: impact of plain 6.6 ... 127 packaging on the appeal of tobacco products to consumers) ... Requests for review of section 7.2.5.3.5.3 (Second mechanism: impact of the TPP 6.7 measures on the effectiveness of graph ic health warning) ... ... 128 (Third mechanism: reducing the ability 6.8 Requests for review of section 7.2.5.3.5.4 islead consumers about the harmful effects of smoking) ... 128 of the pack to m Requests for review of section 7.2.5.3.7 (Impact of the TPP me 6.9 asures on illicit trade) ... ... ... ... 129 Requests for review of section 7.2.5.4 (The trade - restrictiveness of the TPP 6.10 129 ... measures) ... ... ... 6.11 (The gravity of the consequences of Requests for review of section 7.2.5.5.2.2 fulfilment) ... ... ... ... 130 - non Requests for review of section 7.2.5.6.1 (Whether less trade - 6.12 restrictive ch of the Panel) ... 130 alternative measures are reasonably available to Australia: Approa Requests for review of section 7.2.5.6.2 (First proposed alternative measure: 6.13 ... ... ... ... 130 Increase in the MLPA) Requests for review of section 7.2.5.6.3 (Second proposed alternative measure: 6.14 products) ... ... ... 131 Increased taxation of tobacco Requests for review of s ection 7.3.2 (Article 15.4 of the TRIPS Agreement) 6.15 132 ... 6.16 Requests for review of section 7.3.3 ... 132 (Article 16.1 of the TRIPS Agreement) 6.17 Requests for review of s ection 7.3.5 (Article 20 of the TRIPS Agreement) ... 134 Requests for review of s 6.18 ection 7.3.6 (Article 10 bis of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement) ... 136 ... ... ... ... Requests for review of the Appendices 136 6.19 FINDINGS ... ... 7 ... 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 Agreement to measures relating to trademarks 7.2.3 Applicability of the TBT ... 147 147 7.2.3.1 Main arguments of the parties ... ... ...

6 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 6 7.2.3.2 ... ... ... 149 Arguments of the third parties 153 Analysis by the Panel ... ... ... 7.2.3.3 Whether the TPP measures constitute a technical 7.2.4 regulation within the meaning of 1.1 of the TBT Agreement ... ... 163 Annex ... Whether the TPP measures apply to an identifiable group of products ... 7.2.4.1 164 Main arguments of the parties ... ... ... 164 7.2.4.1.1 ... ... ... 165 Analysis by the Panel 7.2.4.1.2 Whether the TPP measures lay down one or more product characteristics 7.2.4.2 168 ... Main arguments of the parties ... ... 168 7.2.4.2.1 ... Analysis by the Panel 7.2.4.2.2 ... ... ... 171 7.2.4.3 Whether compliance w ith the TPP measures is mandatory ... ... 177 ... ... ... 177 7.2.4.3.1 Main arguments of the parties ... ... ... 1 78 7.2.4.3.2 Analysis by the Panel ... ... ... Overall conclusion 180 7.2.4.4 Whether the TPP measures are "more trade - restrictive than necessary to fulfil a 7.2.5 legitimate objective" within the meaning of Article ... ... 182 2.2 ... measures pursue a "legitimate objective" ... Whether the TPP 184 7.2.5.1 The objective of the TPP measures 7.2.5.1.1 ... ... ... 185 7.2.5.1.1.1 Main arguments of the parties ... ... 186 ... 188 7.2.5.1.1.2 Analysis by the Panel ... ... ... 7.2.5.1.2 ctive pursued by Australia through the TPP measures is a Whether the obje 2.2 "legitimate objective" within the meaning of Article ... 195 ... Wh ether the TPP measures are "in accordance with relevant international 7.2.5.2 2.5 (second sentence) standards" under Article ... ... 197 ... Overview of the arguments of the parties ... 197 7.2.5.2.1 ... ... ... ... 7.2.5.2.2 199 Approach of the Panel 7.2.5.2.3 Whether the Article 11 and Article 13 FCTC Guidelines constitute "relevant ... ... ... 200 international standards" ... 2.5 The notion of "relevant international standards" in Article 7.2.5.2.3.1 (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 e "in accordance are "relevant international standards" and whether the TPP measures ar 2.5 (second sentence) ... ... 245 with" these Guidelines under Article The degree of contribution of the TPP me asures to their objective ... 253 7.2.5.3 7.2.5.3.1 Overview of the parties' arguments ... ... ... 253 7.2.5.3.2 Main arguments of the third parties ... ... ... 261 Approach of the Panel and structure of the analysis ... ... 267 7.2.5.3.3 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 ... ... 276 276 7.2.5.3.5.1 Critique of the "plain packaging literature" (TPP literature) ... .

7 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 7 7.2.5.3.5.2 First mechanism: impact of plain packaging on the appeal of tobacco ... ... 312 ... ... products to consumers measures on the effectiveness of Second mechanism: impact of the TPP 7.2.5.3.5.3 ... ... ... GHWs ... 352 7.2.5.3.5.4 Third mechanism: reducing the ability of the pack to mislead consumers ... 377 ... about the harmful effects of smoking ... Overall conclusion on evidence relating to the design, structure and 7.2.5.3.5.5 measures ... ... operation of the TPP 391 ... Evidence relating to the application of the TPP measures ... ... 392 7.2.5.3.6 measures on "proximal" outcomes (appeal of tobacco 7.2.5.3.6.1 Impact of the TPP ... ... 394 products, effectiveness of GHWs and ability of the pack to mislead) measures on quitting - related outcomes and other distal 7.2.5.3.6.2 Impact of the TPP ... ... ... 398 outcomes ... 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 measures since their entry into force ... ... ... 404 TPP ... measures on illicit trade ... 405 7.2.5.3.7 Impact of the TPP ... ... ... Main arguments of the parties 405 7.2.5.3.7.1 Analysis by the Panel ... ... ... 406 7.2.5.3.7.2 7.2.5.3.8 Overall conclusion on the degree of contribution of the TPP measures to ... ... ... 415 Australia's objective ... The trade - restrictiveness of the TPP measures ... 7.2.5.4 419 ... 7.2.5.4.1 Meaning of the term "trade - restrictive" in Article ... ... 419 2.2 419 7.2.5.4.1.1 Main arguments of the parties ... ... ... 7.2.5.4.1.2 parties ... ... . 423 Main arguments of the third ... ... ... 427 Analysis by the Panel 7.2.5.4.1.3 Application to the TPP measures ... 7.2.5.4.2 ... 431 ... Main arguments of the parties ... ... 431 7.2.5.4.2.1 ... Main arguments by the third parties ... ... 448 7.2.5.4.2.2 7.2.5.4.2.3 Analysis by the Panel ... ... ... 450 ... The nature and gravity of the "risks of non - fulfilment" 7.2.5.5 ... 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 Conclusion on the nature of the risks that non - fulfilment would create and 7.2.5.5.2.3 ... ... ... 488 gravity of their consequences Whether less trade - restrictive alternative measures are reasonably available to 7.2.5.6 lia Austra ... ... ... 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 ... ... 503 504 7.2.5.6.2.1 Description of the proposed measure ... ...

8 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 8 7. ... 504 2.5.6.2.2 Whether an increase in the MLPA to 21 years is an alternative measure Whether an increase in the - restrictive 7.2.5.6.2.3 MLPA to 21 years would be less trade ... ... ... ... 505 than the TPP measures Whether an increase in the MLPA would ma 7.2.5.6.2.4 ke an equivalent contribution to ... ... ... 508 Australia's objective ... Whether an increase in the MLPA is a measure reasonably available to 7.2.5.6.2.5 ... Australia ... ... 520 ... 7.2.5.6.2.6 Overall conclusion on an increased MLPA as an alternative to the measures ... ... ... ... 520 TPP ... 521 7.2.5.6.3 Second proposed alternative measure: Increased taxation of tobacco products Description of the proposed measure ... ... 521 7.2.5.6.3.1 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 measures ... ... ... ... 523 TPP 7.2.5.6.3.4 Whether increased taxation of tobacco products would make an equivalent ... ... ... 527 contribution to Australia's objective 7.2.5.6.3.5 Whether an increase in taxation of tobacco products is reasonably available ... ... ... 537 to Australia ... Overall conclusion on increased taxation as an alternative to the 7.2.5.6.3.6 TPP ... ... ... ... 539 measures Third proposed alternative measure: social marketing campaigns ... 540 7.2.5.6.4 Description of the proposed measure ... ... 7.2.5.6.4.1 540 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 551 trade - restrictive than the TPP measures ... ... ... 7.2.5.6.4.4 Whether "improved" social marketing campaigns would make an equivalent contribution to Austral ... 552 ... ... ia's objective Whether "improved" social marketing campaigns are reasonably available to 7.2.5.6.4.5 ... ... ... ... Australia 561 Overall conclusion on improved social marketing campaigns as an 7.2.5.6.4.6 measures ... ... 561 alternative to the TPP ... Fourth proposed alternative measure: pre ... vetting ... 7.2.5.6.5 562 - 7.2.5.6.5.1 Description of the proposed measure ... ... 562 Whether a pre - vetting mechanism would be less trade - restrictive than the 7.2.5.6.5.2 measures ... TPP ... ... 566 ... 7.2.5.6.5.3 Whether a pre - vetting mechanism would make an equivalent contribution to Australia's objective ... ... ... ... 569 Wh 7.2.5.6.5.4 ether 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 584 measures "Cumulative" application of alternatives ... ... 584 7.2.5.6.6 7.2.5.7 Overall conclusion on Article 2.2 ... ... ... 586 ... 7.3 The TRIPS Agreement ... ... 588 7.3.1 Article 6 quinquies of the Paris Convention (1967), as incorporated by Article 2.1 ... of the TRIPS Agreement ... ... ... 588 8 7.3.1.1 Introduction ... ... ... ... 58

9 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 9 Main arguments of the parties ... ... ... 590 7.3.1.2 Main arguments of the third parties ... ... ... 593 7.3.1.3 ... ... ... 593 7.3.1.4 Analysis by the Panel Article 15.4 of the TRIPS Agreement ... ... ... 598 7.3.2 ... ... ... 598 7.3.2.1 Main arguments by the parties ... ... ... 602 Main arguments by the third parties 7.3.2.2 Analysis by the Panel ... ... ... 7.3.2.3 605 Interpretation of Article 15.4 ... ... 606 7.3.2.3.1 ... The meaning of "trademark" in Article 15.4 7.3.2.3.1.1 ... 607 ... 7.3.2.3.1.2 The meaning of "registration of the trademark" in Article 15.4 ... 608 15.4 ... 612 7.3.2.3.1.3 The meaning of "obstacle" to the registration of a trademark in Article ... ... ... ... 612 7.3.2.3.1.4 Conclusion ... measures ... Application to the TPP ... 612 7.3.2.3.2 Whether the TPP measures are inconsistent with Article 15.4 in that they 7.3.2.3.2.1 operate to prevent the registration of signs that are capable of acquiring distinctiveness through use ... ... ... ... 613 Whether the TPP measures are inconsistent with Article 15.4 in that they 7.3.2.3.2.2 ... ... 615 prevent certain signs from acquiring distinctiveness through use Whether the TPP 7.3.2.3.2.3 measures are inconsistent with Article 15.4 in that they - ated trademarks because of reduce the protection flowing from registration for tobacco rel ... the nature of the product ... .. 620 ... 623 7.3.2.3.3 Overall conclusion ... ... ... 7.3.3 16.1 of the TRIPS Agreement ... ... ... 623 Article ... ... ... ... 623 7.3.3.1 Introduction ... ... ... Main arguments of the parties 624 7.3.3.2 Main arguments of the third parties ... ... ... 634 7.3.3.3 7.3.3.4 Analysis by the Panel ... ... ... 635 The scope of the obligation in Article 16.1 ... ... 636 7.3.3.4.1 Whether the TPP 7.3.3.4.2 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 Overall conclusion ... ... ... 7.3.3.4.5 655 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 ... ... 662 663 7.3.4.4.1 Interpretation of Article 16.3 ... ... ...

10 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 10 7.3.4.4.2 measures are inconsistent with Article 16.3 because they Whether the TPP 665 - ... trademarks known status for certain tobacco related prevent the maintenance of well - Whether the TPP measures are inconsistent with Article 16.3 in that they 7.3.4.4.3 - prevent certain tobacco - related trademarks from acquiring well known trademark status ... ... ... 670 through use ... Overall Conclusion ... ... ... 671 7.3.4.4.4 7.3.5 20 of the TRIPS Agreement ... ... ... 671 Article ... ... ... 671 Overview of the claims 7.3.5.1 Overall approach of the Panel ... ... 7.3.5.2 673 ... Main arguments of the parties ... ... 673 7.3.5.2.1 ... 7.3.5.2.2 Main arguments of the third parties ... ... ... 675 7.3.5.2.3 Analysis by the Panel ... ... ... 676 measures involve "special requirements" that "encumber" the 7.3.5.3 Whether the TPP ... ... ... 680 ... use of a trademark Meaning of the terms "special requirements" and "encumbered" in Article 20 ... 7.3.5.3.1 681 Main arguments of the parties ... ... 681 7.3.5.3.1.1 ... Main arguments of the third parties ... ... 7.3.5.3.1.2 686 . 7.3.5.3.1.3 Analysis by the Panel ... ... ... 689 ... Application to the TPP measures ... 7.3.5.3.2 ... 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 ... 694 7.3.5.4.1 Meaning of the phrase "in the course of trade" ... ... 7.3.5.4.1.1 ... ... ... 694 Main arguments of the parties ... ... . 695 Main arguments of the third parties 7.3.5.4.1.2 Analysis by the Panel ... ... 7.3.5.4.1.3 696 ... The relevant "use of a trademark" ... ... 697 7.3.5.4.2 ... Main arguments of the parties ... ... ... 7.3.5.4.2.1 697 7.3.5.4.2.2 Analysis by the Panel ... ... ... 700 ... Application to the TPP measures ... ... 7.3.5.4.3 701 Whether the TPP measures "unjustifiably" encumber the use of trademarks in 7.3.5.5 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 ... ... . 714 724 Analysis by the Panel ... ... ... 7.3.5.5.1.3 Whether the TPP 7.3.5.5.2 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 ... ... 746 20 are presumed to be "unjustifiabl[e]" 749 7.3.5.5.3 Application to the TPP measures ... ... ...

11 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 11 7.3.5.5.3.1 ... ... ... .. 749 Introduction 749 Nature and extent of the encumbrance resulting from the TPP ... measures 7.3.5.5.3.2 The reasons for the adoption of the TPP measures ... ... 7.3.5.5.3.3 759 7.3.5.5.3.4 Whether the reasons for the application of the trademark requirements of measures provide sufficient support for the resulting encumbrance 762 the TPP ... Overall conclusion 7.3.5.6 ... ... ... 766 Article 10 bis of the Paris Convention (1967), as incorporated by Article 2.1 of the 7.3.6 Agreement ... ... ... ... 766 TRIPS ... ... ... ... Introduction 766 7.3.6.1 6.2 Scope of incorporation of Article 10 bis of the Paris Convention 7.3. (1967) through Article 2.1 of the TRIPS Agreement ... ... ... 767 ... ... ... 767 7.3.6.2.1 Main arguments of the parties ... ... ... 768 7.3.6.2.2 Analysis by the Panel of the Paris 10 bis Convention (1967), as incorporated 7.3.6.3 Interpretation of Article 2.1 of the TRIPS Agreement ... ... ... 771 through Article ... Main arguments of the parties ... 7.3.6.3.1 ... 771 ... ... ... Main arguments of the third parties 777 7.3.6.3.2 Analysis by the Panel ... ... ... 778 7.3.6.3.3 Whether the TPP measures are inconsistent with Article 10 bis of the 7.3.6.4 (1967), as incorporated in the TRIPS Agreement Paris ... ... 784 Convention 784 7.3.6.4.1 Introduction ... ... ... ... 7.3.6.4.2 measures themselves constitute an act of unfair competition ... 785 Whether the TPP 7.3.6.4. measures require market actors to engage in acts of unfair 3 Whether the TPP ... 786 competition against which Australia is obliged to assure protection ... Article 10 bis (3)(1) ... 7.3.6.4.3.1 ... 787 ... Article 10 bis (3)(3) ... ... 791 7.3.6.4.3.2 ... Article 10 bis (1) ... ... ... 799 7.3.6.4.3.3 7.3.6.4.4 Overall conclusion ... ... ... 806 Article 22.2(b) of the TRIPS Agreement 7.3.7 ... ... ... 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 Whether the TPP measures amount to unfair competition by creating unfair 7.3.7.4.1 ... ... ... 820 conditions of competition in respect of GIs 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 ... 821 iged to prohibit 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 Analysis by the Panel ... ... ... 833 7.3.8.3 833 7.3.8.3.1 Whether the TPP measures are covered by Article 24.3 ... ...

12 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 12 Whether the obligation concerns individual GIs or the system of protection ... 834 7.3.8.3.2 Whether Australia has diminished the protection of GIs through the 7.3.8.3.3 ... ... TPP ... 837 measures ... Conclusion ... ... ... ... 843 7.3.8.4 IX:4 of the GATT 1994 ... ... ... 843 7.4 Article ... ... ... 843 7.4.1 Main arguments of the parties ... ... ... Main arguments of the third parties 845 7.4.2 Analysis of the Panel ... 7.4.3 ... 845 ... 7.4.3.1 The Habanos sign and the Cuban Government Warranty Seal ... ... 846 measures on the use of the Habanos sign and the Cuban 7.4.3.2 The impact of the TPP ... ... 848 Government Warranty Seal ... Whether the TPP measures constitute "laws and regulations ... relating to the 7.4.3.3 ... ... ... 850 marking of imported products" The phrase "[t]he laws and regulations of Members relating to the ma 7.4.3.3.1 rking of ... ... ... 850 imported products" in Article IX:4 General rule of interpretation ... 7.4.3.3.1.1 ... 850 ... 7.4.3.3.1.2 The 1958 Decision on Marks of Origin ... 853 ... 856 7.4.3.3.1.3 Negotiating history ... ... ... 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 Whether the TPP 7.4.3.4 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 LAINT BY HONDURAS (D S435): CONCLUSIONS A ND COMP ... ... HND - 872 RECOMMENDATIONS ... COMPLAINT BY THE DOM INICAN REPUBLIC (DS4 41): CONCLUSIONS A ND 8 ... ... ... DOM - 872 RECOMMENDATIONS 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

13 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 13 - - PPENDICES LIST OF A Contents Page Appendix A 1 Post - Implementation Evidence on Non - Behavioural Outcomes of the TPP measures A - - Appendix B Evidence o n Quitting - Related Outcomes And Other Distal Outco mes Since The Entry 1 B measures TPP nto Force of the I 1 Appendix C n Smoking Prevalence Following The Entry Into Force of the - Evidence o C measures TPP Appendix D Evidence Relating to Tobacco Product Sales a nd Consumption Following The Entry 1 D - Into Force of the TPP measures he Cigarette Market Post - Implementation Evidence on Downward Substitution in t Appendix E E - 1

14 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 A - 1 Working Procedures of the Panel A Annex 2 - - Additional Working Procedures C oncerning Strictly Confidential Information 2 - 9 Annex A A ANNEX B TIES ARGUMENTS OF THE PAR Contents Page B 1 Integrated executive summary of the arguments of Honduras - - 2 Annex B B - 2 Integrated executive summary of the arguments of the Annex B - 31 Dominican Republic Annex B - 3 Integrated executive summary of the B - 60 arguments of Cuba Annex B - 4 Integrated executive summary of the arguments of Indonesia B - 7 7 Annex - 5 Integrated executive summary of the arguments of Australia B - 9 6 B ANNEX C RD PARTIES ARGUMENTS OF THE THI Contents Page C - 1 Executive summary of the arguments of Argentina Annex - 2 C Annex C - 2 C - 6 Executive summary of the arguments of Brazil Annex C - 3 Executive summary of the arguments of Canada C - 11 Annex - 4 Executive summary of the arguments of China C C - 14 Annex C - 5 Executive summary of the arguments of the European Union C - 18 Executive summary of the arguments of Guatemala Annex C - 6 C - 22 28 Annex C - 7 Executive summary of the arguments of Japan C - Annex - 8 Executive summary of the arguments of the Republic of Korea C - 32 C Executive summary of the arguments of Malawi - 9 Annex C - 34 C Annex - 10 Executive summary of the arguments of New Zealand C C - 37 Annex C - 11 Executive summary of the arguments of Nicaragua C - 40 Annex - 12 Executive summary of the arguments of Nigeria C - 43 C Annex - 13 Executive summary of the arguments of Norway C C - 49 Annex C - 14 Executive summary of the arguments of Oman C - 53 Executive summary of the arguments of Peru Annex C - 15 C - 55 Annex C - 16 Executive summary of the arguments of the Philippines C - 56 Annex - 17 Executive summary of the arguments of Singapore C - 58 C C 18 Executive summary of the arguments of South Africa - - 62 Annex C C - 19 Executive summary of the arguments of Chinese Taipei Annex C - 64 Annex C - 20 C - 65 Executive summary of the arguments of Thailand Annex C - 21 Executive summary of the arguments of Turkey C - 70 Annex - 22 Executive summary of the arguments of Uruguay C C - 75 Annex C - 23 Executive summary of the arguments of Zambia C - 77 Executive summary of the arguments of Zimbabwe Annex C - 24 C - 79

15 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 15 TABLES LIST OF Page Table 1 : Requirements for brand, business, company or variant names 9 2 Table Table 296 : Relevance and quality ratings awarded by the Stirling Review 2 Table 516 MLPA, by age group : Estimated reduction in US initiation rates following an increase in the 3 Table 4 : Estimated price and tax increase equivalents to hypot hetical contributions of the 528 to reducing the number of smokers TPP measures 556 : Proposed segmentation for Australian social marketing campaigns 5 Table 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 95 : TPP Act and the TPP Regulations as applied to the back, base and side of a cigarette pack 2 Figure 95 3 : TPP Act and TPP Regul ations as applied to the front, top and side of a cigarette carton Figure Figure 4 : TPP Act and TPP Regulations as applied to the back, base and side of a cigarette carton 96 5 : TPP Act and TPP Regulations as applied to cigar tubes Figure 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 : 9 TPP Act and TPP Regulations as applied to the appearance of cigars 100 Figure 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 : Australia's depiction of the TPP Act 269 12 325 Figure 13 : Diagram of the TPB 14 : Professor Chaloupka's conceptual framework for the evaluation of health warning policies 357 Figure 15 : Adult smoking prevalence - Figure CISNET 517 SimSmoke Figure 16 : Adult smoking prevalence - 517 : Framework proposed by Professor Keller regarding effective marketing communications Figure 545 17 18 : The Habanos composite trademark registered in Australia 846 Figure 846 Figure 19 : The Habanos label applied to the upper corners of Cuban LHM cigar boxes starting in 1994 847 : The Habanos label applied to the upper corners of Cuban LHM cigar boxes since 2004 20 Figure : The Cuban Government warranty seal 21 Figure 847

16 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 16 - - SED IN TH REPORT S MAIN ABBREVIATIONS U ESE Description Abbreviation ABAC Beverages Advertising (and Packaging) Code Alcohol ABS Australian Bureau of Statistics Australian Customs and Border Protection Services ACBPS ACCC Australian Competition and Consumer Commission ACL Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Schedule 2 ACT Australian Capital Territory Agreement on Government Procurement, as amended by the 2012 Protocol Amended GPA - Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Anti 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 13 of the FCTC Article 13 FCTC Guidelines FCTC Guidelines for Implementation of Article FCTC Article and Article 13 11 Guidelines for Implementation of Article 11 of the FCTC and FCTC Guidelines 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 Journal British Medical CCA Competition and Consumer Act 2010 (Cth) Cancer Council Queensland CCQ 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 cigarette stick equivalents CSE

17 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 17 - - Description Abbreviation Declaration on the TRIPS Agreement and Public Health, WT /MIN(01)/DEC/2 Doha Declaration (14 November 2001) DHA Department of Health and Ageing DSB Dispute Settlement Body Understanding on Rules and Procedures Governing the Settlement of DSU Disputes EOS Exchange of Sales EPS empty pack survey FAO Organization of the United Nations Food and Agriculture WHO Framework Convention on Tobacco Control, done at Geneva, 21 May FCTC 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 geographical indication(s) GI(s) GHW(s) graphic health warning(s) Agreement on Government Procurement GPA gross rating point(s) GRP(s) Havana Charter for an International Trade Organization Havana Charter International Agency for Research on Cancer IARC ILO International Labour Organization In IMS 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 International Plant Protection Convention IPPC IPPCC International Plant Protection Convention Commission ISO International Organization for Standardization International Organization for Standardization / International Electrotechnical ISO/IEC Guide 2: 1991 Commission Guide 2, General Terms and Their Defi nitions Concerning Standardization and Related Activities, 6th edn (1991) Imperial Tobacco Australia Limited ITA

18 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 18 Description Abbreviation ITC International Tobacco Control ITC Project International Tobacco Control Policy Evaluation Project instrument variable IV handmade LHM large Lisbon Agreement for the International Registration of Appellations of Origin " Lisbon Agreement " most - favoured - nation MFN MLA minimum age of legal access minimum legal purchasing age MLPA Declaration on Dispute Declaration on Dispute Settlement Pursuant to the Agreement on Settlement Pursuant to Article Implementation of Article VI of the General Agreement on Tariffs and Trade VI of the GATT 1994 or Part V 1994 or Part V of the Agreement on Subsidies and Countervailing Mea sures of the SCM Agreement National Drug Strategy Household Survey NDSHS NHS National Health Survey National Preventative Health Taskforce NPHT NTPPTS National Tobacco Plain Packaging Tracking Survey New South Wales NSW NSWPHS New South Wales Population Health Survey National Tobacco Campaign NTC Office of Best Practice Regulation OBPR World Organization for Animal Health OIE Organisation for Economic Co operation and Development OECD - OLS ordinary least square Paris Convention for the Protection Paris Convention 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 regulation impact RIS 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 socially desirable responding SDR

19 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 19 Description Abbreviation Agreement on the Application of Sanitary and Phytosanitary Measures SPS Agreement New South Wales School Students Health Behaviours Survey SSHBS Agreement TBT Agreement on Technical Barriers to Trade Committee on Technical Barri ers to Trade, Secretariat Note, "Decisions and TBT Committee Recommendations Adopted by the WTO Committee on Technical Barriers to Recommendation Trade Since 1 January 1995", WTO Document G/TBT/1/Rev.12 (21 January 20 (entitled "Significant effect on trade o f other 2015), Section 4.3.1.1, p. Members") TCT Tobacco Control Taskforce Trade Marks Act 1995 (Cth) TM Act Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth) TMA Act Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) TMA Bill Code 1979 Tokyo Round Standards 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) tobacco plain packaging literature TPP literature TPP Tobacco Plain Packaging Act 2011 (Cth); Tobacco Plain Packaging Regulations measures 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 on the Law of Treaties, done at Vienna, 23 May 1969, UN Vienna Convention 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

20 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 20 - - E E REPORT S IN TH MAIN EXHIBITS CITED S Short title Title Exhibit No(s). TPP Act 1, AUS (Cth) Tobacco Plain Packaging Act 2011 - JE 1 - - 2, AUS Memorandum, Tobacco Plain Packaging Bill Explanatory TPP Bill Explanatory JE Memorandum 7 - 2011 (Cth) Tobacco Plain Packaging Regulations 2011 3, (Cth), as - AUS TPP Regulations 2 JE amended by the Tobacco Plain Packaging Amendment - Regulation 2012 (No. 1) (Cth) Trade Marks Amendment (Tobacco Plain Packaging) Act AUS - 4, Act TMA - JE 2011 (Cth) 3 - TMA Bill Explanatory Explanatory Memorandum, Trade Marks Amendment AUS 5, (Tobacco Plain Packaging) Bill 2011 Memorandum JE - (Cth) 5 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) 8 Chaloupka Illicit Market F. Chaloupka, "Expert Report on Australia's Tobacco Plain - AUS Packaging Legislation" (6 Report March 2015) AUS - 9 Chaloupka Public Health F. Chaloupka, "Expert Report on Australia's Plain Packaging Report Legislation " (7 March 2015) N. Tavassoli, "Report on the World Trade Organization AUS - 10 Tavassoli Report Dispute Settlement Proceedings Concerning Australia's Tobacco Plain Packag ing Legislation" (10 March 2015) AUS Dubé Report "Expert Report of Dr. Jean - Pierre Dubé" (9 March 2015) - 11 March Slovic Report "Expert Report of Dr. Paul Slovic" (4 12 2015) - AUS - 13 Biglan Report "Expert Report of A. Biglan" (6 March AUS 2015) March - Fong Report "Expert Report of Dr. Geoffrey T. Fong" (4 2015) AUS 14 - 15 AUS T. Brandon, "Expert Report" (9 March 2015) Brandon Report 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" March 2015) (9 AUS - 19 (SCI) HoustonKemp Report HoustonKemp, "Competition and Trade for Tobacco Products in Australia" (9 2015) (SCI) March "Report by Ray Finkelstein QC to the Dispute Settlement 21 AUS Finkelstein Report - Panel Established by the World Trade Organization: The Tobacco Plain Packaging Act 2011 (Cth) and the Australian Consumer Law " (11 March 2015) R. Sims, "Report Concerning th - 22 (SCI) Sims Report AUS e Australia Consumer Law and the Packaging of Tobacco Products" (24 February 2015) (SCI)

21 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 21 Short title Exhibit No(s). Title AUS British American Tobacco, "Packaging Brief" (2 January 23 - British American Tobacco, 2001), Bates Nos. 325211963 - Packaging Brief 2001 325211964 Hand Smoke WHO Second - 24 World Health Organization, Protection from Exposure to - AUS - Hand Tobacco Smoke: Policy Recommendations Second Policy Recommendations (Geneva, 2007) The US Surgeon General's 25 - US Department of Health and Human Services, Health AUS Consequences of Smoking: A Report of the Surgeon General Report 2004 1 (Atlanta, 2004), Chap. - Banks et al. 2015 E. Banks, G. Joshy, M. Weber, B. Lui, R. Grenfell, S. Eggar, AUS 27 E. Paige, A. Lopez, F. Sitas and V. Beral, "Tobacco Smoking - Cause Morta lity in a Large Australian Cohort Study: and All Findings from a Mature Epidemic with Current Low Smoking BMC Medicine (2015) , Vol. Prevalence", 13, doi:10.1186/s12916 0150281 - AUS WHO Tobacco Fact Sheet World Health Organization, Media Centre, "Tobacco", Fact - 28 339 (May 2014), available at: Sheet No. < http://www.who.int/mediacentre/factsheets/fs339/en/ >, February 2015 accessed 25 US Department of Hea US Surgeon General's - The Health 29 lth and Human Services, AUS Consequences of Smoking: Nicotine Addiction: A Report of Report 1988 (Rockville, 1988) the Surgeon General AUS 30 Nomenclature and - Hadgson, "Nomenclature and G. Edwards, A. Arif, and R. and Related Problems: A WHO - and Alcohol Classification of Drug - - Classification of Drug Memorandum", Related Problems: - Alcohol Bulletin of the World Health Organization A WHO Memorandum (1981), Vol. 2, pp. 225 - 242 59, No. AUS - 31 Nicotine Addiction in Royal College of of London, Royal College of Physicians Physicians Report 2000 Britain: A Report of the Tobacco Advisory Group of the Royal College of Physicians (Sudbury, 2000) 33, Cigars: NCI Tobacco Control AUS - D. Burns, K. Cummings, and D. Hoffmann (eds.), 9 Monograph No. DOM - 149 Health Effects and Trends , Smoking and Tobacco Control Monograph No. 9, US Department of Health and Human Services, National Institutes of Health, National Cancer Institute (Bethesda, 1998) AUS - 34 Cigars: Facts and Figures American Lung Association, "Cigars", availabl e at: < http://www.lung.org/stop smoking/about - smoking/facts - fi - gures/cigars.html January 2015 >, accessed 30 AUS - 37, The Health US Department of Health and Human Services, US Surgeon General's 104, Report 2014 - DOM Consequences of Smoking – 50 Years of Progress: A Report - 35 (Atlanta, 2014) CUB of the Surgeon General AUS 38 UICC and CCA amici Union for International Cancer Control and Cancer Council - brief curiae Australia, Written Submission of Non - Party Amici Curiae (11 February 2015) - 39 US Surgeon General's AUS US Department of Health and Human Services, The Health Report 2006 Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (Atlanta, 2006) AUS National Cancer Institute, "Cigar Smoking and Cancer" - 40 NCI Cigar Fact Sheet (27 2010), available at: October < http://www.cancer.gov/cancertopics/fa ctsheet/Tobacco/cig February 2015. ars/ >, accessed 25 AUS - 41 - Cancer Council of Victoria, Quit Victoria, Heart Foundation, and VicHealth, Submission on Tobacco Plain Packaging: Proposed Approach to Non - Cigarette Tobacco Products ( 28 October 2011)

22 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 22 - - Short title Title Exhibit No(s). World Health Organization and the WHO Framework amici curiae 42 (revised) AUS WHO/FCTC - Convention on Tobacco Control Secretariat, Information for brief Party (16 February Submission to the Panel by a Non 2015) - - 42 (revised) AUS WHO/FCTC Request for World Health Organization and the WHO Framework to Submit Convention on Tobacco Control Secretariat, Request for Permission Information Permission to Submit Information to the Panel by a Party (16 Non 2015) - February WHO Report on the Global - WHO Report on the Global World Health Organization, AUS 43, 142 Tobacco Epidemic 2011 - HND Tobacco Epidemic, 2011: Warning about the Dangers of Tobacco (Geneva, 2011) AUS 44, - World Health Organization, Framework Convention on FCTC Tobacco Control (2003) - JE 19 - 45, 2010 National Australian Institute of Health and Welfare, AUS 2010 NDSHS Report 280 DOM Drug Strategy Household Survey Report , Drug Statistics - 25 (Canberra, 2011) Series No. AUS - 46 Vos et al. 2007 T. Vos, B. Barker, L. Stanley, and A. Lopez, "The Burden of Disease and Injury in Aboriginal and Torres Strait Islander Peoples: Summary Report", School of Population Health, The University of Queensland (September 2007) - 47 AUS D. Collins and H. Lapsley, The Costs of Tobacco, Alcohol and Collins and Lapsley 2008 Illicit Drug Abuse to Australian Society in 2004/05 , Commonwealth of Australia (Canberra, 2008) NDSHS Report - 48 2013 AUS Australian Institute of Health and Welfare, National Drug Strategy Household Survey Detailed Report 2013 , Drug 28 (Canberra, 2014) Statistics Series No. AUS 49 - Australian Bureau of Statistics, "Australian Aboriginal and - Torres Strait Islander Health Survey: Updated Results, 2012 2013", Cat. No. 4727.0.55.006 (2014) - - 50 US AUS Best Practices Centers for Disease Control and Prevention, CDC Best Practices for Comprehensive Tobacco for Comprehensive Tobacco Control Programs – 2014 , US Control Programs Department of Health and Human Services, available at: < http://www.cdc.gov/tobacco/stateandcommunity/best_pra ctices/ March 2015 >, accessed 2 AUS - 51 Jha and Chaloupka 1999 P. Jha and F.J. Chaloupka, Curbing the Epidemic: Governments and the , World Economics of Tobacco Control Bank, (Washington, D.C., 1999) AUS - 52, NPHT Technical Report 2 Preventative Health Taskforce, Australia: The Healthiest Technical Report No. 2 JE - 12 Country by 2020 – Tobacco Control – in Australia: Making Smoking Hi story , Australian 2009) Government (24 July AUS US Surgeon General's - US Department of Health and Human Services, Reducing 53 Tobacco Use: A Report of the Surgeon General (Atlanta, Report 2000 1 2000), Chap. - 64, AUS - Tobacco Advertising Prohibition Act 1992 (Cth) - 14 IDN National Preventative Health Taskforce, AUS 67, Australia: The - NPHT, The Roadmap for Action – Healthiest Country by 2020 National Preventative Health 14 - JE Strategy – The Roadmap for Action , Australian Government (30 June 2009 )

23 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 23 - - Short title Title Exhibit No(s). 69 RJ Reynolds Memo 1973 C.E Teague, "Research Planning Memorandum on Some AUS - Thoughts About New Brands of Cigarettes for the Youth 1973), Bates Nos. Market", RJ Reynolds (2 February 505101992 505101981 - - AUS United States v. Philip District Court, United States v. Philip Morris USA, Inc., US 71 449 F. Supp. 2d 1 (D. D.C. 2006) Morris 73 US Surgeon General's Preventing AUS - US Department of Health and Human Services, Report 1994, Executive Tobacco Use Among Youth and Young Adults: A Repor t of the Surgeon General: Executive Summary (Atlanta, 1994) Summary AUS - 76 US Surgeon General's Preventing US Department of Health and Human Services, Report 2012 Tobacco Use Among Youth and Young Adults: A Report of (Atlanta, 2012) the Surgeon General - 77 NCI Tobacco Control R. Davis, E. Gilpin, B. Loken, K. Viswanath, and M. Wakefield AUS 19 Monograph No. (eds.), The Role of the Media in Promoting and Reducing , Tobacco Control Monograph No. Tobacco Use 19, US Department of Health and Human Services, National I nstitutes of Health, National Cancer Institute (Bethesda, 2008) AUS - 78 1994 USIOM Report, Growing up Tobacco Free: B. Lynch and R. Bonnie (eds.), 4 Chap. Preventing Nicotine Addiction in Children and Youth , US Institute of Medicine (National Academy Press, 1994), 4 Preface and Chap. AUS - 81, Chantler Report C. Chantler, "Standardised Packaging of Tobacco: Report of CUB - 61 the Independent Review Undertaken by Sir Cyril Chantler" (April 2014) AUS - 82 Philip Morris, Marketing Philip Morris, "Marketing Issues Corporate Affairs Issues Corporate Affairs May 1994), Bates Conference" (27 Conference 2504015017 - 2504015042 Nos. - 83 RJ Reynolds, Australia RJ Reynolds, "Australia Trip: Topline Learning (Highly AUS February Restricted Market)" (12 Trip: Topline Learning 1997), Bates - 531455751 531455747 Nos. JT International SA v. 84 JTI v. Commonwealth, AUS High Court of Australia Transcripts, - Transcript Commonwealth of Australia; British American Tobacco Australasia Limited v. The Commonwealth HCA T rans (2012) 91 (17 2012) April AUS - 86 CCV Review 2011 Cancer Council Victoria, "Plain Packaging of Tobacco Products: A Review of the Evidence" (May 2011) AUS Centre for Tobacco Control Research, "The Packaging of 90 Cancer Research UK - 2012) Tobacco Products", Cancer Research UK (March AUS - 91, Hammond 2010 D. Hammond, "'Plain Packaging' Regulations for Tobacco - Products: The Impact of Standardizing the Color and Design JE 24(28) Salud Pública de México (2010), Vol. 52, of Cigarette Packs", 2, p. S226 - S232 No. AUS - 92 Difranza et al. 2003 J. Difranza, D. Clark, and R. Pollay, "Cigarette Package Design: Opportunities for Disease Prevention", Tobacco Induced Diseases (2003), Vol. 1, No. 2, pp. 97 - 109 Wakefield et al. 2002 - 93, M. Wakefield, C. Morley, J. Horan, and K. Cummings, "The AUS - CUB Cigarette Pack as Image: New Evidence from Tobacco 28 11, Tobacco Control (2002), Vol. Industry Documents", i80 No. 1, pp. i73 -

24 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 24 Short title Exhibit No(s). Title AUS - Philip Morris, Philip Morr is, "Opportunities in Packaging Innovation" (March 95 2048976191 1992), Bates Nos. Opportunities in Packaging - 2048976208 Innovation Philip Morris Marketing 96 Philip Morris, "Marketing New Products in a Restrictive - AUS Environment", Marketing Meeting, Naples, Florida (June Meeting 1990 2044762173 - 1990), Bates Nos. 2044762364 99 Swedish Match, New AUS - K. Hammar, "New Launch on Game", Swedish Match Inside (2009), Vol. 5 Launch on Game 100 Swedish Match, New AUS - Swedish Match, "New Products", Swedish Match Inside (2008), Vol. 2 Products AUS 101 Swedish Match , Cigars for Conscious Generation", - B. Sjölberg, "Cigars for a Trend - Conscious - a Trend Swedish Match Inside (2007), Vol. 1 Generation AUS - C. Miller, K. Ettridge, and M. Wakefield, "'You're Made to Feel 102, Miller et al. 2015 315 - like a Dirty Filthy Smoker When You're Not, Cigar Smoking is DOM Another Thing All Together.' Responses of Australian Cigar and Cigarillo Smokers to Plain Packaging", Tobacco Control , Vol. 24, pp. ii58 - ii65 (2015) AUS 103 Swedish Match, 2013 - 9 Swedish Match, "2013 Annual Report" (2013), p. Annual Report - 104 Shanahan ' s Law of Trade AUS Mark Davison, Tracey Berger, and Annette Freeman, Marks Shanahans's Australian Law of Trade Marks and Passing Off , 4th edn (Lawbook Co., 2008) Philip Morris, Alpine Alpine Cigarettes AUS - 107 – Philip Morris, "CPC Submission (Australia)" (2000), Bates Nos. - 2079065319 Cigarettes 2079065303 – Colmar Brunton, Alpine Colmar Brunton Research, "Qualitative Research - Alpine AUS 108 Creative Presentation", prepared for Philip Morris (March Creative Presentation 2504102678 2504102701 1994), Bates Nos. - - AUS FCTC Guidelines for Gui 109, WHO Framework Convention on Tobacco Control: delines for Implementation: Article 5.3, Article 8, Articles 9 and 10, Implementation (2013 DOM - 44 edition) (2013 edn) Article 11, Article 13, Article 14 - AUS Article 6 FCTC Guidelines "Guidelines for Implementation of Article 6 of the WHO 111 FCTC" (2014) AUS 115, Prime Minister Rudd and Health Minister Roxon, - PM Rudd, Anti - Smoking - "Anti 2010) April Smoking Action", Media Release (29 Action Media Release 4, - HND 52 DOM - A 116, Response to NPHT, The AUS Australian Government, Taking Preventative Action - - Roadmap for Action JE - 15 The Response to Australia: The Healthiest Country by 2020 - Report of the National Preventative Taskforce (11 May 2010) AUS 117, Ell, and K. Miller, "Market Research to V. Parr, B. Tan, P. - Parr et al. 2011a 24(49) - JE Determine Effective Plain Packaging of Tobacco Products", GfK bluemoon, prepared for Department of Health and Ageing, Australian Government (August 2011) AUS Ell, and K. Gagg, "Market Testing of Potential - 119, V. Parr, P. Parr et al. 2011c Health Warnings and Information Messages for - CUB Tobacco 75 Product Packaging: Phase 2 Front and Back of Pack Graphic Health Warnings", GfK bluemoon, Qualitative Formative Research Report, prepared for Department of Health and Ageing, Australian Government (March 2011)

25 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 25 - Short title Title Exhibit No(s). AUS - 120, Consultation Paper TPP Department of Health and Ageing, "Consultation Paper: JE Bill Exposure Draft Tobacco Plain Packaging Bill 2011 Exposure Draft", - 10 April 2011) Australian Government, (7 - 125 - Tobacco Plain Packaging Amendment Regulation 2012 AUS (Cth) (No. 1) - 126 Best Practice Regulation AUS Australian Government, Best Practice Regulation Handbook 2007) (Canberra, Handbook Competition and Consumer (Tobacco) Information Standard 128, AUS Information Standard - 2011 (Cth) 8 JE - - National Tobacco 129, AUS Intergovernmental Committee on Drugs, Strategy National Tobacco - - 2018 131 - Strategy 2012 DOM 2018: A Strategy to Improve the Health of all 2012 Australians by Reducing the Prevalence of Smoking and its Associated Health, Social and Economic Costs, and the es it Causes , Commonwealth of Australia (2012) Inequaliti AUS 130 - Australia's Notification to the Committee on Technical - Barriers to Trade, G/TBT/N/AUS/67 (8 April 2011) AUS 132 Fong et al. 2006 - Hyland, G. Fong, K. Cummings, R. Borland, G. Hastings, A. G. Giovi no, D. Hammond, and M. Thompson, "The Conceptual Framework of the International Tobacco Control (ITC) Policy Evaluation Project", Tobacco Control (2006), Vol. 15, pp. iii3 - iii11 AUS - 135, Borland and Savvas 2013a R. Borland and S. Savvas, "Effects of Stick Design Features - 24(8) on Perceptions of Characteristics of Cigarettes", Tobacco JE Control (2013), Vol. 331 - 337 22, pp. - 136, R. Borland, S. Savvas, F. Sharkie, and K. Moore, "The AUS Borland et al. 2013 Impact of Structural Packaging Design on Young Adult - JE 24(9) Smokers' Perceptions of Tobacco Products", Tobacco Control 97 - 102 (2013), Vol. 22, pp. - 137, AUS A. Ford, A. MacKintosh, C. Moodie, S. Richardson, and G. Ford et al. 2013a JE Hastings, "Cigarette Pack Design and Adolescent Smoking 24(20) - BMJ Open (2013), Susceptibility: A Cross Sectional Survey", 2013 doi:10.1136/bmjopen 003282 - - - 138 Kotnowski 2013 K. Kotnowski, "The Impact of Standardized Cigarette AUS Packaging Among Young Women in Canada: A Discrete Choice Experiment", Master of Science in Health Studies and Gerontology Thesis, presented to University of Waterloo, Canada (2013) 139 - Kotnowski and Hammond AUS i and D. Hammond, "The Impact of Cigarette K. Kotnowsk 2013 Pack Shape, Size and Opening: Evidence from Tobacco Addiction 9, (2013), Vol. 108, No. Company Documents", 1658 - 1668 pp. AUS - 140, Angusa, K. C. Moodie, M. Stead, L. Bauld, A. McNeill, K. eview Stirling R - 130, - HND Hinds, I. Kwan, J. Thomas, G. Hastings, and A. O'Mara Eves, - CUB "Plain Tobacco Packaging: A Systematic Review", UK Centre 59 for Tobacco Control Studies, University of Stirling (2012) AUS - 141 Moodie et al. 2009 C. Moodie, G. Hastings, and A. Ford, " A Brief Review of Plain Packaging Research for Tobacco Products", Institute for Social Marketing, University of Stirling (2009) AUS - 142, Centre for Health Centre for Health Promotion, "Effects of Plain Packaging on 24(14) JE Promotion 1993 Tobacco Products Among Youth", University of the Image of - 1993) Toronto (30 November

26 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 26 Short title Exhibit No(s). Title Bondy et al. 1994 S. Bondy, A. Paglia, and M. Kaiserman, "Tobacco Purchasing 143, AUS - 24(7) and Marketing", in T. Stephens and M. Morin (eds.), Youth - JE , Health Canada, Smoking Survey 1994: Technic al Report Minister of Supply and Services Canada (Ottawa, 1996), - pp. 153 179 144 d'Avernas et al. 1997 AUS J. d'Avernas, D. Northrup, M. Foster, D. Burton, R. Ferrence, - J. Pollard, I. Rootman, and B. Flay, "Cigarette Packaging and Event M arketing Increases the Attractiveness of Smoking: A Study of Youth", Ontario Tobacco Research Unit, Working Papers Series No. 28 (1997) 145, Rootman and Flay 1995 I. Rootman and B. Flay, "A Study on Youth Smoking: Plain AUS - 24(53) Packaging, Health Warnings, Event Marketing and Price JE - Reductions", University of Toronto, University of Illinois at Chicago, York University, Ontario Tobacco Research Unit, Addiction Research Foundation (1995) - 146 AUS D. Northrup and J. Pollard, "Plain Ciga rette Packaging and ISR newsletter Other Tobacco Issues: A Survey of Grade Seven and Grade Institute for Social Research Nine Ontario Students", 11, No. 2 Newsletter York University (1995), Vol. 147, "The Promotional AUS - Beede et al. 1990 P. Beede, R. Lawson, and M. Shepherd, - Impact of Cigarette Packaging: A Study of Adolescent JE 24(4) Responses to Cigarette Plain Packs", Department of Marketing, University of Otago, New Zealand (1990) 148, Cong, AUS Hoek - et al. 2011 J. Hoek, C. Wong, P. Gendall, J. Louviere, a nd K. 24(34) JE - "Effects of Dissuasive Packaging on Young Adult Smokers", Tobacco Control 20, pp. 183 - 188 (2011), Vol. AUS 149, M. Wakefield, D. Germain, and S. Durkin, "How Does Wakefield et al. 2008 - 24(62) - JE Increasingly Plainer Cigarette Packaging Influence Adult Smokers' Perceptions About Brand Image? An Experimental 421 416 study", Tobacco Control (2008), Vol. 17, pp. - AUS 150, - Smith, and Travers, D. Hammond, P. Bansal - Travers et al. 2011 M. Bansal - K. - JE Cummings, "The Impact of Cigarette Pack Design, 24(3) Descriptors, and Warning Labels on Risk Perception in the U.S.", (2011), American Journal of Preventive Medicine 40, No. Vol. 674 - 682 6, pp. AUS - 151, Smokers' Reactions to - R. Donovan, "Smokers' and Non Donovan 1993 JE Standard Packaging of Cigarettes", University of Western - 24(16) Australia (1993) - Morvan, C. Moodie, D. Hammond, F. Eker, E. AUS Gallopel - Morvan et al. K. Gallopel - 152, 24(23) 2012 JE - Beguinot, and Y. Martinet, "Consumer Perceptions of Cigarette Pack Design in France: A Comparison of Regular, Limited Edition and Plain Packaging", Tobacco Control 502 (2012), Vol. 21, pp. - 506 AUS - Beede and R. Lawson, "Brand Image Attraction: The P. Beede and Lawson 1991 153, 24(5) - Promotional Impact of Cigarette Packaging", New Zealand JE (1991), Vol. 18, pp. 175 - 177 Family Physician AUS 154, D. Germain, A. Wakefield, and S. Durkin, "Adolescents' - Germain et al. 2010 - JE Perceptions of Cigarette Brand Image: Does Plain Packaging 24(25) Make a Difference?", Journal of Adolescent Health (2010), Vol. 385 - 392 46, pp. sh, G. Hastings, and A. Ford, "Young 155, AUS Moodie et al. 2011 C. Moodie, A. Mackinto - 24(44) JE - Adult Smokers' Perceptions of Plain Packaging: A Pilot Naturalistic Study", Tobacco Control (2011), Vol. 20, No. 5, pp. 367 - 373

27 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 27 - - Short title Exhibit No(s). Title 156, - Doxey and Hammond AUS J. Doxey and D. Hammond, "Deadly in Pink: The Impact of JE 2011 - 24(17) Cigarette Packaging Among Young Women", Tobacco Control 20, pp. 353 - 360 (2011), Vol. - 157, Travers, - D. Hammond, J. Doxey, S. Daniel, and M. Hammond et al. 2011 AUS Bansal - JE "Impact of Female - Oriented Cigarette Packaging in the 24(30) Nicotine & Tobacco Research (2011), Vol. 13, United States", 7, pp. - 588 No. 579 - 158, D. Hammond, S. Daniel and C. White, "The Effect of AUS Hammond et al. 2013b 24(31) JE Cigarette Branding and Plain Packaging on Fem ale Youth in - Journal of Adolescent Health the United Kingdom", (2013), 52, pp. Vol. - 157 151 AUS - 159 Al - hamdani 2011 M. Al - hamdani, "A Survey on the Effects of Progressive Removal of Brand Imagery Elements from Cigarette Packs on the Perception of Adult University Students", Master of Health Administration Thesis, presented to Dalhousie University, Canada (2011) - 160, White et al. 2012 C. White, D. Hammond, J. Thrasher, and G. Fong, "The AUS Potential Impact of Plain Packaging of Cigarette Pro JE - 24(66) ducts Among Brazilian Young Women: An Experimental Study", BMC Public Health (2012), Vol. 12, - doi:10.1186/1471 - 12 - 737 2458 AUS - 161, Arts, S. G. Van Hal, S. Van Roosbroeck, B. Vriesacker, M. Van Hal et al . 2012 24(60) JE Hoeck, and J. Fraeyman, "Flemish Adolescents' Perceptions - of Cigarette Plain Packaging: a Qualitative Study with Focus Group Discussions" (2012), Vol. 2, No. 6, BMJ Open doi:10.1136/bmjopen - 2012 - 001424 - 162, Rieunier, Gallopel - Morvan et al. AUS K. Gallopel - Morvan, P. Gabriel, M. Le Gall - Ely, S. JE - 24(24) 2013 and B. Urien, "Plain Packaging and Public Health: The Case Journal of Business Research of Tobacco", 66, (2013), Vol. 133 136 pp. - 163, Gendall, H. Gifford, G. Pirikahu, J. McCool, G. AUS Hoek - et al. 2012 J. Hoek, P. 24(35) Pene, R. Edwards, and G. Thomson, "Tobacco Branding, JE - Plain Packaging, Pictorial Warnings, and Symbolic Consumption", (2012), Vol. 22, Qualitative Health Research 5, pp. 630 - 639 No. AUS Hammond and Parkinson - 165 D. Hammond and C. Parkinson, "The Impact of Cigarette Package Design on Perceptions of Risk", Journal of Public 2009 (2009), Vol. 31, No. 3, pp. 345 - 353 Health - 166, McNeill, tt, A. Lee and A. D. Hammond, M. Dockrell, D. Arno Hammond et al. 2009 AUS 24(29) JE "Cigarette pack Design and Perceptions of Risk Among UK - European Journal of Public Health Adults and Youth", (2009), 19, No. 6, pp. 631 - 637 Vol. AUS 167 Createc 2008 Createc, "Effects of Modified Packaging Through Increasing - the Size of Warnings on Cigarette Packages: Quantitative Study of Canadian Youth Smokers and Vulnerable Non - Smokers", prepared for Health Canada (April 2008) AUS - 168 Philip Morris, Virginia Slims Rounded Corners Name/Pack Philip Morris, "Virginia Slims Rounded Corners Test" (January 1998), Bates Nos. 2072462986 - 2072463039 Name/Pack Test - 169 Philip Morris, New AUS Philip Morris, "New Parliament Pack Test" (October 1998), Parliament Pack Test Bates Nos. 2073127722 - 2073127776 AUS - 170 Philip Morris, Merit Pack Philip Morris, "Merit Pack Test: Final Report" (March 1999), Test 2071530565 Bates Nos. 2071530536 -

28 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 28 Short title Exhibit No(s). Title S. Perry and B. Sutherland, "Salem A&A Study", RJ Reynolds 171 RJ Reynolds, Salem A&A AUS - (3 April 2002), Bates Nos. Study 529786375 - 529786584 - 172 Wakefield 2011 M. Wakefield, "Welcome to Cardboard Country: How Plain AUS Packaging Could Change the Subjective Experience of (2011), Vol. Smoking", 5, pp. Tobacco Control 20, No. - 321 322 - White 2011 C. White, "The Impact of Cigarette Package Design on Young 173 AUS Women in Brazil: Brand Appeal and Perceptions of Health Risk", Master of Science in Health Studies and Gerontology Thesis, presented to University of Waterloo, Canada (2011) Moodie et al. 2012 174, AUS d, A. Mackintosh, and G. Hastings, "Young C. Moodie, A. For - 24(45) - People's Perceptions of Cigarette Packaging and Plain JE Nicotine & Tobacco Research Packaging: An Online Survey", (2012), Vol. 1, pp. 98 - 105 14, No. AUS - 175, R. Borland and S. Savvas, "The Effects of Variant Descriptors Borland and Savvas Tobacco 24(10) on the Potential Effectiveness of Plain Packaging", - JE 2013b (2013), Vol. 58 - 63 Control 23, pp. - 176 Gallopel - Morvan et al. AUS - K. Gallopel Morvan, C. Moodie, and J. Rey, "Demarketing Cigarettes Through Plain Cigarette Packaging and 2010 Perceptions of Different Plain Pack Colours", Actes du Congres International de l'AFM, Association Française du Marketing (2010) - 177, D. Hammond, C. White, W. Anderson, D. Arnott, and M. AUS al. 2013a Hammond et Dockrell, "The Perceptions of UK Youth of Branded and - JE 24(32) European Journal Standardized, 'Plain' Cigarette Packaging", (2013), Vol. 24, No. 4, pp. of Public Health 537 - 543 AUS Gendall, J. Hoek, R. Edwards and J. McCool, "A - 178 Gendall et al . 2012 P. Cross - Sectional Analysis of How Young Adults Perceive BMC Tobacco Brands: Implications for FCTC Signatories", 12, Public Health (2012), Vol. 2458 - 12 - 796 doi:10.1186/1471 - - 179, AUS Environics Research Group, "Consumer Research on the Size ics 2008a Environ - JE of Health Warning Messages – 24(19) 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 Cigar Aficionado (May/June M. Fine, "The Music Mogul", 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 - - 051830 2014 AUS 182 Wenger et al. 2001 L. Wenger, R. Malone, A. George, and L. Bero, "Cigar - Magazines: Using Tobacco to Sell a Lifestyle", Tobacco (2001), Vol. 10, No. Control 279 - 284 3, pp. AUS - 183 Jamner 1999 M. Jamner, "Cigar Smoking Among College Students: Prevalence and Correlates", Prev entive Medicine (1999), Vol. 3, pp. 187 - 194 29, No. - 184, AUS Wakefield et al. 2013 M. Wakefield, L. Hayes, S. Durkin, and R. Borland, JE - 24(64) "Introduction Effects of the Australian Plain Packaging Policy on Adult Smokers: A Cross Sectional Study", BM J Open - (2013), doi:10.1136/bmjopen - 2013 - 003175

29 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 29 Short title Exhibit No(s). Title C. Moodie and A. Mackintosh, "Young Adult Women 185, - AUS Moodie and Mackintosh 2013 JE - 24(43) Smokers' Response to Using Plain Cigarette Packaging: A (2013), Naturalistic Approach", BMJ Open - 002402 doi:10.1136/bmjopen - 2012 V. White, T. Williams, and M. Wakefield, "Has the AUS - 186, White et al. 2015a Introduction of Plain Packaging with Larger Graphic Health - DOM 235 Warnings Changed Adolescents' Perceptions of Cigarette Tobacco Control 24, Packs and Brands?" (2015), Vol. ii42 - ii49 pp. - 187 Moodie and Hasti ngs 2011 C. Moodie and G. Hastings, "Making the Pack the Hero, AUS Tobacco Industry Response to Marketing Restrictions in the - Term Audit", International Journal UK: Findings from a Long (2011), Vol. of Mental Health and Addiction 9, pp. 24 - 38 AUS - 189, C. Moodie and A. Ford, "Young Adult Smokers' Perceptions of Moodie and Ford 2011 2 Cigarette Pack Innovation, Pack Colour and Plain Packaging", - 4(42) JE 19, pp. 174 - Australasian Marketing Journal (2011), Vol. 180 AUS - 190 Hammond et al. 2006 D. Hammond, G. Fong, A. McNeil, R. Borland, and Cummings, "Effectiveness of Cigarette Warning Labels in K. Informing Smokers about the Risks of Smoking: Findings from the ITC Four Country Survey", (2006), Tobacco Control iii19 - iii25 Vol. 15, pp. - 192 Kennedy et al. 2012 R. Kennedy, M. Spafford, I. Behm, D. Hammond, G. Fong, AUS and R. Borland, "Positive Impact of Australian 'Blindness' Tobacco Warning Labels: Findings from the ITC Four Country Clinical and Experimental Optometry Survey", (2012), Vol. pp. 95, - 598 590 O'Connor et al. 2007 AUS - 196 King, R. O 'Connor, A. McNeill, R. Borland, D. Hammond, B. C. Boud reau, and M. Cummings, "Smokers ' Beliefs About the Relative Safety of Other Tobacco Products: Findings from the Nicotine and Tobacco Research ITC Collaboration", (2007), 1042 Vol. - 10, pp. 9, No. 1033 197 Camel Advertising AUS - RJ Reynolds, "Camel Advertising Development 'White Paper'" 506768775 - 506768784 (1986), Bates Nos. Development White Paper 198, - CBRC 1992 Centre for Behavioural Research in Cancer, "Public Approval AUS JE - 24(13) of Proposed Tobacco Pack Labelling and Other Modifications: Supplement to: Health Warnings and Contents Labelling of Tobacco Products" (1992), Bates Nos. 2023248474 - 2023248457 199, AUS - Munafò et al. 2011 M. Munafò, N. Roberts, L. Bauld, and U. Leonards, "Plain JE - 24(47 Packaging Increases Visual Attention to Health Warnings on ) - smokers and Weekly Smokers but Cigarette Packs in Non not Daily Smokers", Addiction (2011), Vol. 106, pp. 1505 - 1510 A - 200, US O. Maynard, M. Munafò, and U. Leonards, "Visual Attention Maynard et al. 2013 - to Health Warnings on Plain Tobacco Packaging in Adolescent JE 24(40) - Smokers", Addiction (2013), Vol. Smokers and Non 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 e87 Tobacco Control 24, pp. Smokers", (2015), Vol. - e92 AUS - 202, Beede and R. Lawson, "The Effect of Plain Packages on P. Beede and L awson 1992 24(6) - JE the Perception of Cigarette Health Warnings", Public Health 322 (1992), Vol. 106, pp. 315 -

30 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 30 - - Short title Title Exhibit No(s). 203, hamdani 2013 hamdani, "The Effect of Cigarette Plain Packaging on AUS M. Al Al - - - - Individuals' Health Warning Recall", Healthcare Policy JE 24(1) - 8, No. 68 77 (2013), Vol. 3, pp. - 204 Partos et al. 2013 AUS 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 Tobacco Control - Country Policy Evaluation Cohort Study", 22, pp. - e50 (2013), Vol. e43 - 205 McCaul et al. 2006 AUS K. McCaul, J. Hockemeyer, R. Johnson, K. Zetocha, K. Quinlan, and R. Glasgow, "Motivation to Quit Using Addictive Behaviors Cigarettes: A Review", 31, (2006), Vol. pp. 42 - 56 AUS - 206, M. Wakefield, K. Coomber, M. Zacher, S. Durkin, Wakefield et al. 2015 M. Brennan, and M. Scollo, "Australian Adult Smokers' 306 - DOM Responses to Plain Packaging with Larger Graphic Health Warnings One Year After Implementation: Results from a National Cross Sectional Tracking Survey", Tobacco Control - 24, pp. (2015), Vol. ii17 - ii25 AUS - 207, Currow, S. Dunlop, T. Dobbins, J. Young, D. Perez, and D. 2014 et al. Dunlop 132, - HND "Impact of Australia's Introduction of Tobacco Plain Packs on 199 DOM Adult Smokers' Pack - Related Perceptions and Responses: - BMJ Open Results from a Continuous Tracking Survey", (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", (1997), Vol. 6, pp. 317 - 325 Tobacco Control AUS - 209, M. Goldberg, J. Liefeld, J. Madill, and H. Vredenburg, "The Goldberg et al. 1999 24(27) Effect of Plain Packaging on Response to Health Warnings", JE - American Journal of Public Health (1999), Vol. 89, No. 9, - 1435 pp. 1434 - 210 Borland et al. 2009a R. Borland, N. Wilson, G. Fong, D. Hammond, K. Cummings, AUS H. , and J. Thrasher, "Impact Yong, W. Hosking, G. Hastings Graphic and Text Warnings o n Cigarette Packs of indings : F from Four Countries O ver Five Years", Tobacco Control (2009) , Vol. 18, No. 5 , pp. 358 - 364 AUS 211 Borland - R. Borland, H. Yong, N. Wilson, G. Fong, D. Hammond, et al. 2009b K. Cummings, W. Hosking , and A. McNeill, "How Reactions to Cigarette Packet Health Warnings Influence Quitting: - Country Survey", Addiction Findings from the ITC Four (2009), Vol. 104, pp. 6 69 - 675 AUS - 212 Hammond et al. 2007 McNeil D. Hammond, G. Fong, R. Borland, K. Cummings, A. and P. Driezen, "Text and Graphic Warnings on Cigarette Packages - Findings from the International Tobacco Control Four Country Study", American Journal of Preventive (2007), Vol. 32, No. 3, pp. 202 - 209 Medicine Related 213 Borland 1997 R. Borland, "Tobacco Health Warnings and Smoking - - AUS Addiction (1997), Vol. 92, Cognitions and Behaviours", 11, pp. 1435 1427 - No. - 214, Dessaix, and J. Young, I. Stacey, T. Dobbins, S. Dunlop, A. 2014 AUS . Young et al 24(67), - JE D. Currow, "Association Between Tobacco Plain Packaging and Quitline Calls: A Population DOM - 285 - Based, Interrupted Time - series Analysis", Medical Journal of Australia ( 2014), Vol. 200, No. 1, pp. 29 - 32

31 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 31 Short title Exhibit No(s). Title 2015 AUS - Durkin et al . 215 S. Durkin, E. Brennan, M. Coomber, M. Zacher, (revised), Term Changes in - Wakefield, and M. Scollo, "Short M. DOM Quitting - Related Cognitions and Behaviours After the 305 - Implementation of Plain Packaging with Larger Health Warnings: Findings from a National Cohort Study with Tobacco Control 24, (2015), Vol. Australian Adult Smokers", ii26 pp. - ii32 216, - AUS Stirling Rev iew 2013 C. Moodie, K. Angus, M. Stead, and L. Bauld, "Plain Tobacco 60 Update CUB Packaging Research: An Update", Centre for Tobacco Control - Research, Institute for Social Marketing, University of Stirling (2013) - 217 Mutti et al. 2011 AUS 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", 106, pp. 1166 - 1175 Addiction (2011), Vol. - Labrecque et al. 2013 AUS L. Labrecque, V. Patrick, and G. Milne, "The Marketers' 218 Prismatic Palette: A Review of Color Research and Future Psychology and Marketing Directions", 30, (2013), Vol. - 202 No. 2, pp. 187 - AUS Ell, "Market Research to Determine V. Parr, B. Tan, and P. Parr et al. 201 1b 219, - JE Impact of Plain Packaging on Other Tobacco Products", GfK 24(50) bluemoon, prepared for Department of Health and Ageing, Australian Government (December 2011) - 220 DeSantis and Morgan DeSantis and S. Morgan, "Sometimes a Cigar [Magazine] AUS A. 2003 is More Than Just a Cigar [Magazine]: Pro - Smoking Arguments in Cigar Aficionado, 1992 - 2000", Health 4, pp. Communication (2003), Vol. 15, No. 480 457 - 221, AUS - Goldberg et al. 1995 M. Goldbe rg, G. Kindra, J. Lefebvre, J. Liefeld, J. Madill - Marshall, N. Martohardjono, and H. JE Vredenburg, 24(26) - "When Packages Can't Speak: Possible Impacts of Plain and Expert Panel Generic Packaging of Tobacco Products", Report, prepared for Health Canada (March 1995) AUS - Zacher et al. 2014 M. Zacher, M. Bayly, E. Brennan, J. Dono, C. Miller, 222 S. (revised), Durkin, M. Scollo, and M. Wakefield, "Personal Tobacco 24(68), - Pack Display Before and After the Introduction of Plain JE - Packaging with Larger Pictorial Health Warnings in Australia: DOM 286 Addiction utdoor Café Strips", An Observational Study of O 109, pp. 653 (2014), Vol. 662 - - 223 M. Zacher, M. Bayly, E. Brennan, J. Dono, C. Miller, 2015 Zacher et al . AUS (revised), S. Durkin, M. Scollo, and M. Wakefield, "Personal Pack - 287 DOM Display and Active Smoking at Outdoor C afé Strips: Assessing the Impact of Plain Packaging 1 year Post Implementation", (2015), Vol. 24, Tobacco Control - ii97 pp. ii94 - 224, Scollo, AUS E. Brennan, S. Durkin, K. Coomber, M. Zacher, M. Brennan et al. 2015 - DOM and M. Wakefield, "Are Quitting - Related Cognitions and 304 Behaviours Predicted by Proximal Responses to Plain Packaging with Larger Health Warnings? Findings from a National Cohort Study with Australian Adult Smokers", (2015), Vol. 24, pp. Tobacco Control - ii41 ii33 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 iii94 Control (2006), Vol. 15, pp. iii83 -

32 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 32 - - Short title Title Exhibit No(s). 228, AUS M. Rousu and J. Thrasher, "Demand Reduction from Plain - Rousu and Thrasher 2013 and Pictorial Cigarette Warning Labels: Evidence from - JE 24(54) Experimental Auctions", Applied Economic Perspective and 171 . 35, No. (2013), Vol 1, pp. - 184 Policy AUS 229, J. Thrasher, M. Rousu, D. Hammond, A. Navarro, and J. Thrasher et al. 2011 - - JE Corrigan, "Estimating the Impact of Pictorial Health Warnings 24(58) and 'Plain' Cigarette Packaging: Evidence from Experimental Auctions Amo ng Adult Smokers in the US", Health Policy 102, pp. - 48 (2011), Vol. 41 - Letter from D. Latham of 1994 from D. Latham of Lovell, White, Letter dated 6 AUS July 234 Lovell White Durrant 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, 502592536 - Durrant, Bates Nos. 502592535 235 Letter from L. 994 from L. Baeumer, Director, Baeumer , AUS - Letter dated 31 August 1 WIPO 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 Trademarks The TRIPS Regime of Nuno Pires de Carvalho, excerpts , 3rd edn (Kluwer Law International, 2014) , and Designs 333, - pp. - 233, 249, 252, 318 and 348 319, 323 AUS - 242 Correa's C ommentary on Trade Related Aspects of Intellectual Property C. Correa, the TRIPS Agreement Rights: A Commentary on the TRIPS Agreement (Oxford - 176, 182, 186, 223, and University Press, 2007), pp. 175 388 - 243 Shorter Oxford English AUS Shorter Oxford English Dictionary , 6th edn, A. Stevenson Dictionary, Vol. 1 AUS 1, (ed.) (Oxford University Press, 2007), Vol. 22, 56, pp. 336, 341, 470, 489, 500, 542, 827, 888, 1252, 1271, 1364, excerpts, Part 1 1412, and 1799 - Stevenson Shorter Oxford English AUS Shorter Oxford English Dictionary , 6th edn, A. 245 Dictionary, Vol. 2 AUS 1974, (ed.) (Oxford University Press, 2007), Vol. 2, pp. 2341, 2363, 2509, 2541, 3312, 3445, and 3485 excerpts 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, (Cth) Commerce (Imports) Regulations 1940 CI Regulations 155, - DOM 1 - CUB 255 AUS British American Tobacco Australia, "BAT Forced to Close - BATA media release October 2014) Australian Factory", Media Release (31 - 258 Amcor Submission on TPP AUS Amcor Limited, "Submission to the Commonwealth Bill Government on the Tobacco Plain Packaging Bill 2011 " (3 June 2011) - AUS - Acts Interpretation Act 1901 259 (Cth) - 260 - AUS P. O'Neill, "Was There an EM?: Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament" (12 September 2006)

33 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 33 - - Short title Title Exhibit No(s). 263, - AUS Brose et al. 2014 spinall, S. Michie, and A. McEwe n, L. Brose, C. Chong, E. A JE - "Effects of Standardised Cigarette Packaging on Craving, 24(11) Motivation to Stop and Perceptions of Cigarettes and Packs", (2014), Vol. 29, No. 7, pp. 849 - 860 Psychology & Health - Statements of the Hon. 265 AUS Statements of the Hon. Chris Bowen MP, Treasurer, and Chris Bowen MP, Senator the Hon. Penny Wong, Minister for Finance and Deregulation, "Economic Statement", Commonwealth of Treasurer, and Senator Hon. Penny Wong, Australia (August 2013) the Minister for Finance and Deregulation 2 266 AUS Budge t Paper No. - – Commonwealth of Australia, "Budget Measures – Budget 2014" (2013), p. 2013 - 2014 Paper No. 2 – 2013 - 25 AUS 267 - Public Health (Tobacco) Act 2008 (NSW) - National Preventive Health Agency, "Evidence 280 Evidence Brief: Tobacco AUS - Australian Control and Mass Media Brief: Tobacco Control and Mass Media Campaigns" (2013) Campaigns - 283 Cancer Institute NSW Cancer Institute New South Wales, "iCanQuit", available at: AUS < http://www. icanquit.com.au/ >, accessed 4 March 2015 website AUS 284 Victorian QuitTxt - Victorian QuitTxt application, available at: quit/choosing application - to - < - best - w http://www.quit.org.au/preparing ay - to - quit/quittxt >, accessed 4 March 2015 - 285 Queensland AUS ealth Indigenous Smoking Queensland Health, "SmokeCheck – H Program", available at: program < http ://www.health.qld.gov.au/atod/prevention/smokechec >, accessed 28 January 2015 k.asp - 286 Anti - smoking campaign Australian Indigenous HealthInfoNet, "Butt Out Boondah AUS website (Smoke)", available at: http://www.healthinfonet.ecu.edu.au/key resources/progra < - - projects?pid=2173 >, accessed 8 ms March 2015 AUS - 287 Quit Victoria Quit Victoria, "Triggers", available at: < http://www.quit.org.au/staying quit/triggers >, accessed - 5 2015 March 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 /we tection/public - education - campaigns/tobacco - control - - can quit >, accessed 9 2015 March - Queensland Health Queensland Health "Your Future's Not Pretty Campaign", 289 AUS available at: website prevention/quit_campa http://www.health.qld.gov.au/atod/ < >, accessed 6 March 2015 ign.asp - Implementation Review: 25 Per Cent - The Treasury, "Post Tobacco Excise Increase 292, AUS Tobacco Excise Increase", Australian Government 80, PIR - HND 119, DOM - 2013) (February CUB - 64, 21 - IDN AUS - 293 Industry statements on cluding: Industry statements on excise and downtrading, in Remarks by Matteo Pelle grini, President, Asia Region, Philip excise and downtrading 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

34 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 34 Short title Exhibit No(s). Title - General Agreement on Tariffs and Trade Secretariat, Marks AUS 294 1958 GATT Decision of Origin: Report by Working Party as adopted by the CONTRACTING PARTIES at their Meeting of 21 1958, GATT Document L/912/Rev.1 November November 1958) (22 295 1956 GATT Secretariat AUS - General Agreement on Tariffs and Trade Secr etariat, Marks Note of Origin: Note by the GATT Secretariat Concerning the ICC October Proposal, GATT Document L/556 (19 1956) - 1931 League of Nations League of Nations Economic Committee, Report to the AUS 296 Report - ssion, held at Council on the Work of the Thirty Fifth Se June 1931, League of Nations Geneva from 18 to 22 1931) Document C.427.M.177.1931.II.B (24 June AUS 297, Trade Practices (Consumer Product Information Standards) - - (Tobacco) Regulations 2004 (Cth) - DOM 43 AUS - Trade Practices (Consumer Product Information Standards) - 322 (Cth) (Tobacco) Regulations 1994 343 Tobacco in Australia 2012, AUS - M. Scollo, "The Pricing and Taxation of Tobacco Products in Australia", in M. Scollo and M. Winstanley (eds.), Tobacco in AUS excerpts Facts and Issues , 4th edn, Cancer Council Victoria Australia: (Melbourne, 2012), Chap. i - 130 13, pp. AUS 350 - Tobacco Products Control Act 2006 (WA) - AUS 351 - - (ACT) Tobacco (Amendment) Act 1990 Tobacco Products (Prevention of Supply to Children) Act AUS - 353 - 1998 (Qld), Sections 15, 22, and 40 - - Public Health Amendment (Juvenile Smoking) Act 2002 358 AUS (NSW) AUS - Tobacco Products Regulation (Miscellaneous Offences) - 359 (SA) Amendment Act 2007 - 360 - Public Health Act 1997 (Tas) AUS AUS 374 - Tobacco Control Act 2002 (NT) - AUS 417 - Excise Tariff Amendment Act (No 1) 2000 (Cth) - AUS 418 - - (Cth) Excise Tariff Amendment (Tobacco) Act 2010 AUS - 421, Tobacco Excise Media "Government to Increase Australian Government Treasury, - 2013) August Tobacco Excise", Media Release No. 15 (1 HND 85, Release 114, - DOM IDN 5 - - Background Paper, 435 AUS Background Paper: A Ministerial Council on Drug Strategy, National Tobacco Strategy Strategy Companion Document to the National Tobacco , Department of Health and Aged Care, 1999 to 2002 1999 to 2002 - 03 - 2003 Commonwealth of Australia, (Canberra, 1999), p. 7 Australia's National AUS - 436 Australia's National Department of Health and Ageing, Tobacco Campaign: Tobacco Campaign: Evalu ation Report Volume Three , Evaluation Report Australian Government (Canberra, 2004) Australian Government, Quitnow, "More Targeted Approach" AUS - 441 Quitnow website 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

35 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 35 - Short title Title Exhibit No(s). 489, ConAgra v. McCain alia, ConAgra Inc v. McCain Foods AUS Federal Court of Austr - 89 (Australia) Pty Ltd (1992) 23 IPR 19 CUB - AUS 500, JTI v. Commonwealth High Court of Australia, JT International SA v. - CUB - 50 Commonwealth of Australia; British American Tobacco Australasia Limited v. The Commonwealth (2012) 291 ALR 669 501 Ulucanlar et al. 2014 AUS 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 PLo S Medicine (2014), Vol. 11, Standardised Packaging", doi:10.1371/journal.pmed.1001629 AUS - 504 CINSW Rebuttal of BATA Cancer Institute New South Wales, "Summary: Cancer Analysis of CITTS Data Institute NSW's Rebuttal of British American Tobacco's Analysis of Cancer Institute NSW Tobacco Tracking Survey (CITTS) Data" (30 September 2014) - 507, Scollo et al. 2014 M. Scollo, M. Zacher, S. Durkin, and M. Wakefield, "Early AUS - Evidence About the Predicted Unintended Consequences of 24(57) JE Standardised Packaging of Tobacco Products in Australia: A - Sectional Study of the Place of Purchase, Regular Cross " , BMJ Open (2014), Vol. Brands and Use of Illicit Tobacco 4, doi:10.1136/bmjopen - 2014 - 005873 - 511 Chipty Supplementary 2015) AUS "Supplementary Report of Dr. Chipty" (31 May Report AUS - 512 - Supplementary Graphs, Import Volumes, Value and Share of the Market Australian Bureau of Statistics, "Balance of Payments and AUS - 513 - International Investment Position, Australia, Concepts, Sources and Methods, 1998", Cat. No. 5331.0 (1998) E. Wijkström and D. McDaniels, "International Standards and WTO Staff Paper, AUS 530 - the WTO TBT Agreement: Improving Governance for International Standards - Regulatory Alignment", Staff Working Paper ERSD and TBT Agreement 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) T. Brandon, "Rebuttal Report" (4 AUS 534 Brandon Rebuttal Report - September 2015) AUS - 535 (SCI) Chipty Rebuttal Report "Rebuttal report of Dr. Tasneem Chipty" (14 2015) (SCI) September - AUS WIPO Protection Against 536, International Bureau of WIPO, Protection Against Unfair Unfair Competition - 139 Competition: Analysis of the Present World Situation , World DOM Organization (Geneva, 1994) Intellectual Property Shorter Oxford E 539 Shorter Oxford English Stevenson , 6th edn, A. AUS - nglish Dictionary 1 AUS Dictionary, Vol. (ed.) (Oxford University Press, 2007), Vol. 1, pp. 15, 16, excerpts, Part 2 488, 719, and 1174 - 544 Philip Morris Marketing Philip Morris, "1991 Original Budget – Marketing AUS Presentation Presentation 1990 October 3, 1990", Bates Nos. 2504107139A - 2504107171

36 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 36 Short title Exhibit No(s). Title USIOM Report, 547 B. Lynch and R. Bonnie (eds.), Growing up Tobacco Free: 1994 AUS - 8 , US Chap. Preventing Nicotine Addiction in Children and Youth Institute of Medicine (National Academy Press, 1994), 8 Chap. 549 Consultation Paper, New AUS - Ministry of Health, Proposal to Introduce Plain Packaging of Tobacco Products in New Zealand Zealand Ministry of Health , Consultation Document, New Zealand Government (Wellington, 2012); and Ministry atement: Plain Packaging of of Health, "Regulatory Impact St Tobacco Products", New Zealand Government March 2012) (28 Ireland, Houses of the Oireachtas, Joint Committee on 550 Ireland House of the AUS - Health and Children, "Report on Hearings in Relation to the Oireachtas, Report Genera l Scheme of the Public Health (Standardised Packaging of Tobacco) Bill", Vol. 1 (April 2014) Statement dated 3 - 551 AUS Statement of J. Ellison, UK April 2014 of J. Ellison, UK Secretary of State - Under Secretary of State for Public Health, delivered to the - Under House of Commons on publication of Chantler Report on for Public Health, on Standardised Packaging of Tobacco Products publication of Chantler Report 553 Norway Standardised and Care Services, AUS - Norwegian Ministry of Health Tobacco Packaging "Consultation on the Proposal for Standardised Tobacco Consultation Paper Packaging and the Implementation of Article 5.3 of the Framework Convention on Tobacco Control" (17 March 2015) AUS 554 Packaging Business Packaging Business Review, "Chile Proposes Plain Packaging - Review, Chile Proposes for Cigarettes" (19 2015), available at: August Plain Packaging f < http://containers.packaging - business - review.com/news/chi or Cigarettes - 4650223 le - proposes - plain - packaging - for - cigarettes - 190815 >, accessed 13 2015 September - Hammond Review D. Hammond, "Standardized Packaging of Tobacco Products: AUS 555 Irish Department of Health Evidence Review", prepared for (March 2014) 556 AUS - Year Results British American Tobacco, "British American Tobacco - BAT, Half 2015), available Half - Year Results 2015", Transcript (29 July 2015 http://www.bat.com/group/ at: < DO72TJQU/$FILE/ sites/uk__9d9kcy.nsf/vwPagesWebLive/ medMD9Z3HKK.pdf?openelement >, accessed 9 September 2015 557, - Wakefield et al. 2012 M. Wakefield, D. Germain, S. Durkin, D. Hammond, M. AUS JE - 24(63) 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 Philip Morris Ltd, "Submission to the Legislative Council - Legislative Council of to Government Administration Committee 'A' Inquiring into the Public Health Amendment (Tobacco Free Generation) Bill Tasmanian Parliament 2014" (June 2015) AUS - 570, Scollo, rkin, E. Brennan, M. K. Coomber, M. Zacher, S. Du NTPPTS Technical Report on, - HND M. 124, Wakefield, P. Myers, N. Vickers, and S. Miss "Australian National Tobacco Plain Packaging Tracking 307 - DOM Survey: Technical Report", Cancer Council Victoria, prepared for Australian Government Department of Health (March 2015) AUS - 582 Chaloupka Rebuttal Selected Issues Raised in F. Chaloupka, "Rebuttal Report on Report Ongoing Challenges to Australia's Tobacco Plain Packaging 2015) Measure" (26 October

37 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 37 Short title Exhibit No(s). Title J. - P.Dubé, "A Rebuttal to Comments Made by Dr. Professor 583 Dubé Rebuttal Report AUS - 2015) Steenkamp" (26 October 584 Katz Surrebuttal Report M. Katz, "The Effects of Tobacco Plain Packaging: Surrebuttal - AUS October 2015) to Professor Damien Neven" (26 AUS Fong Second - 585 G. Fong, "Supplementary Report in Response to Professors Inman and Kleijnen" (27 October 2015) Supplemental Report 586 Chipty Surrebuttal Report "Surrebuttal Report of Dr. Tasneem Chipty" AUS - October 2015) (26 - AUS Tavassoli Rebuttal Report N. Tavassoli, "Rebuttal to Arguments Raised in Exhibit 588 DOM/HND 14" (26 October 2015) - - 590 Chaloupka Second AUS F. Chaloupka, "Report on Selected Issues Raised in Ongoing Challenges to Australia's Tobacco Plain Packaging Measure" Rebuttal Report December 2015) (7 591 AUS - "Second rebuttal report of Dr. Tasneem Chipty" Chipty Second Rebuttal (8 December 2015) Report - 593 BATA Submission on AUS British American Tobacco Australia, "Submission to the Australian Government Australian Government's Re:Think – Tax Discussion Paper Consultation" (5 June 2015) Tax Discussion Paper AUS 595, WHO Report on the Global - World Health Organization, WHO Report on the Global DOM Tobacco Epidemic - 319 Tobacco Epidemic, 2015: Raising Taxes on Tobacco (Geneva, 2015 2015) World Health Organization, AUS WHO Report on the Global - 595.A WHO Report on the Global Tobacco Epidemic 2015, Tobacco Epidemic, 2015: Raising Taxes on Tobacco (Geneva, Appendix IX 2015), Appendix IX - 596 ISO 6385 International Organization for Standardization, International AUS Standard 6385: Ergonomic Principles in the Design of Work , 2nd edn, ISO 6385:2004(E) (1 February 2004) Systems 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) B. Steenkamp, Private Label Strategy: How AUS - 601 Kumar and Steenkamp, - N. Kumar and J. to Meet the Store Brand Challenge (Harvard Business Press, Private Label Strategy 2013), Chap. 6 AUS - 602, 2008 IARC Handbook World Health Organization, International Agency for Research on Cancer, DOM - 368 Methods for Evaluating Tobacco Control Poli cies , Handbooks of Cancer Prevention, Tobacco Control, Vol. 12 (Lyon, 2008) - 604 AUS Chaloupka Third Rebuttal F. Chaloupka, "Third Rebuttal Report on Selected Issues Report Raised in Ongoing Challenges to Australia's Tobacco Plain 2016) Packaging Measure" (29 J anuary T. Chipty, "Third Rebuttal Report of Dr. Tasneem Chipty" - 605 Chipty Third Rebuttal AUS (1 February 2016) Report AUS MPOWER: A Policy Package to - 607 WHO Policy Package to World Health Organization, (2008) Reverse the Tobacco Reverse the Tobacco Epidemic Epidemic

38 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 38 Short title Exhibit No(s). Title Tasmanian Government, Department of Health and Human 609 Tasmania Strategic Plan AUS - Five Year Strategic Plan – Services, " Healthy Tasmania – ( December 2015) Community Consultation Draft" 612, Act AUS Ireland, Public Health (Standardised Packaging of Tobacco) - Irish Public Health - 94 Act 2015 CUB 2015 - - United Kingdom, The Standardised Packaging of Tobacco AUS 613 Products Regulations 2015 41 du 26 janvier 2016 de Modernisation - France, LOI n° 2016 - AUS - 614 27 de Notre Système de Santé, Article - AUS Draft Decree, Neutrality 615 France, Decree on the Conditions of Neutrality and and Standardisation for Standardisation for the Packaging and Paper of Cigarettes the Packaging of and Rolling Tobacco (Draft), European Commission May 2015) Notification No. 2015/241/F (7 Cigarettes and Rolling Tobacco 616 Hungary, Draft - Hungary, Government Decree Amending Government Decree AUS of 14 February Amendment to 39/2013 2013 on the Manufacture, overnment Decree G Placement on the Market and Control of Tobacco Products, Combined Warnings and the Detailed Rules for the 39/2013 - Application of the Health Protection Fine (Draft), European Commission Notification No. 2015/529/HU Septem ber 2015) (21 - 617 - New Zealand, Smoke AUS free Environments (Tobacco Plain - Packaging) Amendment Bill (2014) - Amendments to the Tobacco Control Act" and AUS Norway, "Draft 618 Norway, Draft Amendments European "Draft Amendments to the Labelling Regulations", 2015/2009/N (5 May 2015) Commission Notification No. - Park and Srinivasan 1994 C. Park and V. Srinivasan, "A Survey Based Method for 619 AUS - Measuring and Understanding Brand Equity and Its Extendability", (1994) Journal of Marketing Research 31, pp. 271 - 288 Vol. - 621 CCV 2014 Survey AUS 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) - 622 AUS NHS Results Australian Bureau of Statistics, National Health Survey: First - 15 Results: 2014 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 Public Health Research and Practice Adolescents", (2016), Vol. doi:http://dx.doi.org/10.17061/phrp2611605 26, AUS 624 Tobacco Plain Packaging - Implementation Review: Department of Health, "Post - PIR Tobacco Plain Packaging 2016", Australian Government (2016) JE - 6 TM Act Trade Marks Act 1995 (Cth) 9 JE - (Cth) - Exposure Draft, Tobacco Plain Packaging Bill 2011 2011) April (7 - 11 JE Paper Consultation Department of Health and Ageing, "Consultation Paper: - Cigarette Tobacco Tobacco Plain Packaging: Proposed Approach to Non Products Non - Cigarette Tobacco Products", Australian Government (30 September 2011)

39 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 39 - Short title Title Exhibit No(s). 16 JE CCV Review 2011 - ncil Victoria, "Plain Packaging of Tobacco Cancer Cou Products: A Review of the Evidence" (May 2011, updated (Updated) August 2011) - 20 Article 11 FCTC JE "Guidelines for Implementation of Article 11 (Packaging and Guidelines, ocument FCTC/COP3(10), Labelling of Tobacco Products)", D excerpted from Conference of the Parties to the WHO FCTC/COP/3(10) Framework Convention on Tobacco Control, "Decisions", Third Session, held in Durban, South Africa, 17 to November 2008, Document FCTC/COP/3/DIV/3 22 February 2009) (16 JE - 21 Article 13 FCTC "Guidelines for Implementation of Article 13 (Tobacco Advertising, Promotion and Sponsorship)", Document Guidelines, FCTC/COP/3(12) 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 November 2008, Document FCTC/COP/3/DIV/3 to 22 February (16 2009) JE - 22 TPPA Regulation Explanatory Statement, Tobacco Plain Packaging Explanatory Statement Amendment Regulation 2012 (No. 1) (Cth) - 24 - Plain Packaging Literature JE 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, 3.00035 doi: 10.3389/fpubh.201 JE 24(18) Environics 2008b Environics Research Group, "Consumer Research on the Size - – Quantitative Study of of Health Warning Messages Canadian Adult Smokers", prepared for Health Canada (May 2008) e, A. MacKintosh, and G. Hastings, "How - JE Ford et al. 2013b A. Ford, C. Moodi 24(21) 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 Lund and Scheffels 2013 JE - 24(38) Smokers I. Lund a nd J. Scheffels, "Young Smokers and Non - Perceptions of Typical Users of Plain vs. Branded Cigarette BMC Packs: A Between Subjects Experimental Survey", Public Health (2013), Vol. 13, - 2458 - 13 - 1005 doi:10.1186/1471 - 24(39) Madill - Marshall et al. 1996 Marshall, M. Goldberg, G. Gorn, J. Liefeld, and H. J. Madill - JE 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

40 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 40 Short title Exhibit No(s). Title C . Moodie, G. Hastings, and L. Joossens, "Young Adult 24(46) JE - Moodie et al. 2012 Smokers' Perceptions of Illicit Tobacco and the Possible European Impact of Plain Packaging on Purchase Behaviour", 22, pp. 251 - 253 Journal of Public Health (2012), Vol. 24(48) Northrup and Pollard 1995 D. Northrup and J. Pollard, Plain Packaging of Cigarettes, JE - 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 September 1995 ) (Toronto, - 24(51) Pechey et al. 2013 R. Pechey, D. Spiegelhalter, and T. Marteau, "Impact of Plain JE Packaging of Tobacco Products on Smoking in Adults and Children: An Elicitation of International Experts' Estimates", (2013) , Vol. 13, No. BMC Public Health 18, doi:10.1186/1471 2458 - 13 - 18 - JE Scheffels and Lund 2013 J. Scheffels and I. Lund, "The Impact of Cigarette Branding - 24(55) and Plain Packaging on Perceptions of Product Appeal and - Risk Among Young Adults in Norway: A Between Subjects (2013), Experimental Survey", BMJ Open 2013 - 003732 doi:10.1136/bmjopen - - 24(56) Scheffels and Saebo 2013 J. Scheffels and G. Saebo, "Perceptions of Plain and Branded JE Cigarette Packaging Among Norwegian Youth and Adults: A Focus Group Study", icotine & Tobacco Research (2013), N 2, pp. 450 - 456 Vol. 15, No. - 24(59) JE 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, 13 doi:10.1186/1471 - 2458 - 432 - J 24(65) Wakefield et al. 2014 M. Wakefield, M. Bayly, and M. Scollo, "Product Retrieval E - Time in Small Tobacco Retail Outlets Before and After the - Australian Plain Packaging Policy: Real World Study", (2014), Vol. 23, pp. 70 - 76 Tobacco Control N - 3 Ajzen Report I. Ajzen, "Examination of Australia's Reliance on Behavioral DOM/HND/ID Theories to Support its Tobacco Plain Packaging Legislation" June 2015) (1 DOM/HND/IDN Ajzen Supplemental - Implementation 4 - I. Ajzen, "Supplemental Report: Pre Empirical Testing of Behavioral Theories Relied on by Report July 2015) Australia to Justify Plain Packaging" (7 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 - I. Ajzen, "Response to Questions 146, 202, and 203 by the December 146, 202, uestion Nos. Panel" (8 q 2015) and 203 - 1 Shavin Report DOM/HND 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 - Chaudhry, A. Murray, and A. Zimmerman, "The Impact of P. 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" 2014) (3 October

41 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 41 - - Short title Title Exhibit No(s). 4 Kleijnen Systematic Kleijnen, A. Bryman, and M. Bosnjak, "Quality of the DOM/HND J. - Empirical Evidence Testing the Impact of Plain Packaging on Review Tobacco Consumption: A Systematic Review" October 2014) (7 - 5 Steenkamp Report DOM/HND J. - B. Steenkamp, "The Effect of Plain Packaging on Smok ing Behavior An Analysis Based on Widely Accepted Consumer – 2014) Behavior and Marketing Principles" (29 September - 6 Steinberg Report DOM/HND - Making and the L. Steinberg, "Adolescent Decision 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) Vetting Report DOM/HND Shavin Pre - - D. Shavin, "Pre - Vetting of Packaging and Tobacco Products 9 as an Alternative to Plain Packaging" (4 October 2014) DOM/HND 10 Steinberg Rebuttal Report - - Making L. Steinberg, "Rebuttal Report: Adolescent Decision and the Prevention Underage Smoking: The Role of Plain Packaging: A Response to Expert Evidence Submitted on Behalf of Australia" (3 July 2015) G. Fischer, "Response to report submitted by Prof. Brandon" - 11 Fischer Rebuttal Report DOM/HND (7 July 2015) J. Inman, "Plain Packaging Literature Peer Review Project: Project DOM/HND - 12 Peer Review Rebuttal Report September 2015) Rebuttal Report" (14 - Kleijnen Systematic J. Kleijnen, A. Bryman, and M. Bosnjak, "Systematic Review DOM/HND 13 Rebuttal Report" (14 September Review Rebuttal Report 2015) - Steenkamp Rebuttal - B. Steenkamp, "Tobacco Packaging in the Australian J. 14 DOM/HND Context – Lessons from Marketing Principles and Empirical Report Data: A Rebuttal to Arguments Raised by Australia and its 11 Experts" ( 2015) September L. Steinberg, "Adolescent Decision DOM/HND Steinberg Second Rebuttal - Making and the 15 - Prevention of Underage Smoking: The Role of Plain Report Packaging: A Second Response to Expert Evidence er 2015) Octob Submitted on Behalf of Australia" (23 - 17 Peer Review Project J. Inman, "Plain Packaging Literature Peer Review Project: DOM/HND 2015) Second Rebuttal Report" (8 December Second Rebuttal Report DOM/HND Kleijnen Systematic - 18 J. Kleijnen, A. Bryman, and M. Bosnjak, "Systematic Review Second Rebuttal Report" (7 December Review Second Rebuttal 2015) Report - 19 Steenkamp Second DOM/HND 2015 Supplementary J. - B. Steenkamp, "Rebuttal to October Reports of Professors J.P. Dubé and N. Tavassoli" Rebuttal Report (9 December 2015) DOM/HND 20 Steinberg Response to Making and the - - L. Steinberg, "Adolescent Decision Panel Question No. Prevention of Underage Smoking: The Role of Plain 159 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)

42 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 42 - - Short title Title Exhibit No(s). 2 DOM/IDN I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, - Ajzen et al. Data Report "Reconsideration of Empirical Evidence on the Effectiveness of Australian Plain Packaging Legislation: Evidence from the National Plain Packaging Tracking Survey (NPPTS) and Other September 2015) Datasets" (15 DOM/IDN 3 List Rebuttal Report J. List, "A Further Consideration of the Empirical Evidence on - f Australia's Tobacco Plain Packaging the Effects o September 2015) Legislation" (16 DOM/IDN 4 Ajzen et al. Second Data I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, - Report "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 List Second Supplemental - 5 J. List, "A Synthesis of the Evidence on Australia's Plain October 2015) Report Packaging Policy" (28 I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, - Ajzen et al. Data Rebuttal DOM/IDN 6 "Reconsideration of Empirical Evidence on the Effectiveness Report of Australian Plain Packaging Legislation: Evidence from the (NPPTS) and Other National Plain Packaging Tracking Survey Datasets: Rebuttal Report" (9 December 2015) - - 7 List Third Supplemental Available Evidence DOM/IDN J. List, "A Further Synthesis of the Newly Report on Australia's Plain Packaging Policy" (8 December 2015) I. Ajzen, A. Hortaçsu, J. List, and A. Shaikh, "Findings From DOM/IDN - 8 Ajzen et al. Second Data Rebuttal Report the NPPTS, ITC and Personal Pack Display Datasets: Response to Arguments by Professor Chaloupka and Australia" (29 2016) January - DOM/IDN List Summary Report J. List, "C oncluding Summary on Australia's Plain Packaging 9 February 2016) Policy" (2 HND - 2, NPHT Terms of Reference Australian Government, Preventative Health Taskforce, DOM - 50 "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, 2009 from T. Lind, Office of Best April Letter dated 23 Letter of 23 April 2009 from OBPR to DHA Practice Regulation, to D. Sloane, Assistant Director, 6 IDN - Department of Health and Ageing, Draft RIS for the Tobacco Control Act - 13 HND Department of Health and Ageing, "Best Practice Regulation Best Practice Regulation Preliminary Assessment", Australian Government Preliminary Assessment (7 2010) April Facsimile dated 27 HND - 15 RIS 2010 Marshall, Director, April 2010 from P. Department , to R. Ristic, Director, of Health and Ageing Office of Best Practice Regulation , attaching "Regulation Impact Statement: Plain Packaging of Tobacco Products" (April 2010) HND - 16 Letter of 4 May 2010 from ic, Director, Office of 2010 from R. Rist Letter dated 4 May OBPR to DHA Best Practice Regulation, to P. Marshall, Director, Department of Health and Ageing

43 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 43 - Short title Title Exhibit No(s). Australian Government, Office of Best Practice Regulation, - Best Practice Regulation HND 18, 12 – Report 2011 Best Practice Regulation Report 2011 – 12 (Canberra, 2012), CUB - 9 available at: https://ris.govspace.gov.au/files/2012/10/best - practice - re < - gulation October 2014 report_2012.pdf >, accessed 1 - 24 - Republica de Honduras, Ley Especial para el Control del HND - 2010, Diario Oficial Num. 32, 296 Tabaco, Decreto 92 2010) August (21 Department of Health and Ageing, "Reporting 26 Reporting Instrument of HND Instrument of - the WHO FCTC submitted the WHO Framework Convention on Tobacco Control", by Australia April 2012), pp. 1 - 3, 27 - 30, Australian Government, (30 - 1 and 12, available at: 55 56, and Annex 1, pp. http://www.who.int/fctc/reporting/party_reports/australia_ < > and 2012_report_final.pdf?ua=1 http://www.who.int/fctc/reporting/party_reports/aust ralia_ < annex1_miscellaneous.pdf October 2014 >, accessed 3 HND - 31 Oxford Dictionaries online, Oxford Dictionaries online, British and World English, HND excerpts definitions of "acquire", "by", "confusion", "course", tifiable", "likelihood", "develop", "encumber", identical", "jus "nature", "necessary", "obstacle", "reasonable", "requirement", "right", "similar", and "trade", available at: < www.oxforddictionaries.com > , accessed 29 September 2014 or 3 October 2014 - 39 Bodenhausen, HND G.H.C. Bodenhausen, Guide to the Application of the Paris HND Convention for the Protection of Industrial Property, as excerpts Revised at Stockholm in 1967 (WIPO, 1969), pp. 108, 128, and 144 - 146 World Intellectual Property Organization, WIPO Intellectual HND - 40 WIPO IP Handbo ok, HND excerpts , 2nd edn (Geneva, 2004) Property Handbook HND 47 S. Lester International - S. Lester, "Fun with Plain Packaging", International Economic Policy Blog, available at: Economic Law and Policy Law and - < http://worldtradelaw.typepad.com/ielpblog/2014/06/fun Blog wi October - th packaging.html >, accessed 2 plain 2014 - HND - 48 Merriam - Webster Webster Dictionary online, definitions of - Merriam D "competition", "encumber", "reasonable", "requirement", ictionary online, HND and "trade", available at: excerpts http://www.merriam - webster.com >, accessed < 29 September 2014 or 7 October 2014 - 50, Tobacco Plain Packaging: Department of Health and Ageing, HND DHA Guide to Tobacco Plain Packaging (July 2012), Australian Government, available at: Your Guide 161 - DOM http://www.health.gov.au/internet/main/publishing.nsf/Co < ntent/tppbook 2014 October , accessed 7 > HND - alia: 2013 Full Year Report" KPMG Report 2013 KPMG, "Illicit Tobacco in Austr 67, DOM - (3 April 2014) 98, IDN - 41 - 72 Rimpelä o 2004 and Rain i HND A. Rimpelä and S. Rain i o, "The Effectiveness of Tobacco Sales Ban to Minors: The Case of Finland", Tobacco Control 13, pp. (2004), Vol. - 174 167 HND - 74 Ahmad and Billimek 2007 S. Ahmad and J. Billimek, "Limiting Youth Access to Tobacco: Comparing the Long - Term Health Impacts of Increasing Cigarette Excise Taxes and Raising the Legal Smoking Age to 21 in the United States", Health Policy 391 (2007), Vol. 80, pp. 378 -

44 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 44 - - Short title Title Exhibit No(s). 76 Ahmad 2005b HND S. Ahmad, "The Cost - Effectiveness of Raising the Legal - Medical Decision Making (2005), Smoking Age in California", 25, pp. 330 - 340 Vol. HND 78 ACCC industry codes Australian Competition and Consumer Commission, - "Industry Codes", available at: < - codes >, https://www.accc.gov.au/business/industry October 2014 accessed 7 M. Scollo and M. Winstanley (eds.), 79 Tobacco in Australia 2012, Tobacco in Australia: HND - HND excerpts 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 > and Ch1_Prevalence.pdf < http://www.tobaccoinaustralia.org.au/downloads/chapters/ October >, accessed 6 2014 Ch13_Taxation.pdf - 83 Dunlop et al. 2011 HND 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", 1687 (2011), Vol. 106, pp. Addiction - 1695 HND - 86 - Excise Tariff Amendment (Tobacco) Act 2014 (Cth) - 89 New Shorter Oxford The New Shorter Oxford English Dictionary on Historical HND English Dictionary, HND Principles , L. Brown (ed.) (Oxford University Press, 1993), excerpts Vol. I and Vol. II, pp. 54, 459, 674, 1255, 1348, 1791, 2387, and 3482 HND - 104 Chantler Notes C. Chantler, "Independent Review into Standardised Based Meetings" 14 March 2014 - Packaging of Tobacco – Notes of Australia (14 2014), available at: March http://www.kc l.ac.uk/health/packaging docs.aspx >, < - 2014 accessed 6 October - HND IP Australia Letter Letter dated 3 December 2012 from Australian Government, 110 Trade Mark Application No. 1509780 HND - 118 Klick Rebuttal Report J. Klick, "Rebuttal Report – A Reply to Dr. Chipty" (8 2015) July HND ISO - 3394 International Organization for Standardization, International 121 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 - A Review of New 122 Klick Supplemental – J. Klick, "Supplemental Rebuttal Report Rebuttal Report and Updated Australian Survey and Market Data" (16 September 2015) - 123 Neven Rebuttal Report HND D. Neven, "The Effect of Plain Packaging Regulation on Competition and Tobacco Consumption: A Response to Professor Katz's Report" (16 September 2015) M. Scollo, M. Zacher, K. Coomber, M. Bayly, and HND - 133, Scollo et al. 2015a M. 237, Wakefield, "Changes in Use of Types of Tobacco Products - DOM - 311 by Pack Sizes and Price Segments, Prices Paid and DOM Consumption Following the Introduction of Plain Packaging in ii66 Australia", Tobacco Control (2015), Vo l. 24, pp. - ii75 I. Ajzen, "The Theory of Planned Behaviour is Alive and Well, - 134 Ajzen, Health Psychology HND Review 2014 and Not Ready to Retire: A Commentary on Sniehotta, Presseau, and Araújo - Soares", Health Psychology Review (2014), doi.org/10.1080/17437199.2014.883474

45 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 45 Short title Exhibit No(s). Title HND - 135, White et al. 2015b V. White, T. Williams, A. Faulkner, and M. Wakefield, "Do Larger Graphic Health Warnings on Standardised Cigarette 236, - DOM Packs Increase Adolescents' Cognitive Processing of - DOM 288 Consu mer Health Information and Beliefs about Smoking (2015), Vol. 24, Related Harms?", Tobacco Control ii50 pp. ii57 - - Framework D. Bodansky, "The Framework Convention/Protocol 141, HND Convention on Tobacco Control, IDN 31 - Approach", Framework Convention/Protocol Technical Briefing Series, Paper 1, WHO/NCD/TFI/99.1 Approach, FCTC Paper 1 (1999) - 148 - HND KPMG, "Illicit Tobacco in Australia: 2014 Full Year Report" (27 March 2015) HND Pechmann et al. 2011 C. Pechmann, A. Biglan, J. Grube, and C. Cody, - 149 "Transformative Consumer Research for Addressing Tobacco and Alcohol Consumption", in D. Mick, S. Pettigrew, C. Pechmann, and J. Ozanne (eds.), Transformative Consumer Being - Research for Personal and Collective Well (Routledge, 2011) - 152 Tworek et al. 2010 C. Tworek, R. Yamaguchi, D. Kloska, S. Emery, D. Barker, G. HND Giovino, P. - Level Tobacco O'Malley, and F. Chaloupka, "State Control Policies and Youth Smoking Cessation Measures", US National Institutes of Health Public Access Author ished in Health Policy (2010), Vol. 97, Manuscript, publ 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 10, pp. Health (2013), Vol. 4322 4306 - HND Sussman et al. 2013 S. Sussman, D. Levy, K. Lich, C. Cene, M. Kim, L. Rohrbach, - 154 and F. Chaloupka, "Comparing Effects of Tobacco Use ties: Need for Complex System Models", Prevention Modali (2013), Vol. 11 Tobacco Induced Diseases Guindon et al. 2013 E. Guindon, P. HND Driezen, F. Chaloupka, and G. Fong, - 156 "Cigarette Tax Avoidance and Evasion: Findings from the International Tobacco Control Policy Evaluation Project", (13 November 2013), Tobacco Control - - 051074 2013 doi:10.1136/tobaccocontrol - 157 Cummin gs et al. 2009 M. Cummings, G. Fong and R. Borland, "Environmental HND Influences On Tobacco Use: Evidence From Societal And Community Influences On Tobacco Use And Dependence", Annual Review of Clinical Psychology (2009), Vol. 5, - 433 - 458 and C - 1 to C pp. 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 – 2005)", US National Institutes of Health United States (2002 Tobacco Public Access Author Manuscript, published in Control 23, (2014), Vol. - doi:10.1136/tobaccocontrol - 050851 2012 HND - 161 - World Organization for Animal Health, "Procedures Used by the OIE to Set Standards and Recommendations for Terrestrial and International Trade, with a Focus on the Aquatic Animal Health Codes " HND - 165 Klick Second A Review J. Klick, "Second Supplemental Rebuttal Report – Supplemental Rebuttal of Australian Survey Data From New South Wales" 2015) Report ( 28 October

46 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 46 - - Short title Title Exhibit No(s). 166 Klick Third Supplemental – HND J. Klick, "Third Supplemental Rebuttal Report - A Reply to Dr. Chipty and Professor Chaloupka" (8 December 2015) Rebuttal Report - HND - Ireland, Public Health (Standardised Packaging of Tobacco) 167 Bill 2014 - 169 Klick Fourth Supplemental Comments J. Klick, "Fourth Supplemental Rebuttal Report – HND Rebuttal Report Dr. Chipty" on Additional Arguments Raised by (3 2016) February DOM - 49 - Australian Parliament, Senate Community Affairs References Committee, The Tobacco Industry and the Costs of - , (15 December 1995) Tobacco Related Illness - 56 WIPO Brands Report DOM 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 WIPO Intellectual World Intellectual Property Organization, Property Handbook , 2nd edn (Geneva, 2004) text DOM - 72, Federal Court of Australia, Crazy Ron's Communications Pty Crazy Ron v. Mobileworld 103 - IDN Limited v. Mobileworld Communications Pty Limited (2004) 209 ALR 1 Federal Court of Australia, Louis Vuitton Malletier v. Sonya DOM - 73 Louis Vuitton v. Sonya Valentine Pty Ltd (2013) FCA 933 - 78, DOM World Intellectual Property Organization, "Joint WIPO Joint 76 Recommendation Recommendation Concerning Provisions on the Protection of - IDN 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 Fourth Series of Meetings Organization (WIPO) at the Thirty - s of WIPO (20 to of the Assemblies of the Member State 29 1999), No. 833(E) (September 1999) September - DOM Bodenhausen, Full text G.H.C. Bodenhausen, Guide to the Application of the Paris 79 Convention for the Protection of Industrial Property, as (WIPO, 1969) Revised at Stockholm in 1967 - 85 - Oxford English Dictionary online, definition of "justifiable", DOM available at: < http://www.oed.com/view/Entry/102219?redirectedFrom=j >, accessed 9 April ustifiable#eid 2014 DOM - - Oxford English Dictionary online, definition of "justify", 86 available at: < http://www.oed.com/view/Entry/102219?redirectedFrom=j > , accessed 9 April ustifiable#eid 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 2014) August 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_ 2014 2013_ - 30_april_2014.pdf >, accessed 7 October

47 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 47 - - Short title Title Exhibit No(s). 96 ABC News 2014 DOM L. Mellor, "More Younger Queenslanders Smoking, But - Overall Numbers Declining" Australian Broadcasting Corporation News (10 September 2014), available http://www.abc.net.au/news/2014 - 09 - 09/more - younger at:< - qld smokers - but - overall - numbers - decline/5731834/?site=b - m October risbane&progra 2014 >, accessed 7 World Health Organization, Framework Convention on 97 FCTC Illicit Trade Protocol DOM - 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 November 2013, " (11 2014) updated March - 100 IPE Report D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Empirical DOM Assessment of Australia's Plain Packaging Regime", Institute for October 2014) Policy Evaluation (7 - 105, DOM McKeganey Report N. McKeganey, "A Critical Analysis of Evidence that CUB - 72 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) - 108 Peer review of Pechey et DOM B. Freeman, "Reviewer's Report" of " Impact of Plain al. 2013 Packaging of Tobacco Products on Smoking in Adults" 2012), available at: (7 September < http://www.biomedcentral.com/1471 > - 2458/13/18/prepub October 2014 , accessed 7 109 NTC Survey 2013 P. Myers and D. B lackmore, "The National Partnership DOM - – Agreement on Preventative Health (NPAPH) Tobacco Social Evaluation Report September 2013 – Marketing Campaign – Waves 5 & 6", The Social Research Centre, prepared for Australian National Preventive Health Agency DOM ACL Competition and Consumer Act 2010 110 (Cth), Schedule 2 - (Australian Consumer Law) - 115 Chaloupka et al. 2012 F. Chaloupka, A. Yerekly and G. Fong, "Tobacco Taxes as a DOM Tobacco Control (2012), Vol. 12, Tobacco Control Strategy", 172 - 180 pp. DOM - 116 Chaloupka and Warner F. Chaloupka and K. Warner, "The Economics of Smoking" 1998 (12 January 1999), prepared for J. Newhouse and A. Culyer The Handbook of Health Economics (eds.), - 117 2011 IARC Handbook DOM 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 48, pp. (2006), Vol. - S120 S113 DOM - 122 Bardsley and Olekalns Bardsley and N. Olekalns, "Cigarette and Tobacco P. 1999 Consumption: Have Anti - Smoking Policies Made a Difference?", The Economic Record (September 1999), 240 Vol. 75, No. 230, pp. 225 -

48 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 48 Short title Exhibit No(s). Title - DOM M. Winstanley and L. Wood, "Factors Influencing the Uptake Tobacco in Australia 2012, 126 and M. Winstanley DOM excerpts and Prevention of Smoking", in M. Scollo (eds.), Tobacco in Australia: Facts and Issues , 4th edn, 5, Cancer Council Victoria, (Melbourne, 2012), Chap. pp. i - 144, available at: - 5 < uptake/5 - http://www.tobaccoinaustralia.org.au/chapter - - - tobacco - access - and - supply >, accessed 26 reducing October 2014 7 DOM 128, Fidler and West 2010 J. Fidler and R. West, "Changes in Smoking Prevalence in - - HND - 16 - 17 Year 70 lts Following a Rise in Legal Old Versus Older Adu Age of Sale: Findings from an English Population Study", (2010), Vol. 105, pp. 1984 - 1988 Addiction - 130, S. Ahmad, "Closing the Youth Access Gap: The Projected DOM Ahmad 2005a Health Benefits And Cost Savings of a National Policy to - 75 HND Raise the Legal Smoking Age to 21 in the United States", (2005), Vol. 75, pp. Health Policy 74 - 84 DOM 133, n Procedures and Rules Applicable Turkey, The Regulations o - - - IDN to Production and Trading of Tobacco Products, Official 93 2010) Gazette , Issue 27749 (4 November - 134, DOM Turkey, Regulations Relating to the Principles and - 94 - Procedures Applicable to the Manufacturing Methods, IDN L abeling and Control Measures Related to Protection from the Harmful Effects of Tobacco Products, Official Gazette, 2005) Issue 25692 (6 January DOM - 136, Alcohol Beverages Advertising Code, "About the ABAC - Scheme", available at: < http://www.abac.org.au/about/ >, - HND 87 October 2014 accessed 7 "Alcohol Beverages Advertising Code", available at: - 137 - DOM http://www.alcohol.gov.au/internet/alcohol/publishing.nsf/ < Content/BFE15C2AC3242C22CA25718E0081F1C5/$File/adve >, accessed 7 October 2014 rtising.pdf DOM - 143 "un'fair", - Oxford English Dictionary online, definition of available at: < http://www.oed.com/view/Entry/213174?rskey=IGEAyx&r > , accessed 9 April 2014 esult=1&isAdvanced=false#eid Oxford Englis 145 - - h Dictionary online, definition of "honest", DOM available at: < http://www.oed.com/view/Entry/88149?rskey=Tq7xuH&re >, accessed 9 l Apri sult=1&isAdvanced=false#eid 2014 DOM 160 - Oxford English Dictionary online, definition of "risk", - available at: < http://www.oed.com/view/Entry/166306?rskey=fgWvbI&re >, accessed 10 May 20 14 sult=1&print DOM 164 Peer review of Lund and - Perceptions of Typical Users J. Hoek, "Reviewer's Report" of " of Plain vs. Branded Cigarette Packs Among Young Smokers Scheffels 2013 and Non - Smokers. A Between - Subjects Experimental Survey August 2013) " (10 DOM - 165 Author's response to peer Impact of Plain "Author's Response to Reviews" of " reviews of Pechey et al. Packaging of Tobacco Products on Smoking in Adults and Children: An Elicitation of International Experts' Estimates" 2013 (10 October 2012), available at: < http://www.biomedcentral.com/1471 - 2458/13/18/prepub > 2014 accessed 7 October

49 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 49 Short title Exhibit No(s). Title A. Aribarg, N. Arora, T. Henderson, and Y. Kim, "Private 224 DOM - Aribarg et al. 2014 Label Imitation of a National Brand: Implications for Journal of Marketing Research Consumer Choice and Law", - 675 (2014), Vol. 51, pp. 657 229 DOM Australian Competition and Consumer Commission, "ACCC - - Resolves 'Light' and 'Mild' Cigarette Issue with B.A.T. and 119/05 (12 May 2005), Philip Morris", Media Release No. available at: < - release/accc - resolves - ligh https://www.accc.gov.au/media - and - mild - cigarette - issue - with - bat - and - philip - t >, morris accessed 29 May 2015 DOM 2015 USIOM Report R. Bonnie, K. Stratton, and L. Kwan (eds.), Public Health - 232 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) - 282 Moodie et al. 2014 C. Moodie, L. Bauld, A. Ford, and A. Mackintosh, "Young DOM Women Smokers' Response to Using Plain Cigarette Packaging: Qualitative Findings from a Naturalistic Study", (2014), Vol. 14, BMC Public Health - - 14 - 812 doi:10.1186/1471 2458 - 297 DOM lth's Department of Health, "Evaluation of Tobacco Plain Department of Hea Plain online evaluation of Packaging in Australia", Australian Government (17 March Packaging 2015), available at: < http://www.health.gov.au/internet/main/publishing.nsf/Co evaluation packaging ntent/tobacco - plain - >, accessed - 27 2015 July DOM 303 IPE Updated Report D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated - Empirical Assessm ent of Australia's Plain Packaging Regime", September Institute for Policy Evaluation (14 2015) - 308 - DOM 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 - 6 US Court of Appeals, RJ Reynolds Tobacco Co. v. FDA, 69 F.3d 1205 (D.C. Cir. 2012) DOM - 318, WHO Report on the Global World Health Organization , WHO Report on the Global Tobacco Epidemic, 2013: Enforcing Bans on Tobacco Tobacco Epidemic 2013 - CUB 81 Advertising, Promotion and Sponsorship (Geneva, 2013) DOM Oxford English Dictionary online, definition of "respect", - 331 - available at: < http://www.oed.com/view/Entry/163779?rskey=uWPnla&r >, accessed esult=1&isAdvanced=fals e&print 9 2015 September - 339 OIE, How to Use the DOM World Organization for Animal Health, "Facilitating Safe Trade: How to Use the Terrestrial Code to Set Health Terrestrial Code to Set Health Measures for Trade Measures for Trade in Terrestrial Animals and Products", in Terrestrial Animals and available at: an < http://www.oie.int/fileadmin/Home/eng/Internationa_St Products dard_Setting/docs/pdf/A_IMPORT_HEALTH_MEASURES_1.pd >, accessed 15 September 2015 f DOM - 345 Codex List of Standards Codex Alimentarius Commission, "List of Standards", available at: < http://www.codexalimentarius.org/standards/list - of - standa rds/ >, accessed 15 September 2015

50 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 50 - - Short title Title Exhibit No(s). 360 ASSAD 2011 Report DOM 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) - 361 IPE Second Updated Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated DOM D. Report Empirical Assessment of Australia's Plain Packaging Regime", 2015) Institute for Policy Evaluation (27 October - 369 Borland and Cummings ol by DOM R. Borland and K. Cummings, "Advancing Tobacco Contr 2010 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 - 641 370 S. Schneider, S. Buka, K. Dash, J. Winickoff, and - DOM Schneider et al. 2015 L. O'Donnell, "Community Reductions in Youth Smoking After Raising the Minimum Tobacco Sales Age to 21", Tobacco Control (12 June 2015), - 052207 - doi:10.1136/tobaccocontrol 2014 371 Evidence to Senate Evidence to Finance and Public Administration Legislation DOM - Finance and Public Committee, Senate, Commonwealth of Australia, Canberra Administration Legislation (26 May 2015 and 2 June 2015), excerpts Committee - 373 (SCI) - DOM Data update and computer c ode and calculations supporting the IPE Updated Report (SCI) D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Updated DOM - 375 IPE Third Updated Report Empirical Assessment of Australia's Plain Packaging Regime", Institute for Policy Evaluation (8 2015) December - - es" and "Dominican cigar brands DOM 378 (SCI) "Dominican cigar sal variants " (SCI) DOM - 379 IPE Summary Report D. Afshartous, M. Hagedorn, A. Kaul, and M. Wolf, "Summary of Findings: Empirical Assessment of Australia's g Regime", Institute for Policy Evaluation Plain Packagin (1 2016) February - DOM Yong et al. 2015 H. Yong, R. Borland, D. Hammond, J. Thrasher, 382 Cummings, and G. Fong, "Smokers' Reactions to the New K. Larger Health Warning Labels on Plain Cigarette Packs in Australia: Findings from the ITC Australia Project", Tobacco (19 February 2015), Control 2014 1136/tobaccocontrol - 05197 - doi:10. CUB 10 Gangjee Book Dev Gangjee, Relocating the Law of Geographical Indications - - 283 (Cambridge University Press, 2012), pp. 281 M. Scollo and M. Winstanley (eds.), - CUB Australia: 13 Tobacco in Tobacco in Australia 2012, CUB excerpts 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 - Shanahan and D. Elliott, Evaluation of the Effectiveness of P. the Graphic Health Warnings on Tobacco Product Packaging 2008 , Department of Health and Ageing, Australian Government, (Canberra, 2008) CUB - 26 US Surgeon General's Preventing US Department of Health and Human Services, Report 2012, CUB Tobacco Use Among Youth and Young Adults: A Repo rt of excerpts (Atlanta, 2012), Chaps. 1, 5, and 7 the Surgeon General

51 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 51 - - Short title Title Exhibit No(s). 31 FAO Guide CUB - Food and Agriculture Organization of the United Nations - GI, Linking People, Places and Products: A (FAO) and SINER Guide for Promoting Quality Linked to Geographical Origin an d Sustainable Geographical Indications , 2nd edn - 2010), pp. (2009 iii, 19 - 25, and 27 Monteiro, and D. - Deselnicu et al. 34 CUB Souza O. Deselnicu, M. Costanigro, D. - - Meta McFadden, "A Meta - Analysis of Geographical Indication Food Analysis What Drives the Premium for Valuation Studies: 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 - tised Wines and Products and Foodstuffs, Wines, Aroma Spirits Protected by a Geographical Indication (GI)", Final Report (October 2012) - 38 - CUB 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 November Australian Retail Outlets: 2011 – January 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) , 6th edn, A. - CUB English Dictionary Stevenson - 44 Shorter Oxford (ed.) (Oxford University Press, 2007), Vol. 2541 1, p. CUB - 45 - Shorter Oxford English Dictionary , 6th edn, A. Stevenson 1, pp. 1482 and (ed.) (Oxford University Press, 2007), Vol. 3445 - 48 - CUB Shorter Oxford English Dictionary , 6th edn, A. Stevenson 1, p. 827 (ed.) (Oxford University Press, 2007), Vol. J. Audier, "Protection of Geographical Indications in France 49 Audier Protection of GIs - CUB 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. - - Eves, I. Kwan, R. Thomas, G. Hastings, K. Hinds, A. O'Mara 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 8, doi:10.1371/journal.pone.0075919 (2013), Vol. CUB - 62 WHO Tobacco Tax Manual, WHO Technical Manual on World Health Organization, Tobacco Tax Administration (2011) Full Text CUB - 63 WHO Tobacco Tax Organization, "The World Health Organization''s World Health Tobacco Tax Simulation Model" (June 2013) Simulation Model CUB - 66 US Surgeon General's Preventing US Department of Health and Human Services, Report 1994 Tobacco Use Among Youth and Young Adults: A Report of 51 the Surgeon Gene ral (Atlanta, 1994), pp. 49 -

52 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 52 Short title Exhibit No(s). Title UK Department of Health, "Consultation on the Introduction 67 CUB - - of Regulations for Standardised Packaging of Tobacco Products" (June 2014) 79 Vision One Report Vision One Research, "Survey of the Australian Cigar Market: CUB - October 2014) Report on Methodology and Findings" (8 IDN - Australian Broadcasting Corporation News, "Indonesia - 1 Pushes for Graphic Health Warnings on Cigarette Packs" 2014), available at: (25 June tp://www.abc.net.au/news >, accessed < ht September 2015 27 IDN 23 Excise Tariff Working Australian Taxation Office, "Excise Tariff Working Pages: - Schedule (1 Pages 2013)", available at: December < >, accessed 18 December 2013 http://law.ato.gov.au IDN Tobacco in Australia 2012, - 24 T. Carroll, "Social Marketing and Public Education Campaigns", in M. Scollo and M. Winstanley (eds.), Tobacco IDN excerpts in Australia: Facts and Issues , 4th edn, Cancer Council 14, pp. Victoria - 36, and (Melbourne, 2012), Chap. i 1 Appendix 1, p. - 30 Layton and Lowe 2014 IDN D. Layton and J. Lowe, "The Framework Convention on Tobacco Control and the World Trade Organization: A Global Trade and Conflict Analysis under International Law", (2014), Vol. 9, Issue 6, pp. ustoms Journal - 252 C 246 V. Vadi, "Global Health Governance at a Crossroads: - Vadi 2012 32 IDN Trademark Protection v. Tobacco Control in International Investment Law", Stanford Journal of International Law 130 93 (2012), Vol. 48, No. 1, pp. - IDN 43 WIPO IP Handbook, IDN - WIPO Intellectual World Intellectual Property Organization, , 2nd edn (Geneva, 2004), paras. excerpts Property Handbook - 2.512 and 5.107 - 5.123 2.313 IDN 60 Wadlow, Law of C. Wadlow, - Law of Passing - Off: Unfair Competition by The - Off, IDN excerpts , 3rd edn (Sweet & Maxwell, 2004), Misrepresentation Passing Sections 2 - - 52 1 to 2 IDN 61 Bodenhausen, IDN Guide to the Application of the Paris - G.H.C. Bodenhausen, excerpts Convention for the Protection of Industrial Property, as Revised at Stockholm in 1967 (WIPO, 1969), pp. 142 - 146 ATMOSS search results - 62 IDN 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 2014 26 September - 87 - F. Chalou pka, "How Effective Are Taxes in Reducing Tobacco IDN Consumption?" IDN 88 WHO, Raising Tax on - World Health Organization, "Raising Tax on Tobacco: What Tobacco You Nee d to Know" (2014) IDN - 89 US Surgeon General's Reducing US Department of Health and Human Services, Report 2000, Executive Tobacco Use: A Report of the Surgeon General (Atlanta, 2000), Executive Summary, reprinted in US Centers for Summary 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

53 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 53 Short title Exhibit No(s). Title Nuno Pires de Carvalho, edn , IDN IDN - 106 The TRIPS Regime of Trademarks Carvalho 3rd and Designs edn (Kluwer Law International, 2014 ) , excerpts , 3rd 254 - pp. 255 1 Dinwoodie Report G. Dinwoodie, "Compatibility of Restrictions on the Use of UKR - July 2014) Trade Marks with the TRIPS Agreement" (13 - UKR Schwebel Report "On Whether the Owner of a Registered Trademark Has the 2 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 2014) (SCI) October Expert Report" (25 Howell Report UKR "John Howell – 4 January 2014) - - Klick Report UKR J. Klick, "The Effect of Au stralia's Plain Packaging Law on 5 Smoking: Evidence from Survey and Market Data" (26 July 2014) - 6 UKR "Report by J. Klick on Plain Packaging Literature and Klick TPP Literature Report 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 - 2013) Packaging Policies" (21 November - 9 Winer Report UKR -- Expert Report" "Professor Russell S. Winer, Ph.D. (22 November 2013) UKR - 10 Janeczko Report R. Janeczko, "The Impact of Plain Packaging on the Sale of Illicit Tobacco in Australia" (20 2013) December J. Heydon, "Report Concerning the Australian Consumer Law UKR 11 Heydon Report - and the Packaging of Tobacco Products" (2014) - 51 - UKR 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, – Tobacco Control Act" "DRAFT Regulation Impact Statement (April 2009) UKR WIPO, Introduction to World Intellectual Property Organization, Introduction to - 80 Intellectual Property , (Kluwer Law Intellectual Property: Theory and Practice Chaps. 12 and 18 International, 1997), - Heckman Report UKR "Report of James J. Heckman: UK Plain Packaging 144 Consultation", Annex 4 of the Response of Philip Morris Limited to the UK Department of Health Consultation on ing of Tobacco Products Standardised Packag (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)

54 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 54 E MAIN CASES CITED IN REPORT S S TH E Full case title and citation Short title Financial Services Appellate Body Report, Argentina – Measures Relating to Argentina – Trade in Goods and WT/DS453/AB/R and Add.1, adopted 9 May 2016 , Services – Footwear (EC) Argentina Appellate Body Report, Argentina – Safeguard Measures on Imports of , , adopted 12 January 2000, DSR 2000:I, p. 515 Footwear WT/DS121/AB/R – Imp ort Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of Argentina WT/DS445/AB/R WT/DS438/AB/R / WT/DS444/AB/R / , adopted 26 Goods , January 2015 – Import Measures Panel Reports, Argentina – 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 Textiles and Argentina Measures Affecting Imports of Footwear, Appellate Body Report, Argentina – – Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 22 Apparel April 1998, DSR 1998:III, p. 1003 ralia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of Aust , WT/DS367/AB/R , adopted 17 December 2010, Apples from New Zealand DSR 2010:V, p. 2175 – Desi ccated Coconut Appellate Body Report, – Measures Affecting Desiccated Coconut , Brazil Brazil , adopted 20 March 1997, DSR 1997:I, p. 167 WT/DS22/AB/R – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Brazil Tyres , WT/DS332/AB/R , adopted 17 December 2007, DSR 2007:IV, p. 1527 , Brazil – Measures Affecting Imports of Retreaded Tyres Retreaded Tyres Panel Report, Brazil – WT/DS332/R , adopted 17 December 2007, as modified by Appellate Body WT/DS332/AB/R, DSR 2007:V, p. 1649 Report – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian Canada , WT/DS70/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1377 Aircraft Canada – Continued Continued Suspension of Obligations in the Appellate Body Report, Canada – EC – Suspension Hormones Dispute , WT/DS321/AB/R , adopted 14 November 2008, DSR 2008:XIV, p. 5373 Canada Continued – Panel Report, Canada – – Continued Suspension of Obligations in the EC Suspension 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 , – , adopted 30 July 1997, DS WT/DS31/AB/R R 1997:I, p. 449 – Periodicals Panel Report, Canada 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 , Patent Protection of Pharmaceutical Products Panel Report, Canada – WT/DS114/R , adopted 7 April 2000, DSR 2000:V, p. 2289 Patents Canada – Renewable Energy / Certain Measures Affecting the Renewable – Canada Appellate Body Reports, in Tariff in Tariff - Feed – Canada Energy Generation Sector / Canada – - Measures Relating to the Feed Program Program , WT/DS412/AB/R / WT/DS426/AB/R , adopted 24 May 2013, DSR 2013:I, p. 7

55 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 55 Full case title and citation Short title Measures Relating to Exports of Wheat and – Appellate Body Report, Canada – Canada Wheat Exports and Treatment of Imported Grain WT/DS276/AB/R , adopted 27 September Grain Imports , 2739 2004, DSR 2004:VI, p. – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures Chile , WT/DS207/AB/R Relating to Certain Agricultural Products , adopted 23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DS R 2006:XII, p. 5473) – Price Band System Chile Price Band System and Safeguard Measures Chile Appellate Body Report, – – 21.5 Relating to Certain Agricultural Products – Argentina) 21.5 of the (Article Recourse to Article , WT/DS207/AB/RW , adopted 22 May 2007, DSR 2007:II, DSU by Argentina 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 – Intellect ual Property China Measures Affecting the Protection and Enforcement of Panel Report, China – Intellectual Property Rights , WT/DS362/R , adopted 20 March 2009, DSR Rights 2009:V, p. 2097 – Publications a nd Measures Affecting Trading Rights and Appellate Body Report, China – China Distribution Services for Certain Publications and Audiovisual Entertainment Audiovisual Products , , adopted 19 January 2010, DSR 2010:I, p. 3 Products WT/DS363/AB/R – Publications and Trading Rights and Distribution China Panel Report, China – Measures Affecting Audiovisual Products 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 Appellate Body Reports, Measures Related to the Exportation of Rare China – Rare Earths China – Earths, Tungsten, and Molybdenum WT/DS431/AB/R / WT/DS432/AB/R / , , adopted 29 August 2014, DSR 2014:III, p. 805 WT/DS433/AB/R – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths, China Tungsten, and Molybdenum , and Add.1 / WT/DS432/R and WT/DS431/R Add.1 / and Add.1, adopted 29 August 2014, upheld by WT/DS433/R 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/DS395/AB/R WT/DS394/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 Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , Colombia – and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535 WT/DS366/R 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 Measures Affecting the Importation and Panel Report, Dominican Republic – , WT/DS302/R , adopted 19 May 2005, as modified Internal Sale of Cigarettes and Sale of Cigarettes by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425 Measures Affecting the Approval – Approval and Marketing of EC Panel Reports, European Communities – Biotech Products 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

56 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 56 Full case title and citation Short title Appellate Body Report, European Communities – Measures Affecting EC Asbestos – , WT/DS135/AB /R , adopted 5 Asbestos and Asbestos - Containing Products April 2001, DSR 2001:VII, p. 3243 Bananas III Appellate Body Report, European Communities – – Regime for the EC WT/DS27/AB/R , adopted 25 Importation, Sale and Distribution of Bananas , September 1997, DSR 1997:II, p. 591 – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and EC (Ecuador) / WT/DS27/R/GTM, , WT/DS27/R/ECU Distribution of Bananas / WT/DS27/R/MEX (Mexico) / WT/DS27/R/HND (Guatemala and Honduras) , adopted 25 (US) September 1997 , as modified by Appellate WT/DS27/R/USA 1085 Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 to DSR 1997:III, p. – EC Regime for the – European Communities Appellate Body Reports, Bananas III Ecuador II) / Second Recourse to – ion, Sale and Distribution of Bananas Importat (Article 21.5 – Article Bananas III – 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11 EC – 21.5 December 2008, and Corr.1 / European Communities – Regime for the (Article US) – Recourse to Article 21.5 of Importation, Sale and Distribution of Bananas , WT/DS27/AB/RW/USA and Corr.1, adopted 22 the DSU by the United States December 2008, DSR 2008:XVIII, p. 7165 – Chicken Cuts Appellate Body Report, European Communities EC – 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 Export Subsidies on Sugar EC – Export Subsidies on Sugar , Panel Reports, European Communities – WT/DS265/R / WT/DS266/R (Brazil) / WT/DS283/R (Thailand) , (Australia) by Appellate Body Report adopted 19 May 2005, as modified 6499 WT/DS265/AB/R, WT/DS266/AB/R, WTDS283/AB/R, DSR 2005:XIII, p. / DSR 2005:XIV, p. 7071 – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products EC , , WT/DS48/AB/R , adopted 13 February 1998, WT/DS26/AB/R (Hormones) DSR 1998:I, p. 135 Measures Concerning Hormones (Canada) EC Decision by the Arbitrators, European Communities – – EC) (Article 22.6 – Meat and Meat Products (Hormones), Original Complaint by Canada – 22.6 of Recourse to Arbitration by the European Communities under Article the DSU , WT/DS48/ARB , 12 July 1999, DSR 1999:III, p. 1135 Measures Concerning Hormones (US) EC Decision by the Arbitrators, European Communities – – EC) (Article 22.6 – Meat and Meat Products (Hormones), Original Complaint by the United States – Recourse to Arbitration by the European Communities under , 12 July 1999, DSR 1999:III, p. 1105 Article 22.6 of the DSU , WT/DS26/ARB – 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 , adopted 18 June 2014, DSR 2014:I, p. 7 WT/DS401/AB/R – Seal Products EC European Communities – Measures Prohibit ing the Panel Reports, 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

57 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 57 Full case title and citation Short title ferences Panel Report, European Communities – EC Conditions for the Granting of Tariff Tariff Pre – , adopted 20 April 2004, WT/DS246/R , Preferences to Developing Countries as modified by Appellate Body Report WT/DS246/AB/R, DSR 2004:III, p. 1009 – Trademarks and Panel Report, Protection of Trademarks and EC European Communities – Geographical Indications for Agricultural Products and Foodstuffs, Complaint Geographical Indications by Australia , WT/DS290/R , adopted 20 April 2005, DSR 2005:X, p. 4603 (Australia) Protection of Trademarks and – Trademarks and EC Panel Report, European Communities – ications for Agricultural Products and Foodstuffs, Complaint Geographical Indications (US) Geographical Ind , , adopted 20 April 2005, DSR 2005:VIII, by the United States WT/DS174/R p. 3499 – Trademarks and Protection of Trademarks and EC Panel Reports, European Communities – Geographical Indications for Agricultural Products and Foodstuffs , Geographical Indications (Australia) (US) , adopted 20 April 2005, DSR WT/DS290/R / WT/DS174/R p. 4603 p. 3499 / DSR 2005: X, 2005:VIII, – Tube or Pipe Fittings Panel Report, European Communities EC Anti - Dumping Duties on Malleable – , WT/DS219/R , adopted 18 August Cast Iron Tube or Pipe Fittings from Brazil 2003, as modified by Appellate Body Report WT/DS219/AB/R, D SR 2003:VII, p. 2701 – Oilseeds I EEC Payments and GATT Panel Report, European Economic Community – Subsidies Paid to Processors and Producers of Oilseeds and Related 1990, BISD - January , L/6627, adopted 25 37S/86 Animal Feed Proteins – Poultry Meat (China) EU Panel Report, European Union – Measures Affecting Tariff Concessions on Certain Poultry Meat Products , WT/DS492/R and Add.1, adopted 19 April 2017 Dumping Investigation Regarding Guatemala - – Cement I Appellate Body Report, Guatemala – Anti Portland Cement from Mexico , , adopted 25 November 1998, WT/DS60/AB/R DSR 1998:IX, p. 3767 – Additi onal Import India Additional Duties on Appellate Body Report, India – Additional and Extra - , Duties WT/DS360/AB/R , adopted 17 November Imports from the United States 2008, DSR 2008:XX, p. 8223 – Agricultural Products India India – Measures Concerning the Importation of Appellate Body Report, 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 – Quantitative Restrictions on Imports of Agricultural, Panel Report, India – , WT/DS90/R , adopted 22 September 1999, Restrictions Textile and Industrial Products , DSR 1999:V, p. 1799 upheld by Appellate Body Report WT/DS90/AB/R 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 – Agricultural Products II Appellate Body Report, Japan 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

58 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 58 - - Full case title and citation Short title – Apples Appellate Body Report, Japan – Japan Measures Affecting the Importati on of , WT/DS245/AB/R , adopted 10 December 2003, DSR 2003:IX, p. Apples 43 91 – DRAMs (Korea) Appellate Body Report, Japan 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 – DRAMs (Korea) Panel Report, Japan – Countervailing Duties on Dynamic Random Access Japan , WT/DS336/R , adopted 17 December 2007, as Memories from Korea DS336/AB/R, DSR 2007:VII, p. 2805 modified by Appellate Body Report WT/ – Japan GATT Panel Report, Panel on Japanese Measures on Imports of Leather , Leather (US II) L/5623, adopted 15 May 1984, BISD 31S/94 Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , , , adopted 17 February 1999, DSR 1999:I, p. WT/DS75/AB/R WT/DS84/AB/R 3 – Dairy Korea Korea – Definitive Safeguard Measure on Imports of Appellate Body Report, Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, DSR 2000:I, p. 3 – Korea Various Measures on Measures Affecting Imports of Fresh, Chilled Appellate Body Report, Korea – Beef 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 , Measures Affecting Telecommunications Services Mexico – Telecoms Panel Repo rt, Mexico – WT/DS204/R , ado pted 1 June 2004, DSR 2004:IV, p. 1537 Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs, Russia – , WT/DS475/R and Pork and Other Pig Products from the European Union Add.1, adopted 21 March 2017, as modified by Appellate Body Report WT/DS475/AB/R – Cigarettes Thailand Thailand – Restrictions on Importation of and Internal GATT Panel Report, Taxes on Cigarettes , DS10/R, adopted 7 November 1990, BISD 37S/200 Thailand – Cigarettes Customs and Fiscal Measures on Appellate Body Report, Thailand – (Philippines) Cigarettes from the Philippines , WT/DS371/AB/R , adopted 15 July 2011 , DSR 2011:IV, p. 2203 Thailand – Cigarettes Customs and Fiscal Measures on Cigarettes from Panel Report, Thailand – (Philippines) the Philippines , WT/DS371/R , adopted 15 July 2011, as modified by , DSR 2011:IV, p. 2299 Appellate Body Report WT/DS37 1/AB/R Thailand H - Beams Appellate Body Report, Thailand – Anti - Dumping Duties on Angles, Shapes – - , - Beams from Poland and Sections of Iron or Non Alloy Steel and H , adopted 5 April 2001, DSR 2001:VII, p. 2701 WT/DS122/AB/R – 1916 Act (EC) Panel Report, US – Anti - Dumping Act of 1916, Complaint by the United States 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 1916 Act (Japan) US United States – – Anti - Dumping Act of 1916, Complaint by Panel Report, 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

59 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 59 - - Full case title and citation Short title – Anti - Dumping and Appellate Body Report, Dumping and US United States Definitive Anti - – tain Products from China , WT/DS379/AB/R Countervailing Duties on Cer Countervailing Duties (China) , V, p. 2869 adopted 25 March 2011, DSR 2011: – US Appellate Body Report, United States – Countervailing Duties on Certain Carbon Steel Corrosion Resistant Carbon Steel Flat Products from Germany , - WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779 – Carbon Steel (India) Appellate Body Report, United States US – 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 – Clove Cigarettes Panel Report, – Measures Affecting the Production and Sale of US United States , WT/DS406/R Clove Cigarettes , adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R, DSR 2012: XI, p. 5865 United States Continued Suspension US Appellate Body Report, – – Continued Suspension of Obligations in th e EC – Hormones Dispute , WT/DS320/AB/R , adopted 14 November 2008, DSR 200 8:X, p. 3507 United States Continued Suspension US Panel Report, – – 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 – , WT/DS386/AB/R / (COOL) Requirements , adopted 23 July WT/DS384/AB/R 2012, DSR 2012:V, p. 2449 – COOL US United States – Certain Country of Origin Labelling (COOL) Panel Reports, 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 – Certain Country of Origin Labelling – Appellate Body Reports, United States 21.5 of the DSU by Canada and (COOL) Requirements – Recourse to Article Canada and Mexico) Mexico , WT/DS384/AB/RW / WT/DS386/AB/RW , adopted 29 May 2015 United States US – COOL (Article 21.5 – Certain Country of Origin Labelling (COOL) – Panel Reports, Canada and Mexico) Requirements – Recourse to Article 21.5 of the DSU by Canada and Mex ico , WT/DS386/RW and Add.1, adopted 29 May WT/DS384/RW and Add.1 / 2015, as modified by Appellate Body Reports WT/DS384/AB/RW / WT/DS386/AB/RW – Corrosion - Resistant Steel Dumping Duties on US Panel Report, United States – Sunset Review of Anti - Sunset Review 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 United States US Countervailing and Appellate Body Report, – – Countervailing and Anti - Dumping and Corr.1, Anti - Dumping Measures Measures on Certain Products from China , WT/DS449/AB/R adopted 22 July 2014, DSR 2014:VIII, p. 3027 (China) – Countervailing Duty Investigation on Dynamic US Panel Report, United States – Countervailing Duty Investigation on DRAMS 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

60 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 60 Full case title and citation Short title – Panel Report, United States – US Countervailing Measures Concerning Certain Countervailing Measures – Recourse to Article 21.5 of the oducts on Certain EC Pr Products from the European Communities EC) , adopted 27 September (Article 21.5 DSU by the European Communities , WT/DS212/RW – 2005, DSR 2005:XVIII, p. 8950 US Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise – Dumping/Countervailing Duties , adopted 1 WT/DS345/R - Subject to Anti , August 2008, as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VIII, p. 2925 – FSC Appellate Body Report, US – Tax Treatment for "Foreig n Sales United States , WT/DS108/AB/R , adopted 20 March 2000, DSR 2000:III Corporations" , p. 1619 – FSC Panel Report, United States – Tax Treatment for "Foreign Sales US WT/DS108/R , , adopted 20 March 2000, as modified by Corporations" Appellate Body Report WT/DS1 08/AB/R, DSR 2000:IV, p. 1675 – Gambling Appellate Body Report, US – Measures Affecting the Cross - Border United States , WT/DS285/AB/R , adopted 20 April Supply of Gambling and Betting Services SR 2006:XII, p. 5475) 2005, DSR 2005:XII, p. 5663 (and Corr.1, D US Gambling Panel Report, United States – Measures Affecting the Cross - Border Supply of – , , adopted 20 April 2005, as Gambling and Betting Services WT/DS285/R modified by Appellate Body Report WT/DS2 85/AB/R, DSR 2005:XII, p. 5797 – Gasoline Appellate Body Report, US – Standards for Reformulated and United States Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, p. 3 nd US – Large Civil Aircraft (2 Measures Affecting Trade in Large – Appellate Body Report, United States complaint) mplaint) , WT/DS353/AB/R , adopted 23 March 2012, Civil Aircraft (Second Co DSR 2012:I, p. 7 – Continued Dumping and Subsidy Offset Act (Byrd US Appellate Body Report, United States – AB/R WT/DS217/AB/R , WT/DS234/ , , adopted 27 January Amendment) Offset Act of 2000 2003, DSR 2003:I, p. 375 – Oil Country Tubular Dumping US Appellate Body Report, United States – Sunset Reviews of Anti - , , WT/DS268/AB/R Goods Sunset Reviews Measures on Oil Country Tubular Goods from Argentina adopted 17 December 2004, DSR 2004:VII, p. 3257 – Oil Co untry Tubular Dumping Measures on - Sunset Reviews of Anti US United States Panel Report, – 21.5 of the Recourse to Article – Oil Country Tubular Goods from Argentina Goods Sunset Reviews DSU by Argentina (Article 21.5 Argentina) – , WT/DS268/RW , adopted 11 May 2007, as modified by Appellate Body Report WT/DS2 68/AB/RW, DSR 2007:IX, p. 3609 , Section 110(5) of the US Copyright Act US – Section 110(5) Copyright – Panel Report, United States Act , adopted 27 July 2000, DSR 2000:VIII, p. 3769 WT/DS160/R Section 211 Appellate Body Report, United States – Section 211 Omnibus Appropriations US – Act of 1998 , WT/DS176/AB/R Appropriations Act , adopted 1 February 2002, DSR 2002:II, p. 589 United States Section 211 US – – Section 211 Omnibus Appropriations Act of Panel Report, , adopted 1 February 2002, as modified by Appellate WT/DS176/R Appropriat ions Act 1998 , 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

61 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 61 - - Full case title and citation Short title – Softwood Lumber IV US United States – Final Countervailing Duty Appellate Body Report, , Determination with Respect to Certain Softwood Lumber from Canada , adopted 17 February 2004, DSR 2004:II, p. 571 WT/DS257/AB/R – Softwood Lumber VI Panel Report, US – Investigation of the International Trade United States 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 United States Tuna II (Mexico) Appellate Body Report, US – 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 United States US Tuna II (Mexico) – Measures Concerning the – Appellate Body Report, – 21.5 Mexico) – Recourse to (Article Importation, Marketing and Sale of Tuna and Tuna Products 21.5 of the DSU by Mexico , WT/DS381/AB/RW and Add.1, adopted 3 Article December 2015 – Upland Cotton Appellate Body Report, United States US Subsidies on Upland Cotton , – 267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 WT/DS – 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 Wool Shirts and Blouses Appellate Body Report, United US – – Measure Affecting Imports of Woven States 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

62

63 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 63 INTRODUCTION 1 1.1 Complaint by Honduras 4 April 201 2 , Honduras requested consultations with Australia with respect to the 1.1. On made pursuant to Article 4 of the This request was . measures and claims set out below ) , Article 64 of Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU reement on Trade the Related Aspects of Intellectual Property Rights ( TRIPS Agreement ) , Ag - XXII of the 14 of the Agreement on Technical Barriers to Trade ( TBT Agreement and Article Article ) 1 GATT 1994 ) . General Agreement on Tariffs and Trade 1994 ( 1.2. 1 May 2012 between Honduras and Australia . These consultations Consultations were held on 2 failed to resolve the dispute. Complaint by the Dominican Republic 1.2 On 18 July 2012, the Dominican Republic requested consultations with with respect Australia 1.3. to the measures and claims set out below This request was made pursuant to Article 4 of the . Article XXII of the GATT 1994 , Article 64.1 of the TRIPS Agreement , and Article DSU, 14.1 of the 3 Agreement . TBT Dominican Republic and were held on 27 Septem ber 2012 between the 1.4. Consultations 4 . These consultations failed to resolve the dispute. Australia Complaint by Cuba 1.3 1.5. On 3 May 2013, Cuba requested consultations with Australia. This request was made Article 64.1 of the pursuant to Article 4 of the DSU, Article XXII of the GATT 1994 , TRIPS Article 14.1 of the TBT Agreement with respect to the measures and claims Agreement , and 5 . set out below Consultations were held on 13 June 2013 between Cuba and Australia. These consultations 1.6. 6 failed to res olve the dispute. Complaint by Indonesia 1.4 On 20 September 2013, Indonesia requested consultations with Australia with respect to the 1.7. . This request was made pursuant to measures and claims set out below 4 of the DSU, Article Article 14.1 of the TBT Agreement , Article 64.1 of the TRIPS Agreement and Article XXII of the 7 1994. GATT . 1.8. Indonesia and Australia Consultations were held on 29 October 2013 These between 8 consultations failed to resolve the dispute. 1.5 Panel establishment and composition 1.5.1 Hondu ras 1.9. 15 October 201 2 , Honduras requested the establishment of a panel pursuant to On XXIII:2 of the Article Article 6 of the DSU, Article 4.7 and GATT 1994 , Article 64 of the 9 TRIPS and Article 14 of the TBT Agreement , with standard terms of refere nce . At its Agreement 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.

64 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 64 - - Dispute Settlement Body DSB ) established a panel pursuant meeting on 25 September 2013, the ( 10 Honduras, in accordance with Article 6 of the DSU . to the request by 1.10. The Panel's terms of reference are the following: the relevant provisions of the covered agreements cited by To examine, in the light of the parties to the dispute, the matter referred to the DSB by Honduras in document 35 /1 6 , and to make such findings as will assist the DSB in making the WT/DS4 11 gs provided for in those agreements. recommendations or in giving the rulin 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, Ukraine, Singapore, South Africa, Chinese Taipei, Thailand, Turkey, the United States, Uruguay, Zambia, and Zimbabwe notified their interest in participating in the panel proceedings as third parties. On 26 Marc 1.12. - General to determine the composition h 2014, Australia requested the Director 12 of the p anel, pursuant to Article 8.7 of the DSU. 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 13 At its TRIPS Agreement and Article 14.1 of the TBT Agreement , with standard terms of reference. by meeting on 25 April 2014, the DSB established a panel pursuant to the request the Dominican 14 6 of the DSU . in accordance with Republic, Article The Panel's terms of reference are the following: 1.14. To examine, in the light of the relevant provisions of the covered agreements cited by e DSB by the Dominican Republic the parties to the dispute, the matter referred to th in document WT/DS441/15 and to make such findings as will assist the DSB in making 15 the recommendations or in giving the rulings provided for in those agreements. Argentina, Brazil, Canada, Chile, China, Cuba, Ecuador, the E uropean Union, Guatemala, 1.15. Honduras, India, Japan, the Republic of Korea, Malaysia, Mexico, New Zealand, Indonesia, the n Federation , the Kingdom of Saudi Nicaragua, Nigeria, Norway, Peru, the Philippines, Russia Trinidad and Tobago, Turkey, Ukraine, Arabia, Singapore, South Africa, Chinese Taipei, Thailand, 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 16 Article p anel, pursuant to 8.7 of the DSU. the 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.

65 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 65 17 14.1 of the Agreement . TBT At its meeting on 25 April 2014, the DSB established a panel Article 18 in accordance with 6 of the DSU . Cuba , pursuant to the request by Article The Panel's terms of reference are the following: 1.18. 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 19 recommendations or in giving the rulings provided for in those agreements. Argentina, Brazil, Canada, Chile, China, the Dominican Republic, Ecuador, the European 1.19. India, Indonesia, Japan, the Union, Guatemala, Honduras, Republic of Korea, Malaysia, Mexico, the n Federation , the New Zealand, Nicaragua, Nigeria, Norway, Peru, the Philippines, Russia Singapore, Chinese Taipei, Thailand, Turkey, Ukraine, the Kingdom of Saudi Arabia, South Africa, Zi mbabwe notified their interest in participating in the panel United States, Uruguay, and proceedings as third parties. On 2 April 2014, Australia requested the Director - General to determine the composition of 1.20. 5 20 p 8.7 of the DSU . anel, pursuant to Article the Indonesia 1.5.4 On 3 March 2014 , Indonesia requested the establishment of a panel pursuant to Articles 1.21. 4.7 and 6 of the DSU, Article XXIII of the GATT 1994 , Article 64.1 of the TRIPS Agreement and 21 14.1 of the TBT Agreement Article At its meeting on 26 March with standard terms of reference. DSB established a panel pursuant to the request 2014, the in document by Indonesia 22 in accordance with Article 6 of the DSU . WT/DS467 /1 , 5 The Panel's terms of reference are the following: 1.22. 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 23 recommendations or in giving the rulings provided for in those agreemen ts. Argentina, Brazil, Canada, Chile, China, Cuba, the Dominican Republic, Ecuador, the 1.23. India, Japan, Malawi, the Republic of Korea, European Union, Guatemala, Malaysia, Honduras, Oman, s, the Russia n Peru, the Philippine Mexico, New Zealand, Nicaragua, Nigeria, Norway, , Singapore, Chinese Taipei, Thailand, Turkey, Ukraine, the United States, Uruguay, and Federation Zimbabwe notified their interest in participating in the panel proceedings as third parties. On 23 April 1.24. 2014, Australia requested the Director - General to determine the composition of 24 p anel, pursuant to Article 8.7 of the DSU. the 25 Procedural agreement between Australia, Ukraine 1.5.5 , Honduras, the Dominican Republic, Cuba, and Indonesia pril 2014, before the establishment of the panels in the disputes brought by the 1.25. On 24 A and Cuba, Australia sent a communication to the C hairman Dominican Republic 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 below. See section 1.6.6

66 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 66 26 . ication concerned certain arrangements for the to the proceedings in DS434 This commun p and the timetable in these disputes . anels The communication stated composition of the panels ' meeting the Dominican Republic and Cuba would proceed with their panel requests at the DSB that 27 and that Australia would agree to the establishment at that meeting. of 25 April 2014 Australia also informed that it would request the Director - General to compose the panels in 1.26. DS458 he communication also stated that the pa rties had agreed to the and DS441 . T n of the timetable for the panel proceedings in DS434, DS435, DS441, DS458, and harmoniz atio Article DS467, pursuant to 9.3 of the DSU. Furthermore, the parties indicated they would 28 P anel s undertake best endeavours to agree on a timetable to propose to the . " " 29 On 5 May 2014 , the Director - Ge neral accordingly composed the p anel s as follows : 1.27. Chairperson: Mr Ale xander Erwin Members: Mr François Dessemontet Ms Billie Miller Panel proceedings 1.6 General 1.6.1 30 On 19 May 2014, in accordance with their 24 April 2014 , the 1.28. procedural agreement of 31 its a proposed timetable for parties submitted consideration. to the Panel 1.29. draft Working Procedures and a draft timetable to On 26 May 2014, the Panel transmitted . T took " due acco unt of the timeframes the parties he Panel explained that its draft timetable 32 of the proceedings " . envisaged by the parties for various stages The Panel also noted its understanding that the timetable jointly proposed by the parties assumed tha substantive t - party session meetings as well as third would not be held separately for each dispute but would s efficient rather be held jointly for all disputes . Accordingly, and in the interest of facilitating the management of the proceedings draft Working Procedures sought to integrate the , the Panel' s to the greatest extent possible , in accordance with Article 9.3 of the of the conduct proceedings 33 DSU . 34 The Panel adopted its Working Procedures and timetable on 17 June 2014 . These Working 1.30. Procedures were amended on 1 October 2014, to reflect the Panel's decision conc erning the 35 , and 15 December 2014, to reflect the Panel's decision concerning adoption of SCI procedures 36 party enhanced rights . third - 1.31. The Panel held a first substantive meeting with the parties on 1 and 3 - 5 June 2015 . A 3 June 2015. session with the third parties took place on The Panel held a second substantive 28 - 30 October 2015 . meeting with the parties on 26 The panel proceedings in relation to DS434 (Ukraine) were subsequently suspended. See section below. 1.6.6 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 reader's convenience, the Panels in DS435, DS441, DS458 and DS467 are herein collectively For the 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 res in Annex A - 1. In th e See Panel's Working Procedu e Report s , exhibits submitted by Honduras are s referred to as HND - #, by the Dominican Republic as DOM - #, by Cuba are referred to as CUB - #, by Indonesia Republic as IDN - #. Exhibits that have been submitted jointly by the Dominican #, and by Australia as AUS , - 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 below. See section 1.6.4

67 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 67 On 8 April 2016 , the Panel issued the draft descriptive part of its Report s to the parties. The 1.32. to the parties on 2 May 2017 . The Panel issued its Final Report s to s Panel issued its Interim Report September 2017 . 25 the parties on Preliminary rulings on the Panel's terms of reference 1.6.2 On 7 May 2014, Australia submitted to the Panel requests for preliminary rulings with 1.33. respect to the consistency of the Dominican Republic's, Cuba's requests and Indonesia's , panel Article . with 6.2 of the DSU Australia requested the Panel to make preliminary procedural rulings excluding from its 1.34. - terms of reference the " e list of related measures and measures that 'complement or non exhaustiv Cuba's, , and Indonesia's add to' the measures explicitly identified" in the Dominican Republic's 37 " identify the specific measures at issue " . panel requests on the basis that the requests did not In respect of Cuba's panel request, also challenged the inclusion of c laims made by Cuba Australia (read with Article bis of the Paris Convention 6 Article 2.1 of the TRIPS Agreement ); pursuant to 16.3 of the TRIPS Agreement ; Article 15.1 of the TRI PS Agreement ; and Article 17 of the Article 38 . Agreement Australia requested that the Panel issue preliminary rulings in respect of these TRIPS issues before the filing of the first written submissions. On 11 June 2014, the Dominican Republic, Cuba, and Indonesia e ach responded to 1.35. , the Panel On the same date Australia's request in relation to their respective proceedings. provided the third parties with an opportunity to comment on Australia's requests. On 17 June Union and o 2014, the Panel received comments from the European n 18 June 2014, from Argentina, Brazil, Canada, Guatemala, and Mexico. The Panel also received comments from the other's Honduras, Dominican Republic, each and Indonesia in their capacity as third parties in 39 disputes . received comments from Australia on the Dominican Republic's, On 1 July 2014, the Panel 1.36. Cuba's, and Indonesia's responses to Australia's requests for preliminary rulings . On 8 July 2014, provided comments on Australia's comments. Indonesia did not the Dominican Republic and Cuba su bmit comments. On 19 August 2014 , the Panel issued its preliminary rulings to the parties and the third 1.37. parties, with an indication that these would become an integral part of the Panel's report, subject , either in a subsequent ruling or in the Panel's to any modifications or elaboration of the reasoning report. 1.38. W ith 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 40 the specific measures at issue". 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 6 bis of the Paris Convention (through . Article TRIPS Agreement ) ha [d] the effect of ... ' changing the essen ce of the complaint ' 2.1 of the We consider that their addition in Cuba's panel request remains within the bounds of the measure ' 41 accorded to Members in formulating their complaints in their panel request of flexibility ' ." 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 1(iii). (emphasis original) para. 38 Australia's request for a preliminary ruling in relation to Cuba's panel request, para. 1(i). 39 /DS458/18, and WT/DS467/19. See WT/DS441/19, WT 40 WT/DS441/19, para. 5.36; WT/DS458/18, para. 5.71; and WT/DS467/19, para. 5.35. 41 3.53. WT/DS458/18, para.

68 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 68 42 These rulings were circulated to the DSB o 1.40. n 27 October 2014. s trictly Working procedures on onfidential i nformation (SCI) 1.6.3 c On 15 September 2014, the parties joint ly requested that the Panel adopt addenda to its 1.41. Working Procedures Concerning Strictly Confidential Working Procedures and Additional pursuant to 12.1 of the DSU. The complainants explained that such procedures Article Information proprietary company and industry data were necessary to enable them to provide to the Panel . In addition, Australia assert ed provided to them on the basis of an assurance of confidentiality that protection was necessary to provide assurances to different government agencies that ed certain information for use in these disputes. In light of the explana provid offered by the tions parties, the Panel agreed to ado pt additional procedures for the protection of SCI and to amend its 43 Working Procedures accordingly. Requests for enhanced third party rights 1.6.4 - In May and 1.42. he Panel received requests for enhanced third - party rights from June 2014, t an Union, Guatemala, Mexico, New Zealand, Nicaragua, Norway, and Brazil, Canada, the Europe 44 . Uruguay On 15 December 2014, a fter consult ing with the parties and third parties, the Panel decided 1.43. buttal to grant the third parties the following additional rights: (a) access to the parties' re 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, The Panel at any point during the proceedings. noted that the third parties' access to these further documents would be subject to the Additional Working Procedures Concerning Strictly Confidential Information . ado pted by the Panel 1.44. The Panel informed the parties and third parties that in reaching its decision, it had taken account of the economic interest in the production of, and trade in, tobacco products particular by several of the third parties, and the potential trade policy impact of the disputes in identified light of several third parties' ongoing policy debate concerning possible tobacco control measures, including plain packaging requirements. The Panel considered that the combination of these factors in 1.45. the present disputes warranted the granting of certain additional rights in the form of access to the above mentioned - 45 documents. As a matter of due process, and following the approach of panels in previous cases , 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 t , or the Secretariat, delaying the proceedings, or upsetting the balance he Panel, the parties between the respective interests of the parties and third parties to the disputes. 1.6.5 Amicus curiae submissions the parties that it did not 1.46. In a communication dated 17 June 2014, the Panel inf ormed include in its timetable a deadline for the submission of amicus curiae briefs. However, the Panel added that submissions it did not anticipate being in a position to consider amicus curiae submitted to it after the end of , as accepting amicus curiae briefs after this date would March 2015 conduct The Panel of the panel process . risk causing unnecessary delays and disrupt the orderly 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, , – Tariff Preferences , Annex A; and EC – Export Subsidies on Sugar EC 2.7. paras. 2.5 -

69 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 69 determination indicated that prejudice to the Panel's authority to rule on the was this without The parties w invited to provide their admissibility and relevance of any unsolicited submission. ere submission either as part of their views on the admissibility and relevance of any amicus curiae first written submissions or at the first substantive meeting. On 20 August 2014, the Panel received an unsolicited amicus curiae submission from a 1.47. 46 group . of On 1 September 201 4 , the Panel forwar ded this submission to business organization s of the approach it the parties and third parties and at the same time informed the third parties would take towards submissions received in the proceedings. amicus curiae On 15 December 201 4 , following certain revisions to the timet 1.48. the Panel informed the able, it " would not be in a position to consider unsolicited information parties and third parties that after submitted to it 27 April 2015 " . 1.49. T he Panel received 3 5 additional unsolicited amicus curiae submissions on or before 27 Apri l 47 . submissions after this date amicus curiae 015 and five 2 unsolicited Australia submitted as exhibits three amic us curiae 1.50. provided by the World submissions, Health Organization and the WHO Framework Convention on Tobacco Control (FCTC) (WHO) 48 the Healthy Caribbean Coalition Secretariat ; and the ; Union of International Cancer Control and 49 Cancer Council Australia . The Dominican Republic, Honduras, and as an Indonesia submitted 50 exhibit amicus curiae submissions . 36 46 This submission was made jointly by the following organizations: Emergency Committee for American al Foreign Trade Council; Paperboard Trade; National Association of Manufacturers of the United States; Nation 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 ns dated on or before 27 April 2015 from: Emergency submissio 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 ; Federation of Attica and ional da Indústria (Brazil) Piraeus Industries; Cámara Nacional de Comercio y Servicios del Uruguay; Federação des Industrias do Estado ual Property - East Asian Nations (ASEAN) da Bahia; Japan Business Federation; A Intellect ssociation of South 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 ademark Attorneys Russia, and RusBrand; International Tobacco Growers' Association; Patent and Tr 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 submissions WHO Framework Convention on Tobacco Control Secretariat. The Panel received amicus curiae 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, r Submission to the Panel by a Non Party", 16 February 2015, (WHO/FCTC amici curiae - brief), "Information fo - 42, revised). (Exhibit AUS 49 - 515); and Healthy Caribbean Coalition communication to the Panel of 22 April 2015, (Exhibit AUS UICC and CCA amici curiae brief , (Exhibit AUS - 38). 50 1: Emergency Briefs from the following amicus curiae were submitted as Exhibit DOM/HND/IDN - 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 Attica and Federation of Philippine Industries; Confederação Nacional da Indústria (Brazil) Piraeus Industries; Cámara Nacional de Comercio y Servicios del Uruguay; Federação des Industrias do Estado

70 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 70 Suspension of the proceedings and lapse of authority 1.6.6 in DS434 ime of adoption of the Panel's W At the t panel 1.51. orking Procedures and timetable, these proceedings also related to DS434, initiated by Ukraine. Ukraine participated in these proceedings 51 On as a party until y 2015 , the Panel received a request from Ukraine to 30 May 2015. 28 Ma Article suspend the proceedings in DS434 pursuant to 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 that ... the suspension will be 'with a view to finding a mutually agreed solution'". the basis Article 12.12 of the DSU provides that a panel may suspend its work at any time at the 1.52. , after 5 request of the complaining party for a period not exceeding 12 months. On 30 May 201 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 , the Panel also noted t suspended its work in DS434. In its communication remained hat Ukraine entitled to participate in the Panel's proceedings as a third party in disputes DS435, DS441, The Panel also noted that it was the shared understanding of Ukraine and the DS458, and DS467. n in DS434 and related evidence would remain on the parties that Ukraine's first written submissio 52 record as a validly filed third party submission in DS435, DS441, DS458, and DS467. Pursuant - 53 aragraph 9 of the Panel's Working Procedures , the Panel also invited the parties, to the to p extent they had not already done so, to provide clear indications as to which of the arguments and 54 evidence presented by Ukraine they wished to endorse. 1.53. Ecuador, Egypt, On 1 June 2015, following consultation with the parties, the Panel contacted and Moldova, which were t the dispute initiated by Ukraine but not in the disputes hird parties in 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 rticle 10.2 of the DSU in respect of A , and DS467 should they wish to DS435, DS441, DS458 party session of the first - participate in one or more of these proceedings, including the third substantive meeting. On 1 June 2015, Ecuador notified its third - interest in respect of DS435, party DS441, DS458, and DS467 to the Chairman of the DSB. On 2 June 2015, Moldova informed the 55 Panel that it did not wish to participate in the other disputes as a third party. 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 ph 20 of the Panel's Working Procedures provides that "a complaining party's first written Paragra submission in one dispute shall be deemed to be an exercise of its third - party rights in the other four disputes. clearly identified as such." Ukraine's arguments as Arguments presented as a third party only shall be e s e Report s as "Ukraine's first presented in its first written submission are cited in the Findings section of th se disputes is of a written submission", as originally filed, but with the understanding that its status in the 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 Dominican Republic Honduras, the , 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 2. DOM/HND/IDN -

71 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 71 - - On 2 June 2015 t he Panel notified the Chairman of the DSB of its decision to grant 1.54. , and requested that its communication be Ukraine's request and suspend its work in DS434, 56 circulated to Members. The Panel's decision was circulated to Members on 3 June 2015. The Panel was not requested to resume its work in DS434 during the 12 months following suspension. Pursuant to 12.12 of the DSU, the authority for the establishment of the Panel in DS434 Article lapsed as of 30 May 2016. The Secretariat issued a note informing the Membership on 57 30 2016. June 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 W HO and the FCTC , Secretariat , the International Bureau of the World Intellectual Property Organization (WIPO) Cancer Council Queensland (CCQ) , . and Cancer Council Victoria (CCV) R and the FCTC Secretariat the WHO 1.6.7.1 equest for information from During the proceedings , the parties made reference to the FCTC and to the FCTC Guidelines 1.58. of the FCTC (FCTC Guidelines) for Implementation , particularly with respect to Articles 11 and 13 58 of the Convention . he WHO 1.59. the FCTC Secretariat On 16 February 2015, t addressed a joint communication and 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), - 109, DOM - 44), p p. (FCTC Guidelines for Implementation (2013 edition)), (Exhibits AUS - 69 and 95 - 114; 55 "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 20); and FCTC/CO 11 FCTC Guidelines, FCTC/COP/3(10)), (Exhibit JE - Article P/3/DIV/3 of 16 February 2009, ( "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 below. details of the FCTC and related instruments in section 2.4

72 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 72 59 communication also indicated that the WHO and FCTC Th information concerning the FCTC. is 60 Secretariat were prepared to provide additional information at the request of the Panel. Article 13 of the DSU, and after consulting with the par ties, the Panel Pursuant to 1.60. in light of the competencies of the WHO and the FCTC Secretariat with respect to , considered that would benefit from further the FCTC, them concerning the FCTC and, in it factual information from tation of Article 11 of the FCTC particular, the the FCTC FCTC Guidelines for Implemen and Article 13 of the FCTC (Article 11 and Article 13 FCTC Guidelines for the Implementation of 61 Guidelines) k into account a request by Indonesia for the Panel to seek certain The Panel also too . 62 additional information from the WHO and the FCTC Secretariat. Thus, o n 14 September 2015, the Panel invited 1.61. O and the FCTC Secretariat to the WH factual information relating to (i) the process through which the Article 11 and Article 13 provide Guidelines were a dopted; (ii) the nature and intended function of the Article 11 and FCTC Article FCTC Guidelines with respect to plain packaging of tobacco products; (iii) the specific 13 Article Article 13 FCTC Guidelines with respect to the aspects of the text of the 11 and tation of pla n packaging of tobacco products; and (iv) any available preparatory emen i impl materials (including scientific or technical evidence) considered by the FCTC Conference of the ) Parties ( Article 11 and Article 13 FCTC COP in its deliberations preceding the adoption of the Guidelines. On 5 October 2015, the WHO and the FCTC Secretariat provid ed additional information in 1.62. , which t hey indicated should be read in the context of the response to the Panel's request y 2015. he WHO and the FCTC Secretariat explained that, T information submitted on 16 Februar the Convention Secretariat does not have because the working groups were closed to the public, " preceding the " a standing mandate to disclose preparatory materials from the working groups 63 the Article 11 and Article adoption of FCTC Guidelines. The WHO and the FCTC Secretariat 13 further explained that, with regard to the 11 FCTC Guidelines, the restriction to share Article FCTC information was partially lifted by onvention COP Decision FCTC/COP3(10), and the C 64 Secretariat subsequently made a list of resources publicly available. T he WHO and the FCTC , there has not been Secretariat also explained that, with regard to the Article 13 FCTC Guidelines " 65 a COP decision mandating that the Convention . Secretariat make preparatory materials public " the International Bureau of WIPO equest for information from 1.6.7.2 R During the proceedings, t he complainants raised certain provisions of the Stockholm Act of 1.63. 66 Convention for the Protection of Industrial the Property ( Paris Convention (1967) ) Paris 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, of the International Bureau of WIPO with regard to the Panel requested the assistance 59 WHO/FCTC amici brief, (Exhibit AUS - 42, revised). curiae 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 - 2.109 below . paras. 2.107 62 Indonesia's communication to the Panel of 22 April 2015. T he Dominican Republic had previously requested information from the WHO FCTC Secretariat on the material relied on by the WHO FCTC W orking Dominican Republic 's communication of 25 April 2014 to the Head of Parties in adopting the two Guidelines. - the WHO FCTC Secretariat, (Exhibit DOM The WHO FCTC Secretariat declined to provide this information, 46). 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). 63 Additional 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), 68. para. 64 WHO/FCTC Additional Information to Panel, para. 69, at fn 63 above. 65 above. WHO/FCTC Additional Information to Panel, para. 68, at fn 63 66 Pa ris 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.

73 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 73 - - quinquies , Article 6 bis (and in Article 6 factual information relevant to the interpretation of thereof) , particular paragraph (A)(1) 7 , and Article 10 bis , in particular as reflected in the Article materials of diplomatic conferences and subsequent developments in the framework of the Paris Union. On 8 October 2015, WIPO provid ed material related to 1.65. in response to the these provisions Panel's request . Data requests by the parties 1.6.7.3 In the course of proceedings, t he parties made a number of requests to each other to 1.66. the relied upon in certain expert reports and other material submitted provide data to the Panel. In addition, the parties requested the Article 13 of the DSU Panel to exercise its authority pursuant to seek to underlying different exhibits submitted by o the r parties during the proceedings. data 1.6.7.3.1 Requests by Australia in relation to evidence submitted by the Dominican 67 in the context of their first written submissions Republic and Ukraine On October 2014, Australia requested the Panel to exercise its authority pursuant to 1.67. 17 13 of the DSU to seek information from the Dominican Republic and Ukraine with regard to Article w ith their first w r itten submissions datasets relied upon in certain expert reports submitted . Specifically, Australia requested the an expert report subm itted by the datasets underlying 68 69 (IPE Report ) Dominican Republic , ( Neven Report and two expert reports submitted by Ukraine and Klick Report ). 1.68. n Republic undertook to provide the data requested by On 24 October 2014, the Dominica 70 and offered Australia relating to the IPE Report. On 31 October 2014, it provided this information and computer programming language relied upon in the IPE Report to provide certain other data requested by Australia, if so requested by the Panel. On 24 October 2014 not 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, wit h the right to request the additional information " led only by its own needs " . and that the Panel should therefore be hat the Dominican Republic had On 31 October 2014 , the Panel took note of the fact t 1.69. Ukraine was not opposed to providing the undertaken to provide the requested datasets and that datasets T he Panel further noted that Article 13.1 of the DSU grants to requested by Australia . 72 71 and that this authority is ' comprehensive ' in nature " . ' significant investigative authority panels " ' SU " accords to a panel ' ample and extensive authority to undertake and to control Moreover, the D the process by which it informs itself both of the relevant facts of the dispute and of the legal 73 " . Large Civil The Panel also noted that in US norms and principles applicable to such facts – ' nd Complaint) , the Appellate Body had discussed the use of this authority for the purpose Aircraft (2 67 On Ukraine's participation in these proceedigns, see section 1.6.6 above. 68 concerned retail scanner data as relied upon in D. Afshartous, M. Hagedo rn , A. Kaul, and This request M. Wolf, "Empirical Assessment of Australia's Plain Packaging Regime", Institute for Policy Evaluation, October 2014 ) , ( IPE Report ), (Exhibit DOM - 100). (7 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 vey of 8 July 2015); and J. Klick, "The Effect of Australia's Plain Packaging Law on Smoking: Evidence from Sur and Market Data" ( ) , ( Klick Report ), (Exhibit UKR - 5) (relied upon by Honduras, the 26 July 2014 Republic Dominican , Cuba, and Indonesia: see Honduras's communication to the Panel of 8 July 2015; Republic 's responses to Panel questions followin para. 1; Cuba's Dominican g the first substantive meeting, communication to the Panel of 8 July 2015; and Indonesia's communication to the Panel of 8 July 2015). 70 - 100.A (SCI). See Exhibit DOM 71 US 8 (quoting Appellate Body Reports, Panel's communication of 31 October 2014, – Continued para. 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 – Sh rimp , para. 104). 73 – para. 8 (quoting Appellate Body Report, Canada Panel's communication of 31 October 2014, 185). Aircraft , para.

74 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 74 - - of obtaining information requested by another party to a dispute. In this regard the Appellate Body had obse rved 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 Accordingly, it advised that panels take into account the follow ing considerations: so . hat information is needed to complete the record, whose possession it lies within, [W] what other reasonable means might be used to procure it, why it has not been formation to produced, whether it is fair to request the party in possession of the in submit it, and whether the information or evidence in question is likely to be 74 necessary t ensure due process and a proper adjudication of the relevant claim(s). o T 1.70. requested by Australia underlay reports that Ukraine had he Panel noted that the datasets submitted and , and that this reliance formed the basis relied upon in the presentation of its case s to the data was necessary to allow it "to test the veracity of for Australia's argument that acces the assertions based on the data and conseque ntly to ensure due process and a proper 75 the ] disputes . adjudication of [ The Panel also noted that Australia had attempted unsuccessfully " to obtain the data in question from the private entities responsible for collection . The Panel was its inter alia , to the right mindful of the Appellate Body's observation that due process is connected, tunity to pursue their cla of parties to be afforded an adequate oppor es ims, make out their defenc and establish the facts, and that there ma meet its y be circumstances in which a party cannot , most notably when the information is in the exclusive burden by adducing all relevant evidence 76 possession of an opposing party. The Panel further noted that Ukraine had not suggested that it would be un 1.71. able or unwilling to provide the requested information , if requested to do so he Panel had adopted , and that t 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 e n t of the 77 matter before it 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 78 28 November 2014 and 5 December 2014 . 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 79 , but required provide certain information , which it subsequently submitted on 24 November 2014 el under a ruling from the Pan 13.1 of the DSU to obtain the remainder of the requested Article . On 20 November 2014, the Panel exercised its discretion under information from private entities 13 of the DSU and requested that the outstanding data in question be provided to the Article Dominican Republic in order to facilitate its production by the Dominican Republic to the Panel and 80 the other parties. The Dominican Republic provided this information on 12 December 2014. 81 equest s by Ukraine 1.6.7.3.2 the Dominican Republic in relation to evidence R and Australia in the context of its first written submission submitted by 1.73. On 24 October 2014, Ukraine requested that the Panel exercise its authority pursuant to 13 to request Austral i a Article to provide , no later th an the ti m e of Australia's filing of its first written submission, certain data sets that were not in the public domain and that "could be Ukraine identified certain studies "on the alleged relevant" to the dispute. Specifically, effectiveness of plain packaging to impact smoking behaviour of consumers in Australia" conducted 74 para. 9 (quoting Appellate Body Report, Panel's communication of 31 October 2014, – Large Civil US nd Aircraft (2 Complain t) , para. 1140). 75 para. 11. Panel's communication of 31 October 2014, 76 para. 12 (referring to Appellate Body Reports, Thailand – Panel's communication of 31 October 2014, nd , para. 147; and – Large Civil Aircraft (2 Cigarettes (Philippines) Complaint) , para. 1139). US 77 Panel's communication of 31 October 2014, paras. 13 - 14. 78 - 199(1) to UKR - 199(12), UKR See Exhibits 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.

75 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 75 Cancer Institute New South Wales (CINSW) by and CCV . Ukraine requested the Panel to request elucidate its u to erstanding of the the underlying data from these studies in order for the Panel n " d whether or not Australia relies ... facts and assist it in making an objective assessment of the facts on these studies in its submission". Ukraine argued that these datasets were known to Australia via these two government al agencies and were not in the public domain or otherwise available to dispute s . the Panel or other parties in th ese Ukraine also requested that the Panel request ts first Australia to provide any data underlying its own expert reports and other argumentation in i 82 written submission, at the time it would file such submission. In response, r eferring to its own requests for datasets relating to arguments submitted with 1.74. 83 the Dominican Republic's and Ukraine's first written submissions t was , Australia noted that i 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 t repo s willing to provide data sets upon which its expe r " r ts are based " at the u tralia was forward, A . time of filing its first written submission However, it considered that "any claim for data in " 84 advance of that date is purely speculative". noting that ember 2014, the Panel declined the request, 1.75. Ukra ine had stated that On 20 Nov the data "could" be relevant to its dispute and that it should be available "whether or not Australia 85 relies on these studies in its submission". The Panel was not persuaded that the circumstances bmit this information required it to request Australia to su t this stage of the proceedings . The a Panel that it would be better placed to assess the need to seek additional information considered after Australia had from the parties, including, if relevant, the information identified by Ukraine, presented its first written submission. The Panel therefore declined to request Australia to submit the requested information, without prejudice to any later decision concerning the relevance or 86 otherwise of the datasets at issue. On 30 March 2015, Ukraine requested the Panel to request 1.76. pursuant to Article 13 of the , 87 that Australia submit "certain tracking survey data and information". According to Ukraine, DSU, "not all relevant data and information presented as evidence and relied u pon by Australia have been provided ", contrary to Australia's undertaking to provide the datasets upon which its expert 88 . On 7 April 2015, Honduras, the reports are based at the time of filing its first written submission expressed their support for Ukraine's request. On Dominican Republic, and Indonesia 10 April also requested the Panel to the Dominican Republic request Australia to submit, pursuant to 2015, 13 of the DSU, certain "information referenced and relied upon in its first written Article 89 submiss , including data and ion ... and in expert reports submitted as exhibits to that submission" computer codes "associated with a series of studies referenced and relied upon by Australia and its 90 experts to assert the effectiveness of the challenged plain packa ging measure". 82 Ukraine's communication to the Panel of 24 October 2014, section III. 83 above. See section 1.6.7.3.1 84 p. 2. Australia's communication to the Panel of 30 October 2014, 85 paras. 4 - 5. Panel's communication of 20 November 2014, 86 Panel's communication of 20 Novemb er 2014, 7 and 9. paras. 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 Republic 's communication to the Panel of 10 April 2015, Dominican 1. para. 90 Dominican Republic 's communication to the Panel of 10 April 2015, para. 6. The Dominican Republic' s NTPPTS: request pertained to the datasets underlying the following fourteen published studies: 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 (Ex Cross - Sectional Tracking Survey", Tobacco Control (2015) , Vol. 24, ( Wakefield et al. 2015 ) , hibit , s AUS - 206 DOM - p. ii17 - ii25; S. Durkin, E. Brennan, M. Coomber, M. Zacher, M. Wakefield, and M. Scollo, 306 ), p Term Changes in Quitting - Related Cognitions and Behaviours After the Implementation of Plain "Short - Packaging with Larger Health Warnings: F indings from a National Cohort Study with Australian Adult Smokers", (2015), Vol. 24, ( Durkin et al. 2015 ), (Exhibits AUS - 215 (revised), DOM - 305), p p. ii26 - ii32; Tobacco Control Brennan, S. Durkin, K. Coomber, M. Zacher, M. Scollo, and M. Wakefield, E. - Related Cognitions "Are Quitting 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 , (E xhibit s AUS - 224 , DOM ) 304 ), p p. 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

76 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 76 - - Australia considered 1.77. "misleading" Ukraine's claim that the requested data is of a category , and added that the data were not analysed by Australia's ok to provide that Australia underto experts but instead were analysed in academic journals or independent papers, the conclusions of 91 Australia also argued, in its response to which were relied on by Australia and one its experts. 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 92 - Such peer reviewed journal articles, which were relied on by Australia and its experts. Article 13 of th e publications were not, in Australia's view, properly the object of requests under DSU. Notwithstanding this position, Australia provided certain data requested by Ukraine and the 1.78. Dominican Republic in the context of further exchanges on this issue 7, 16 and 24 April 2015, on 12 May 2015 . On 22 April 2015, the Dominican Republic su bmitted additional comments to and including an identification of data that it considered had still not been supplied. On the Panel, April 2015, Australia submitted further additional comments. 24 Ukraine's and the Domini 13 May 2015 , the Panel responded to On can Republic's requests , 1.79. 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 : ithin the scope of its discretion under Article 13 of the DSU to seek information [W] from a party pursuant to a request from another party and that, in determining considerations such as whether to exercise such authority, it should have regard to what 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 i nformation to AUS 186 , DOM - 235 ), p - ii42 - 49; V. White, T. Williams, A. Faulkner, and M. Wakefield, "Do Larger Graphic p. 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. p. 2015 - 135, DOM - 236, DOM - 288), p ), (Exhibits HND ii50 - ii57. Data on cigar smoking : C. Miller, K. Ettridge, b 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 p. (2015), Vol ( Miller et al. 2015 ), (Exhibits AUS - 102, DOM - 315), p . 24, 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 ), Zacher et al. 2014 in Australia: An Observational Study of Outdoor Café Strips", Addiction (2014), Vol. 109, ( (Exhibits AUS - 24(68), DOM - 286), p p. 653 - 662; M. Zacher, M. Bayly , E. Brennan, J. Dono, C. 222 (revised), JE - Miller, S. Durkin, M. Scollo, and M. Wakefield, "Personal Pack Display and Active Smoking at Outdoor Café Tobacco Control (2015), Vol. 24, Strips: Assessing the Impact of Plain Packaging 1 year Post Implementation", 2015 ) (Exhibits AUS - 223 (revised), DOM ( 287), p p. ii94 - ii97. The ITC Project Four Country Zacher et al. - : H.H. Yong, R. Borland, D. Hammond, J. Thrasher, K. Cummings, and G. Fong, "Smokers' Reactions to Survey in Australia: Findings from the ITC Australia the New Larger Health Warning Labels on Plain Cigarette Packs Tobacco Control - (2015), doi:10.1136/tobaccocontrol Project", 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: Tob acco Control (2014), Findings from the ITC Four Country Survey", - - doi:10.1136/tobaccocontrol 051880. VSHS : M. Scollo, M. Zacher, S. Durkin, and M. Wakefield, "Early 2014 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)); cts of the Australian Plain Packaging Policy M. Wakefield, L. Hayes, S. Durkin, and R. Borland, "Introduction Effe on Adult Smokers: A Cross - BMJ Open (2013), Vol. 3, doi:10.1136/bmjopen - 2013 - 003175, Sectional Study", Wakefield et al. 2013 S. (Exhibits AUS - 184, JE - 24(64)). Cancer Institute Tobacco Tracking Survey (CITTS): ( ), 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 - BMJ Open (2014), Vol.4, doi:10.1136/bmjo pen Survey", 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 - Based, Interrupted Time - Population Medical Journal of Australia (2014), Vol. 200, ( Young et Series Analysis", 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 1. Australia's communication to the Panel of 16 April 2015, p.

77 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 77 submit it, and whether the information or evidence in question is likely to be 93 necessary to ensure due process and a proper adjudication of the relevant claim(s). s observ communication in respect of A u earlier tralia's 1.80. ed that, as expressed in its The Panel 94 inter alia , the own request for data , it was mindful of the fact that due process is connected to, rights of parties to be afforded an adequate opportunity to pursue their claims, make out their here may be circumstances in which a party cannot defences, and establish the facts, and that t meet its burden by adducing all relevant evidence, most notably when that information is in the 95 exclusive possession of an opposing party. The Panel also ed Australia's recognition, prior to the filing of its first written submission, 1.81. not the challenges in properly considering materials based on data sets, when the underlying data ' of " and its commitment ... to provide datasets ' sets are not provided in a prompt and timely manner 96 are based at the time of filing its first written submission . " The upon which its expert reports noted that the requests at issue were " based on Australia's reliance, in its first further Panel written submission, on certain published research results relating to the impact of the ch allenged measures, including in relation to smoking behaviours since the entry into force of the Plain " , and that the complainants also sought access to additional related datasets Packaging measures 97 not expressly relied upon in the cited publications. n important consideration guiding 1.82. in deciding whether an exercise of its A the Panel, 13 of the DSU authority under warranted, was a consideration of in whose possession Article was , whether the information was in the exclusive possession of the other party, the information is whether other reasonable means could be used to procure it , and whether the requesting party d ha availed itself of or tried to avail itself of such means. The Panel noted that Ukraine and the Dominican Republic provided no indicatio n of having taken steps to obtain the requested had m the institutions they identified information directly fro as the source of the data, or from the in each of the cited publications, following Australia's filing of s persons identified as contact point rst written submission. Based on the information before it and without prejudice to the its fi potential relevance of the requested information, the Panel was also not per suaded that this could, as the complainants' arguments suggested, information be assumed to be in the sole " possession of, or directly accessible to, the Government of Australia, solely on the basis that the 98 underlying research was publicly funded or conducted in publicly - funded institutions " . 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 13 of the DSU to request Australia to produ ce it , and invited Ukraine and Article the Dominican Republic to seek to obtain data directly from the relevant sources through 99 appropriate channels . On 16 June 2015, the Dominican Republic informed the Panel that, pursuant to the Panel's 1.84. the author s of the fourteen studies to which its request pertained , as ruling, it had sent let ters to and that its efforts well as to the institutions that it understood to be in possession of the data, 100 with very limited success". had "met requested that the Panel seek, firs t, from Australia, any It requested information that was in its possession and control, and second, concurrently exercise its Article 13 of the DSU by seeking information from the individuals and institutions authority under ies in question. designated as contacts in the stud 93 Panel's communication of 13 May 2015, para. 6. See also Panel's communication of 31 October 2014, nd 9 (quoting Appellate Body Report, US – , Large Civil Aircraft (2 para. Complaint) para. 114 0). 94 1.6.7.3.1 above. See Panel's communication of 31 October 2015, and section 95 para. 8. Panel's communication of 13 May 2015, 96 Panel's communi cation of 13 May 2015, 9 (quoting Australia's communication to the Panel of para. 30 October 2014, p. 2). 97 Panel's communication of 13 May 2015, 11. para. 98 para. 14. Panel's communication of 13 May 2015, 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 3. Dominican Republic 's communication to the Panel of 16 June 2015, p.

78 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 78 - - through Between 17 June 2015 and August 2015, CINSW provided , Australia, certain 1.85. 10 Cancer Institute New South Wales Tobacco Tracking Survey requested data concerning the 101 data regarding calls to Australia's natio Quitline . nal smoking (CITTS), and cessation helpline, , CCV also provided certain information , directly to the Dominican Republic or During this period , concerning the National Tobacco through Australia Packaging Tracking Survey (N T PPTS) , Plain cross sectional school - based survey s , and data from the Victorian Smoking and Health Survey - 102 S . (V HS) 1.86. On 21 August 2015, the Dominican Republic provided a further clarification of the status of August 2015, Australia addressed an its request, in light of recent communications. On 26 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 103 nonetheless provided all of the requested information in its possession. On 29 August 2015, the ation to CINSW concerning data and Dominican Republic addressed a further communic the information it had provided. On 7 September 2015, t he Panel communicated to the parties its understanding that , as a 1.87. result of the parties' exchanges certain information ha d been provided by CINSW and CCV, , through Au and that , as a result, a number of aspects of stralia, to the Panel and the other parties 104 . the Dominican Republic's request were moot he Panel 1.88. request, t With respect to first addressed Australia's outstanding aspects of the argument that the Dominican Republic was not requesting information prepared specifically for use in th ese 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 ' 105 ' are not the proper subject of an Article 13 request ' ". view, " 1.89. The Panel first observed that the information requested wa s comparable in nature to that tralia November 2014, Aus previously requested by Australia. It recalled that on 17 October and 10 had requested that the Panel exercise its discretion under 13 of the DSU to seek Article 106 from the Dominican Republic with respect to various exhibits submitted by the information , 107 including unprocessed source data and programming lan complainants guage/computer , 108 The Panel also noted Australia's recent requests for similar data in relation to the . codes 109 Dominican Republic's statement at the first substantive meeting and responses to questions. Similarly, in its requests, the Dominican Republic soug ht access to "data and computer codes 110 in various studies relied upon by Australia to "'test the underlying the conclusions presented" 112 111 veracity of the assertions made' by Australia" in reliance on these studies. 101 Australia's communications to the Panel of 17 June 2015, 28 July 2015, and 10 August 2015. On 18 Dominican June 2015, the informed the Panel that it had received this information and clarified a Republic "clerical error" in its communication of 16 June 2015 and, in light of this correction, clarified the precise content of its request. 102 Dominican Republic indicated that it had received a communication from CCV On 22 June 2015, the "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, 2. p. 104 Panel's communicati para. 2.11. on of 7 September 2015, 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 99 above. fn 107 , (Exhibit UKR - 5); Neven Report , (Exhibit UKR - 3) (SCI); IPE Report , ( Exhibit DOM - 100 ); Klick Report - 100.B (SCI) . See section 1.6.7.3.1 above. and Exhibit DOM 108 para. 2.21 (quoting Australia's communication to the Panel's communication of 7 September 2015, ber 2014, p. 2). Panel of 10 Novem 109 Panel's communication of 7 September 2015, 2.21 ( referring to Australia's communication to para. p. 1; and Australia's communication to the Panel of 20 July 2015, the Panel of 2 June 2015, p. 2). See also 1.6.7.3.3 below. section 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 4 3 (quoting Australia's communication to the Panel of 10 November 2014, p. 2). 112 2.21. Panel's communication of 7 September 2015, para.

79 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 79 - noted The Panel that Australia's and the Dominican Republic's respective requests, as well 1.90. that , n otwithstanding the fact that the information as their first written submissions, indicate d requested by Australia formed the basis of commissioned expert reports rather than of published h parties consider that the scrutiny of information at this level of detail is necessary, in studies, bot 113 to know the case that [they have] to make or to answer ". ' In light these proceedings, for them " ' 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 defences, and establish the facts in the context of proceedings their claims, make out ' conducted in a balanced ... manner mandates that the Panel allow the parties the opportunity to " , 114 engage in comparable levels of review of the information on the record. 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 Article 13 of the DSU, the Panel noted that Art icles 13.1 subject of a request for information under ' any individual or body and 13.2 of the DSU permit panels to request and obtain information from " ' and from ' any relevant source ' " and the Panel did not see any a priori which it deems appropriate 115 o which, we might direct a request. restriction on the individual to whom, or body t The Panel therefore considered that the fact that the requested information underlay published articles did 116 13 of the DSU. not, in itself, shield it from scrutiny under Article icular circumstances of these proceedings, the 1.92. The Panel further noted that in the part 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 the effects of the measures, which is a strongly disputed issue. The Panel observed that ways, tobacco plain these publications were specifically intended to evaluate the effects of the challenged xt of surveys and research measures, and were based on data collected in the conte packaging programmes dedicated to the study of tobacco control, including programmes receiving public 117 funding. 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 118 reports to Parliament, though it is not classified as a public entity or part of the public service. he Panel explained that the Dominican Republic also observes, and Australia does not dispute, T 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 119 packaging legislation. 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 nd Civil Aircraft (2 complaint) , para. 1140). 114 – Panel's communication of 7 September 2015, para. 2.22 (quoting Appellate Body Report, Thailand Cigarettes (Philippines) para. 147). , 115 para. 2.23 ( referring to Appellate Body Reports, Panel's communication of 7 September 2015, – Textiles and Apparel , Argentina 84; and Canada – Aircraft , para. 185). para. 116 Panel's communication of 7 September 2015, para. 2.23. 117 paras. 2.24 - 2.25. See Department of Health's online Panel's communication of 7 September 2015, Packaging, (Exhibit DOM 297), p. 1: evaluation of Plain - 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 Rep ublic '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 Brennan et al. 2015, (DHA) . See (Exhibit s AUS - 224 , DOM - 304 ), p. ii41; Wakefield et al. , (Exhibit 2015 (Exhibit s AUS - 206 , DOM - 306 ), p. ii24; and White et al. 2015a s AUS - 186 , DOM - 235 ), p. ii48. , 118 Panel's communication of 7 September 2015, para. 2.26 ( referring to Cancer Council Victoria, "About 2 October 2014, us: Governance", http://www.cancervic.org.au/about/governance > , accessed < available at: (Exhibit HND - 62)). 119 's Panel's communication of 7 September 2 015, para. 2.26 ( referring to Dominican Republic communication to the Panel of 10 April 2015, para. 14 fn 26).

80 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 80 - - commissioned experts in these proceedings, is the founder and principal chief investigator of the 120 and a co ( ITC P International Tobacco Control Policy Eva ) luation Project - author of the two roject studies referred to in his expert report that draw on data from the ITC Project, which are the 121 object of some of the Dominican Republic's requests. In light of the above, the Panel concluded nformation underlying these studies was not a priori beyond the scope of what the Panel may that i 122 request in these proceedings. Nevertheless, the Panel also noted that the fact that it consider ed should do so. it request the information at issue that did not necessarily mean it may The Panel , t herefore 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 re, in accordance with the the proceedings should also take due account of the need to ensu 123 objectives of the DSU, the prompt settlement of disputes. T he Panel concluded that t he provision of some of the information sought by the Dominican 1.94. n submission would be Republic in respect of the studies that Australia relied on in its first writte 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 nel's ability to make an objective assessment of contributing to ensuring due process and the Pa 124 Article the matter before it in accordance with 11 of the DSU. 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) CCV considered would arise for itself the undue burdens and complexities that from the provision of detailed information on the N PPTS and the V S HS; (b) the appropriateness T 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 ; 125 and (c) the future viability of school - based surveys . 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 confirm further the extent to which reasonable means would be available appropriate to seek to , " through which additional information could be provided in a form that could assist in the conduct , ithout compromising the interests expressed by CCV (and potential similar of these proceedings w 126 . " interests of CCQ, as relevant) Australia did 1.97. not have in its possession any of the data and The Panel also understood that information not already provided to the Dominican Repub lic and to the Panel and the other 127 parties. 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, 2.26 ( referring to "Expert Report of G. Fong", 4 para. March 2014, ( Fong Report ), (Exhibit AUS - 14 ), para. 3 and Appendix A). 121 14), Panel's communication of 7 September 2015, para. referring to Fong Report , (Exhibit AUS - 2.26 ( 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 (10 November 2014), urvey", Tobacco Control 2014 051880 (Swift et al.); and H.H. Yong, R. Borland, D. Hammond, J. Thrasher, - doi:10.1136/tobaccocontrol - K. Cummings, and G. Fong, "Smokers' Reactions to the New Larger Health Warning Labels on Plain Cigarette (19 February 2015), Packs in Australia: Findings from the ITC Australia Project", Tobacco Control 2014 - 05197, (Yong et al.)). doi:10.1136/tobaccocontrol - 122 Panel's communication of 7 September 2015, para. 2.27. 123 p ara. 2.27 ( referring to Panel's communication of 7 September 2015, Appellate Body Report, US – nd Large Civil Aircraft (2 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).

81 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 81 - - 128 The Panel also expected that, as the party relying on the studies at issue, some of obligations. which were commissioned by its own Department of Health, Australia would actively collaborate 129 and ensure that relevant V and CCQ to facilitate the establishment of the relevant facts with CC information underlying its own arguments could be presented in these proceedings promptly and 130 to the fullest extent practicable. Finally, in light of the considerable amount of evidence already exchanged and bearing in 1.98. mind the already unusually long timeframes in these panel proceedings, the Panel reminded all Article 12.2 of the DSU, panel procedures "sho uld provide sufficient parties that, pursuant to quality panel reports, while not unduly delaying the panel process". flexibility so as to ensure high - The Panel considered it important that, at that stage of the proceedings, any further exchange of sly as possible, in the interest of a prompt settlement of these evidence take place as expeditiou 131 3.3 of the DSU. disputes in accordance with Article 1.99. On 24 September 2015 , CCQ informed the Panel that the requested data from the was therefore - could not be presented in a de school identifiable form , and that it based surveys - 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 S was also unable to provide S due to funding constraints . CCV stated that it in respect of the V H due to undertakings school the requested information in respect of surveys , - provided to the based 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 data requests Additional 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 132 On 5 June 2015, the Dominican Re meeting with the parties. public indicated that it would voluntarily provide data and codes underlying the report, including calculations Professor List 133 The Dominican Republic also . " " stated that the data generated in reliance upon the Klick mimeo the Klick mimeo w ere a lready in Australia's possession and that it was not in a position underlying 134 this document as it did not have a "direct relationship" with Professor Klick. to share T he itself invited the parties to continue bilateral discussions on this matter and to revert to the Panel Panel 136 135 The parties met on 8 June 2015. in the event that an agreement could not be reached. 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 para. 2.69 (noting that the Australian Department of Panel's communication of 7 September 2015, Health website indicates that requests for access to data collected in the N T PPTS may be directed to a Department of Health email address, [email protected], 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 Pan el'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 - 5. The Panel suspended proceedings in DS434 at Ukraine's request before submitted by Ukraine as Exhibit UKR 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 1. Dominican Republic 's communication to the Panel of 19 June 2015, p. 134 First substantive meeting, 5 June 2015. 135 First substantive meeting, 5 June 2015.

82 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 82 15, Australia noted that it was 1.102. On 19 June 20 awaiting data and backup materials and reiterated its request for the Klick mimeo in a letter to the eport the List R underlying On t he same day, the Dominican Republic explained that Professor List Dominican Republic. did and that it would be inappropriate not him to assert control have control of the Klick mimeo for it by sharing it with third parties. T he Dominican Republic however ov er provided certain other (including details of the calculations for which data requested by Australia from the List Report 137 Also on 19 June 2015 , Honduras informed the Panel Professor List relied on the Klick mimeo). 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. specific version of Professor Klick's mimeo that d 1.103. the " Australia responded that i t require in his report" and asked that the Panel exercise was relied upon and referred to by Professor List 13 of the DSU to request it from the Dominican Republic or in th e its authority under Article 138 July 2015, Honduras submitted a new report authored by Professor On 8 alternative, Honduras. 139 . Klick, along with related data and codes used to prepare it 140 On 1.104. 7 September 2015 , 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 141 addressed. In relation to the Klick mimeo, the Panel's understanding was that the document 142 . On 14 September submitted by Honduras on 8 July 2015 was intended to satisfy this req uest the Dominican Republic and Honduras confirmed that the entirety of the requested data and 2015, analysis relied upon in and presentation had been provided to Australia. the List Report On 20 July 2015, Australia asked the Dominican R 1.105. epublic to provide the data, computer two figures contained in the Dominican Republic's codes, and programming language underlying 143 No. The parties subsequently had several further exchanges in response to Panel question 8. 144 relation to this information. O n 4 September 2015, the Dominican Republic indicated that Australia test the conclusion draw n in the response to Panel question had all of the data needed to No. 8. 1.106. On 30 September 2015, Australia requested Honduras to provide the backup data and in t he preparation of his rebuttal report, which had been coding used by Professor Neven 145 . On 1 October 2015 , submitted by Honduras as part of its second written submission onduras H 146 provided the requested material . Honduras provide the complete backup that 1.107. On 7 October 2015, Australia requested 147 material that accompanied Supplemental R ebuttal R eport Professor , submitted by Klick 's its second written sub together with Honduras mission. According to Australia, the backup materials provided were incomplete and in particular did not contain the original unprocessed data , 136 See Republic 's communication to the Panel of 19 June 2015, p. 1; and Australia's Dominican 3. p. communication to the Panel of 2 July 2015, 137 See Dominican 's communication to the Panel of 19 June 2015 Republic ; and Exhibit DOM/IDN - 1.A (SCI). 138 s communication to the Panel of 2 July 2015, p. 2. (emphasis original) Australia' 139 Klick R ebuttal R eport, (Exhibit HND - 118). 140 See 1.87 - paras. above . 1.98 141 Panel's communication of 7 September 2015, para. 1.13. 142 Panel's communication of 7 September 2015, para. 1.13. 143 Dominican Republic of 20 July 2015, p. 2. Australia's communication to the 144 Dominican of 20 July 2015, p. 2; Dominican Australia's communication to the Republic 's Republic 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 communication to the Panel of 4 September 2015. Dominican Republic 31 August 2015; and 's 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 122). Market Data", 16 September 2015, ( Klick Supplemental Rebuttal Report ), (Exhibit HND -

83 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 83 - - upon which Professor Klick's analyses relied. On 9 October 2015, metadata, or program files 148 the requested materials . Honduras provid ed On 13 November 2015 , the Dominican Republic requested Australia to provide additional 1.108. a report authored by backup production materials in respect of and submitted Professor Chaloupka 149 . by Australia at the second substantive meetin Australia provided this information on 18 g 150 . November 2015 On 14 January 2016 , Australia 1.109. that Honduras provide backup production requested underlying calculations contained in a report by Professor Klick submitted by Honduras with its 151 quest ions following the second substantive meeting . On 15 responses to January 2016, 152 Honduras the relevant backup production . provided vidence and arguments presented subsequent to the comments on responses to 1.6.8 E questions following the second substantive meeting Additional comments relating Dr Chipty's Third Rebuttal R eport 1.6.8.1 1.110. On 17 February 2016, the Dominican Republic addressed a communication to the Panel with respect to certain new material issues of due process that it claimed arose regarding 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 153 by Dr Chipty Republic identified "as an example" a specific issue relating to an expert report 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 154 entirely Australia considered that it was " the parties' due process interests are respected". 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 inadmissible. If the Panel were to consider the Dominican Republic's the Panel to deem them 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 155 process interests. 1.111. On 2 March 2016, the Panel addressed a communication to the parties, in which it noted submission of evidence at this stage of the proceedings fel that l 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 consider the appropriate course of action in light of that the Panel would therefore 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 ' pro mpt settlement ' of requests of all parties to these disputes, the requirement of securing a " these disputes that is not ' unduly delay[ed] ' " weighed in favour of bringing the exchange of 156 argumentation and evidence to a close. 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 Exhibits HND See 122(ae) - 122(i) - HND - (SCI). 149 , (Exhibit AUS - 582). Chaloupka Rebuttal Report 150 - 582.A. See Exhibit AUS 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 Republic 's communication to the Panel of 17 February 2016, p p. Dominican 1 - 3. 155 Australia's communication to the Panel of 19 February 2016. 156 Panel's communication of 2 March 2016, 3.3 and 12.2 of the DSU, and 3 (quoting Articles p. 150). Appellate Body Report, Thailand – Cigarettes (Philippines) , para.

84 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 84 157 ' Finally, the Panel noted that the Dominican Republic had not evidence by the parties ". requested the opportunity to comment on Dr Chipty's report, but had nonetheless identified certain criticisms of it. 1.113. with respect to the The Panel decided to accept the Dominican Republic's comments of 17 February 2016, specific criticisms expressly identified in its communication and requested the Dominican Republic to provide the results mentioned in this communication . Australia (and the , was offered an opportunity to comment , strictly limited other complainants, strictly if necessar y) The to addressing the specific criticisms identified in the Dominican Republic's communication . stressed the very limited scope of these opportunities to provide further comments, noting Panel t the volume of evidence already submitted by the parties, and the imperative of bringing t hese tha proceedings to a close, were such that it would consider further requests of this kind only in the 158 most exceptional of circumstances. 1.114. inican Republic provided the requested information. On On 4 March 2016, the Dom 16 March 2016, Australia provided comments. - Implementation Review 1.6.8.2 Additional comments relating to Australia's Post On 26 February 2016, Australia submitted a document containing a 1.115. ost - i mplementation p r (PIR) of its tobacco plain packaging measures, as anticipated in its response to the Panel's eview 159 No. In its comments on Australia's responses to questions, Honduras had asked question 149. for an opportunity to comment on this document "if and when it is provided to the Panel and the 160 The Panel agreed that it was appropriate to provide Honduras and the other parties". complainants with an opportunity to comment on this newly submitted document and invited the 161 complainants to submit comments by 21 March The complainants submitted comments 2016. O n 22 March 2016, Australia indicated that it did not seek to prolong the on 21 March 2016. written proceedings any further by requesting a right to reply to the complainants ' comments, but s matter should in no way be taken as accepta that its silence on thi nce by Australia of the complain ants' arguments. 2 FACTUAL ASPECTS In this section, the Panel will d 2.1. ection 2.1 ), as well as escribe the measures at issue (s 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 162 and geograph 2.2 ), the general framework for the protection of trademarks (GIs) ical indications 163 ), other measures (s ection 2.2.5 ) , 2.3 and the FCTC (s ection 2.4 ). in Australia (s ection 2.1 The measures at issue 2.2. The measures at issue in th ese proceedings are the following : 164 he Tobacco Plain Packaging Act 2011 (Cth) a. t ( TPP Act ); 157 (quoting Appellate Body Report, Panel's communication of 2 March 2016, p. 3 Thailand – Cigarettes para. (Philippines) , 155). 158 p. 3. Panel's communication of 2 March 2016, 159 Tobacco Plain Packaging PIR, (Exhibit AUS - 624). See 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 e s e 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.

85 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 85 - - he t Tobacco Plain Packaging Regulations 2011 (Cth), as amended by the Tobacco Plain b. 165 (No. 1) (Cth) Packaging Amendment ( TPP Regulations ); and Regulation 2012 166 t he Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 c. (Cth) (TMA Act). 2.3. In addition to the above measures, the complainants indicated in their panel requests that uded additional instruments described, respectively, as: the measures at issue also incl 167 a. "any amendments, extensions, related instruments or practices" (Honduras) ; 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 168 or rep lace these laws and regulations " (Dominican Republic, Cuba, and Indonesia). 2.4. As explained in s ection 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 ecific Article 6.2 of the DSU to identify the sp their face, inconsistent with the requirement under measures at issue". However, we reserved the right to assess whether any particular measure (in addition to those expressly listed above in paragraph ) that may be invoked on the basis of this 2.2 language in the course of the proceedings would or would not be covered by those references and, 169 consequently, fall within our terms of reference. 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 2.2 . The Panel will hereafter measures at issue in these proceedings are those listed in paragraph 170 TPP measures " to refer to these instruments taken together. use the term " 2.1.1 P reparation, 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 171 The NPHT was responsible ive Health Taskforce (NPHT). establishment of the National Prevent at for developing a "National Preventive Health Strategy", to "provide a blueprint for tackling the 165 Tobacco Plain Packaging (Cth), as amended by the Tobacco Plain Packaging Regulations 2011 Amendment Regulation 2012 ), (Exhibits AUS - 3, JE - 2). (No. 1) (Cth), (TPP Regulations 166 The (Cth), (TMA Act), (Exhibits AUS - 4, Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 3). - JE 167 p. WT/DS435/16, 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. , e.g. Honduras's first written submission, paras. 81 and 847 (using the terms "plain packaging measures" See and "PP measures", respectively); Dominican Republic 's first writ ten submission, para. 161 (identifying that the Republic Dominican 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 para. collectively as the "PP measures"); Indonesia's first written submission, 23 (using the term "PP measures", but without identifying whether it refers to individual measures with this title); and Australia's para. 3 (using the term "tobacco plain packaging measure"). first written submission, 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 n Senate's Community Affairs References Committee discussed, Between 1994 and 1995 the Australia - 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, - Related Illness , (15 The Tobacco Industry and the Costs of Tobacco December 1995), (Exhibit 71. DOM - 49), pp. 68 -

86 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 86 - - bur den of chronic disease currently caused by obesity, tobacco, and excessive consumption of 173 172 The NPHT published in 2009 a A Tobacco Working Group (TWG) was also created. alcohol". discussion paper, accompanied by a Technical Report by the TWG that recommend ed a range of 174 measures. In September 2009, the NPHT released its final report, entitled Australia: The Healthiest 2.7. 175 National Preventative Health Strategy – The Roadmap for Action . – With Country by 2020 "key action areas": "Make tobacco products respect to tobacco control, this report identified 11 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 176 ; "Eliminate exposure to second hand smoke in public places"; "Regulate packaging") - manufacturing and further regulate packaging and supply of tobacco products"; "Ensure all ntact with health services are encouraged and supported to quit ..."; "boost efforts to smokers in co 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 hand smoke"; "Ensure educators to discourage tobacco use and protect young people from second - that the public, media, politicians and other opinion leaders remain aware of the need for use"; and "Ensure Implementation and sustained and vigorous action to discourage tobacco 177 measure progress against and towards targets". 2.8. On 29 April 2010, the Australian Government announced four measures to "deliver on [the] 179 178 of 25% recommendations of the [NPHT]" ; , which it identified as a tobacco excise increase 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 - 180 campaigns. released a response to the NPHT final In May 2010, the Australian Government 181 report, in which it elaborated on these four measures. 2.9. On 7 April 2011, the Australian Government released an Exposure D raft of the Tobacco Plain 182 Packaging Bill 2011 Bill ) for public consultations, which la sted until 6 June 2011. TPP The ( (Cth) 183 Bill and Trade M ark s Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) ( TMA Bill ) TPP were Parliament in November 2011 and received Royal Assent on 1 December 2011, thus passed by the 184 TPP Act and the TMA Act. becoming, respectively, the The TPP Regulations were adopted on 185 186 7 December 2011 and amended on 8 March 2012. As indicated above , taken together, the TPP Act , the TMA Act and the TPP Regulations form the TPP measures at issue in th ese dispute s . 172 50). NPHT Terms of Reference , (Exhibits HND - 2, DOM - 173 para. 115. Australia's first written submission, 174 vii 52, JE - 12), pp. - - ix. Recommended measures were NPHT Technical Report 2, (Exhibits AUS categorized as follows: "Revenue measures that would reduce the affordability of tobacco products"; reforms to address current deficiencies in tobacco regulation" (which included "Mandate plain "Legislative packaging of cigarettes" and an increase in the required size of graphic health warnings); "Expenditure s to reduce social disparities in smoking"; "Health measures"; "Indigenous tobacco control"; "Other initiative system interventions"; "Reinvigoration of the Australian National Tobacco Strategy"; and "Overseas development". 175 NPHT, The Roadmap for Action, (Exhibits AUS - - 14). 67, JE 176 NPHT, The Roadmap for Action, ( Exhibits AUS - 67, JE - 14), p. 182. 177 - 67, JE - 14), NPHT, The Roadmap for Action, (Exhibits AUS 174. p. 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). 181 116, JE - 15), p p. - - 85. Response to NPHT, The Roadmap for Action, (Exhibits AUS 61 182 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 - T MA Bill, (Exhibits AUS 6, JE - 4). 184 Act , (Exhibits JE - 1, AUS - TPP - 4, JE - 3). The TPP Bills were also notified to 1); TMA Act (Exhibits AUS 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 cigarette tobacco products and to prescribe specific requirements for the retail packaging and appearance non -

87 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 87 - - Tobacco products manufa ctured or packaged in Australia for domestic consumption were 2.10. measures from 1 October 2012. A s of 1 December 2012, all required to comply with the TPP tobacco products sold, offered for sale, or otherwise supplied in Australia were required to comply 187 the TPP measures . with T he TPP measures 2.1.2 2.1.2.1 Introduction Act is, by its own terms, "[a]n TPP Act to discourage the use of tobacco products , and 2.11. The " . A simplified outline contained in the for related purposes Act itself describes it as follows: TPP  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 188 comply with the requirements. The term "tobacco product" is define d in the TPP Act to mean "processed tobacco, or any 2.12. product that contains tobacco" that is "manufactured to be used for smoking, sucking, chewing or snuffing " not included in the Australian Register of Therapeutic Goods maintained under the " and 189 ". Therapeuti This definition encompasses not only cigarettes, but also c Goods Act 1989 190 - cigarette" products, such as cigars, little cigars (also known as cigarillos) and bidis. "non To the extent that some of the products covered by this definition may be prohibite d in Australia, either 191 and territories, the TPP by the Commonwealth does not affect their legality. or states Act 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 above. See section 2.1 187 para. 123. Section 2 of the TPP Act specifies the date on which Australia's first written submission, 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, 1, JE - TPP JE , (Exhibit AUS - 2), Regulation 1.1.2; and - 1), Section 9. Act 188 TPP Act , (Exhibits AUS - 1, JE - 1), Section 12. 189 Act , (Exhibits AUS - TPP - 1), Section 4(1) (containing various definitions for the purpose of the 1, JE 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 1(f) of the FCTC. Explanatory Memorandum, Tobacco Plain Article 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 - 2, JE - 7), p. 9. See also Australia's response to TPP Bill Explanatory Memorandum, (Exhibits AUS your 13, para. Panel question 60. Other covered "non - cigarette" products also include roll - No. - 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), p p. 4 and 9. For instance, chewing tobacco and snuffs intended for oral use have been permanently banned in Australia since 1991. See below. para. 2.64

88 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 88 192 Bill and TMA Bill were accompanied by Explanatory Memoranda. The Such documents 2.13. TPP ials and the public to understand the are "documents that assist members of Parliament, offic 193 objectives and detailed operation of the clauses of a Bill". In Australia, an E xplanatory may also serve as "extrinsic material" t hat can be used as an aid to judicial M emorandum 194 TPP Regul ations were accompanied by a similar document, an interpretation of Acts. The 195 Explanatory Statement, which may also serve as an extrinsic aid to judicial interpretation. Section 109 of the TPP Act 2.14. - General may make regulations provides that "[t]he Governor required or permitted by this Act to be prescribed; or (b) necessary or prescribing matters: (a) 196 The TPP convenient to be prescribed for carrying out or giving effect to this Act". Regulations 197 were made pursuant to this provision. "Objects" of the Act 2.1.2.2 TPP Section , entitled "Objects of this Act", provides: 3 of the TPP A ct 2.15. (1) The objects of this Act are: to improve public health by: (a) (i) discouraging people from taking up smoking, or using tobacco products; and (ii) encouraging people to give up smoking, and to stop using tobacco and products; (iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and reducing people's exposure to smoke from tobacco products; and (iv) (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) umers; and reduce the appeal of tobacco products to cons (b) increase the effectiveness of health warnings on the retail packaging of ; tobacco products and reduce the ability of the retail packaging of tobacco products to mislead (c) consumers about the harmful effects of smoking or using tobacco 198 products. 192 TPP Bill Explanatory Memorandum, (Exhibits AUS - 2 , 7); and Explanatory Memorandum, Trade - JE Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth), (TMA Bill Explanatory Memorandum) , (Exhibits - - 5). AUS 5, JE 193 P. O'Neill, "Was There an EM?: Explanatory Memoranda and Explanatory Statements in the September 2006), (Exhibit AUS Commonwealth Parliament" (12 260), 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 - 22); and P. O'Neill, "Was There an EM?: TPPA Regulation Explanatory Statement, (Exhibit JE Memoranda and Explanatory Statements in the Commonwealth Parliament" (12 September 2006), Explanatory - 260), Explanatory Statements to Commonwealth Regulations. See also fn (Exhibit AUS 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 Memorandum, (Exhibits Act, (Exhibits AUS - 1, JE - 1), Section 3. See also TPP Bill Explanatory TPP 1 and 10. AUS - 2, JE - 7), p p. 1 - 2 and 6 - 7; TPPA Regulation Explanatory Statement, (Exhibit JE - 22), p p.

89 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 89 Framework The term "Convention on Tobacco Control" is defined as meaning the 2.16. WHO 199 states that the Bill E xplanatory emorandum TPP Convention on Tobacco Control (FCTC). The M the Australia "introduction of plain packaging for tobacco products is one of the means by which Government will give effect to Australia's obligations under the [FCTC]" and, in this context, refers 200 to Articles The TPP Bill E xplanatory M emorandum adds that Section 5, 11 and 13 of the FCTC. 3(2) "is not intended to be an exhaustive list of ways in which ... Australia's obligations under the 201 WHO FCTC may be met". Requirements for retail packaging of tobacco products 2.1.2.3 The TPP Act specifies requirements 2.17. or the retail packaging of tobacco products. The Act f defines "retail packaging" as: any container for retail sale in which the tobacco product is directly placed; or (a) (b) any container for retail sale that contains a smaller container in which the tobacco product is directly placed; or il packaging of the tobacco (c) any plastic or other wrapper that covers any reta 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 202 definition). As elaborated in the TPP Bill 2.18. , the TPP Act regulates "any Explanatory Memorandum 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 203 to or forming part of the packaging". Sections 18 to 25 of the TPP 2.19. set out requirements for retail packag ing of tobacco Act 204 205 products and Section 26 sets out the requirements for appearance of tobacco products. provides that regulations may prescribe additional requirements in Section 27 of the TPP Act 199 1), Section Act, (Exhibits AUS - 1, JE - 4(1). TPP 200 7), Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - p. 2. TPP 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 6(1). outer surface that forms part of the flip - top lid". Ibid. Section 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 Regulations, (Exhibits AUS cigar". TPP 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 - 2, JE - 7), TPP Bill Explanatory Memorandum, (Exhibits AUS 8. p. 204 TPP Act , (Exhibits AUS - 1, JE - 1), Sections 18 - 25. 205 1), Section 26. TPP Act , (Exhibits AUS - 1, JE -

90 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 90 206 relation to the retail packaging of tobacco products, and th e appearance of tobacco products. 207 Act The cumulative effect of the TPP Regulations and TPP . These requirements are in the 208 as applied to the packaging of tobacco products are summarized below. Regulations TPP 2.1.2.3.1 Physical features of retail packaging Section 18(1) of the TPP Act provides that the outer and inner surfaces of the retail 2.20. must not have any "decorative ridges, embossing, bulges or products packaging of all tobacco than as permitted by other irregularities of shape or texture, or any other embellishments" (other 209 ). the Additionally, "any glues or other adhesives used in manufacturing the TPP Regulations 210 Regulations set out other The packaging must be transparent and not coloured". TPP 211 , including ging for retail sale specifications for the physical features of tobacco packa 212 213 214 requirements for cigarette packs , and any other type of , cigarette cartons , cigar tubes 215 packaging. 216 2.21. Cigarette packs and When cigarette cartons must be rigid and made only of cardboard. outer surface of the closed, each pack or carton must be rectangular, and the surfaces of the pack 217 degree angle. or carton must meet at a 90 All edges of the pack or carton must be rigid, - straight, and not rounded, bevelled, or otherwise shaped or embellished (unless permitted by the 218 219 TPP The dimensions of cigarette packs are determined by the TPP Regulations . ). Regulations 220 The opening of a cigarette pack must be a flip top lid. The inside lip of the cigarette pack 2.22. - an other than the corners which may be rounded, d neither the lip nor must have straight edges, 221 the edges of the lip may be Any lining in rounded, bevelled or otherwise shaped or embellished. the pack must be made only of foil backed with paper (unless prescribed by the 222 Regulations ). TPP Colour and finish of retail packaging 2.1.2.3.2 2.23. ection 19 of the TPP Act sets out additional requirements for all outer and inner surfaces of S , including both sides of any lining of a cigarette certain retail packaging of tobacco products 206 TPP Act , (Exhibits AUS - 1, JE - 1), Section 27. 207 - 3, JE - 2). TPP Regulations, (Exhibits AUS 208 See generally TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7). 209 18(1)(a). TPP Act , (Exhibits AUS - 1, JE - 1), Section 210 Act , (Exhibits AUS - 1, JE - 1), Section 18(1)(b). TPP 211 - 3, JE - 2), Division 2.1. See TPP Regulations, (Exhibits AUS 212 See TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 2.1.1. 213 - 3, JE - 2), Regulation 2.1.2. See TPP Regulations, (Exhibits AUS 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 hibits AUS - 3, JE - See TPP Regulations, (Ex With the exception of cigarette packs 2), Regulation 2.1.5. 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 Act , (Exhibits AUS - 1, JE - 1), Section 18(2)(c). TPP 219 - 125 millimetres (height), 55 - 82 The dimensions of closed cigarette packs must be between 85 - 42 millimetr es (depth). TPP Regulations, (Exhibits AUS - 3, JE - millimetres (width), and 20 2), Regulation 2.1.1(1). 220 TPP , (Exhibits AUS - 1, JE - 1), Section 18(3)(b). The lid must be hinged only at the back of the Act 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) TPP Regulations, (Exhibits AUS - also set out requirements concerning the opening of the packet. - 2). 3, JE 221 TPP Act , (Exh ibits AUS - 1, JE - 1), Section 18(3)(c). 222 1, JE TPP Act , (Exhibits AUS - - 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, pro vided they meet certain conditions, including that they do not form an image or other symbol, or constitute 2). tobacco advertising and promotion. TPP Regulations, (Exhibits AUS - 3, JE -

91 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 91 224 223 k brown These surfaces must have a matt finish , though th e pack. and must be drab dar does not apply to health warnings, the text of the brand, business or company requirement colour 225 The TPP name, or variant name, or the text of Regulations legislative requirements. relevant 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 226 must be silver coloured foil with a white paper backing. Trademarks and other marks on retail packaging 2.1.2.3.3 Section 20 of the TPP Act prohibits the appearance of trademarks and marks anywhere on 2.24. name the retail packaging of tobacco products, with the exception of the brand , business or the relevant legislative requirements and other trademarks and company name, variant name, , 227 . TPP marks permitted by the The TPP Regulations make provision for the Regulations 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 228 These markings must not obscure any relevant legislative requirement, or constitute or number. 229 provide access to tobacco advertising and promotion. Se ction 21 of the TPP 2.25. Act , operating together with the TPP Regulations , prescribes the requirements for the manner in which the brand, business, company or variant names for tobacco 230 products may appear on the retail packaging of a tobacco product. With resp ect to cigarette ucida Sans typeface in fonts no larger than packaging, any of these names must be printed in the L - point size (for a brand, business or company name) or 10 - point size (for a variant name). The 14 231 ur Pantone Cool Gray 2C. With respect to retail font must be normal weighted and in the colo packaging other than retail packaging of cigarettes, names must meet the same specifications, but 232 adhesive Such can be printed on the packaging or on an adhesive label fixed to the packaging. in the colour Pantone 448C (drab dark brown), no larger than reasonably necessary label must be to print the permitted names, be fastened firmly to the retail packaging so as not to be easily 233 234 removable , and must not obscure any relevant legislative requirement. 2.26. Secti on 21(3) of the TPP specifies the location and orientation of these names with Act respect to cigarette packaging: 223 Section 19 applies only to the elements of the definition of "retail p ackaging" set out in 2.17 above. See TPP subparagraphs (a) to (b) of the definition in Act , (Exhibits AUS - 1, JE - 1), Sections para. ) (defining "retail packaging"). 19(1)(a) and 4(1 224 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 - - 2), Regulation 2.3.1(5). 3, JE 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 - - 2), Regulation 2.4.1. In addition, the first letter in each word 3, JE 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 2), Regulation 2.4.2(3). TPP Regulations, (Exhibits AUS - 3, JE -

92 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 92 - : Requirements for brand, business, company or variant names 1 Table Requirements for brand, business, company or variant names the name If this name appears on this surface ... ... ... Item a brand, 1 must appear: the front outer surface of a cigarette pack business or (a) horizontally below, and in the same orientation as, the health warning; and company name the centre of the space remaining (b) in on the front outer surface beneath the health warning. a brand, 2 the front outer surface of a must appear: business or cigarette carton (a) in the same orientation as the company name 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 any outer surface of a must appear: a brand, cigarette pack or cigarette (a) horizontally; and business or in the centre of the outer surface of company name carton (other than a front (b) the pack or carton. outer surface) variant name any outer surface of a 4 must appear: cigarette pack or cigarette (a) horizontally and immediately below carton the brand, business or company name; and (b) in the same orientation as the brand, business or company name. 1), Section 21(3). S ource: TPP Act, (Exhibits AUS - 1, JE - 2.27. With respect to cigar tubes, a brand, business or company name, or variant name, may only relevant legislative appear once, across a single line only, and must not obscure any 235 Where a cigar tube contains a brand, business or company name only, or a variant requirement. name only, the name must appear in the same orientation as, and immediately below, the health business or company name, together with a warnings. Where a cigar tube contains a brand, 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 236 to, in the same orient ation as, and immediately below the brand, business or company name. B 2.28. may appear on other retail rand, business or company names or variant names 237 packaging across one line only on each of the front and back outer surfaces (and no others), in entation as, and not above, the health warnings on the surface, and must not obscure the same ori such any relevant legislative requirement. Variant names on packages must appear parallel to, in 238 the same orientation as, and immediately below the brand, business or comp any name. 2.1.2.3.4 Wrappers 239 Act Section 22 of the TPP concerns requirements for wrappers. 2.29. 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 - 3, JE - 2), TPP Regulations, (Exhibits AUS 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").

93 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 93 240 as permitted by the Regulations . wrapper, except These requirements are elaborated in the TPP 241 Regulations TPP . 2.1.2.3.5 Inserts and onserts Section 23 of the TPP 2.30. applies to certain types of retail packaging, and provides that Act ages must not have any inserts or onserts, other than as permitted by the these pack 242 Regulations The TPP TPP . provide that retail packaging of tobacco products may Regulations 243 , and, except with respect to cigarette s and include an adhesive label bearing a health warning cigarette cartons, may contain an insert if it is used to avoid damage to the tobacco product during or transportation or storage, and is white the colour of the packaging material in its natural 244 state 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 245 (drab dark brown). Other requirements concerning retail packaging 2.1.2.3.6 The retail packaging of tobacco products must no 2.31. t make a noise, or contain or produce a 246 , and must not scent, that could be taken to constitute tobacco advertising and promotion 247 include features designed to change the packaging after retail sale . 2.1.2.3.7 Summary of requirements on retail packaging Regulations d below, the requirements set out in the TPP Act and the 2.32. As describe TPP 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 , and other legislative requirements with respect to set out in the TPP Act and the TPP Regulations the packaging of cigarettes and cigars, are shown below: 240 TPP Act , (Exhibits AUS - 1, JE - 1), Section 22(2). 241 - 3, JE - See TPP Regulations, (Exhibits AUS - 2.5.2. 2), Regulations 2.5.1 242 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 g" produced in paragraph 2.17 . See ibid. Sections 23 and 4(1) (defining "retail packaging"). "retail packagin 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), (E - 128, JE - 8). xhibits AUS 244 - 3, JE - 2), Regulation 2.6.2. TPP Regulations, (Exhibits AUS 245 TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 2.6.3. 246 1, JE Act , (Exhibits AUS - - 1), Section 24. TPP 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 out panels. text; (e) removable tabs; and (f) fold -

94 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 94 - side of a Figure 1 : TPP Act and TPP Regulations as applied to the front, top, and cigarette pack Australia's first written submission, Annexure A, Figure 1; Dominican Source: Republic's first written submission, Annex I, Figure 25; and DHA Guide to Tobacco Plain Packaging, (Exhibits HND - 50, 161). DOM -

95 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 95 - 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 - 50, submission, Annex I, Figure 26; an d DHA Guide to Tobacco Plain Packaging, (Exhibits HND - 161). DOM 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 27; and DHA Guide to Tobacco Plain 161). Packaging, (Exhibits HND - 50, DOM -

96 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 96 - - Figure 4 : TPP Act and TPP Regulations as applied to the back, base and side of a cigarette carton Republic's first written s Source: Dominican ubmission, Annex I, Figure 28; and DHA Guide to Tobacco Plain 161). Packaging, (Exhibits HND - 50, DOM -

97 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 97 - 5 : TPP Act and TPP Regulations as applied to cigar tubes Figure 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 161). HND - 50, DOM - 6 : TPP Act and TPP Regulations as applied to the front and side of a cigar box Figure Source: Dominican Republic's first written submission, Annex I, Figure 31; and DHA Guide to Tobacco Plain 161). Packaging, (Exhibits, HND - 50, DOM -

98 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 98 - - : TPP Act and TPP Regulations as applied to the back 7 Figure of a cigar box Source: Dominican Republic's first written submission, Annex I, Figure 32; and DHA Guide to Tobacco Plain - 50, DOM Packaging, (Exhibits HND 161). - 2.1.2.4 Requirements for the appearance of tobacco products The TPP 2.33. measures regulate various elemen ts affecting the appearance of tobacco products he themselves. Section 26 of t provides that no trademark or mark may appear anywhere TPP Act 248 TPP . Act Section 27 of the Regulations TPP on a tobacco product, other than as permitted by the TPP Regulations may prescribe additional requirements in relation to the provides that the 249 to further the objects of the TPP Act . appearance of tobacco products 2.1.2.4.1 Requirements with respect to cigarettes to cigarettes. The 2.34. Division 3.1 of the TPP Regulations specifies requirements with respect paper casing and lowered permeability band (if any) must be white, or white with an imitation cork 250 tip. A cigarette may be marked with an alphanumeric code, which may appear only once on the to, and not more than 38 millimetres from the end of cigarette. The code must be printed parallel - weighted Lucida Sans typeface with a the cigarette that is not designed to be lit in black, normal 251 maximum 8 - The alphanumeric code must not constitute, or provide access to, point font size. tobacco adv ertising and promotion; 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 p roduct 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 252 253 If a cigarette includes cigarette". a filter tip, the filter tip must be white. 248 Act TPP - , (Exhibits AUS - 1, JE 1), Section 26. 249 Act , (Exhibits AUS - TPP - 1), Section 27(1)(b). 1, JE 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 2), Regulation 3.1.3. TPP Regulations, (Exhibits AUS - 3, JE -

99 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 99 Requirements with respect to cigars 2.1.2.4.2 TPP 2.35. prescribe that a single band may appear around With respect to cigars, the Regulations the circumference of a cigar in the colour Pantone 448C (drab dark brown). The ban d may be an adhesive band that completely covers another band or bands, provided it is fastened firmly to, and 254 not easily removable from, that band. 2.36. The band may feature the brand, company or business name, and variant name of the cigar, the name of the c ountry in which the cigar was made or produced, and an alphanumeric 255 These marks must appear only once on the band; and be printed in normal weighted code. 256 Lucida Sans typeface, in maximum 10 - The point font size, in the colour Pantone Cool Gray 2C. brand, business or company name and variant name must be placed horizontally along the length 257 of the band so that they run around the circumference of the cigar. The alphanumeric code must be "false, misleading, not constitute, or provide access to, tobacco advertising and promotion; ' s characteristics, health deceptive or likely to create an erroneous impression about the cigar effects, hazards or emissions"; "directly or indirectly create a false impression that a particular other tobacco products"; or "represent, or be linked or related tobacco product is less harmful than 258 in any way to, the emission yields of the cigar". The band may also contain a covert mark that is not visible to the naked eye and does not 2.37. 259 n. provide access to tobacco advertising and promotio 2.1.2.4.3 Summary of requirements on the appearance of tobacco products Regulations 2.38. The cumulative effects of the requirements set out in the TPP Act and the TPP , 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 3.2.1(2). 2), Regulations 3.2.1(1) - 255 - 3, JE - 2), Regulation 3.2.1(3). TPP Regulations, (Exhibits AUS 256 TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 3.2.1(5). 257 - 3, JE - 2), Regulation 3.2.1(6). TPP Regulations, (Exhibits AUS 258 TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 3.2.1(7). 259 2), Regulation 3.2.1(4). TPP Regulations, (Exhibits AUS - 3, JE -

100 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 100 : TPP Act and TPP Regulations as applied to the appearance of cigars 9 Figure Source: Australia's first written submission, Annexure A, Figure 4; Dominican Republic's first written 50, submission, Annex I, Figure 34; and DHA Guide to Tobacco Plain Packaging, (Exhibits HND - 161). - DOM Section 28 of the 2.1.2.5 Act TPP Section 28(1) of the TPP Act pro vides that, for the purposes of the Trade 2.39. 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 260 constituted with a view to [it] using the trade mark in Austr alia in relation to those products". The TPP 2.40. Bill Explanatory Memorandum states that Section 28 "preserves a trade mark owner's ability to protect a trade mark, and to register and maintain registration 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 It further . would use it on the products or retail packaging, but for the operation" of the TPP Act states that, in the event of an application to remove a trademark from the register on the basis - use "will be rebutted by evidence that the e allegation of non that it has not been used, th 261 the operation" of the TPP Act . The registered owner would have used the trade mark, but for . s of Section 28(1) of the TPP complainants contest the effect Act 2.1.2.6 Offences and civil penalties 2.41. Chapter 3 of the TPP Act is entitled "Offences and civil penalty 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 requirements; nor 260 TPP Act , (Exhibits AUS - 1, JE - 1), Section 28(1). 261 15. TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7), p.

101 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 101 - - ducts that do not comply with (c) supply, purchase or manufacture tobacco pro those requirements; nor (d) supply tobacco products that are not packaged for retail sale without certain contractual prohibitions. A person who does so:  based offence (that is, an offence where fault el ements - (a) may commit a fault 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 offence); and 262 (c) may also contravene a civil penalty provision. ach of the prohibitions identified in Chapter 3 stipulates the applicable criminal penalties 2.42. E 263 (for fault - based and strict liability offences) and civil penalties. Part 4 of Chapter 3 creates an exception to certain offences and civil penalty provisions in - compliant tobacco that Chapter for non 264 products that are for export. 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 infor mation standards which prevail to 265 Act Act . TPP Section 11 of the TPP the extent of any inconsistency between them and the provides, inter alia , that the Act "does not exclude or limit the operation of a relevant tobacco law 266 capable of operating concurrently with this Act". The of a State or Territory that is 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. However, if there is any conflict between State and Territory la ws and the plain packaging requirements, 267 the Bill will prevail. explains that: 2.44. Furthermore, the Explanatory Memorandum It is intended that this Bill will operate alongside other regulatory mechanisms for tobacco products, and packaging generally. Althoug h 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, including any rally that is applicable to retail regulation creating a requirement for packaging gene 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 requirements to restrict advertising on advertising restrictions in so far as it creates 268 tobacco products themselves or on their packaging. 262 TPP Act, (Exhibits AUS - 1, JE - 1), Section 30. The details of these prohibitions are elaborated in Sections - 50, which are contained in Parts 2 - 4 of Chapter 3. 31 263 TPP Act , (Exhibits AUS - 1, JE - 1), Sections 31 - 48. 264 TPP Act , (Exhibits AUS - 1, JE - 1), Chapter 3, Part 4. 265 Act , (Exhibits AUS - 1, JE - 1), Section 10. See, e.g. TPP 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 p. TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7), 4. See also ibid. p. 10. 268 10. TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7), p. 4. See also ibid. p.

102 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 102 - - 2.1.2.8 The TMA Act The TMA Act inserts into the TM Act a new provision, namely 2.45. 231A. This provision Section 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 e operation of the Tobacco Plain Packaging Act may clarify or state the effect of th , 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) somethin g 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 269 made under this Act), to the extent of any inconsistency. explains that: 2.46. The TMA Bill Explanatory Memorandum TMA The [ Bill ] is being introduced so, if necessary, the government can quickly on between the [ TPP Act ] and the Trade Marks Act remedy any unintended interacti 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 270 not disadvantaged by the practical op eration of the Plain Packaging Act. The 2.47. continues that: Explanatory Memorandum [T]he proposed Bill will insert a new section 231A to allow regulations to be made TPP Act ] under the Trade Marks Act in relation to the effect of the operation of the [ 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 271 Plain Packaging Act. 272 2.48. The TMA Act entered into force on 1 December 2011. 269 3), S - 4, JE TMA Act, (Exhibits AUS chedule 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 3), Section 2. See TMA Act, (Exhibits AUS - 4, JE -

103 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 103 Regulatory impact analysis 2.1.2.9 - r mpact a nalysis process involves a three i tier system for assessing 2.49. egulatory The Australian depth analysis, documented in a Regulation Impact Statement (RIS), for regulations, including " in - 273 all proposals that will have a significant impact on business and individuals or the economy". 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, 274 , provisions on plain packaging of tobacco products. inter alia The OBPR advised the DHA that the draft RIS required more work to satisfy the Australian Government's Best Practice Regulation 275 In April 2010, the DHA transmitted requirements and offered comments to assist in finalizing it. 276 In May 2010, after it draft RIS on plain packaging of tobacco products. to the OB PR a second was announced that the Government would adopt a comprehensive package of tobacco control 277 that the , the OBPR informed the DHA measures targeting smoking, including plain packaging and second draft RIS did not satisfy the Best Practice Regulation requirements that the DHA was 278 PIR within one to two years of implementation. required to commence a 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 279 The DHA was granted manage the policy's ongoing delivery more efficiently and/or effectively". 280 the TPP an extension, from December 2014 to June 2015, . to complete I n its PIR of measures t he "Departmen t of Health received advice that it would be reported as November 2015 , - compliant ' on the Office of Best Practice Regulation's website in relation to the non ' 281 post ". - The Department of Health implementation review of the tobacco plain packaging measure 273 See Australian Government, "Best Practice Regulation Handbook", August 2007, (Best Practice 126), p. Regulation Handbook), (Exhibit AUS 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 – Tobacco Control Act"( April 2009 ) , ement (Exhibit 51). UKR - 275 - 12, IDN - 6). The OBPR provided "general Letter of 23 April 2009 from OBPR to DHA , (Exhibits HND n, and the comments" on the definition of the problem, the structure of the RIS, the range of sources relied o need to target the information to the measures proposed to be introduced, including an analysis of the degree Ibid. p. 2. With to which the proposed measures will contribute to the health benefits of quitting smoking. it commented that "[t]he idea that cigarettes are held in the same social cues to respect to plain packaging, 6. style and display one's status like designer clothing seems overstated." Ibid. p. 276 - , (Exhibit HND 4 May 2010 16). Letter of from OBPR to DHA 277 See PM Rudd, Anti - Smoking A ction Media Release, (Exhibit s AUS - 115, HND - 4, DOM - 52). 278 Letter of from OBPR to DHA , (Exhibit HND - 16). Under the Government's Best Practice 4 May 2010 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 - implementation review. In been met and the department or agency must undertake a post - compliant in the Best Practice additio n, the department or agency will be reported as non for that year. Regulation Report Australian Government, "Best Practice Regulation Handbook", August 2007, (Best Practice Regulation Handbook), (Exhibit AUS 126), p. 37. - p. 32 and 36 - 38. The tobacco plain packaging proposal See also ibid. p 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. 280 371 Evidenc e to Senate Finance and Public Administration Legislation Committee, (Exhibit DOM - ) . 281 31. Australia's response to Panel question No. 149, para.

104 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 104 - - 282 This PIR in February 2016. TPP measures seeks to assess "the the completed the PIR for effectiveness and efficiency of the tobacco plain packaging measure to meet its objective in order 283 tory intervention". to determine if it is an appropriate regula Other tobacco control - 2.2 related measures in Australia 2.52. Australia maintains a number of measures at the Commonwealth, state and territory levels that are regulating the use, sale, advertisement and promotion of tobacco products challen ged not 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. Mandatory text and GHW s 2.2.1 ted by all Australian states and territories in 2.53. Tobacco health warning requirements, enac the retail packaging of cigarettes and involved textual health 1973, initially applied only to 284 Subsequent measures at the federal level were enacted, expanding the scope of the warnings. warnings with respec t 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 285 March 2006, As of 1 s were required requirements to other categories of tobacco products). GHW 286 for almost all tobacco products. On 1 January 2012, the 2.54. Competition and Consumer (Tobacco) Information Standard 2011 (Cth) (Information Standard) entered into force; it applied to all tobacco products as of 287 288 1 This measure requires all tobacco products sold , offered for sale or December 2012. otherwise supplied in Australia to feature new and expanded health warnings, including warning 289 tatements and corresponding graphics, an explanatory message and information messages. s 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 surfa ce 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) 299), Section 5(1); Cigarette Containers (Labelling) Ordinance Ordinance 1972 (Cth) (as made), (Exhibit AUS - 1972 (NT), (Exhibit AUS Cigarette Package Labelling Regulations 1972 (Vic), (Exhibit - 300), Section 4; 301), Regulations 3 4 and 6; Cigarettes (Labelling) Regulations 1972 (WA), (Exhibit AUS - 302), - - AUS 6; Cigarettes (Labelling) Act 1972 Regulations 3 - 303), Section 4; Cigarettes (Labelling) - (NSW), (Exhibit AUS (NSW), (Exhibit AUS - 304), Regulation 4; Cigarettes (Labelling) Act 1972 (Tas), (Exhibit Regulations 1973 - 305), Sections 3 - 4; ( Cigarettes (Labelling) Regulations 1973 - AUS 306), Regulation 3; (Tas), (Exhibit AUS Cigarettes (Labelling) Regulations 1971 1972 (SA), (Exhibit AUS - 307), Regulations 2 and 3; Food and Drug - (Qld), (Exhibit AUS 308). Amendment Regulations 1973 - 285 Australia's first written submission, Annexure B, Section A(1). See, e.g. Trade Practices (Consumer (Cth), (Exhibit AUS Product Information Standards) (Tobacco) Regulations 1994 322), Regulations 7, 9, 10(1), - Trade Practices (Consumer Product Informat ion Standards) (Tobacco) 11(1)(b), 11(2)(b), and 15(1); (Cth), (Exhibit AUS - 323), Regulations 35, 42, 47, 51, and Schedule 2. Regulations 2004 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 (Exhibits AUS - 128, JE - 8), Section 1.5. Information Standard, 288 Prior to the Information Standard, an exception to the warning requirements was made for cigars for export. See Australia's first written submission, para. 133 and sold individually, as well as tobacco 128 Annexure B, Section AUS - A(1); Information Standard, (Exhibit , JE - 8 ), Section 9.16. It is noted that s Information Standard requires warning statements, but not GHWs, for single cigar tubes, bidis and smokeless - tobacco. See Information Standard, (Exhibit AUS - 128 , JE 8 ), Parts 6, 7 and 8. s 289 For example, Section 3.2(4) offers the following "explanatory message": oxygen and Smoking during pregnancy reduces blood flow in the placenta and limits the 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 3.2(4). (emphasis original) Information Standard, (Exhibits AUS - 128, JE - 8), Section

105 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 105 - - of the back surface of cigarette packs and cartons. Cigar tubes require only textual warnings; such statements must occupy 95% of the total length of the outer surface, and extend to at least 60% 290 The w arning on other tobacco products (except cigars of the circumference of the outer surface. 291 tubes and bidis) was increased to 75% on the front and back of the package. Warning statements on the front surface of a cigarette package must feature upper case, bold type, in the largest font size availab le 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 ye llow 292 background. In 2013, amendments were made to the Information Standard, with the effect that rotation 2.55. of the health warnings on the retail packaging of tobacco products became the responsibility of 293 r than retailers. manufacturers and importers of tobacco products rathe Figure 10 : Current GHWs used on the front of cigarette packaging Source: 133. Australia's first written submission, para. 2.2.2 Restrictions on advertisement and promotion of tobacco products 2.56. Since 1992, Australia has maintain ed restrictions and prohibitions concerning advertising 294 and promotion of tobacco products across various media. It has also maintained prohibitions on 2.7 above , the NPHT, in its final tobacco advertising at the point of sale. As described in paragraph 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 8), Sections 9.10 Information Standard, (Exhibits AUS - 128, JE - - 9.12. 293 Competition and Consumer (Tobacco) Amendment (Rotation of Health Warnings) Information (Cth), (Exhibit AUS 325). Standard 2013 - 294 advertising in various print media; advertisements in film, videos, This includes restrictions on 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 (Cth), (Exhibits or workplaces; and advertising of sponsorshi See Tobacco Advertising Prohibition Act 1992 p. AUS - 64, IDN - 14), Sections 9, 10(1), and 15; and Smoking and Tobacco Products Advertisements (Prohibition) 62). Act 1989 (Exhibit AUS -

106 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 106 295 , identified " [ e ] nd(ing) all forms of advertising and promotion of tobacco report of June 2009 296 products" as one of 11 "key action areas". ecommendations, the Prime Minister and the Minister for Health 2.57. In response to the NPHT's r he reforms T and Ageing announced reforms to further restrict tobacco advertising and promotion. announced included the introduction of legislation to restrict internet advertising of tobacco pr oducts; 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 and a proposal for legislation concerning the plain next iteration of the National Tobacco Strategy ; 297 . packaging of tobacco products In addition, Australia indicated in these proceedings that legislation prohibiting tobacco 2.58. - counter word - - - mouth promotion and tha t advertising may include retailer advertising or over the of 298 some states and territories provide guidelines about what a retailer can say to a customer. In 2012, the (Cth) was amended so as to extend 2.59. Tobacco Advertising Prohibition Act 1992 existing tobacco advertisement restrictions to internet and other electr onic media (e.g. mobile 299 phones), with the exception of advertising on websites that sell tobacco products. ebsites must comply with r Advertisements on these w egulations accompanying these amendments 300 Thes e amendments took effect on 6 September in respect of their content, format, and location. 301 2012. All Australian states and territories prohibit retailers from selling food, toys or other 2.60. products designed to resemble tobacco products or that might encourage young people to 302 smoke. 2.2.3 Taxation measures On 1 N ovember 1999, Australia amended the Excise Tariff Act 1921 2.61. (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 k ilogram basis (for 303 products exceeding 0.8 grams per stick). 304 In addition to indexation adjustments , the excise rate has been increased on several 2.62. occasions. On 29 April 2010, Australia announced an increase in the tobacco excise rate of 25% to 295 67, JE - 14). NPHT, The Roadmap for Action, (Exhibits AUS - 296 Australia's first written submission, Annexure C, para. 15. See NPHT, The Roadmap for Action, - 67, JE (Exhibits AUS 14), p p. 179 - 182. See para. 2.67 below. - 297 66. (Exhibits AUS Response to NPHT, The Roadmap for Action, - 116, JE - 15) , p p. 65 - 298 para. 56 and Annexure C, paras. 25 - 26. Austral ia cites the Australia's first written submission, ] Australian Capital Territory "Guide to the Sale of Tobacco Products in the ACT " 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, 26. para. 299 Tobacco Advertising Prohibition Amendment Act 2012 (Cth), (Exhibit AUS - 473). See also footnote , below. 311 300 - only format, More specifically, online tobacco advertisement should be "presented in a plain, text 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), Act 2006 (WA), (Exhibit AUS - 350), Section 106; Tobacco Act 1927 (Exhibit AUS - (NT), (Exhibit AUS - 374), Section 46; Tobacco and 453), Section 18; Tobacco Control Act 2002 - 454), Section 26ZS; Tobacco Act 1987 (Vic), (Exhibit Other Smoking Products Act 1998 (Qld), (Exhibit AUS - 455), Sections 15N, 15O(2)(a); Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS - 404), Section 21; AUS (Tas), (Exhibit AUS - 456), Section 68A; Tobacco Products Control Act 1986 (SA), Public Health Act 1997 - ion 10; 366), Sect (Exhibit AUS 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 4. From 1 March 2014, the indexation of tobacco excise changed from Working Pages , (Exhibit IDN - 23), p.

107 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 107 305 from 30 April 2010. On 1 August 2013, Australia announced four additional 12.5% be applied increases in excise tax, effective on 1 September 2014, 1 September 2015, and December 2013, 1 306 1 September 2016. Restrictions on the sale of tobacco products 2.2.4 2.63. Australia reg ulates, mostly through state and territory legislation, what kind of tobacco products may be sold, who can buy and sell and purchase tobacco products, and how they can be 307 sold. 2.64. The supply of has been banned in Australia since 1991. A chewing tobacco and snuff number of states and territories have also introduced prohibitions on the sale of flavoured flavoured cigarettes, or enacted legislation allowing their cigarettes or fruit or confectionery - 308 prohibition. By 1998, all Australian States and Territorie s had increased the m 2.65. inimum age limit 309 restricting the sale of cigarettes to persons under 18 years of age. of sale through vending machines, online 2.66. All Australian states also regulate the modalities es" in places such as nightclubs or dance sal and other forms of "indirect sales", or via "mobile 310 311 , though these restrictions are not applied uniformly across all states and territories. events 312 Some Australian states and territories require tobacco retailers and wholesalers to be licensed. annual indexation based on the Consumer Price Index to bi - annual ind exation based on average weekly bi - No. 2 ordinary time earnings. Budget Paper – 2013 - 2014, (Exhibit AUS - 266). 305 Excise Tariff PM Rudd, Smoking Action Media Release, (Exhibit s AUS - 115, HND - 4, DOM - 52); - Anti - 418), (Cth), (Exhibit AUS Tobacco Excise Increase PIR , Amendment (Tobacco) Act 2010 Schedule 1; and - 292, HND - 80, DOM - 119, CUB - 64, IDN - 21), paras. 24 - 26. (Exhibits AUS 306 - Tobacco Excise Media Release, 421, HND - 85, DOM - 114, IDN - 5); Statements of the (Exhibits AUS on. Penny Wong, Minister for Finance and Deregulation, Hon. Chris Bowen MP, Treasurer, and Senator the H - 265), p. 33. (Exhibit AUS 307 Australia's first written submission, 51 and Annexure B, Section B. para. 308 Australia's first written submission, 51, Annexure B, Section B(3)(b), Annexure C, Section A(5), para. 362); - para. 13; Tobacco Products Regulation (Prohibited Tobacco Products) Notice 2006 (SA), (Exhibit AUS Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS 267), Section 29; Tobacco Act 1987 (Vic ), (Exhibit - - Tobacco Act 1927 (ACT), (Exhibit AUS - 347), Section 21; Tobacco Products AUS 363), Sections 15N and 15O; (SA), (Exhibit AUS - 348), Section 34A; Public Health Act 1997 (Tas), (Exhibit AUS - Regulation Act 1997 456), Section 68A; and on Amendment Act 2011 (Qld), (Exhibit AUS - 364), Section 72. Western Health Legislati 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 - - 352), Section 59; AUS ldren) Act 1998 (Qld), (Exhibit AUS - 353), Tobacco Products (Prevention of Supply to Chi 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 366), Section 11(2); Tobacco Act 1987 (Vic), (SA), (Exhibit AUS - 462), Section 13; (NSW), (Exhibit AUS - - 372), Section 9; (Exhibit AUS Tobacco Advertising Prohibition Act 1991 - 351), Section 5; Tobacco Products (Prevention Of Supply Tobacco (Amendment) Act 1990 (ACT), (Exhibit AUS (Qld ), (Exhibit AUS - 353), Section 15; Tobacco Products Control (Miscellaneous) To Children) Act 1998 (SA), (Exhibit AUS 354), Section 8; Public Health Amendment Act 1996 (Tas), (Exhibit - Amendment Act 1993 - 356), Section 4. The Northern Territory prohibits vending machines except within areas of licensed AUS Tobacco Control Act 2002 (NT), (Exhibit AUS - premises where children are not permitted. 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 - 375), Sections 2(2) and 9. AUS 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 - 377), Section 4. (SA), (Exhibit AUS 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 348), Section AUS - 347), Part 7, Sections 61 and 63; Tobacco Products Regulation Ac t 1997 (SA), (Exhibit AUS -

108 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 108 - - Others have what Au stralia describes as "'negative' licensing schemes that similarly assist in the 313 enforcement of tobacco laws". All Australian states and territories have implemented requirements concerning the point of 2.67. sale of tobacco products including bans on the disp lay of tobacco products and tobacco , 314 . C ertain exemptions to display bans are maintained in Victoria for advertising at retail premises 315 - free shops , and in Western Australia for specialist specialist tobacconist outlets and duty 316 - A typi cal point tobacconist outlets of . sale display ban in Australia requires that tobacco - products be kept in an opaque, closed cabinet that is inaccessible to consumers and behind the is 317 counter of a retail outlet. Australian states and territories also regulate other means thro 2.68. ugh which information about the tobacco products available in a given retail outlet can be communicated to consumers. In all ACT states and territories except Queensland and the , price boards Australian Capital Territory ( ) nformation. The information displayed varies from jurisdiction to are visible and display certain i 318 jurisdiction, as does the size, font, and other features of the board. Retailers may also, or 319 alternatively, use price tickets. The information displayed varies from jurisdiction to jurisd iction, and limitations apply to the font and other features of each ticket. 6; (Tas), (Exhibit AUS - 349), Section 74A; Tobacco Products Control Act 2006 (WA), Public Health Act 1997 (Exhibit AUS - 350), Sections 16 - 18; Tobacco Control Act 2002 (NT), (Exhibit AUS - 346), Section 28. 313 first written submission, Annexure B, Section B(1). Australia's 314 15 56 and 354 and Annexure C, paras. paras. - 16; Tobacco Australia's first written submission, (ACT), (Exhibit AUS - 470), Section 10; Public Health (Tobacco) Act 2008 Amendment 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 481); Department of Health and accessed 4 Mar ch 2015, (Exhibit AUS trictions+for+tobacco+retailers >, - 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 - 376), Section 22; Tobacco (Amendment) Act 1999 (ACT), (WA), (Exhibit AUS (Exhibit AUS - 463), Sections 4 - 5, 12 and 13; Publ ic 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 - 387), Section 26; Tobacco Products Variation Regulations 2006 (SA), (Exhibit AUS - 467), AUS (Tas), (Exhibit AUS 360), Sections 70 - 72; Tobacco (Amendment) Act Public Health Act 1997 - Regulation 4(3); - 390), Sections 8 and 9; To bacco Products Control Act 2006 (WA), (Exhibit AUS - 350), 2000 (Vic), (Exhibit AUS 23 and 31 Sections 22 32; Public Health Amendment (Tobacco Advertising) Act 1997 (NSW), (Exhibit - - - Tobacco Control Act 2002 (NT) (as made), (Exhibit AUS - 374), Section 15; and AUS 450), Schedule 1, item 10; (SA), (Exhibit AUS - 402), Section 15. Tobacco Products Regulation (Further Restrictions) Amendment Act 2004 315 15 - 16; paras. Republic 's second written Australia's first written submission, Annexure C, Dominican para. 754; Ho nduras' s second written submission, para. 315 ; and VIC Department of Health, submission, - 279), Section 5. "Tobacco Retailer Guide", February 2013, (Exhibit AUS 316 Australia's first written submission, Annexure C, paras. 15 - 16; Dominican Republic 's second written sion, para. 754; Honduras' s second written submission, submis para. 315 ; and Tobacco Products Control Act 2006 - 376), Sections 22 - 23. (WA), (Exhibit AUS 317 Dominican para . 354; Republic 's second written submission, Australia's first written submission, 755; a nd Tobacco in Australia 2012, CUB excerpts, para. - 13), p. 39. (Exhibit CUB 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 - VIC Department of Health, "Tobacco Retailer Guide", February 2013, (Exhibit AUS - 279); 478); and Factsheet 5, "Ban on Display of Tobacco and Smoking Products in Retail Department of Health (NSW), Retailer - 479); Queensland Government, "Requirements for Outlets from 1 July 2013", May 2013, (Exhibit AUS - retailers", October 2011, (Exhibit AUS tobacco retailers" (Exhibit 480); SA Health, "Point of sale restrictions for 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, - 483); NT Government, "Displays and Point of Sale Banning Tobacco Retail (Exhibit AUS 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

109 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 109 - - A number of states and territories have different requirements for the storage or display of 2.69. cigars. For example, in Queensland, customers may view cigars in a humidified room, a ccompanied 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 and (NSW) Western Australia allow tobacco retailers to open cigar pack ages to sell single cigars. Western Australia permits additional signage to provide information about the availability and price of 320 cigars in a cigar cabinet. Other measures 2.2.5 Full or partial bans on the consumption of tobacco products in various locations have also 2.70. been implemented in Australia at the Commonwealth and state and territory 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), airplanes, train stations, vehicles carrying minors, restaurants, bars, workplaces, cafes, shopping and community centres, public transport, bus stops, taxi ranks, 321 and wharves. The 135 million in anti - smoking social 2.71. Australian Government has undertaken to invest AUD 322 It has also invested in campaigns that use marketing campaigns between 2009 and 2016. 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 - - 478); VIC Department of Health, "Tobacco Retailer Guide", February 2013, (Exhibit AUS 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 - lth, "Tobacco Products Control Act 2006 Guideline: Price Tickets", 481); WA Department of Hea - 482); WA Department of Health, "Retailer Fact Sheet No 2: New Tobacco Display Laws for all (Exhibit AUS 483); NT Government, "Displays and Point of S ale Banning Tobacco Restailers", October 2010, (Exhibit AUS - Retail Displays, Frequently Asked Questions", 2010, (Exhibit AUS - 484); and Department of Health (ACT), AUS - 485). "Guide to the Sale of Smoking Products in the ACT", May 2012, (Exhibit 320 Section B(4), paras. 27 - 28. See, with respect to Australia's first written submission, Annexure C, NSW, (NSW), (Exhibit AUS - 267) , Section 6(3). Public Health (Tobacco) Act 2008 321 These restrictions are not uniformly applicable across all states and territories. See Australia's first nnexure B, Section C. See also Air Navigation Regulations (Amendment) 1987 (Cth), written submission, A - 378); (Exhibit AUS (Cth), (Exhibit AUS - 379); Smoke - free Areas Air Navigation Regulations (Amendment) 1990 (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; - o and - Free Environment Act 2000 (NSW), (Exhibit AUS - 386), Sections 6, 7(1), Schedule 1; Tobacc Smoke 387), - Other Smoking Products (Prevention of Supply to Children) Amendment Act 2001 (Qld), (Exhibit AUS Section 26, Part 2B; Tobacco Products Regulation Act 1997 - 388), Section 47; Public Health (SA), (Exhibit AUS - free areas) Act 2001 - 389), Section 5; Tobacco (Amendment) Act Amendment (Smoke (Tas), (Exhibit AUS - 390), Section 7; Occupational Safety and Health Amendment Regulations (No 2) 1997 2000 (Vic), (Exhibit AUS - 391), Regulation 6; Health (Smoking in Enclosed Public Places) Regula (WA), (Exhibit AUS (WA), tions 1999 (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 - (SA), (Exhibit AUS 97), Section 4; 3 Products Regulation (Further Restrictions) Amendment Act 2012 Public - Health Amendment Act 2004 - 398), Section 6; Tobacco (Amendment) Act 2005 (Vic), (Tas), (Exhibit AUS (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 Tobacco Products Regulation (Smoking in Cars) Amendment Act 2007 - 402), Section 17; (SA), (Exhibit AUS - Public Health (Tobacco) Act 2008 (NSW), (Exhibit AUS - 404), Section 30; Public Health Amendment 403); (Tas), (Exhibit AUS 405), Section 4; Tobacco Amendment (Protec tion of Children) Act 2009 (Vic), Act 2007 - - 406), Section 19; Health and Other Legislation Amendment Act 2009 (Qld), (Exhibit AUS - 407), (Exhibit AUS Smoking in Cars with Children (Prohibition) Act 2011 Sections 180 and 181; - 408), Section (ACT), (Exhibit AUS Tobac 7; (Qld), (Exhibit AUS - 409), Regulations 14 - 15, co and Other Smoking Products Regulation 2010 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 (Vic), (Exhibit AUS - 412), Section 3. Amendment (Smoking at Patrolled Beaches) Act 2012 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), 436). para. 4.7; Australia's National Tobacco Campaign: Evaluation Report, (Exhibit AUS -

110 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 110 and sectors of the population (for example, pregnant women, culturally and linguistically diverse groups, prisoners, people with mental illness, socially disadvantaged groups, and Aboriginal and 323 Torres Strait Islander communities). Aus has implemented measures to provide access to nicotine The 2.72. tralian Government replacement therapies and other smoking cessation medicines (such as nicotine patches and 324 It has enacted several initiatives that target Aboriginal and Torres Strait Islander gums). 325 All Australian states and territories have put in place "Quitlines" and other communities. 326 smoking cessation support services. In 2000, the Australian Government introduced measures with respect to illicit tobacco 2.73. trade, which created offences and pena lties for unlicensed manufacture, production, possession, 327 In 2012, the Australian dealing with or moving tobacco seed, tobacco plant or tobacco leaf. Customs Act 1901 legislation that created criminal offences under the Government introduced 328 in relation to the smuggling of tobacco products. specifically Protection of trademarks and GI s in Australia 2.3 2.74. In the course of the proceedings, the parties have referred to various aspects of the in Australia. General GIs aspects of this framework for the protection of trademarks and framework are described below. Trademarks and GIs 2.75. through a range of mechanisms, including are protected in Australia 329 TM Act statutory protections , other statutory protections against unfair competition, under the uch as passing off that protect the reputation associated with a and common law actions s trademark. The Act establishes the legal requirements for the registration of trademarks for goods 2.76. TM also and services (which may, as discussed below, also include signs that constitute GIs). It provides for the corresponding rights accorded to owners and authorised users of registered trademarks. Section 17 of the TM Act defines a trademark as: 2.77. [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 330 provided by another person. The TM Act defines a "sign" as including "any letter, word, name, signature, numeral, 2.78. colour, sound or scent", or any device, brand, heading, label, ticket, aspect of packaging, shape, 331 combination thereof. A trademark must be registered unless the application is rejected. An application must be 2.79. 332 rejected if the trademark consists of or includes a sign prohibited under the Regulations ; cannot 333 be represented graphically ; is not capable of distinguishing between goods and services of the 323 (Exhibits AUS - 116, JE - 15), p. 10 - 11. Response to NPHT, The Roadmap for Action, 324 Department of Health and Ageing, Pharmaceutical Benefits Scheme, "New Listings and Australian - 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 (Cth), (Exhibit AUS Customs Act 1901 - 429), Section 233BABAD. 329 (Cth), ( TM Act ), (Exhibit Trade Marks Act 1995 JE - 6). Exhibit JE - 6 includes all amendments to the s 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 6), Section 40. TM Act, (Exhibit JE -

111 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 111 - - 334 ; contains or consists of scandalous matter or its use would applicant and those of other persons 336 335 ; or is substantially identical or ; is likely to deceive or cause confusion be contrary to law 337 The TM deceptively similar to a prior registered trademark. makes the registrability of Act inherently distinctive marks such as colours non - dependent on distinctiveness acquired through 338 use. 339 2.80. as well as certain The registration of a trademark can also be opposed on these grounds 340 additional grounds. 342 341 The registration of a trademark expires ten years after the filing date 2.81. , unless renewed. y be The registration of a trademark may be cancelled, revoked, amended and the Register ma 343 rectified under specific circumstances. A trademark owner can oppose an application for removal for non - use in "circumstances (whether affecting traders generally or only the registered owner of 344 the trade mark) that were an obstacle to use of the tra de mark during that period". 2.82. TM Act states that the owner of a registered trademark has the "exclusive Section 20 of the rights" "to use", and "to authorise other persons to use", that trademark in relation to the goods 345 and/or services in respect of whic They also include "the right to h the trademark was registered. 346 as well as the right to assign or obtain relief under this Act if the trade mark has been infringed" 347 nder the U transfer the trademark. 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 (a) ; (b) trademark in relation to goods or services in respect of which the trademark is registered goods or services of the same description as thos e in respect of which the trademark is registered; (c) services that are closely related to the registered goods; or (d) goods that are closely related 348 to the registered services. In addition to the rights accorded to registered trademarks under the TM Ac t , owners of 2.83. trademarks that are "well known in Australia" may pursue infringement action against unauthorized use of that sign by third , or of substantially identical or deceptively similar signs, 349 - Owners of well parties if certain conditions are met. kno wn trademarks may pursue 334 TM Act , (Exhibit JE - 6), Section 41. 335 Act , (Exhibit JE TM 6), Section 42. - 336 TM Act , (Exhibit JE - 6), Secti on 43. 337 The application must also be rejected if it was not made in TM Act , (Exhibit JE 6), Section 44. - 33. accordance with the TM Act or if it is successfully opposed. See TM Act , (Exhibit JE - 6), Sections 27(1), 338 Act , (Exhibit JE - 6), Section 41(3). TM 339 Act , (Exhibit JE - 6), Section 57. TM 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 or the trademark contains or consists being registered would be likely to deceive or cause confusion Sections 58 TM Act of a false geographical indication. - 6), - 61. , (Exhibit JE 341 TM Act , (Exhibit JE - 6), Section 72(3). 342 Act , (Exhibit JE - 6), Part 7, Di vision 2. TM 343 6) Act , (Exhibit JE - , Part 8. For instance, a registered trademark (other than a certification TM 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 Act , (Exhibit JE - 6), Section 20(2). TM 347 Act , (Exhibit JE - 6) , Section 106. TM 348 Act , (Exhibit JE - 6), Sections 120(1) - 120(2). TM 349 TM Act , (Exhibit JE - 6), Section 120(3). Th e Act provides that a person infringes a registered trademark if: (a) the trade mark is well known in Australia; and the person uses as a trade mark a sign that is substantially identical with, or deceptively (b) 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 ( ) or are not closely registered goods 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;

112 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 112 - - 350 owners of beyond those available to trademarks that are not well known. infringement actions In deciding whether a trademark is "well known in Australia", "one must take account of the extent to which the trade mark is known withi n the relevant sector of the public, whether as a result of 351 the promotion of the trade mark or for any other reason". Under the TM Act , a sign that constitutes a GI may be eligible for registration as a 2.84. TM Act , a G trademark in Australia. Pursuant to the I is defined 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 attribut able to their geographical 352 origin. 2.85. To the extent that GIs are registered as trademarks in Australia, they are generally 353 registered as certification trademarks , which are defined as: : (a) dealt with [A] sign used, or intended to be used, to distinguish goods or services 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 m anufacture; from other goods or services dealt with or provided in the course of 354 trade but not so certified. 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 t he rules governing the use of the certification 355 trademark. 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 356 istration applications. other trademark reg Certification trademarks are subject to the same 357 provisions concerning duration and renewal as trademarks. However, a certification trademark is not liable to be removed from the register for non use, because the owner of the cert ification - 358 trademark is not required to use the trademark. 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 359 TM A collective trademark is defined under the opposition, Act apply to collective trademarks. 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 mar k; and (d) for that reason, the interests of the registered owner are likely to be adversely affected. Ibid. (emphasis original) 350 Compare Act , (Exhibit JE - 6), Section 120(3) , with ibid. Sections 120(1) and 120(2). TM 351 Act , (Exhibit JE TM 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 n the ground that the These exceptions are the following: (a) the application cannot be rejected o 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 y the applicant ... from goods or services not so certified" ); (b) an applicant for registration of a certified b certification trademark need not itself intend to use the trademark; and (c) a certificate from the Australian ACCC), as per Section 175(2), is required. Competition and Consumer Commission ( Act , (Exhibit JE - 6), TM Sections 170, 176(1)(c), and 177. 357 TM Act , (Exhibit JE - 6), Section 170. See also Part 7, Division 2. 358 above. TM Act , (Exhibit JE - 6), Section 170. See also fn 343 359 6), TM Act, (Exhibit JE - 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).

113 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 113 - - sign used, or intended to be used, in relation to goods or services dealt with or [A] 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 360 not m embers of the association. Finally, in the same way as with other registered trademarks, an owner of a registered 2.88. trademark or registered collective trademark is able to pursue infringement action certification 361 against unauthorized use of a sign by third parties. 2.89. Australia also maintains protection with respect to trademarks and GIs under other areas of Australian law including through consumer protection measures addressing misleading , 362 representations in Australia. 2.90. The Competition and Consumer Act 201 0 (Cth) (CCA) establishes a general ban on he misleading or deceptive conduct in trade or commerce. T (ACL) Australian Consumer Law 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 363 Similarly, Section 29(1) prohibits the making of a range of false or misleading deceive". representations in connection with the supply, possible supply or promotion of goods or services, 364 Sections 33 and 34 address goods including statements concerning the place of origin of goods. and services, respectively, and provide that a person must not, in trade or commerce, engage in ... the characteristics ... of any conduct "that is liable to mislead the public as to the nature, 365 goods". A special division of the Australian Competition and Consumer Commission (ACCC) 2.91. undertakes investigations of possible breaches of the ACL. The ACCC has a number of enforcement 366 powers, including the power to initiate Practices in proceedings in the Federal Court of Australia. contravention of the ACL may give rise to both criminal and civil liabilities, including damages, 367 injunction and rescission of contract. Under the Commerce Trade Descriptions Act 1905 (Cth), Aus tralia also prohibits the 2.92. 368 importation of any good bearing a false trade description. A false trade description is defined as " a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a mater ial 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 , (Exhibit JE TM Act - 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 an of the certification trade mark". See Section 171. With respect to collective trademarks, a member 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. 165. See ibid. Section 362 We note , but do not address, certain protections included in the Australian Grape and Wine Authority (Cth), (Exhibit AUS - 490), and the Australia New Zealand Food Standards Code, Standard 1.2.11 Act 2013 (Australia Only) (Cth), (Exhibit AUS - 568). These measures address, respectively, Country of Origin Labelling ese proceedings . wine and certain food items, which are not at issue in th 363 Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), (ACL), (Exhibit - 110), Section 18. The Dominican DOM 's exhibit includes amendments through Act No. 83 of 2014. We Republic 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 Shavin Report ), (Exhibit DOM/HND - thereof", 26 September 2014, ( paras. 73 - 74. 1), 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 22) (SCI), Sims Report ), (Exhibit AUS - February 2015, ( para. 4.9. 368 248), Section 9. Commerce ( Trade Descriptions ) Act 1905 (Cth), (CTD Act), (Exhibit AUS -

114 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 114 - 369 A "trade which makes the description false or likely to mislead in a material respect". scription" means any description, statement, indication, or suggestion, direct or indirect, as to, de 370 alia inter , the country or place in or at which the goods were made or produced. 2.93. " common law " protection for the reputation of a business through Australia also maintains the tort of "passing off", which can provide additional protection against misrepresentations. the elements of the tort of passing off as " (a) a misrepresentation (b) by a has described Australia in the course of trade to prospective customers of the trader (c) calculated to injure the trader business reputation of another trader, and (d) resulting in damage or the probability of damage to 371 Neither trademarks nor GIs are protected that other trader's business reputation". se under per this tort, though they may be probative with respect to the existence of, and damage to, a trader's 372 reputation in the relevant market. The FCTC 2.4 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 states that one of its objectives is TPP Act rty to the Convention on Tobacco "to give effect to certain obligations that Australia has as a pa 373 Control". This section provides a general description of the FCTC and relevant guidelines adopted in 2.95. the framework of the FCTC, taking into account information provided to the Panel by the WHO and 374 FCTC Secretariat. Back ground 2.4.1 th 2.96. In 1995, the 49 Health Assembly (WHA) of the WHO launched the negotiation of an World 375 international tobacco control instrument. These negotiations concluded with the adoption of the 376 377 2005. Convention entered into force The FCTC by the WHA in May 2003. in February 378 has 180 parties (FCTC Parties) . 2.97. 149 of the FCTC Parties are also Members of The FCTC WTO ) the World Trade Organization ( . Among the five parties to these disputes, Australia and , and the Honduras Cuba has signed, but not ratified, the FCTC ve signed and ratified the FCTC. ha 379 Dominican Republic and Indonesia are not signatories. 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 380 workplan and budget adopted by the COP. Secretariat are The main functions of the FCTC 381 governed by the FCTC itself as well as COP decisions. 369 CTD Act, (Exhibit AUS 248), Section 3. - 370 - 248), Section 3. CTD Act, (Exhibit AUS 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 Act , (Exhibits JE - TPP - 1), Section 3. 1, AUS 374 See discussion in sections 1.6.5 and 1.6.7.1 , above. 375 19 of the WHO Pursuant to Article 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 (Exhibit AUS Permission to Submit Information , - 42 (revised)) , para. 7. 376 - 44, JE - 19) , Annex 2. FCTC, (Exhibits AUS 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; para. amici curiae brief, (Exhibit AUS - 42 (revised)), 12. WHO/FCTC 379 amici curiae brief , (Exhibit AUS - WHO/FCTC para. 12. 42 (revised)), 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 he COP and any The FCTC Secretariat's functions are (a) to make arrangements for sessions of t subsidiary bodies and to provide them with services as required; (b) to transmit reports received by it pursuant

115 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 115 - - 382 The COP is the governing body of, and comprises all parties to, the FCTC. The FCTC FCTC 2.99. COP, , "keep[s] under regular review the implementation of the Convention and take[s] inter alia 383 384 It may also adopt protocols , the decisions necessary to promote its effective implementation". 385 386 and amendments to the annexes FCTC as well as other documents and instruments, such as 387 International intergovernmental organizations and guidelines with respect to particular topics. nongovernmental organizations "whose aims and activities are in conformity with the spirit, FCTC may be granted "observer status" by the COP. The Rules of purpose and principles" of the limit participation by tobacco companies other than through the relevant Procedure of the COP 388 bodies of States. Selected provisions of the FCTC 2.4.3 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 389 tobacco smoke. Article 2.101. 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 390 this Convention and the Protocols to which it is a party. with The Convention defines "tobacco control" as "a range of supply, demand and harm 2.102. reduction strategies that aim to improve the health of a population by eliminating or reducing their 391 consumption of tobacco products and exposure to tobacco smoke". 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) sing, promotion and sponsorship" ( 13). and "Tobacco adverti Article 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 transition, on request, in the compilation and communication of information required in with economies 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 24. COP. FCTC, (Exhibits A US - 44, JE - 19) , Article 382 - 44, JE - 19) , Article 23; WHO/FCTC Request for Permission to Submit FCTC, (Exhibits AUS - para. Information, (Exhibit AUS 8. 42 (revised)), 383 Article 44, JE - 19), FCTC, (Exhibits AUS 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 19), FCTC, (Exhibits AUS - 44, JE - 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 Article - 44, JE - 19) , 23.6; WHO/FCT C Additional Information to Panel , FCTC, (Exhibits AUS paras. 26 - 30 , at fn 63 above . 389 - 44, JE - 19) FCTC, (Exhibits AUS Article 3. , 390 , - 44, JE - 19) FCTC, (Exhibits AUS Article 5.1. 391 1(d). FCTC, (Exhibits AUS - 44, JE - 19) , Article

116 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 116 - - Article 11 Packaging and labelling of tobacco products 1. Each Party shall, within a period of three years after entr y 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, misleadin g, 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 labelling 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. co products and any outside packaging Each unit packet and package of tobac 2. 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 rities. tobacco products as defined by national autho Each Party shall require that the warnings and other textual information 3. will appear on each unit specified in paragraphs 1(b) and paragraph 2 of this Article packet and package of tobacco products and any outside packaging and labelling of products in its principal language or languages. such 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 392 sale of the product. 2.105. Article 13 add resses "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 11. FCTC, (Exhibits AUS - 44, JE - 19), Article

117 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 117 - - sponsorship. This shall include, subject to the legal environment 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 Party, each Party shall undertake appropriate legislative, executive, administrative and/or other measures Article 21. and report accordingly in conformity with 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 s ponsorship originating from its - border effects. In this respect, each Party shall undertake territory with cross appropriate legislative, executive, administrative and/or other measures and report Article 21. accordingly in conformity with 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 deceptive 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 sponsorship; (c) ict the use of direct or indirect incentives that encourage the restr 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 tobacco 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, othe r 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 international events, acti vities and/or participants therein. Parties are encouraged to implement measures beyond the obligations set out 5. in paragraph 4. 6. Parties shall cooperate in the development of technologies and other means necessary to facilitate the elimination of cro ss - 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 does not endorse or approve of any particular penalty.

118 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 118 - Parties shall co 8. nsider the elaboration of a protocol setting out appropriate measures that require international collaboration for a comprehensive ban on 393 cross - border advertising, promotion and sponsorship. FCTC Guidelines 2.4.4 The FCTC provides that the COP shall propose guidelines for the implementation of the 2.106. provisions of Articles 8 to 13 of the FCTC. FCTC Guidelines are "intended to assist the Parties in 394 meeting their obligations and in increasing the effectiveness of measur es adopted". 11 FCTC COP adopted FCTC Guidelines for the Implementation of Article 11 ( Article The 2.107. ( FCTC for the Implementation of Article 13 Guidelines Article 13 FCTC FCTC Guidelines) and 395 11 and in November 2008. Guidelines) Although "plain packaging" is not referred to in Articles 396 13 of the FCTC, it is referred to in both of these Guidelines. The Article FCTC Guidelines, entitled " Packaging and labelling of tobacco products ", 2.108. 11 provide: dopting measures to restrict or prohibit the use of Parties should consider a 46. 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 bility and effectiveness of health warnings packaging). This may increase the noticea and messages, prevent the package from detracting attention from them, and address industry package design techniques that may suggest that some products are less 397 harmful than others. FCTC 2.109. Article 13 The Guideli nes, entitled " Tobacco advertising, 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 cultivat e 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 packaging: black and white or two other contrasting colours, as requ iring plain 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, withou t any logos or other features apart from health warnings, tax - mandated information or markings; prescribed font stamps and other government style and size; and standardized shape, size and materials. There should be no tached to the package or on individual cigarettes advertising or promotion inside or at or other tobacco products. If plain packaging is not yet mandated, the restriction should cover as many as 17. possible of the design features that make tobacco products more attractive to 393 FCTC, (Exhibits AUS - 44, JE - Article 13. Also relevant to the above FCTC provisions are the 19), 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 " products entirely or partly made of the leaf tobacco as raw material which are indirectly"), "tobacco products" ( 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 brief, (Exhibit AUS WHO/FCTC amici curiae - 42 (revised)), para. 19; WHO/FCTC Additional 63 Information p. 7 - 8 , at fn , p above ; Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20); to Panel and Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - 21). 396 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - Article 46; and Article 13 FCTC 20), Annex, para. Guidelines, FCTC/COP/3(12), (Exhibit JE - 21), Annex, paras. 16 - 17 and "Recommendation" following para. 17 . 397 46. Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para.

119 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 9 - 11 animal or other figures, "fun" phrases, coloured cigarette papers, consumers such as 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 398 promotion, including design features that make products attractive. ovisions concerning the r elationship between the FCTC and other 2.4.5 FCTC pr international agreements and bodies Article 2.1 of the FCTC states that th is Convention 2.110. does not prevent Parties "from imposing [the provisions o and stricter requirements that are consistent with f the FCTC and its protocols] 399 2.2 further provides that the FCTC does not are in accordance with international law". Article "affect the right of Parties to enter into bilateral or multilateral agreements, including regional or subregional agreements, on issues relevant or additional to the Convention and its protocols, provided that such agreements are compatible with their obligations under the FCTC and its 400 protocols". 2.111. Additionally, Article 15.2 of the FCTC (on illicit tobacco trade) requires that P arties " ... measures to ensure that all [tobacco product packaging is] marked to assist Parties in adopt determining the origin of tobacco products, and in accordance with national law and relevant bilateral or multilateral agreements, assist Parties in dete rmining the point of diversion and 401 monitor, document and control the movement of tobacco products and their legal status". Finally, the FCTC contains various provisions on the cooperation between the FCTC Parties 2.112. Article and other international organizations and 5.5 states that the bodies. For instance, Parties "shall cooperate, as appropriate, with competent international and regional FCTC intergovernmental organizations and other bodies to achieve the objectives of the Convention and 402 Article the protocols to whi 7 provides that, in implementing, ch they are Parties". alia , inter Articles 11 and 13, FCTC Parties "shall cooperate, as appropriate, with each other directly or 403 through competent international bodies". PARTIES' REQUESTS FO R FINDINGS AND RECOMMENDATIONS 3 Honduras (DS435) 3.1 3.1. Honduras requests that the Panel find that: are inconsistent a. Australia's plain packaging trademark restrictions in the TPP measures with Article TRIPS Agreement ; 15.4 of the Australia's plain packaging trademark restrictio measures TPP are inconsistent b. ns in the Article 16.1 of the TRIPS Agreement ; with Australia's plain packaging trademark restrictions in the measures c. are not justified TPP under 17 of the TRIPS Agreement ; Article 398 paras. Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE 21), Annex, 15 - 17 and - "Recommendation" following para. 17. 399 - 44, JE - 19) , Article 2.1. See also FCTC, (Exhibits AUS - 44, JE - 19), Article 13(5) FCTC, (Exhibits AUS ("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 - 44, JE - FCTC, (Exhibits AUS Article 15.2. 19), 402 19), - 44, JE - FCTC, (Exhibits AUS Article 5.5. 403 7. FCTC, (Ex hibits AUS - 44, JE - 19), Article

120 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 120 Australia's plain packaging trademark restri d. measures are inconsistent ctions in the TPP 2.1 of the Agreement , which incorporates provisions of the TRIPS Article with , in particular, Article Paris quinquies of the Paris Convention ; Convention 6 Australia's plain packaging trademark restrictions in the TPP measures e. are inconsistent Article 20 of the TRIPS Agreement ; with Australia has acted inconsistently with of the 10 bis Paris Convention , as Article f. 2.1 of the TRIPS Agree ment ; Article incorporated by Australia infringes Article g. 24.3 of the TRIPS Agreement ; h. Australia contravenes Article 22.2(b) of the TRIPS Agreement ; and Australia Article 2.2 of the i. 's plain packaging measures are inconsistent with Agreement . TBT Honduras further requests the Panel to recommend, in accordance with 3.2. 19.1 of the Article DSU, that the DSB request Australia to bring the measures at issue into conformity with the 404 Agreement and the TBT Agreement . TRIPS 3.2 Dominican Republic (DS441) nican Republic requests that the Panel find that by virtue of its adoption and 3.3. The Domi imposition of the TPP measures , Australia violates: Article 15.4 of the TRIPS a. Agreement ; b. Article 16.1 of the Agreement ; TRIPS c. Article ; 16.3 of the TRIPS Agreement d. 20 of the TRIPS Agreement ; Article Article 22.2(b) of the TRIPS Agreement ; e. 24.3 of the TRIPS Agreement ; f. Article Article 10 bis of the Paris Convention (as incorporated into the g. Agreement through TRIPS Article 2.1); and 2.2 of the TBT Agreement . h. Article 3.4. The Dominican Re public 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 405 TRIPS Agreement and the TBT Agreement . 3.3 Cuba (DS458) e TPP measures violate: 3.5. Cuba requests the Panel to find that th Article 20 of the TRIPS a. Agreement ; b. Article 24.3 of the Agreement ; TRIPS c. Article 10 bis 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 1033. Dominican Republic 's first written submission, paras. 1032 -

121 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 121 Article TBT Agreement ; d. 2.2 of the Article IX:4 of the GATT 1994 ; e. Article 15.4 of the TRIPS Agreement ; f. Article 16.1 of the TRIPS Agreement ; g. Article Agreement 16.3 of the TRIPS ; h. 22.2(b) of the TRIPS Agreement ; and i. Article Article 6 quinques of the Paris Convention (read with Article j. 2 of the TRIPS Agreement ). 3.6. Cuba further requests the Panel to recommend, in accordance with Article 19.1 of the DSU, TRIPS that the DSB request Australia to bring its measures into conformity with the Agreement 406 . GATT and the 1994 Indonesia (DS467) 3.4 Indonesia requests the Panel to fi nd that the TPP measures , collectively and individually, 3.7. violate Australia's obligations under the following provisions: Article 2.2 of the TBT Agreement a. ; b. Article 2.1 of the TRIPS Agreement , which incorporates the provisions of the , in par ticular Article Paris 10 bis ; Convention Article 15.4 of the TRIPS Agreement ; c. ; d. Article 16.1 of the TRIPS Agreement e. 16.3 of the TRIPS Agreement ; Article Article Agreement 20 of the TRIPS ; f. 22.2(b) of the TRIPS Agreement ; and g. Article Article 24.3 of the Agreement h. . TRIPS 3.8. Indonesia also requests that the Panel find that Australia's TPP measures , collectively and Article XXIII:1(a) of the GATT individually, are inconsistent with Australia's obligations under nullified or impaired benefits accruing directly or indirectly to Indonesia under the because it has TBT . Agreement 3.9. Indonesia further reque sts that the Panel recommend that Australia bring its measures into 407 TBT Agreement s. conformity with its obligations under the TRIPS and Australia 3.5 3.10. ject the complainants' claims under Articles 2.1 Australia requests that the Panel re 10 Article 6 quinquies (incorporating Article bis of the Paris Convention ), 15.1, 15.4, 16.1, A(1) and 16.3, 20, 22.2(b), and 24.3 of the TRIPS Agreement , Article 2.2 of the TBT Agreement , and 408 in their entirety. the GATT 1994 IX:4 of Article 406 Cuba's first written submission, paras. 429 - 430. 407 Indonesia's first written submission, paras. 463 - 465. 408 763. Australia's first written submission, paras. 762 -

122 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 122 ARGUMENTS OF THE PAR TIES 4 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). ARGUMENT S OF THE THIR 5 D PARTIES 5.1. The arguments of Argentina, Brazil, Canada, China, the European Union, Japan, the Republic of Korea, Malawi, New Zealand, Nicaragua, Norway, Oman, Singapore, South Africa, Turkey, ovided in Uruguay, Zambia, and Zimbabwe are reflected in their executive summaries, pr 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 not submit written or oral of Saudi Arabia, Trinidad and Tobago and the United States did arguments to the Panel. Guatemala, Nigeria, Peru, the Philippines, Chinese Taipei, and Thailand provided arguments in these proceedings. These third parties did not provide an executive paragraph 28 of the Panel's Procedures and item (n) summary of their arguments as envisaged in of the Panel's timetable. However as their written submissions and/or oral statements are within the page limits specified in the Panel's Working Procedures for the third parties' executive summaries, th ey have been included as a substitute for an executive summary (see Annex C). 409 - submitted a third 5.3. party written submission in these proceedings. However, it did Ukraine anel's not provide an executive summary of its arguments as envisaged in paragraph 28 of the P Working Procedures and item (n) of the Panel's timetable. Ukraine's written submission exceeded the page limits specified in the Panel's Working Procedures for the third parties' executive se Panel Re s . Nonetheless , Ukraine's summaries. Therefore, it cannot be annexed to the port is reflected in the se Panel Report written submission pursuant to Article 10 of the DSU. s 6 INTERIM REVIEW Introduction 6.1 June On 2 2017, the Panel issued its Interim Reports to the parties. On 6 May 2017, 6.1. Republic, Indonesia, and Australia each submitted written requests for Honduras, the Dominican July the Panel to review aspects of the Interim Reports. On 4 2017, Honduras, the Dominican Australia Republic, and Indonesia submitted comments on Australia's requests for review, and 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. icle 15.3 of the DSU, this section of the Reports describes the parties' In accordance with Art requests for review at the interim review stage and the Panel's response to them. In addition, the some other corrections, including those identified by t he parties. In Panel made typographical and e Panel in particular modified footnote 1 to Table A this context, th arify the manner in which to cl Table A describes the outcomes of the papers that it refers to and adjusted some o f the language ection 7.2.5.3.6 to align the text in th is section to that of the related Appendices. in s 6.3. Australia made several requests to amend or add additional footnotes. These requests have been considered in light of comments made by Honduras, the Dominican Republic, and Indonesia, and have as deemed appropriate, resulting in modifications to, or additional been implemented 269 paragraph 7.231 , 7.1446 , and 7.2566 references at, and footnotes s , 515 , 653 , 710 , 866 to , 868 , 871 , 872 , 891 , 914 , 916 , 1339 , 1352 , 1358 , 1359 , 1450 , 1518 , 1661 , 1669 , 1671 , 1761 , 1795 1763 , 1780 , , , 1806 2111 , 2256 , 2402 , 24 43 , 2570 , 2571 , 2609 , 2617 , 2695 , 2855 , 2857 , , 2885 3198 , 3201 , 3486 , 3596 , 3613 , 3620 , 3623 , 3625 , 3656 , 3728 , 3804 , 3807 , 4042 , 4043 , and 4045 4824 , 5004 , 5088 , , 5200 . 409 above. See section 1.6.6

123 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 123 The numbering of some of the paragraphs and footnotes in the Final Reports is different from 6.4. Unless otherwise indicated, refe the numbering in the Interim Reports. rences to sections, . s ection relate to those of th e Final Report paragraph numbers , and footnotes in this s Requests for review of s ection 7.1 (Order of Analysis) 6.2 Honduras 6.5. request ed the Panel to modify th e second sentence of paragraph 7.11 t o more the language used in Article 15.4 of the TRIPS Agreement and Article 6 quinquies of closely reflect adjusted the wording of paragraph 7.11 to describe the Paris Convention (1967). In response, we Regarding the the relevant provisions with reference to their titles in the TRIPS Agreement. addition al language suggested by Honduras, we note that the phrase "protectable subject matter", eading of Article 15, is already used in the sentence at issue which is contained in the h , while " protection of marks registered in one country of the Union in the other countries of the Union" is 410 title of either of the provisions in question W e therefore decline t o add these not used in the . . phrases as suggested Requests for review of section 7.2.5.1 ( Whether the TPP 6.3 measures pursue a bjective " ) "legitimate o Honduras request 6.6. the Panel to add a specific reference to its arguments at paragraph 7.52 , s which the Panel accepted as reflected at paragraph 7.52 and footnote 493 . has Honduras also request s the Panel to reflect more completely its arguments on th e objectives 6.7. of the TPP measures in paragraph , which the Panel has accepted partially only , as the 7.200 . paragraph argument at issue is already reflected elsewhere , including at 7.208 6.8. s the Panel to add a further reference to its rebuttal arguments relating to Honduras request not find it . The Panel d oes 7.208 the "mechanisms" and "objectives" of the measures in paragraph necessary to make this addition, given the detailed analysis of this issue in the paragraphs that follow. H 6.9. s the Panel to modify the language in paragraph 7.213 describing onduras request "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 to avoid creating any misunderstanding in respect of its implications with 7.213 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 in agreement reflect that "Australia and the parties were ... 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 re contributes to achieving its public health objectives. Honduras, the through which the TPP measu Indonesia opposed this request, disagreeing with Australia that there has Dominican Republic and any agreement between the parties, during the course of the proceedings, on whethe r the been 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. accordingly decline to make the request ed changes at paragraphs We , 7.214 , and 7.212 7.2 15 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 967). indicated in square brackets. There are no titles in the authentic French text of the Paris Convention (1

124 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 124 Honduras modified its arguments on this issue in the course of the proceedings. While the Panel s's arguments to have been incorrect, it has does not consider its initial description of Hondura simplified the description of the relevant arguments at paragraph 7.265 . s 6.12. arguments of the parties on the meaning of Honduras request that the description of key the terms "in accordance with" in the second sentence of Article 2.5 be expanded. In response, the expanded this discussion at paragraph 7.274 and footnotes 958 Panel 959 . has and request s that the Panel expand its summary of Honduras's arguments on the 6.13. Honduras elements relevant to a determination on the existence of "international standards" under the second sentence of Article 2.5. The Panel expanded this description in paragraph 7.277 and has 963 , to a level of detail comparable with that provided footnote in respect of the related arguments of other parties. Honduras request the Panel to clarify the description of the nature of commitments under 6.14. s at paragraph , to avoid a suggestion that certain actions "must" the FCTC and its Guidelines 7.305 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, has the Panel 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 7.404 to paragraphs . 7.417 6.5 Requests for review of section 7.2.5.3 (The degree of contribution of the TPP measures to their objective) s 6.16. Honduras request arguments on the lack of the P anel to amend the description of its contribution of the measures to their objectives. In particular, Honduras states that its argument is e not that smoking prevalence increased, but rather that the measures did not contribute to th reduction of smoking. Honduras considers that the Panel's attribution to Honduras of arguments ut an increase in prevalence is based on a misrepresentation of what Honduras abo argued, as has the reference to an increase in smoking preva lence, Honduras ex plains, is "n othing 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 "t he 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. s Australia considers the Panel's summaries to be accurate reflections of Honduras' submissions. It observes that in its first written submission Honduras repeatedly argue s that the 411 either have, would or are "likely to" result in an increase in smoking prevalence. TPP measures s arguments relate to downtrading, Honduras also provide s While some of Honduras' 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 that the Panel fully reflect Honduras' s arguments on these points. In response s 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 ". (emphasis added) contribute to Aus tralia's objective but will also lead to an increase in smoking prevalence

125 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 125 - - to provide additional context for the statements 7.429 7.426 relevant arguments at paragraphs to thei r possible of Honduras in respect of the effects of the TPP measures, including in relation to impact on smoking prevalence. Honduras also request s 6.18. its arguments on the drivers of the Panel to amend its description of cessation and relapse and the impact of pla . Specifically, Honduras explains that its in packaging nt was made "as a 'final' point" and "is not the essence" of the argument it "forbidden fruit" argume s the Panel to replace its initial text with a summary of its position developed. Honduras request 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 s expanded its description of Honduras's ha 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. request s the Panel to remove a reference to its arguments on the expected 6.19. Honduras graph 7.430 . Australia considers the impact of the TPP measures on smoking prevalence at para existing language to be an accurate reflection of Honduras's submissions. In response to this comment, the Panel deleted the sentence at issue, as the relevant argument is adequate ly has 7.427 , as modified in reponse to Honduras's separate comments described reflected in paragraph above in relation to the description of its arguments on the effects of the TPP measures on tobacco consumption. 6.20. Honduras request s t he Panel to delete a reference, in its summary of arguments at paragraph , to two studies relating to the assessment of actual behaviours in the presence of 7.431 pl ain 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 1299 to address this comment. and footnote Australia request the Panel to clarify Australia's arguments and its reference to prior 6.22. s ntribution. Honduras, jurisprudence concerning the role of qualitative evidence in demonstrating co Dominican Republic, and Indonesia request that, if the Panel agrees to the requested changes, the Australia's arguments be reflected in full, including by citing more completely the relevant findings EC – Seal Products relied on by Australia. In response to this comment, the Panel has expand ed in the description of Australia's arguments paragraph 7.455 , including the additional detail in fied by Honduras and the Dominican Republic. identi 7.486 s 6.23. the Panel to amend the final sentence of paragraph Australia request , 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. the Panel to clarify that it explicitly acknowledged that quantitative s 6.24. Australia also request - 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 sum oes not consider necessary the changes requested by marized elsewhere. Honduras also d 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 implementation that Australia fundamentally changed its position on the rel evance of post -

126 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 126 - - that if the Panel accepts Australia's evidence relating to actual smoking behaviour, so amendments, it should add text at the end of the paragraph to reflect the evolution of Australia's he proceedings in this respect. In response to these comments, the position over the course of t elaborated Panel Australia's arguments at paragraph 7.494 and footnote has the description of and rephrased the formulation of its conclusion 1448 7.497 . at paragraph 6.25. Australia request s a modification of the second sentence of paragraph 7.510 to reflect that has ied not rel it upon the White et al. 2015b paper referred to in this sentence. Honduras ction of the considers however that this text refers back to the descriptive se Report s , which the se 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. , a reference to Professor Fong's s the Panel to add, at paragraph 7.535 6.26. Australia request point that an analysis of post - s implementation evidence by the complainants' own experts confirm ve that the measures ha 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 to make the re also be reflected. The Panel decline , s as noted by Honduras and quested edits since Indonesia, this section of the se Report s does not address post - implementation evidence, which is addressed separately in s ection 7.2.5.3.6 . to avoid 6.27. Australia request s the Panel to amend the first sentence of paragraph 7.536 incorrectly suggesting that Australia's arguments regard ing the analysis of the TPP literature were - level policies. The Dominican Republic confined to the challenges inherent in evaluating national s almost verbatim to Australia's request, noting that the existing language summarize object s not part of this argume nt and would ment, while the requested addition Professor Fong's argu is In response, the Panel has alter its meaning. modified the text at issue to avoid the potential s to add the additional argument reques ted implication identified by Australia but decline by e same section. Australia, which is addressed separately later in th 6.28. s the Panel to add a reference , at paragraph 7.557 , to Professor Klick's Honduras request observations on the use of randomized field experiments to inform pub lic policy "in other s that if the Panel accepts the requested reference, it also reflect contexts". Australia request Australia's evidence and arguments on the unique public health conte xt for testing tobacco control oes measures. The Panel d 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 not object to this request. Honduras consider s it neither necessary nor oes nfuse the discussion of the focus of appropriate to insert the requested reference, as it would co oes not the TPP studies with the more general "overall assessment" that follows. The Panel d - consider it necessary to add the cross reference requested by Australia, given that a detailed ethical constraints on the conduct of "ideal" experimental studies in discussion of the practical and 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

127 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 127 behaviour". Australia consider effects of plain packaging on smoking that the existing text s a conclusio n of the reviewers of the studies at issue. In response to this s accurately reflect formulated comment, the Panel description of the conclusions of the complainants' has re its at paragraph s 7.583 and 7.626 . experts on the TPP literature s the Panel to revise its reference to the medical qualifications of Sir Cyril 6.32. Honduras request , to reflect the statement of Professor Klick qualifying t 7.598 he relevance of Chantler, in paragraph this medical training for the purposes of reviewing the methodological soundness of the p re - has removed the reference to Sir Cyril implementation TPP studies. In response, the Panel its overall approa ch , which does not refer to the individual in line with Chantler's qualifications, n s of specific experts . qualificatio 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 on the causal of FCTC parties and on the nearly unanimous consensus eflected in published analyses conducted link between tobacco advertising and smoking behaviour r by highly respected internat that if the Panel accept s to include s ional bodies. Honduras consider the arguments by Australia "in which it seeks to justify" the absence of a systematic or other evidence before adopting the measures, the Panel then also need s to thorough review of the address whether these arguments are relevant and pertinent in this context, and address the - arguments of the complainants on these poi nts. The Dominican Republic d oes many counter not obj t, provided that Australia's arguments and the Dominican Republic's ect to Australia's reques that the ad . Indonesia observe s responses are both ditions requested by Australia fully reflected requ - matter of the paragraph at issue, and are est s that, if the Panel unrelated to the subject s accept Indonesia's and the other complainants' the additions requested by Australia, it also add s arguments on these points. In response, the Panel has 1687 , to added a reference, in footnote 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 s ection of its reviews Reports, which 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 . Honduras request 6.34. the Panel to clarify the subject of on e of the sentences in paragraph s 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) 7.656 6.35. Honduras request s the Panel to mention in paragraph the distinction it has outlined between communication and advertising. Although this distinction was already reflected in earlier paragraphs, the Panel added a reference to it in this paragraph. has s the Panel to add a further reference, at paragraph 7.692 , to its 6.36. Honduras request - based and not action - argument that the behavioural theories referred to by Australia are intention flected in a preceding paragraph and based theories. Australia noted that this point was already re 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 discu ssed, 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 ocial psychological theories, notably ] modification, citing to Professor Fong's report stating that " [ s

128 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 128 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 has relied on Professor Ajzen's behaviour al inds that Australia theories during the proceedings. Indonesia also objects to Australia's request, similarly pointing to basis for an explanation of a the reference, in Professor Fong's report, to Professor Ajzen's TRA as a rgument that achieving changes to attitudes why attitudes are important to behaviour and the and behaviour through specific objectives will lead to changes in smoking behaviour over time. In has response, the Panel rephrased its description of Australia's reliance on the relevant theories at 7.697 , to track more closely the terminology used by Professor Fong, who 7.693 and paragraphs refers to "social psychological theories", including the TRA and related research. Honduras request s 6.38. 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 modified the formulation of has 7.699 , to focus more directly on what the Panel understands to be the this passage in paragraph key relevant point of disagreement. s the Panel to review the formulation of its description of certain elements Honduras request 6.39. relating to the role of of the expert r eports submitted by the Dominican Republic and Honduras elements such as colours or logos on the salience of a pack. Australia c onsiders that the branding sub mission referred to by Honduras in support of this r equest does not passage of Honduras's have contradict the Panel's conclusions. In response to these comments, we clarified the relevant passages in paragraphs and 7.769 . 7.768 7.2.5.3.5.3 (Second mechanism: impact of the TPP 6.7 Requests for review of section measures on the effectiveness of graphic health warning) 6.40. s the Panel to add a reference to Professor Viscusi's discussion of the Honduras request 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 to plain packs"). In response, we have introduced the requested reference in foo tnote 2228 paragraph 7.818 and added a summary of the main findings and conclusion s of Munafò et al. 2011 the - 9 (Exhibits AUS - 24(47)) with respect to 1 three studied subgroups. 9, JE 6.41. Australia request s the addition of the term "avoidance" in the description of the conceptual model for the assessment of effectiveness of GHWs in the second sentence of paragra ph the 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. s the Panel to revise the text of paragraph 7.862 , which it consider s Honduras request its s two "logical leaps" in the analysis and incorrectly reflect contain the views of Honduras and s 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 revised paragraph 7.862 to clarify its reasoning. has 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"

129 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 129 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 essary because Australia's existing regulatory framework provides a legal mechanism are unnec through which any misleading packaging elements can be removed from the market. We note that primacy of this Honduras provides no specific reference to support its assertion regarding the argument over its argument that any misleading packaging design elements can be effectively 412 ments on the ability of the The parties' argu dealt with under the Australian Consumer Law. heir public health objective in the measures to contribute through their mechanisms to t TPP specific Australian context, where a 75% GHW covers the front of the pack, are acknowledged and t o 7.620 discussed at paragraphs as part of the discussion of the TPP lite rature and the 7.615 the design and structure of the measures. Nevertheless, in light of evidentiary base underlying duras's request, we clarified our cross - reference to the discussion of the TPP literature in Hon have 7.872 , added cross - reference s to this discussion to par agraphs 7.896 and paragraph , and 7.918 expanded our summary of the findings of Parr et al. 2011b at footnote 1718 to paragraph 7.620 . 7.660 and footnote 1813 regarding the We also added clarifying sentences at paragraph We also made additional edits to paragraphs communicative capacity of a pack with a 7 5% GHW. , 7.892 to 7.894 , 7.896 to 7.899 , 7.902 , 7.905 , 7.876 , 7.918 , and 7.928 to clarify the 7.907 Panel's conclusions arguments in respect of this mechanism. and the parties' the Panel to add a reference to its own argument similar to that of s 6.44. the Honduras request Dominican Republic reflected in paragraph 7.935 . The Panel has accepted this request. a 6.45. Honduras request s the Panel to either include in footnote 2546 at para graph 7.979 reference to Professor Neven's rebuttal arguments or delete the footnote. Australia note s that it s filed a surrebuttal report from Professor Katz that respond s in detail to Professor Nev en's ha rebuttal. While Australia considered that the existing text of the footnote represents an accurate s assessment of the evidence before the Panel, it request that the Panel also include a reference to Professor Katz's surrebuttal report, if it accept H onduras's request to refer to Professor Neven's s has expanded its analysis to include rebuttal report. In response to these comments, the Panel 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) Australia requests the Panel to clarify the source of the data used by Profes sor Chaloupka to 6.46. 7.1005 . The Panel has modified the paragraph as estimate illicit tobacco use at paragraph 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 bas is for the summary of its arguments on the trade restrictiveness of the measures at paragraph 7.1090 has accepted the requested change. . The Panel requests the Panel to revise the final sentence of paragraph 7.1131. to clarify 6.48. Australia in light of the that its argument regarding evidence of actual trade effects was made specifically Appellate Body's – COOL (Article 21.5 – US Canada and Mexico) . Honduras statements in 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".

130 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 130 Honduras request 6.49. the Panel to "more accurately summariz e" its arguments regarding the s , 7.1172 impact of the measures on barriers to entry and participation in the market at paragraph 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 s ection 7.2.5.4.2.3 . addressed i n other parts of Honduras request 6.50. the Panel to modify paragraph 7.1189 to start with an overview of its s added arguments on downtrading with reference to its second written submission. The Panel has references to the passage identified by Honduras, though not at the level of detail that it requested. 6.11 7.2.5.5.2.2 (The gravity of the consequences of Requests for review of section - non fulfilment) 6.51. Australia requests that the Panel modify its description of the opera tion of Section 15 of the 7.1320 TPP Act in paragraph to reflect that it is a "savings provision" that is intended to preserve he greatest extent possible in the event that it was found to be the requirements of the TPP Act to t inconsistent with the Australian Constitution. Indonesia asserts that Australia's request is correctly describes the practical effect of unnecessary and maintains that the paragraph at issue The Panel has rephrased this paragraph to more clearly distinguish the purpose of Section 15. Section 15 from its practical consequences. Requests for review of section 7.2.5.6.1 (Whether less trade - restrictive alternative 6.12 measures are reasonably available to Australia: Approach of the Panel) Australia has advanced in 6.52. Australia requests that the Panel clarify that the arguments - restrictiveness and " competitive opportunities" or "freedoms", as set forth in relation to trade the fourth sentence of paragraph 7.1361 , have been made in response to arguments articulated by the complainants to Australia's proposed characterization of the . Honduras and Indonesia object complainants' arguments . The Dominican Republic also submit that the proposed and Indonesia ence at issue that Australia's it is clear from the context of the sent clarification is unnecessary as 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". Honduras request s the Panel to add, at paragraph 7.1379 , a reference to its arguments 6.53. at of the Dominican Republic with reference to the panel rulings in China – Rare similar to th . The Panel added this reference at footnote 3349 . has Earths Requests for review of section 7.2.5.6.2 (First proposed alternative measure: 6.13 Increase in the MLPA) Honduras requests the additional detail of the proposed increase in 6.54. MLPA and the r easons accept for which Honduras it at paragraph 7.1395 . The Panel has proposes 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 ' interpretation of trade - restrictiveness. Honduras had no objection to the request, complainants 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. anel to clarify that its argument on the absence of certainty of the 6.57. Australia requested the P 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

131 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 131 7.1440 cla rified the relevant text of paragraph to reflect more closely the terms of Australia's argument. request s that the Panel 6.58. delete the reference to Australia a "meaningful " contribution from and from the first half of the second sentence of paragraph the first sentence of paragraph 7.1453 and instead find that an increase in the MLPA to 21 years would , in principle , be apt to 7.1470 ed contribute to Australia's objective. The Dominican Republic, Honduras, and Indonesia request to reject Australia's request because it , inter alia , the P approach anel contradicts the Panel's stated first whether the proposed alternative measure would make any contribution to the of assessing 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 to that of ed measure and state that this contribution to the objective equivalent the challeng relies on ascertaining "as precisely as possible, in light of the entirety of the relevant ment assess evidence before us, the degree of contribution that the proposed alternatives would make to the As some complainants note, the language that Australia se eks to modify reflects the objective" . 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 - restrictive alter native to the TPP measures. W e potential less trade therefore declin e d to modify the 7.1453 and the first half of the second sentence of paragraph first sentence of paragraph . 7.1470 Australia request s 6.59. 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 the Panel to reject this request, as Australia does not explain why the s Panel should single out this intermediate finding to include i n this paragraph where it was merely ilarly requests the Panel to reject this request, as reflecting its overall conclusions. Indonesia sim this sentence would be unnecessary to the Panel's summary of its overall conclusion. The Panel 7.1470 , which is intended to reflect its declined to add the requested sentence to paragraph overall conclusion rather than the detail of its earlier findings that are the basis for this conclusion. 7.1459 and This in no way diminishes, however, the Panel's determinations made at pa ragraphs or their importance to the Panel's assessme nt of whether an increase in the MLPA to 21 7.1460 years would make a contribution to Australia's objective equivalent to that of the TPP measures. Australia requests the Panel to amend paragraph 7.1505 to clarify its arguments regarding 6.60. the distinction between the objectives and specific mechanisms of the TPP measures and reflect its the further arguments on assessing 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 se these requests, observing that the passages that Australia requests to be o 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 Ty res 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 supplementary reference s at footnotes 3581 and 3583 smoking initiation and has added . 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 ts analysis, at paragraph 7.1521 . paragraph, as this issue is discussed later in i 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 and Indonesia object to these requests, Au s tralia's o b jective. Honduras, the Dominican Republic,

132 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 132 described above in relation to the same term as used in relation to the for reasons similar to those in re provided to the same sponse first proposed alternative measure. For the same reasons in the context of the MLPA, the Panel decline to modify the language of these made request s slightly amended paragraph 7.1523 for consistency p aragraphs as requested. However, the Panel . of language across the analyses of all four alternatives Australia requests the Panel to amend some of the language of paragraph 7.1682 to align it 6.63. - with the description of the pre e Panel has accepted to vetting scheme in previous paragraphs. Th amend this text as proposed by Australia. Australia requests the Panel to include in paragraph 7.1694 a reference to its arguments 6.64. - vetting scheme would make it prohibitively costly. The Panel has that litigation costs under the pre accepted to add this reference. Australia request s 6.65. 7.1719 a reference to its argument that the Panel to add in paragraph 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 - ment f the main arguments, it would not appear this paragraph sets forth the Panel's assess o 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 R epublic did not object to Panel did not find it necessary to amend paragraph 7.1719 to reflect this this request. The argument, in light of its other determinations in this section. e ction 6.15 Requests for review of s ( Article 15.4 of the TRIPS Agreement ) 7.3.2 6.66. Honduras requests that the Panel's summary of the complainants' argument s under an argument Article of the TRIPS Agreeme nt in paragraph 7.1879 be expanded to include 15.4 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 413 registrability of inherently non - distinctive marks but does not refer to already registered marks. In the second passage, Honduras argues that the distinctiveness of registered trademarks that - will be diminished by the TPP measures, and the include a non inherently distinctive sign rademark owner w ill thus lose its ability to restrain infringing use in violation of Article t 16.1 . This paragraph does not relate to Article 15.4, nor does it refer to an inability of a registered trademark 414 remain registered to 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 7.1879 by Honduras in footnotes and 4302 to paragraphs and 7.1919 , respectively. 4252 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 by reducing the distinctiveness of non - inherently distinctive trademarks and Agreement . Honduras also requests that paragraph 7.2033 thus making them liable to cancellation procedures . be similarly amended 6.68. In paragraph 7.1916 , we provide a overview of the arguments made by the complainants n 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 procedures as a result of the TPP liable to cancellation 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 16.1. to their claims under Article

133 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 133 7.2033 measures constitutes a violation of Article 16.1. Paragraph set summarizes more fully this of arguments by Cuba. Honduras submits that it also made this argument in paragraph 261 of its We note second written submission, as supported by paragraph 243 of its first written submission. duras argues that, as a result of the that in paragraph 261 of its second written submission, Hon TPP measures, the distinctiveness of a registered trademark will be diminished to the extent that it no longer be considered distinctive , w ill lose its ill and the owner of that registered trademark w . P aragraph 243 of Honduras's first written submission elaborates n infringing use ability to restrai that this is because " the universe of similar trademarks that a consumer could confuse with the third parties from original trademark ... shrinks", and that the trademark owner's right to prevent will be compromi unauthorized use ed since other trademarks will no longer be considered s argue that S ection 28 of the TPP Act does has also "similar" to the original trademark. Honduras d erosion of distinctiveness, an d consequently the scope of protection ", or the "not address the ... vis - vis - à - related marks their potential use by third " maintenance of protection of tobacco 415 . We have summarized and addressed in section parties " 7.3.3.4.2 the arguments by the complainants, including Honduras, on whether the TPP measures violate Article 16.1 because the the use of certain trademarks reduces their distinctiveness prohibition on and thus the trademark 416 owner's ability to demonstrate a likelihood of confusion. 6.69. Given that we have addressed the arguments presented in the paragraphs referred to by none of those paragraphs mention the TPP measures ' Honduras in another section, and that , we decline to modify potential implications relating to cancellation of a registered trademark and 7.2033 paragraphs , however, modified 7.1916 . In response to Honduras's requests, we have 4526 to paragraph 7.2033 footnote 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 the , as it do es in paragraph "Ukraine's expert", but as an expert "relied upon" by complainants . We note that Honduras itself refers to Professor Dinwoodie as Ukraine's expert in 7.1752 No we paragraphs 240 and 244 of its first written submission. have amended paragraph netheless, 7.1919 for further clarity and to align the language with that of paragraph 7.1752 . alleges that the Panel's focus on the ability to show confusion in the first sentence 6.71. Honduras of paragraph is not an accurate reflection of its argument which, it submits, focuse s on the 7.1966 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 ". Australia objects to this request as it sees the and thus defend against infringement 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 417 assessment". Honduras confusion' strength of the mark is a key aspect of such a 'likelihood of 'likelihood of confusion' must always be demonstrated by the trademark owner in adds that "[t]he the context of an infringement proceeding when trying to prevent the use of similar signs on 418 the mark . " similar products by unauthorized third parties and protect the distinctiveness of In response to request, we have amended paragraph 7.1966 this 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 7.3.3.2 in section e s e R eport s . of th 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 be cause , "[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 first written submission, demark . " Honduras's a likelihood of confusion with its original tra 249. (emphasis added) para.

134 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 134 With respect to the Panel's quote from Professor Dinwoodie's expert report in 6.73. , Honduras requests that R eport s also reflect certain other statements by paragraph 7.1990 the the quoted remark. In p aragraphs 7.1989 to 7.1993 , Professor Dinwoodie that provide context for complainants' allegation that the TPP measures' prohibition of use of certain we discuss the these marks to lose their distinctiv eness and thus reduce the registered trademarks will cause a "likelihood of confusion" between demonstrate occurrence of situations in which right owners can 419 the registered trademarks and similar or identical signs on similar products. In response to to provide further context for a statement made by Professor Dinwoodie , we Honduras's request 4463 7.1990 . have expanded footnote to paragraph Honduras also asks the Panel to revise paragraph 7.2003 to reflect that it ha s 6.74. made an argument similar to at attributed to the Dominican Republic, Cuba, by reference, and Indonesia. th In support of this request, it refers to paragraphs 260 and 263 of its second written submission. In its second written submission, Honduras argues that an owner of a tobacco ted - 6.75. rela likelihood of confusion because the trademark has lost a trademark will not be able to demonstrate e relevant paragraph much of its strength as a result of the TPP measures. We have referred to th in footnotes and 4459 to paragraph 7.1986 , which summarizes the complainants' arguments 4457 of the effective scope of the right. In its second written relating to the alleged reduction amicus curiae submission, according to which "[a] submission, Honduras cites MARQUES's 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 4459 to paragraph 7.1986 . We address the this text in footnote those made by Honduras, relating to the alleged reduction in arguments, including complainants' the as a result of a reduction in the instances in which a "likelihood of effective scope of the right confusion" can be demonstrated in paragraphs 7.1994 to 7.2002 . set of arguments, 6.76. In paragraph 7.2003 and those that follow , we summarize a separate according to 16.1 protects a trademark owner ' s ability to develop and maintain the which Article party infringement actions and thus - distinctiveness of a trademark by means additional to third that undermine or contains a general obligation for Members to refrain from adopting measures eliminate the distinctiveness of trademarks. A s we have addressed the arguments to which paragraphs 7.1994 to Honduras refers , we decline to add a further reference to them in in 7.2002 7.2003 . paragraph 6.77. With respec t to the Panel's quote from Professor Dinwoodie's expert report in 7.2012 , Honduras requests that, to put the statement in context, the Panel also quote paragraph the paragraph immediately preceding it and the sentences that follow it. In response, we have 4489 to paragraph 7.2012 to reflect the sentences that follow the quoted modified footnote statement. In the preceding paragraph o f his expert report, Professor Dinwoodie argues that, due IP rights as private rights, Australia could not claim to achieve through regulation to the nature of what Article 16 requires to be achieved by trademark rights. In our view, this point is not rele vant the issue under discussion in this paragraph, i.e. to may vary in whether trademark distinctiveness 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 420 the term "unjustifiably" in paragraph 7.2134 T he overview of the claims in s ection 7.3.5.1 is . intended to capture the elements that the parties identified as needing to be established to find a of the TRIPS violation of the core obligation contained in the first sentence of Article 20 419 See p 7.1988 below. ara. 420 Honduras identifes "the three different points why it considers Australia's TPP measures to be an ' unjustifiable encumbrance (i) TPP measures are the ... i.e. 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

135 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 135 - - It Agreement . does not elaborate on arguments on whether and, if so, why the parties consider at these elements in fact are established in this particular case. We have, nonetheless, reflected th 4645 in footnote 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. in paragraph request s that the Panel add a reference 7.2140 to Honduras's 6.79. Honduras arguments on the need to conduct an individual assessment and the need for a proportionate and In response, we have included in paragraph 7.2140 limited exception. language from Honduras's first written submission and added references in the related footnotes to paragraphs 7.2436 and to , where Honduras's arguments on the need for individual assessment and the 7.2443 7.2449 extreme nature of the encumbrance are more fully summarized. Honduras also request s that the Panel modify the order in which it summarizes Honduras's 6.80. the meaning of the term "unjustifiably" in s ection arguments on and emphasizes that 7.3.5.5.1.1 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. W e have maintained the order of the summary of Honduras's arguments in this s ection, consistently with the order in which relate d arguments of other parties are summarized. However, we amended 7.2296 , to clarify that Honduras ma k e s its argument in response paragraph reflect added text to paragraph 7.2305 to to Australia's arguments additional arguments by and . We have also added a reference in a footnote to the related arguments in Honduras's Honduras arguments decline to reflect in this s second written submission. We additional identified by ection Honduras concern ing the unjustifiability of the TPP measures specifical ly , which are ref erenced and 421 addressed in subsequent sections. 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 has applied a Vienna Convention analysis to determine term actually used. Australia adds that it the meaning of "unjustifiably" and that its arguments in relation to the interpretative distinction between "necessity" and "justifiable rebuttal points in response to what it sees as the " are complainants' attempts to conflate the two terms. Accordingly, Australia request the Panel to s and make certain amendments to these paragraphs. The object to Dominican Republic Indonesia d changes. In their view, they are un the sugges given that the Panel present s in detail te necessary 7.2294 - 7.2348 and it is clear from the context that, in the parties' positions in paragraphs 7.2414 and 7.2415 , the Panel is focusing on a specific area of contention between the paragraphs ference between the parties, namely the dif necessity " and " justifiable " standards. " have clarified in 6.82. paragraph 7.2413 that the parties first described their In response, we g of the ordinary meaning of the term "unjustifiably" in Article 20 and then sought understandin inter alia contextual guidance, , 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 7.2412 indicated in footnote 5012 to paragraph , the parties' arguments on the meaning of the term "unjustifiably" are summarized more extensively in section 7.3.5.5.1.1 . Australia considers that the Panel's analysis in paragraph 7.2420 incorrectly states that 6.83. argued that the term "unjustifiably" in Article 20 of the T RIPS Agreement should be s Australia ha chapeau of assumed to have "exactly the same meaning" as the term "unjustifiable" in the Article s the Panel to amend the first sentence of that paragraph XX of the GATT 1994. It request Dominican Republic accordingly. The Indonesia d o not object to the modification suggested by and Australia but request that the Panel also add a sentence indicating that Australia argues that the 421 - 270 of Honduras's second written submission regarding the three primary See paragraphs 269 why Honduras considers the TPP measures to be an unjustifiable encumbrance . These arguments reasons concern the unjustifiability of the TPP measures in particular and appear to cover the same ground as the general interpretative arguments contained in par 315 of Honduras's first written submission and agraph 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 below. of the se R eport s , including in sections 7.3.5.3.1.1 and 7.3.5.5.2.1

136 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 136 meaning of the term "unjustifiably" in Article 20 of the TRIPS Agreement must be at least as ive as the meaning of the term "unjustifiable" in Article XX of the GATT 1994. permiss In response modified paragraph and added footnote 5020 to paragraph have 7.2420 e to these comments, w 7.2420 reference to paragraph 7.2329 . In addition, we have complemented the containing a cross - 4903 reference in footnote to paragraph 7.2329 with an additional reference to Australia's . 107. response to Panel question No Requests for review of s 7.3.6 (Article 10 bis of the Paris Convention (1967), 6.18 ection 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 7.2634 . We have made the requested change and have paragraph made minor adjustments to the references in related footnote . 5285 Indonesia requests the Panel to add a reference to its related arguments from its first 6.85. bis 7.2693 . We have adjusted the text by written to paragraph submission regarding Article 10 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 to 7.2696 . We further note that Indonesia's now summarized in paragraphs are 7.2693 arguments 7.2708 in the section that summarizes the parties' main arguments also cited at paragraph relating to Article 10 bis (3)(1). Honduras 6.86. requests that the phrase "does not render" in what was footnote 5297 of the Interim Report be corrected to "renders". We have corrected the text , which n ow appears in s 422 7.2694 have We paragraph also made the same correction to the third sentence of paragraph . 7.2790 . Referring to paragraph 6.87. , Honduras requests that the Panel change its order of 7.2701 Honduras's claims under Article 10 analysis by presenting and assessing of the bis Paris (1967), as incorporated by Article 2.1 of the TRIPS Agreement, in the order set Convention bis and then the claim out in its submissions, namely first the claim under paragraph 1 of Article 10 under paragra ph 3(3) of that Article. In response, we have expanded our discussion of the order of bis in paragraph 7.2691 . For the reasons set out therein, we decline to analysis under Article 10 change the order of our analysis. be suggests that paragraph 7.2764 6.88. Honduras 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 i assist the mplementation of the TPP measures but considers that such quantitative data would not ving the claims in the present disputes. Panel in resol We expanded footnote 5488 to paragraph 7.2764 to include an additional reference to this argument and t o the parts of the se R eport s where the complainants' responses to Panel q uestion No. 168 on this subject are more fully reflected. We corresponding have also made minor paragraph adjustments to footnote 5210 at 7.2548 . 6.19 Requests for review of the Appendices Appendix A , the Panel has added references or made corrections at paragraphs 12, 35, 6.89. In , and 68, in response to r equests for review 37, 54, 67 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 and 76 to reflect fu rther arguments in response to request s for review by Australia, taking , 41, 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 above. Indonesia, as d escrib ed at para. 6.85

137 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 137 - - In paragraph s 38, 41, a nd 54, the Panel has added additional reference to evidence from s 6.91. , and the Dominican Republic and Indonesia's Professor Chaloupka experts , , Australia's expert that the Dominican Republic d oes Ajzen et al., in response to a request by Australia not object t o, provided that it are also incorporated. The Panel declines to s own arguments in response incorporate some of the additional references requested by the Dominican Republic as they are already discussed at paragraph 83. At footnote 58 , the Panel has adde d references to the third rebuttal report by Professor 6.92. by Australia. Indonesia object Chaloupka, in response to a request to this request on the basis s that the exhibit referred to by Australia does not address the questions that its request relates to. understand Australia to have misidentifed, in its request, the title of the exhibit at issue, We 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 o not object to, provided that the nican Republic and Indonesia d ly described. The Panel declines to include two additional findings of the study are accurate ic, to paragraph 56, as the issues covered by these sentences proposed by the Dominican Republ ences are already discussed at s ections 1.1.3 and 2.1.4 of Appendix A. However, the Panel has sent 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 a dded a reference at footnote 165 , in response to a r equest ed for review b that the complainants have not object to . y Australia 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 e renced 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 ant aspects addressed in the third rebuttal to paragraph numbers corresponding to the relev report. has amended its description of the conclusions of 6.96. In paragraphs 25 and 57, the Panel jzen et al. and Australia's response. T he Domi nican Republic and Indonesia do A this not object to request for review b , provided that the Panel likewise reflects the Dominican Republic's y Australia response to this argument, whic has done at paragraphs 25 and 56 . h the Panel 6.97. In Appendix C , the Panel has added references or made corrections at paragraph s 11, 12, 23, 36, 38 , and 117, footnotes 15, 24, 25, 34, 42 , and 64, and Figures C.1, C.13, C.15, and , 65 C.17 in response to r equests for review by Australia that the complainants have not object ed to. ed Figure C.19 6.98. The Panel has also correct , in response to requests for rev iew by Australia and the related comments by Honduras and the Dominican Republic. Specifically, the Panel has cla ri fied the source of Figure C.19 and adjusted the time - frame reflected in it, to match the range refle cted in Figure 2 in the Chipty Second Reb eport (Exhibit AUS - 591). uttal R to clarify the manner has amended paragraph s 4, 59 , and 62 6.99. in which Australia's The Panel expert Dr a that the Chipty used the RMSS data, in response to a request for review by Australi not object to, provided Dominican Republic does 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 - estimation of Professor List 's Chipty of the RMSS data and her re 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.

138 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 138 - - In , the Panel has added references or made corrections at paragraph s 62, 66, Appendix D 6.102. footnotes 14 , 63 , and 109, and Figure D.4 in response to r 73, 82, equests for review by Australia ed to. not object that the complainants have The Panel has clarified, in paragraph 96, its description of Professor Chaloupka's discussion 6.103. ssor Klick's analysis of the NTPPTS data, in response to a request for of issues relevant to Profe review by Australia and which have been endorsed by the Honduras's related comments, Dominican Republic and Indonesia. FINDINGS 7 Order of analysis 7.1 The complainants have made claims unde r the TRIPS 7.1. and the TBT Agreement . I n Agreement addition, Cuba has made a claim under the GATT 1994 . We therefore first consider the order in which we should address these claims. ree to 7.2. Honduras , the Dominican Republic and Cuba agree that panels are in general f 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 Agreement and the TBT TRIPS Agreement ), and th at they apply cumulatively and between the concurrently. Though suggesting that the Panel begin its analysis with the claims under the 423 Agreement , they do not express a firm preference. TRIPS Indonesia argues that it is " a general claims concerning multiple treaties be considered in the order of principle of international law that 424 specificity to the underlying facts, beginning with the highest degree of specificity" , and that there "is no particular order in which the Panel should address the claims under the Agr eement and TRIPS Agreement TBT because these agreements are equally specific to the 425 measures at issue". Australia argues that the Panel is free to structure the order of its analysis Article 20 of the TRIPS Agreement "deals 'more s pecifically, and in as it sees fit but, because detail' with the subject matter falling within its scope", the Panel would need to begin its analysis 426 TPP measures with that provision. of the trademark requirements in the 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 427 claim is presented to them by a complaining Member. However, this is true only to the extent ogic" of the provisions at issue, there is no "mandatory that , based on the "structure and l sequence of analysis which, if not followed, would amount to an error of law" or would "affect the 428 substance of the analysis itself". We note that there is no explicit hierarchy between the A greement and the TRIPS 7.4. Agreement , which appear in distinct parts of Annex 1 of the Marrakesh Agreement TBT WTO Agreement Establishing the World Trade Organization ( . We therefore see nothing on the ) face of those two agreements that would suggest that the adoption of a specific sequence of the complainants have presented arguments, first, under analysis is mandated. We also note that TRIPS Agreement ; second, under the 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 is no obligation for us to address their claims in a particular order, and none of them there 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 annexed to its response to Panel question No. 1; and Cuba's response to Panel question No. 1 ( No. 138 ) . 424 esia's response to Panel question Indon ( No. 1 referring to Panel Report, US – 1916 Act (EC) , para. 6.76). 425 response to Panel question No. 1 . Indonesia's 426 Australia's response to Panel question No. 1. 427 Appellate Body Report, Canada – Wheat Exports and Grain Imports , paras. 126 - 127. 428 Body Report, Canada – Appellate Wheat Exports and Grain Imports , para. 109. See also Appellate 5.5; and Panel Reports, Body Report s , Canada – Renewable Energy / Feed - in Tariff Program , para. 7.63. EC – Seal Products , para.

139 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 139 It has also been established that a claim under the more sp 7.5. ecific and detailed greement should be addressed before a claim under a similar more general provision in WTO a 429 Sardines EC line with this principle, the panel in stated that, "if the In another agreement. – the analysis under the TBT Agreement [measure at issue] is a technical regulat would ion, then 430 Accordingly, to the extent that the challenged precede any examination under the GATT 1994". Agreement have addressed claims TBT measure was found to be covered by the , several panels 431 Agre before addressing concurrent claims under the GATT 1994. TBT under the ement In respect of the claims before us under the TBT Agreement and under the GATT 1994, this 7.6. reasoning would suggest that we consider the former before the latter. Such an approach would and the GATT Agreement TBT 1994 both form part of also be c onsistent with the fact that the Agreement Annex 1A (entitled "Multilateral Agreements on Trade in Goods"), and that the TBT 432 The TT 1994". articulates in its preamble that it sets out "to further the objectives of the GA Agreement invoked by the complainants in these disputes ( Article 2.2) obligation in the TBT applies to "technical regulations", thereby setting out an obligation in respect of that subset of sfies the definition in Annex 1. 1 of the Agreement . measures that sati TBT 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 20 of the Article Agreement and Article 2.2 of the TBT Agreement , the Panel should consider Article 20 first, TRIPS TBT Article Agreement in respect of those aspects of the ultimately to the exclusion of 2.2 of the measures that relate to the use of trademarks on tobacco products and their retail packaging. TPP TRIPS Agreement deals more specifically and in detail with those aspects Australia argues that the 433 measures that relate to the use of trademarks is , and adds that the TBT Agreement of the TPP 434 not concerned with measures that address the exploit rights. ation of intellectual property (IP) 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 , d by the disciplines of 2.2 of the TBT Agreement or fall exclusively trademarks are covere Article TRIPS Agreement within the purview of the i nterpretation of the term "unjustifiably" in , and (ii) the 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 20 of the . In their claims under Article Agreement TRIPS Agreement and Article 2.2 of the TBT 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. TPP measures Without prejudice to our assessment of whether the trademark requirements in the e 2.2 of the are (contrary to Australia's argument) covered by the disciplines of Articl , a finding that they are covered by those disciplines would render evidence in TBT Agreement related" and "format" requirements relevant in the - relation to the effect of both the "trademark 2.2 of the TB context of our assessment under Agreement . Article T 429 Bananas III EC stated: The Appellate Body in – Article X:3(a) of the GATT 1994 and Article both apply, 1.3 of the Licensing Agreement Although the Panel, in our view, should have applied the Agreement first, since this agreement Licensing lly, and in detail, with the administration o f import licensing procedures. deals specifica If the Panel had done so, then there would have been no need for it to address the alleged Article inconsistency with 1994. X:3(a) of the GATT Body Report, EC – Appellate 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 paras. – Sardines , para. 7.16. See also Panel Report, EC – Asbestos , EC 8.16 - 8.17; Panel Report, Panel Reports, – COOL US para. 7.73. , 431 See Panel Reports, EC – Sardines ; US – Clove Cigarettes ; US – Tuna II (Mexico) ; EC – Seal COOL ( Products – COOL ; and US – US 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. 434 509. Austra lia's first written submission, para.

140 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 140 It seems to us, therefore, that a more practical approach to our analysis would be one in 7.9. which we consider, first, the evidence concerning the combined operation of both the trademark and then, to the extent necessary, r elevant aspects TPP measures and format requirements in the 20. On this basis, we consider first the our analysis under of the evidence for the purpose of Article complainants' claim that the are inconsistent with Article 2.2 of the TBT Agreement . TPP measures We will then ass ess the complainants' claims under the various provisions of the 7.10. Agreement that they identify as legal bases for their claims. TRIPS 7.11. We will start by considering the complainants' claims relating to the provisions of the Agreement TRIPS that concern the protection of trademarks. We will first take up the provisions 2.1 of the TRIPS Agreement in Article that concern the protectable subject matter, namely 6 quinquies conjunction with Paris Convention (1967) and then Article 1 5.4 of the Article of the Agreement . We will next turn to the provisions concerning the rights conferred to the owner TRIPS Article of a trademark, namely 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 TBT Agreement and some aspects of their claims under Article 20 claims of the 2.2 of the Agreement . TRIPS We will then address the complain an ts ' 7.12. Article 2.1 of the TRIPS Agreement in claims under Article 10 bis of the Paris conjunction with (1967) . We then turn to the complainants' Convention claims relating to the protection of GI s ) under Articles 22.2(b) and 24.3 geographical indications ( TRIPS Agreement . In light of the reference in Article 22.2(b) to "use which constitutes an of the Article 10 bis act of unfair competition within the meaning of Paris Convention (1967) ", we of the consider it appropriate to t ake up the claims under Article 22.2(b) after first addressing the claims under Article 10 bis of the Paris Convention . (1967) 7.13. measures are inconsistent with Finally, we will consider Cuba's argument that the TPP IX:4 of the GATT, in accordance with the approach of past panels that Article addressed claims 435 Agreement before addressing concurrent claims under the GATT under the 1994. TBT In the context of our examination of the claims under the TRIPS 7.14. and the Agreement GATT 1994, we will refer, as appropriate, to our analysis of the evidence and our factual findings in 2.2 of the Article Agreement . the context of our assessment under TBT 2.2 of the 7.2 TBT Agreement Article 7.15. Article 2.2 of the TBT Agreement provides that: s shall ensure that technical regulations are not prepared, adopted or applied Member with a view to or with the effect of creating unnecessary obstacles to international For this purpose , technical regulations shall not be more trade - restrictive than trade. ssary to fulfil a legitimate objective, taking account of the risks non - fulfilment nece inter would create. Such legitimate objectives are, : national security alia 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. an Republic, Cuba and Indonesia claim that the TPP measures are Honduras, the Dominic Article 2.2 because they are "more trade - restrictive than necessary to fulfil a inconsistent with Article 2.2. Australia considers that some aspects of legitimate objective" within the meaning of 2.2 of the TPP measures should not be reviewed under Article 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)

141 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 141 Overview of the claims 7.2.1 7.17. submits that the trademark and format restrictions stipulated in Australia's plain Honduras 2.2 of the TBT Agreement as these measures packaging legislation are inconsistent with Article restrictive than necessary to fulfil a legitimate - constitute a technical regulation that is more trade 436 objective, taking account of the risks of non - fulfilment. The Dominican Republic claims that Australia violates Article 2.2 of the TB T Agreement 7.18. TPP are severely trade - restrictive and are not necessary in view of their because the measures failure to contribute to Australia's objective and the reasonable availability of more effective and 437 - less trade restrictive alternatives. Cuba claim s that the TPP measures violate Article 7.19. 2.2 of the TBT Agreement , as they are - restrictive" and are "more trade - restrictive than necessary" to technical regulations, are "trade 438 achieve Australia's public health objective. 7.20. Indonesia claims that the TPP meas ures violate Australia's obligations under Article 2.2 of the Agreement , because the technical regulations at issue create unnecessary obstacles to TBT 439 - trade as they are more trade restrictive than necessary to fulfil a legitimate objective. Australia acc epts that the "physical requirements" under the TPP measures are technical 7.21. 440 Agreement but expresses "significant concerns" with the regulations within the scope of the TBT "systemic implications" of the complainants' contention that the "trademark requirem ents" under TPP measures can also be reviewed under the TBT Agreement . It argues that the the TBT addresses technical regulations and does not, on its face, appear to be concerned Agreement 441 IP Australia considers that, should the Panel take the view that with the exploitation of . requirements affecting the use of trademarks can be "technical regulations" within the scope of the Agreement , Article TBT TRIPS Agreement would remain "the applicable provision in 20 of the respect of the trademark requirements i mposed by the tobacco plain packaging measure", to the 442 exclusion of Article 2.2 in respect of those requirements. are "in accordance with relevant 7.22. Australia further argues that the TPP measures international standards" for tobacco plain packaging and therefore must be, by virtue of the second sentence of 2.5, rebuttably presumed not to be more trade - restrictive than Article 443 necessary: a presumption, it claims, th e complainants did not rebut. As a consequence, Australia claims, the Panel "need not proceed any further with its analysis of the complainants' 444 Article claims under 2.2". Australia argues that the complainants have failed to establish that the TPP measu res 7.23. are - "trade restrictive" at all. As a result, even if the Panel concludes that the presumption under 2.5 is inapplicable, Australia submits that any further relational analysis with respect to the Article Article 2.2 would n ot be required to examine the inconsistency of the substance of the claim under measures , as the complainants have failed to establish a prima facie case that they are TPP 445 Article inconsistent with 2.2. 436 para. 787. Honduras's first written submission, 437 Dominican Republic 's first written submission, para. 35. 438 Cuba's first written submission, para. 390. 439 Indonesia's first written submission, 463. para. 440 para. 507. Australia's first written submission, 441 para. 509. Australia's first written submission, 442 Australia's first written submission, para. 511. 443 paras. 519 and 584; second written submission, para. See Australia's first written submission, 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 para. 357. See also Australia's first written submission, Australia's second 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,

142 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 142 The complainants reject these arguments by Australia. They consider that the meas ures 7.24. 2.5 because they Article cannot enjoy the rebuttable presumption under the second sentence of are not "in accordance with relevant international standards" for tobacco plain packaging; and 446 even if they were, such presumption has been successfully rebu tted by them. They also consider 447 that the are not only trade - restrictive, but "highly" so. TPP The complainants measures therefore request these two preliminary substantive arguments be rejected and, as a TPP measures consequence, that the Panel proceed into a full a nalysis of the consistency of the Article 2.2. with Australia argues that, even if the Panel considered that the complainants had established 7.25. - restrictiveness, and assuming that the measures cannot enjoy the some degree of trade sentence of Article 2.5, the complainants have nonetheless failed to presumption und er the second Article establish that the measures are inconsistent with 2.2, i.e. that they are more restrictive than necessary to fulfil a legitimate objective, taking account of t he risks - trade - fulfilment would create. Therefore, the Panel would still need to reject the complainants' non 448 2.2 of the TBT Agreement in their entirety. claims under Article 7.2.2 Overall approach of the Panel We recall that 2.2 of the TBT Agreement provides that: 7.26. Article 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 , fulfilment necessary to fulfil a legitimate objective, taking account of the risks non - alia : national security would create. Such legitimate objectives are, inter ealth or requirements; the prevention of deceptive practices; protection of human h safety, animal or plant life or health, or the environment. In assessing such risks, inter alia : available scientific and technical relevant elements of consideration are, - information, related processing technology or intended end uses of products. 449 It is undisputed that, in accordance with the applicable rules on burden of proof 7.27. , the TPP are inconsistent with Article measures 2.2 rests on the burden of establishing that the complainants: wing that a technical regulation is With respect to the burden of proof in sho Article 2.2, the complainant must prove its claim that the challenged inconsistent with 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 450 - fulfilment would create. risks non 2.2 appli 7.28. es to measures that are "technical regulations" within the meaning of the Article TBT . The first step of an analysis of the consistency of the TPP measures with Agreement In this 2.2 must therefore be to determine whether they constitute a "technical regulation". Article respect, Australia argues that the TBT Agreement "addresses technical regulations and does not, 451 , so that the on its face, appear to be concerned with the exploitation of intellectual property" - para. restrictiveness need only be demonstrated with respect to the portion of the 210 (noting that trade TPP measures that constitute "technical regulations"). 446 No. 67, p p. ion 27 and 29; Dominican Republic 's See, e.g. Honduras's response to Panel quest response to Panel question No. 66, paras. 292 - 294; Cuba's response to Panel question No. 67 (annexed to its to Panel question response to Panel question 138) (agreeing with Honduras's response No. No. 67); an d Indonesia's response to Panel question 66, No. para. 84. 447 paras. 328 - 580; and Dominican Republic 's second written Honduras's second written submission, 253; and Indonesia's paras. submission, - 961. See also Cuba's second written submission, paras. 225 - 924 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 Tuna II (Mexico) Appellate Body Report, US – , para. 323. (footnote omitted) 451 509. Australia's first written submission, para.

143 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 143 TPP measures do not "trademark requirements" under the fall within the scope of the Agreement . We will therefore first consider, to the extent necessary to address Australia's TBT TBT arguments in this respect, whether such impediment to the applicability of the 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 452 TBT Agreement . 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 - 2.2 of the TBT restrictive than necessary" within the meaning of Article of a number of factors. A panel should begin by Agreement involves an evaluation considering factors that include: (i) the degree of contribution made by the measure - restrictiveness of the measure; and to the legitimate objective at issue; (ii) the trade issue and the gravity of consequences that would arise (iii) the nature of the risks at - fulfilment of the objective(s) pursued by the Member through the measure. from non In most cases, a comparison of the challenged measure and possible alternative In parti cular, it may be relevant for the purpose of measures should be undertaken. 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 - fulf ilment would create, and whether it is reasonably 453 available. 2.2 thus involves in Article 7.31. An assessment of the consistency of a technical regulation with 454 of three factors: the first instance a "relational analysis" 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. 455 , 7.32. These factors will, in turn, inform the "comparative analysis" that is, in most cases required to determine whether the challenged measure is more trade - restrictive than necessary: Article 2.2 The use of the comparative "more ... than" in the second sentence of 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 - mentioned factors. In most cases, this would involve a comparison of the above - 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 isks less trade restrictive than the challenged measure, taking account of the r 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 Tuna II (Mexico) Appellate Body Report, US – , para. 322. (footnote omitted) 454 , See Appellate Body Reports, US - COO L para. 374 ( referring to Appellate Body Report, US – Tuna II (Mexico) , 318). para. 455 Article 2.2 of the TBT We note in this regard that it is "not mandatory in respect of 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 5.229. In – COOL ( Article 21.5 - 5.227 Canada and Mexico ) , para. 5.235. See also ibid. paras. – 1299. respect of Article XX of the GATT 1994, see Appellate Body Reports , EC – Seal Products , para. 5.215 fn

144 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 144 - - ascertaining whether a challenged measure is more trade restrictive than 456 necessary. 7.33. As described above, in the present proceedings, the complainants argue that the measures are trade - TPP - restrictive than necessary to restrictive, and that they are more trade non - fulfilment of this fulfil the legitimate objective they pursue, taking into account the risks that 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 ilable to Australia, would make an equivalent contribution to that are, in their view, reasonably ava - its objective, and would be less trade TPP measures . restrictive than the 7.34. Australia considers, however, that the complainants have not established that the measures 457 restrictive are trade in th e first place, and that therefore, to the extent that the TPP - measures 458 are examined under this provision, the Panel should reject these claims "at the threshold". 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 a re "in accordance Article 2.5 of with relevant international standards" within the meaning of the second sentence of 459 Consequently, it claims that, to the extent that the definition of a "technical the TBT agreement. regulation" also encompasses measures affe TPP measures are cting the use of a trademark, the "rebuttably presumed" not to create an unnecessary obstacle to international trade under the 460 Article 2.5 and that the complainants have not rebutted this presumption. second sentence of 7.35. es that, given the complainants' failure to establish that the measures are Australia conclud – trade Article 2.2 at that stage and is not restrictive, the Panel should conclude its analysis under 461 Article 2.2. required to engage in any further "relational" analysis under Aus tralia submits in the alternative, i.e. only in the event that the Panel would determine that the complainants have made restrictive, that the complainants have failed prima facie case that the TPP a measures are trade - to establish a violation of article 2 .2, with reference to the additional factors of the "relational 462 analysis" described above. In particular, Australia argues that the measure pursues a legitimate - tive. public health objective and is not more trade restrictive than necessary to achieve that objec 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 463 trade - restrictive than the TPP measures and be less . 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 2.2. Article 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 h 2, and is in accordance with legitimate objectives explicitly mentioned in paragrap 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 para. 583. Australia's first written submission, 458 Australia's first written submission, para. 513. 459 Australia's first written submission, paras. 567 and 584. 460 para s. 519, 567 - 568 and 584. Australia's first written submission, 461 Australia's first written submission, para. 585. 462 Australia's first written submission, paras. 586 - 590. 463 742. Australia's first written submission, paras. 21, 595, and 700 -

145 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 145 2.5 embodies a "rebuttable" 7.38. sentence of By its express terms, therefore, the second Article mption, which applies in respect of measures meeting the following two sets of cumulative presu 464 : conditions 465 prepared, adopted or applied "for one of the that they are "technical regulations" a. legitimate objectives explicitly mentioned" in Article 2.2; and they are "in accordance with relevant international standards". b. that The requirement to ensure that technical regulations are not prepared, adopted or applied 7.39. "with a view to or with the effect of creating unnecessary obstacles to trade" is contained in the 466 2.2 provides that " st sentence of In turn, the second sentence of Article [f]or this 2.2. Article fir - restrictive than necessary to fulfil a , technical regulations shall not be more trade purpose fulfilmen t would create" (emphasis added). legitimate objective, taking account of the risks non - There is therefore a close nexus between the first and second sentences of Article 2.2, both 7.40. of which establish certain obligations with which WTO Members must comply when preparing, 467 adopting, and applying technical regul Specifically, the requirement for technical ations. 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): Article Both the first and second sentence of 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 468 and meaning of the obligation contained in that sentence. Against this context, it appears to us that if a technical regulation benefits from a 7.41. les to trade" pursuant to the "rebuttable presumption" that it does not create "unnecessary obstac 469 Article 2.5, this would have a direct impact on the content and structure of sentence of second the analysis to be conducted in relation to a claim that the same measure is "more - restrictive than necessary" within the meaning of the second sentence of trade 2.2. Article 7.42. The presumption established under the second sentence of Article 2.5 only applies with ives explicitly respect to technical regulations that are adopted "for one of the legitimate object Article 2.2. An early consideration of this factor will therefore allow us to determine mentioned" in 464 Article 2.5 as The parties seem to follow this same approach of perceiving the second sentence of See, e.g. Honduras's response to Panel question No. 66, containing two broad set of cumulative conditions. 288; Cuba's response to Panel p. 26; Dominican Republic 's response to Panel ques tion No. 66, para. question 66, p. 16 (annexed to its response to Panel question No. 138) (endorsing Honduras's response to No. No. 66); Australia's first written submission, question 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 or invoked with respect technical regulations from local - non governmental bodies. 466 Article 2.2 is set out at paras. 7.15 and 7.26 above. The text of 467 , See Appellate Body Reports, – US para. 369: COOL 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 - ctive, taking account of the risks non obje 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 2.5. elements of the two sets of conditions under the second sentence of Article

146 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 146 - - , to the extent that we will have found them to be a technical TPP whether the measures regulation, fall within the scope of measures to wh ich the presumption of the second sentence of 2.5 applies. As described above, the "legitimate objective" at issue is also one of the Article aspects to be considered in an assessment of whether a technical regulation is "more 2.2, ary" within the meaning of the second sentence of Article restrictive than necess - trade sentence independently of the applicability of the rebuttable presumption embodied in the second Article 2.5. of 7.43. In light of these elements, we consider it appropriate, in the circumstances of this case, to TPP measures , in whole or in part, constitute start our analysis with a consideration of whether the 470 Agreement . a technical regulation within the meaning of the TBT If this is the case, we will consider further whether they pursue a "legitim Article 2.2 of ate objective" within the meaning of the Agreement, and, if so, more specifically whether they have been prepared, adopted or applied Article 2.2. "for one of the legitimate objectives explicitly mentioned" in 7.44. Should we determine that the TP P 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 nt international standards", such that the "rebuttable presumption" under accordance with releva sentence of Article 2.5 is applicable. If this is the case, we will also need to determine the second r Article 2.2, what this implies for the remainder of our analysis of the claims before us unde 471 including how the complainants may "rebut" this presumption. Should we determine that the 7.45. measures are a technical regulation but that the TPP 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 - restrictive than necessary" within the meaning of Article 2.2. This would measures are "more trade 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 ures that may be reasonably available to Australia and consideration of possible alternative meas 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 "does not, on its face, appear to be concerned with the exploitation of intellectual TBT Agreement 472 property" TBT Agreement , and whether this constitutes an impediment to the application of the TPP measures . to the "trademark requirements" of the 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, 216 paras. 288 - 289 and 292; Cuba's response to Panel question No. 66, p. (annexed to its response to Panel question No. 138) (endorsing Honduras's response to question No. 66); Indonesia's response to Panel question 73; Australia's response to Panel question No. 66, para. 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 Article 2.5 before even "commencing" assessing Article 2.2), we determinations under the second sentence of do not consider that the parties' views on this matter are in contradiction with the approach we ta ke here, that both Articles is: first, considering the elements that belong to 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 Article 2.2 in light of our earlier determinations in relati to the completion of our analysis under on to Article 2.5. 471 See also para. 7.187 and fn 824 below. 472 above. Australia's first written submission, para. 509. See also para. 7.21

147 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 147 - - Applicability of the 7.2.3 Agreement to measures relating to trademarks TBT Main arguments of the parties 7.2.3.1 7.47. Australia expresses "significant concerns about the systemic implications" of the measures complainants' contention that the trademark requirements of the are covered by the TPP 473 . It considers that an interpretation according to which a measure affecting the TBT Agreement IP may fall within the scope of the TBT Agreement "has the potential to expand the scope of use of the Agreement to encompass matters that ... were meant to be reserved for the domestic law TBT 474 As an example, Australia refers to the exclusion, under Article 27.2 of the of each Member". 475 , of certain inventions from the scope of patentability in certain circumstances. TRIPS Agreement I n Australia's view, the TBT Agreement addresses technical 7.48. regulations and does not, on its 476 face, appear to be concerned with the exploitation of IP . 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 477 all, but instead encompasses all manner of 'technical regulations'". Should the Panel agree that TBT , Australia submits that the trademark requirements are outside of the scope of the Agreement laim under this provision, as the complainants have not the Panel must dismiss the complainants' c - trademark requirements alone are inconsistent advanced or substantiated a claim that the non 478 2.2. TPP Australia also notes that its claim that the with Article constitute a relevant measures "interna Article 2.5 is independent of whether the Panel finds that the tional standard" under 479 Article trademark requirements constitute "technical regulations" under 2.2. 7.49. Australia adds that "if the Panel takes the view that requirements affecting the use of tra demarks can be 'technical regulations' within the scope of the TBT Agreement , Article 20 of the TRIPS would remain the applicable provision in respect of the trademark requirements Agreement 480 imposed by the tobacco plain packaging measure". 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 481 th[e] requirements [affecting the use of trademarks]" , for " Article 20 of the TRIPS Agreement would clearly address this subject matter more 'specifically, and in detail' as compared to 482 Article 2.2 of the TBT Agreement ". Australia recalls "the statement by the Appellate Body in between two agreements or norms addressing the same subject matter, EC – Bananas III that, as a panel should apply the agreement or norm that 'deals specifically, and in detail' with the 483 Australia refers to other disputes as examples of the application of particular subject matter". 484 specialis principle , arguing th at "the correct application of the principle of lex is specialis lex the to apply the agreement or norm that 'deals specifically, and in detail' with the particular subject 485 Article 20 of the matter, which, in respect of the trademark Agreeme nt ". requirements, is TRIPS 7.50. While maintaining that "it is possible to comply with both agreements simultaneously and 486 , in Australia's view, "the application of indeed the [tobacco plain packaging] measure does so" 487 r would constitute a conflict." two very different standards of review to the same subject matte Article 20 of the TRIPS Agreement and According to Australia, "the concurrent application of 2.2 of the TBT Agreement to the trademark requirements of the tobacco plain packaging Article the standard of 'unjustifiability' under the former would be measure would mean 'in effect' that 488 In other words, "[a] measure that a supplanted by the standard of 'necessity' under the latter." 473 Australia's first written submission, para. 509. 474 No. 62, para. 128. Australia's response to Panel question 475 No. 62, Australia's response to Panel question 128. para. 476 Australia's first written submission, para. 509. 477 para. Australia's first written submission, 510. 478 No. 62, para. 129; and response to Panel question No. 76, Australia's response to Panel question para. 208. 479 See Australia's response to Panel question N o. 73, para. 200. 480 para. 511. Australia's first written submission, 481 para. 511. Australia's first written submission, 482 Australia's first written submission, para. 511. 483 Australia's first written submission, 511. para. 484 No. 74 . Australia's response to Panel question 485 Australia's response to Panel question No. 89, para. 21 . 486 No. 145, Australia's response to Panel question 1 . para. 487 para. No. 75, Australia's response to Panel question 206 . 488 . Australia's response to Panel question No. 145, para. 2

148 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 148 20 of the Article Agreement as long as it is not Member is allowed to maintain under TRIPS restrictiveness ifiable could be found to be inconsistent with the standard of least trade unjust - 489 TBT Agreement ." under Article 2.2 of the According to Australia, such an "approach would not do justice to the separate requirements 7.51. 490 Article of the different standards embo died in the two provisions". For Australia, " 20 of the requires that the use of a trademark in the course of trade shall not be Agreement TRIPS 2.2 of the TBT Agreement unjustifiably encumbered by special requirements, whereas Article requires that technical regulations not create unnecessary obstacles to trade and not be more 491 - According to Australia, trade restrictive than necessary to fulfil a legitimate objective." e taken by a Member must be Panel should resist the temptation to think that every measur "[t]he 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 492 taken by a Member can be challenged before the WTO." For Hond uras and the Dominican Republic , by raising this preliminary defense, Australia 7.52. 493 Hond ] from WTO scrutiny". According to measures uras and the "tries to shield [the TPP 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 494 20 of the TRIPS both , and Article 2.2 of the TBT Agreement " Article , thus "allow[ing] Agreement Members to defeat the basic treaty function of a trademark without any scrutiny under the 495 For the Dominican Republic, " Article 27.2 of the TRIPS Agreement serves WTO agreements". e drafters intended to reserve specific matters to domestic law they only to highlight that, when th 496 did so expressly." According to Honduras , the Dominican Republic and Cuba 7.53. , Australia "selectively quotes 497 – Bananas . EC Honduras adds that from, and misstates" the Appellate Body Report in III the " order of analysis bears no relation with the issue of applicability of one provision to the exclusion of another n various occasions, the Appellate Body has recalled its findings in EC – ": "[o] Bananas to reiterate the rule conc erning the order of analysis, which is that panels should III 498 examine first the provision that deals with specifically and in detail with a certain issue". 499 Dominican Republic also addresses some of the other disputes referenced by Australia. The Referencing 7.54. the concurrent applicability of the covered agreements as a cardinal principle of 500 Republic, supported by Indonesia the interpretation of the covered agreements, the Dominican , 501 oncerns. argues that it is Australia's contrary position that raises serious systemic c 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 No. 89, para. 20. Australia's response to Panel question 491 89, para. No. 20. Australia's response to Panel question 492 Australia's response to Panel question No. 116, para. 107. 493 Republic 's opening statement at the first meeting of the Panel, para. 57. See also Dominican Honduras's second written submission, paras. 11 and 13. 494 Dominican 's second written submission, para. 840. See also Honduras's second written Republic submission, paras. 13 and 18. 495 Republic 's second written submission, para. 841 (also recalling that, when asked by the Dominican No. ct that is lawfully on the 116, whether prohibitions on the use of a trademark on a produ Panel, in question Agreement or the market are covered by either the TRIPS Agreement , Australia responded that "such TBT 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 para. submission, 455; Dominican Republic 's opening statement at the first meeting of the Panel, para. 58; and Cuba's second written sub mission, 201. para. 498 Appellate Body Reports, 458 ( referring to para. Canada – Honduras's second written submission, Renewable Energy /Canada – - in Tariff Program , para. 5.6; US – Softwood Lumber IV , para. 134; and Feed Chile – Price Band System , para. 183). 499 Republic 's second written submission, paras. Dominican - 836 (addressing Panel Reports, US – 835 Customs Bond Directive ; and US – 1916 Act ). 500 No. 145, Indonesia's comments on Australia's response to Panel question 2. para. 501 203. See also second written Dominican Republic 's response to Panel question No. 115, para. 829. submission, para.

149 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 149 - under the covered agreements, unless the contrary is stated in the text of the agreements, or 502 greements. Republic, the According to the Dominican there is conflict in the application of the a 503 "principle of effectiveness" dictates that covered agreements be read harmoniously, as a whole. Cuba adds that the application of various WTO 7.55. s to the same measure does not Agreement 504 Cuba points out that the Appellate raise any major prob lem for the WTO system of trade rules. EC III – discussed the possibility that the GATT 1994 and the GATS could apply Body in Bananas 505 , and that in EC to a single measure Trademarks and Geographical Indications (Austra lia) the – 506 TRIPS s. panel assessed the same measure under the TBT and Agreement Honduras further argues that, by virtue of the principle of the Single Undertaking, as a 7.56. 507 general rule, WTO WTO jurisprudence confirms that differ ent obligations apply cumulatively. - exist since one does not override the other, obligations contained in different agreements can co 508 WTO Agreement s. and that there is no hierarchy between different Cuba argues that neither the WTO Agreement nor the case law make clear which law is 7.57. 509 TRIPS Agreement s. more specific between the TBT and the Honduras adds that d epartures from the rule that WTO agreements apply cumulatively are rare and, where applicable, are clearly 510 covered agreements in contrast, there is no provision in stipulated in the text of the , and that law indicating that, as argued by Australia, the TRIPS Agreement applies to the exclusion of WTO 511 Agreement . would Honduras maintains that if this had been the drafters' intention, they the TBT 512 have included a specific clause to that effect. The Dominican Republic and Indonesia similarly TBT measures falling Agreement to argue if Members had wanted to exclude the application of the under the Agreement , they would have done so express ly, as was done in Article 1.5 of the TRIPS TBT Agreement with respect to measures covered by the Agreement on the Application of Sanitary 513 and Phytosanitary Measures . (SPS Agreement) According to the Dominican Republic, a conflict arises when it is impossible to comply 7.58. 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 514 Agreement and Article 2.2 of the TBT Agreement . TRIPS 7.2.3.2 Arguments of the third parties 7.59. ' "trademark requirements" should be agrees with Australia that the TPP measures Argentina because it is the Agreement that "deals specifically" only examined under the TRIPS Agreement 502 Republic 's second written submission, para. 829. Dominican 503 Dominican Republic 's second written submission, para. 829. See also opening statement at the first para. meeting of the Panel, 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 para. 199 ( quoting Appellate Body Report, EC Cuba's second written submission, Bananas III , – paras. 220 and 221). 506 Cuba's second written submission, para. 202 fn 115 ( referring to Panel Report, EC – Trademarks and 7.450 Geographical Indications (Australia) , paras. - 7.459). 507 referring to Honduras's second written submission, para. 455 ( – Appellate Body Report, Korea Dairy , paras. 74, 80, and 89). 508 Appellate Body Report 455 ( referring to para. , Canada – Honduras's second written submission, Periodicals , p. 17, DSR 1997:I ; and Panel Report, – Trademarks and Geographical Indications (Australia) , EC para. 7.244). 509 para. 201. Cuba's second written submission, 510 Honduras's second written submission, para. 456. 511 para. 457. Honduras's second written submission, 512 cond written submission, para. 457. Honduras's se 513 Dominican Republic 's response to Panel question No. 115, para. 202; Indonesia's second written submission, 214; Indonesia's response to Panel question No. 115, para. 44; and Indonesia's comments para. on Australia's re sponse to Panel question No. 145, para. 4. 514 831. Dominican Republic 's second written submission, para.

150 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 150 with t he issue of the relationship between Members' right to regulate health and the protection of 515 trademarks. "understands that a measure may fall under more than one of the Covered 7.60. Brazil Agreements. In this sense, a measure dealing with intellectual property issues may also be a TBT insofar as it deals with product technical regulation within the meaning of the Agreement 516 characteristics, labelling or other TBT Brazil also - related matters concerning trade in products." should be independent Agreem and the TRIPS Agreement ent believes that analysis of the TBT between them. While the lex specialis from one another, as there is not a relationship of Agreement TBT deals with technical regulations and their effects on the trade of goods, the establis hes IP right s relating to trade. Brazil continues that each agreement TRIPS Agreement integrates different annexes of the Marrakesh Agreement and deals with substantially different sarily obligations. Inconsistency with the obligations in one agreement does not bring about neces 517 a violation of the other. Canada considers that the TBT and TRIPS Agreement s "are not mutually exclusive" in the 7.61. . Moreover, sense that both can apply to the same measure, including a measure that deals with IP and says Canada, "intellectual property measures have not been carved out of the Agreement TBT alia , 'technical regulations', within the meaning of the term under Annex 1.1 may constitute, inter 518 of that Agreement." e both the TRIPS and TBT Agreement s can Canada considers that becaus IP apply to for the Panel to employ the lex specialis principle in measures, "it would be incorrect s are lex specialis and TRIPS this case." Canada says that, in fact, "[b]oth the TBT and Agreement categories of measures." The lex specialis principle, notes Canada, "does not discipline defined apply if the two treaties in issue deal with the same subject matter from different points of view, - but is not inconsistent apply in different circumstances, or one provision is more far reaching than, 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, 519 and the provisions under these covered agreements are cumulative and are not in conflict". Canada thus concludes that the Panel "must make an assessment of whether the measure in issue ld elements under both [the TBT and TRIPS Agreement s]", i.e. whether the satisfies the thresho constitute a "technical regulation" and are trade - restrictive for the purposes of the TPP measures Agreement , and whether, inter alia , they are "special requirements" for the purp oses of TBT satisfy these threshold elements Article Agreement . Should the TPP measures 20 of the TRIPS under both the TBT and TRIPS Agreement s, "the measure must then be assessed for consistency 520 with the relevant provisions under these agreements." 7.62. China measures' "form requirements" are first notes that it is undisputed that the TPP 521 technical regulations under the . TBT With respect to the measures' Agreement 1.1 trademark " requirements", in particular, China considers that they meet the definition in Annex Agreement because they are mandatory requirements in respect of "product of the TBT 522 lex specialis characteristics" and/or "packaging, marking or labelling". China also considers the s and says that it is "wel l established by the Appellate principle inapposite to the present dispute 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 Article 20 of the TR IPS Agreement , these requirements, as technical regulations, are subject to Article 2.2 of the concurrently subject to TBT Agreement , although the two provisions apply to 523 different aspects of the trademark requirements." 515 Argentina's third - party submission, para. 37; Argentina's third - party response to Panel question No. 1, paras. 1 - para. 511); and Argentina's third - party 8 (agreeing with Australia's first written submission, 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 third - party response to Panel question No. 1b, p. 1. Brazil's 518 paras. - party response to Panel question No. 1, 1 - 2. Canada's third 519 Canada's third - party response to Panel question No. 1, para. 3. 520 - party response to Panel question No. Canada's third para. 5. 1, 521 China's third - party submission, para. 72. 522 1a China's third - party response to Panel question No. , p. 1. 523 2. China's third - party response to Panel question No. 1 b, p p. 1 -

151 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 151 The European Union considers that if a "docum ent prohibits, restricts or conditions the use 7.63. 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 lements of the definition are fulfilled". For the European Union, the fact that any such the other e requirement "is also a trademark or a geographical indication (terms that are not used in the not, without more, take the document outside the scop TBT Article 2.2 of the Agreement ) does e of TBT Union, when terminology, symbol, Agreement ". The same is also true, claims the European packaging, marking or labelling requirements also fall within the scope of Article 20 (or other : this "do es not, without more, remove [those requirements] TRIPS provisions) of the Agreement 2.2 of the TBT Agreement ". This indicates, therefore, that the respective from the scope of Article 524 the obligations under these two agreements "apply concurrently", as evidenced by the fact that Agreement TBT has been applied with respect to both "geographical indications" and TBT labelling", when neither of these terms are "expressly referenced" in the Agreement 's "origin 525 As to the lex specialis definition of technical regulations. ile the European principle, wh Union considers it as "a useful analytical tool", it also believes that it is "not to be mechanistically principle "does not, applied". The European Union, more specifically, believes that the lex specialis , in favour of Article 2.2 of the lication of Agreement Article 20 without more, lead to the disapp TBT 526 Agreement ". I or other provisions of the TRIPS the European Union sees this issue f anything, "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 527 purposes of this dispute". Guatemala 7.64. TRIPS Agreement are not "applicable to the considers that the provisions of the 528 Agreement ". Guatemala says that, consistent with TBT exclusion of the provisions of the II of the Article Agreement as well as Appellate Body jurisprudence, "covered agreements WTO 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 529 taken into account and the obligations contained in each of them are carefully observed." TRIPS Agreement s deal with Guatemala considers, as it says Australia does also, that the TBT and 530 matter. In Guatemala's view, even assuming different subject arguendo that these Agreements - ferent point of view and apply in "might deal with the same subject matter, they do that from a dif 531 different circumstances". Japan believes that "[t]here is nothing in the TBT Agreement that a priori excludes 7.65. Article 2.2 of the Agreement. Thus, measures regulating the use of a trademark from the scope of measures' "trademark requirements" fall within the scope of that TBT provision whether the 532 "depends on whether they constitute a technical regulation". In this sense, Japan considers that TPP the meet the definition of "technical regulation" in Annex 1.1 of the TBT Agreement measures lay because they not only down "product characteristics" for tobacco products themselves, but also 533 for their packaging. As to the relationship between the TRIPS and TBT Agreement s, Japan first , cited by Australia, only relates "to the C – Bananas E posits that the Appellate Body decision in 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 - 1 No. 1, paras. to Panel question - 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 Ap pellate 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 No. European Union's third - party response to Panel question 1, para. 1. 528 - party submission, para. 15. Guatemala's third 529 - party submission, paras. 8 - 10 (re ferring to Appellate Body Reports, US – Guatemala's third 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. - 510). 508 531 Guatemala's third party submission, para. 14. - 532 Japan's third - party submission, para. 39. 533 party response to Panel Japan's third - party submission, paras. 40 42. See also Japan's third - - 1. question No. 1a, p.

152 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 534 Japan of a provision on another agreement which also deal with the same matter". exclusion – China then draws attention to the Appellate Body decision in Publications and Audiovisual 535 , and supports the vie both the , which it considers more appropriate to this case Products w that Agreement s are "integral part[s]" of the same treaty – the TRIPS and Agreement – and, TBT WTO of them, all consequently, their provisions should be interpreted in a way "that gives meaning to 536 harmoniously" . Nicaragua 7.66. n the present dispute, it is "clear" that the TPP measures constitute a argues that i 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, up physical product characteristics. Thus, packaging, marking or labelling requirements" that make while descriptively convenient, Nicaragua does not find it analytically helpful to distinguish "trademark" requirements from "physical" requirements. For Nicaragua, the trademark and the he TPP measures satisfy the requirements of a "technical regulation" in physical requirements of t Agreement , and constitute a single measure covered by the TBT Annex 1.1 of the Agreement , TBT Article 2.9.2 of the as confirmed by Australia's notification of the measure under 537 Agr . TBT eement Nicaragua disagrees with Australia's reading of the panel findings in US 7.67. 1916 Act (Japan) – and – Customs Bond Directive as supporting its lex specialis argument in this case. In those US T 1994 to a specific Agreement found in cases, the question concerned the relationship of the GAT Agreement , and the relationship between different provisions of the GATT Annex 1A of the WTO 1994, respectively. The situation is entirely different in the current disputes, which concern two overed agreements that apply to the same factual situation with different equally applicable WTO c obligations. Nicaragua submits that applying both sets of agreements to the same factual situation 538 therefore does no does not raise any systemic concern and the rule of lex specialis t apply. Norway finds that the requirements relating to packaging, marking or labelling must be 7.68. considered as "technical regulations", and does not find it necessary to distinguish between the ments in the assessment of restriction on the use of a trademark and the physical require 539 2.2 of the TBT Article . Agreement Singapore is of the view that the Panel should consider both the trademark requirements 7.69. TPP measures and format requirements together, in assessing the consistency of the with 2.2 of the Agreement . Both the trademark requirements and format requirements are Article TBT TBT Agreement and thus are "technical regulations" within the meaning of Annex 1.1 of the 540 Agreement . subject as a whole to the TBT 7.70. engage one or more of the covered agreements at Singapore submits that a measure may EC relate – Bananas III the same time, and agrees with Japan that the Appellate Body's findings in to the , rather than the exclusion of a provision of another agreement which deals order of analysis with the same matter. Singapore asserts that Annex 1.1 of the TBT Agreement , which concerns as they apply to a product, is terminology, symbols, packaging, marking or labelling requirements 534 - party submission, paras. 43 - 44. See also Japan's third - party response to Panel Japan's third 3 (suggesting that Australia's reliance on Appellate Body Report, question 1b, p p. 2 - EC – Bananas III and No. Panel Reports, US – 1916 Act (Japan) , and US – Customs Bond Directive is misplaced). 535 - party submission, paras. 45 Japan's third 46. See also Japan's third - party response to Panel - question No. 1b, p p. 2 - 4. 536 re Japan's third - party submission, para. 38 ( ferring to Appellate Body Report, Argentina – Footwear , (EC) 1b, p para. 81). See also Japan's third - party response to Panel question No. p. 2 - 4. 537 - party response to Panel question No. 1, p p. 1 - 2. See also third - Nicaragua's third party response to Panel question 2 and 3, p p. Nos. - 4. 2 538 Nicaragua's third - party response to Panel question No. 1, p p. 1 - 2 ( referring to Panel Report, EC – overed para. 7.87, for the notion that applying two c , Trademarks and Geographical Indications (Australia) a greements to a single regulatory measure is "quite common in WTO jurisprudence"). 539 Norway's third - party submission, para. 78. 540 Appellate Body Singapore's third - party response to Panel question No. 1, p 1 - 2 ( referring to p. 67). Reports, EC – Sardines , para. 176; and EC – Asbestos , para.

153 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 153 as specific and detailed in this context as the is with reg ard to trademark Agreement TRIPS there is nothing that prevents the Panel from examining requirements. Singapore concludes that 541 TBT the Agreement . Article trademark requirements in this case under 2.2 of the South Africa states that "it would be cogent to argue that the same measure could be 7.71. 20 of the TRIPS Agreement examined under two different agreements". It submits that Article , Article 2.2 of the TBT Agreement , does not incorporate a necessity test and as a result it unlike to the current provisions. "If the use of a trademark as would be unwarranted to read such a test in 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 Article technical regulation ' ) complies with the requirement of ' 2.2 of the m ark may be said to be a 542 Agreement ." TBT 7.72. Peru notes Australia's indication that the TPP measures are in conformity with the Article 11 Article FCTC Guidelines, which is a relevant international standard under 2.4 of the Agreement at paragraph 46 of these Guidelines exhorts FCTC TBT . Peru recalls, in this respect, th 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 proceedings , Peru considers that the Panel must decide on international standard. In the present wo aspects. The Panel cannot therefore apply the principle of the judicial economy because these t TPP measures contain two aspects: one related to IP (trademark use) and another related to the 543 ects). technical regulations (tobacco product labelling and other related asp Uruguay submits that the TPP measures 7.73. 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 TBT Agreement as technical regulations and thus come within the scope of the by requiring the 544 presence of certain physical features on the packaging. measures 7.74. Zimbabwe ' aspects provide for "mandatory" is of the view that all of the TPP ckaging, requirements "which lay down product characteristics" with respect to "symbols, pa identifiable group of products. marking or labelling requirements" and apply to an Zimbabwe thus considers that the attempt to distinguish the form or physical requirements from the trademark hallenged measures are covered by the requirements is not meaningful, as all aspects of the c 545 Agreement TBT . disciplines of the 7.2.3.3 Analysis by the Panel 7.75. TPP measures relating We now consider whether, as Australia argues, certain aspects of the g, which it describes as the to the use of trademarks on tobacco products and their retail packagin "trademark requirements", should be considered not to be covered by the disciplines of Article 2.2 TBT of the Agreement , because they would fall within the purview of the TRIPS Agreement , which addresses rights. This argument requires us to consider the relationship between these IP agreements, and their relevant provisions, to the extent necessary to determine whether it would be inappropriate to consider under 2.2 of the TBT Agreement these aspects of the Article 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 546 comply with all of them simultaneously. Article This is expressed in II:2 of the WTO Agreement , which provides that: 541 Singapore's third - party response to Panel question No. p. 2 - 3. 1, p 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

154 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 154 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. Article WTO Agreement II:2 of the "expressly manifests In the words of the Appellate Body, 7.77. WTO the intention of the Uruguay and the Round negotiators that the provisions of the Agreement 547 1, 2 and 3 must be read as a whole" . Multilateral Trade Agreements included in its Annexes package of rights and disciplines' must, Thus, "an appropriate reading of this 'inseparable the relevant provisions of these two equally binding accordingly, be one that gives meaning to all 548 As the Appellate Body pointed out, "[i]t is important to understand that the agreements". Agreement is one treaty " and the different agreements annexed to it "are integral parts of WTO II:2 of the that treaty and are equally binding on all Members pursuant to Article 549 . Agreement WTO " This c umulative and concurrent application of the WTO covered agreements was confirmed 7.78. Body in Canada – Periodicals in relation to the GATT 1994 (trade in goods) and by the Appellate WTO the GATS (trade in services), which appear under Annexes 1A and 1B of the Agreement , Body stated, in this regard, that "[t]he entry into force of the GATS ... respectively. The Appellate 550 1994." The Appellate Body explicitly does not diminish the scope of application of the GATT "T ord inary meaning of the texts of GATT 1994 and : agreed with the Panel's statement that he GATS as well as II:2 of the WTO Agreement , taken together, indicates that obligations Article 551 - exist and that one does 1994 and GATS can co As under GATT not override the other." the potential overlap in scope of application between the GATT expressed by the Appellate Body, and GATS depends ultimately on the measure at issue: Given the respective scope of application of the two agreements, they may or may not ue. Certain measures could be overlap, depending on the nature of the measures at iss 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 1994 and the GATS. However, while the same measure could be scrutinized the GATT under both agreements, the specific aspects of that measure exami ned under each 552 agreement could be different. These elements make clear, in our view, that the fact that the covered agreements may 7.79. overlap in scope does not imply that the scope of application of each agreement should be diminished or otherwise modified. agreements co - exist and apply Rather, the various covered cumulatively, and it is possible, therefore, for a measure to be simultaneously covered by the agreements. This is also consistent with the well - established disciplines of one or more covered of treaty interpretation that, "[i]n light of the interpretive principle of effectiveness, it is the tenet duty of any treaty interpreter to 'read all applicable provisions of a treaty in a way that gives 553 all Further, as obse rved by the panel in Indonesia of them, harmoniously.'" – Autos , meaning to his presumption is "in public international law there is a presumption against conflict", and "[t] 547 Dairy Korea – Appellate Body Report, , para. 81. 548 , Argentina – Footwear (EC) para. 81 (emphasis original) (quoting Panel Appellate Body Report, Report, Argentina – Footwear (EC) , para. 8.58). 549 Dairy Appellate Body Report, Korea – , para. 75. (emphasis original) 550 , Appellate Body Report, Canada – Periodicals p. 19, DSR 1997:I, 449, p. 465 . 551 Canada – Periodica ls , p. 19, DSR 1997:I, 449, p. 465 Appellate Body Report, ( quoting Panel Report, Canada – Periodicals , 5.17 ). para. 552 Appellate Body Report, EC – Bananas III , para. 221. See also Appellate Body Report, Canada – China , p. 19, DSR 1997:I , 449, p. 465; and Panel Report, Periodicals – Publications and Audiovisual Products, paras. 7.127 - 7.128. 553 (emphasis original) Appellate Body Report, Korea – Dairy , para. 81.

155 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 155 context since all WTO especially relevant in the WTO agreements ... were negotiated at the same 554 time, by the same Member s and in the same forum." 7.80. We therefore see no basis to assume that, as a matter of principle, measures affecting the IP , and thus potentially covered by the Agreement , could not also be covered by use of TRIPS relevant provisions of the , to the extent that they would also fall within the scope TBT Agreement 555 of application of these provisions. 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 1994, and the TRIPS Agreement , which is contained in Annex 1C of the WTO Agreement . GATT EC – Trademarks and Geographical Indications (Australia), Australia challenged certain In measures both under specific provisions of the EC Agreement concerning the protection of TRIPS - discrimination s and trademarks, and under specific provisions of the GATT GI 1994 concerning non in relation to imported products. In that case, the panel "d[id] not consider that the conclusion of 556 Agreement the the scope of application of GATT" TRIPS : reduced TRIPS Agreement and GATT 1994, which appear [T]here is no hierarchy between the Agreement . The ordinary meaning of the texts of the WTO in separate annexes to the Agreement and GATT 1994, as well as Article II:2 of TRIPS the WTO Agreement , taken together, indicates that obligations under the Agreement and GATT 1994 TRIPS - exist and that one does not override the other. This is analogous to the finding can co Canada Periodicals, with which the Appellate Bo dy agreed, – of the Panel in 1994. Further, a "harmonious concerning the respective scopes of GATS and GATT not require an interpretation of one that shadows the contours of interpretation" does the other. It is well established that the covered agreements apply cumulativel y and 557 that consistency with one does not necessarily imply consistency with them all. TRIPS Agreement s, On the same basis, that panel also reviewed, under both the TBT and 7.82. indications", which, like certain requirements of the measure at issue affecting "geographical 558 s covered by the TRIPS Agreement . "trademarks", constitutes one of the categories of IP right 7.83. we conclude that, where a measure falls within the scope of more than one covered Thus, 1A (such as the GATT 1994 or agreement, including agreements on trade in goods under Annex Agreement ) and the TRIPS Agreement , these covered agreements apply concurrently and the TBT cumulatively, to the extent that the measure at issue, or aspects thereof, fall within the scope of A priori , this concurrent coverage entails the possibility of reviewing the each relevant agreement. 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 ment invoked by the complainants other than Article 20 would constitute an obstacle Agree to the applicability of the Agreement to the TPP TBT . measures 554 (footnotes omitted) Panel Report, Indonesia – Autos , para. 14.28. 555 Indeed, we note that matters relating to the protectio n of intellectual property were not, as such, 1947, as illustrated by the terms of XX(d) and the proceedings in Article excluded from the scope of the GATT – Section 337 . In US – Section 337 , patent US related matters were reviewed under Articles III:4 and XX(d) of - GATT 1947 to ensure that intellectual property (IP) not unnecessarily discriminate against the rules do imported goods or constitute a disguised restriction on trade. IP matters also appear elsewhere in GATT Articles IX:6, XII:3(c)(iii), and XVIII:10. Additionally, IP the matters are also explicitly 1994, e.g. mentioned in various other Agreement s, including the Agreement on Subsidies and Countervailing WTO SCM Agreement ) ( Article 8.2(a)(iii)); the Customs Valuation Agreement ( Measures ( rticle 15.2(b) and para. 1 A of Note to 8.1(c)); the Preshipment Inspection Agreement ( Article 2.12(a) , 2.12(b), and 20(c)); the Articles Agreement on Government Procurement (GPA) ( Articles VI:3 , XV:1(b) , and XXIII:2) ; and the Agreement on as amended by the 2012 Protocol (Amended Government Procure ment, GPA) (Articles. III:2(c), X:4, XIII:1(b)(ii), , and XVII:3(c)). See also Article 7.1(b) of the Agreement on Textile and Clothes, which XVII:3(b) 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 EC – Trademarks and Geographical Indications Panel Report, (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 7.515. Panel Report , EC – Trademarks and Geographical Indications (Australia) , paras. 7.443 -

156 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 156 - 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 559 Agreement , we find that the mere fact that a regulations" within the meaning of the TBT measure, or a certain aspect of a measure, is covered by a specific provision of the TRIPS is not, in itself, an obstacle to its potentially also falling within the scope of Agreement TBT Agreement . relevant provisions of the We also recall that the fact that one of several covered agreements that apply concurrently 7.85. to be more "specific" to the subject - matter at issue in a to the same measure might be considered given dispute has not been understood to imply, as Australia suggests, that the more specific agreement should apply of the more "general" one. Rather, as reflected in the to the exclusion 560 III – f the Appellate Body EC referred to by Australia in : rulings o Bananas Article X:3(a) of the GATT 1994 and Article 1.3 of the Licensing Agreement Although , the Panel, in our view, should have applied the Licensing Agreement first, both apply 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 561 Article X:3(a) of the GATT 1994. for it to address the alleged inconsistency with 7.86. te Body refers in this context to the principle of lex specialis , it addresses While the Appella the order of analysis and the subsequent possibility of exercising judicial economy, rather than Determining the order of analysis is different from the resolution of conflict between conflict. provisions, as "[t]he latter entails the use of conflict resolution rules or interpretative 562 techniques." 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 563 cumulatively applicable provisions should be interpreted relative to each other. 564 O ther disputes invoked by Australia with reference to the lex specialis principle 7.87. also do specific" covered agreement should, as a matter of principle, not support the view that a "more 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. 560 511. Australia's first written submission, para. 561 EC – Bananas III , para. 204 (emphasis added). See also Appellate Body Appellate Body Report, US paras. – Upland Cotton , Report, 549 - 550: We recall that the and the SCM Agreement Agreement on Agriculture "are both Multilateral Agreements on Trade in Goods contained in Annex 1A of the Marrakesh Agreeme nt Establishing 'integral parts' of the World Trade Organization WTO Agreement "), and, as such, are both (the " 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 " 3.1(b) of the SCM Agreement can be read together with the Agreement on Agriculture Article 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 3.1(b) of the Article ort substitution subsidies provided in SCM Agreement is inapplicable to imp 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 . In providing such domestic support, however, WTO Members must be Agreement on Agriculture 3.1(b) of the mindful of their other WTO obligations, including the prohibition in Article SCM Agreement on the provision of subsidies that are contingent on the use of domestic over (emph asis original) (footnotes omitted) imported goods. 562 Panel Report, – Autos India 7.158 fn 380. , para. 563 Overlap between two provisions ratione materiae is the precondition for the application of the noted, " principle Thailand – Cigarettes (Philippines) . As the panel in [t]he lex specialis derogat legi generali 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 Thailand – Cigarettes Report, (Philippines) , para. 7.1047. (footnote omitted) 564 695. Australia's first written submission, para. 511 fn

157 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 157 - - applied to the exclusion of 1994, but merely a case in which judicial III:4 of the GATT Article 566 567 565 by the panel. Although the passage referenced by Australia economy was exercised" 568 specialis , subseque addresses the principle of lex nt paragraphs of the panel's analysis address 569 Likewise, the paragraphs of the panel report in economy. – and explicitly reference judicial US 571 570 , also referred to by Australia Customs Bond Directive , discuss the principle of lex specialis in the context o US – 1916 Act (Japan) as to "whether it must f the question faced by the panel in 572 T he paragraphs also analyse a claim under [another provision of another covered agreement]". referenced by Australia constitute the final part of an analysis of reasons supp orting the panel's 573 earlier conclusion that " a number "on the basis of judicial economy, [it] refrains from ruling on" 574 GATT 1994 ". as applied of additional We consider the notion of judicial claims under the economy to be distinct from that of order of analysis, even if "[t]he order selected for examination 575 In our of the claims may also have an impact on the potential to apply judicial economy." 576 understanding, judicial economy is also distinct from conflict of norms. Judicial economy entails cator's choice of not entering into the analysis of a claim, provided this does not the adjudi 577 jeopardize effective resolution of the dispute , whereas conflict of norms relates to how the rules underlying those claims should be interpreted relative to each other. 7.88. TRIPS Agreement s may apply Fo r the above reasons, we find that, in principle, the TBT and concurrently and cumulatively to different aspects of the same measures. We approach our further TBT Agreement with this understanding, noting that t analysis under the 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 578 contained in different instruments that nevertheless relate to the same subject matter". 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 (i.e. the multilateral agreements on trade in goods), through the "General Agreement interpretative note to Annex 1A", which provides that: In the event of conflict between a provision of the General Agreement on Tariffs and he Agreement Trade 1994 and a provision of another agreement in Annex 1A to t the agreements in Establishing the World Trade Organization (referred to 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 - party response to Panel question No. 1 , para. 8 . E uropean Union's third 566 Panel Report, – 1916 Act (Japan), para. 6.269. US 567 511 fn para. 695. Australia's first written submission, 568 Panel Report, US – 1916 Act (Japan), 6.270 - 6.272. paras. 569 Panel Report, – 1916 Act (Japan), para. 6.272. US 570 Panel Report, US – Customs Bond Directive paras. 7.170 - 7.172. , 571 Australia's first written submission, para. 511 695. fn 572 Panel Report, US – Customs Bond Directive , para. 7.170. 573 Panel Report, – Customs Bond Direc tive , para. 7.165. US 574 original) US – Customs Bond Directive , para. 7.163 . (emphasis Panel Report, 575 , para. Panel Report, – India 7.161. Autos 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 inconsistency, would suffice to resolve the dispute. Although when a single, or a certain number of findings of allows a panel to refrain from addressing claims beyond those necessary to the doctrine of judicial economy compel resolve the dispute, it does not 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 5.53. Appellate Body Reports, China – Rare Earths , para.

158 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 158 nnex contained in GATT 1994 and obligations contained in agreements listed in A 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 579 one agreement prohibits what a rule in another agreement explicitly permits. equivalent provision exists, however, in respect of the relationship between covered No 7.92. agreements contained in Annex 1A (Multilateral Agreements on Trade in Goods, including the Agreement ) and Annex 1B (GATS) or Annex 1C (TRIPS), that would provide spec ific guidance TBT 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 580 As Multilateral Trade Agreements, and between such provisions and the Marrakesh Agreement. 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 by - case basis through a proper interpretation of the relevant be determined on a case - 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 provisions that govern or shed light on the relationship between the provisions specific 581 1A). of different instruments (such as the General Interpretative Note to Annex 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 582 That panel also considered that a conflict between the Agreement on Subsidies same forum." SCM Agreement and Article III of the GATT 1994 would only arise and Countervailing Measures ( ) in "the narrow situation of mutually exclusive obligations for provisions that cover the same type 583 of subject matter" : al law for a conflict to exist between two treaties, three conditions have In internation 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 possibility for conflict. Third, the provisions must conflict , in the sense would be no that the provisions must impose mutually exclusive obligations. "... [T]echnically speaking, there is a conflict when two (or more) treaty instruments contain obligations t be complied with simultaneously. ... Not every such divergence which canno constitute a conflict, however. ... Incompatibility of contents is an essential condition 584 of conflict". Cement 7.94. – In I, the Appellate Body, in interpreting the term "difference" in Guatemala cle Arti 1.2 of the DSU in the context of the relationship between the rules and procedures of the DSU and Article - Dumping Agreement, adopted a similarly restrictive definition of 17 of the Anti not explicitly limited to conflicting "obligati " : ons "conflict", albeit [I]t is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement complementing each other that cannot be read as prevail . A special or additional provis ion the special or additional provisions are to prevail over a provision of the DSU in a situation where should only be found to 579 I EC – Bananas II Panel Reports, , para. 7.159. (footnote omitted) 580 Appellate Body Reports, China – Rare Earths , para. 5.56. 581 China Appellate Body Reports, – Rare Earths , para. 5.55. See also, in respect of Agreements under Annex 1A, Appellate Body Report, – Desiccated Coconut , p. 14, DSR 1997:I, 167, pp. 178 - 179 . Brazil 582 Panel Report, Indonesia – Autos , para. 14.28. (footnotes omitted) 583 Autos Panel Report, Indonesia – , para. 14.49. 584 649. Panel Report, Indonesia – Autos , para. 14.28 fn

159 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 159 adherence to the one provision will lead to a violation of the other provision, that is, 585 between them. the case of a in conflict situations as regards the legal nature of the These 7.95. rulings address somewhat different provisions among which a conflict may arise (i.e. "obligations", explicit rights, "provisions", and he panel in prohibitions). They also appear to reflect partly different definitions of "conflict". T – considered that "under public international law a conflict exists in the narrow Indonesia Autos situation of mutually exclusive obligations for provisions that cover the same type of subject 586 A variant of this narrow concept of conflict involves two posi tive obligations, as under matter." – Bananas III ("obligations are mutually the first situation of "conflict" identified by the panel in EC 587 ). exclusive in the sense that a Member cannot comply with both obligations at the same time" pe of logical conflict between two provisions the ty Another variant entails identified by the – Cement I Article 1.2 of the DSU between a Appellate Body in Guatemala in the context of one of which prescribes what the , positive and a negative obligation, i.e. between two provisions 588 othe r forbids. Finally, and somewhat differently, the second type of situation identified by the Bananas III ("where a rule in one agreement prohibits what a rule in another EC – panel in 589 ather a prohibition, i.e. a agreement explicitly permits" ) would not involve two obligations but r negative obligation, and an explicit authorization. 7.96. In these proceedings, we must consider the specific relationship between the terms of 20 of the TRIPS Agreement Article Article 2.2 of the TBT Agreement . At their core, and those of both 20 of the TRIPS Agreement and Article 2.2 of the TBT Agreement disallow certain Article not to adopt or maintain certain types of measures ("shall measures, in that they require Members Article requirements" that 20 prohibits the adop not"). In essence, tion of "special Article 2.2 of the "unjustifiably encumber" the use of a trademark in the course of trade, whereas Agreement TBT prohibits the preparation, adoption, or application of "technical regulations" h "terminology, symbols, packaging, marking or labelling (including those dealing wit 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 in substantive contradiction or "mutually exclusive". Nor do we see any logical conflict between not 590 Because these two provisions contain prohibitions that are neither mutually exclusive nor them. it is possible to comply with b oth of them at the same time: in substantive contradiction, 591 ". "adherence to the one provision will [not] lead to a violation of the other provision In the present proceedings, Australia has recognized that "it is possible to comply with both 7.97. 592 PP] measure does so". As we understand it, agreements simultaneously and indeed the [T Article 20 of the therefore, Australia is not alleging the existence of a conflict between Agreement TRIPS 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 , in relation to the trademark requirements of the , would the TBT Agreement measures TPP un dermine the flexibility available to it under 20 of the TRIPS Agreement in respect of such Article to the second type of situation identified by the requirements. This is closer, though not identical – – Bananas III panel in as giving rise to a conflict, namely "the situation where a rule in one EC 593 In fact, whereas the agreement prohibits what a rule in another agreement explicitly permits". – Bananas III referred to an "explicit[] permi[ssion]", Australia invokes a flexibility panel in EC 20 of the not prohibited by Article indirect and implicit: it emanates from what is that is 585 Appellate Body Report, Cement – I , para. 65 (emphasis original ). See also Appellate Body Guatemala US para. – FSC , Report, 1 5 9 . 586 Indonesia – Autos Panel Report, 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 , para. EC – Bananas III 7.159. ( footnote omitted ) Panel Reports, 590 Appellate Body Report, Guatemala – Cement I , para. 65. See also Appellate Body Report, US – , para. 51. Carbon Steel 591 Appellate Body Report, Guatemala – Cement I , para. 65. See also Appellate Body Report, US – , para. 51. Carbon Steel 592 Australia's response to Panel question No. 145. 593 7.159. Panel Reports, EC – Bananas III , para.

160 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 160 Agreement , i.e. what, Australia argues, does not amount to an unjustifiable encumbrance TRIPS on the use of trademarks in the sense of that provision. We note that this und 7.98. 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 594 on Agriculture giving precedence to the latter , the Appellate Body concluded that absent an out or authorization to depart from the prohibitio Article 3.1(b) of the explicit carve n in - 595 , this prohibition applies concurrently with relevant provisions of the Agreement Agreement SCM on Agriculture: Agreement on Agriculture SCM Agreement "are both We recall that the and the contained in Annex 1A of the Multilateral Agreements on Trade in Goods Marrakesh WTO Agreement Establishing the World Trade Organization Agreement "), and, (the " 'integral parts' of the same treaty, the WTO as such, are Agreement , that are both ate Body has explained, "a treaty 'binding on all Members'". Furthermore, as the Appell interpreter must read all applicable provisions of a treaty in a way that gives meaning all Article 3.1(b) of the SCM to of them, harmoniously". We agree with the Panel that " Agreeme nt on Agriculture Agreement can be read together with the 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 3.1(b is inapplicable to import substitution subsidies ) of the Article SCM Agreement . Agreement on Agriculture provided in connection with products falling under the 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 3.1(b) of the SCM Agreement on the provision of ohibition in Article 596 subsidies that are contingent on the use of domestic over imported goods. 7.99. Article 21.1 of the Agreement on Agriculture We note that there is no provision similar to edence to the provisions of the TRIPS that would give prec Agreement over the TBT Agreement . Nor does the Agreement , and its Article 20 in particular, contain an explicit carve - out or TRIPS Article Agreem 2.2 of the TBT authorization to depart from the prohibition contained in ent . TRIPS 7.100. Article 20 of the By its terms, Agreement prohibits "special requirements" that unjustifiably encumber" the use of a trademark in the course of trade 20 does not " . While Article 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, 2.2 of the Article does not prohibit, and thus, tolerates technical regulations that are not more TBT Agreement - restrictive than nece ssary to fulfil a legitimate objective, taking account of the risks trade fulfilment would create; however, Article non 2.2 of the TBT Agreement does not explicitly - . In short, each provision disallows certain measures and encourage such technical regulations 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 US Upland Cotton , para. – 531. this Agreement." See Appellate Body Report, 595 According t o the Appellate Body, 21.1 of the Agreement on Agriculture "could apply in ... three Article situations: where, for example, the domestic support provisions of the Agreement on Agriculture would prevail explicit carve - out or exemption in the event that an om the disciplines in Article 3.1(b) of the SCM Agreement fr 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 Article 3.1(b) of the SCM Agreement." Appellate Body R eport, , would be prohibited by US Upland Cotton , para. US referring to Panel Report, – – Upland Cotton , para. 7.1038 ( underlining 532, original ; italics added ). The Appellate Body also recalled its earlier finding that "[i]f the negotiators [of the Agreement on Agriculture] had i Article XIII of the GATT ntended to permit Members to act inconsistently with 1994, they would have said so explicitly". Appellate Body Report, US – Upland Cotton , para. 548, referring to , Appellate Body Report, – Bananas III EC para. 157. 596 (emphasis original) (footnotes omitted) Appellate Body Report, US – Upland Cotton , paras. 549 - 550.

161 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 161 - - - est case basis, whether specific measures are permitted. by ablishes a balance to assess, on a case - 20 of the Agreement and Article On their face, the explicit prohibitions contained in TRIPS 2.2 of the Article Agreement respectively must be read and, abse nt a conflict, applied TBT 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. We do not exclude that certain aspects of the TPP measures may fall within the scope of 7.101. TBT application of both the Agreement and Article 20 of the TRIPS Agreement , to the extent that f the Agreement and they would constitute both a "technical regulation" within the meaning o TBT requirements" falling within the scope of Article 20 of the TRIPS Agreement . Assuming "special arguendo that this would be the case, to determine whether one provision prohibits what the other we would need to consider whet permits, her their concurrent application to the same measures or aspects of these measures would lead to "conflicting" outcomes. Australia argues that they do Article because by applying TBT Agreement "the standard of 'unjustifiability' under 2.2 of the 0 of the [ Article 2 ] would be supplanted by the standard of 'necessity' under the TRIPS Agreement 597 ]". TBT Agreement 2.2 of the [ In other words, "[a] measure that a Member is allowed to Article Article 20 of the TRIPS Agreement as long as it is not unju stifiable could be found maintain under - Article 2.2 of the to be inconsistent with the standard of least trade restrictiveness under 598 Agreement ." TBT Implicit in Australia's arguments is the assumption that the "necessity test" under 7.102. Agreement 2.2 of the TBT is m Article ore stringent than the "justifiability test" under Article 20 of the TRIPS Agreement , or at least that their concurrent application "could" lead to outcomes that Specifically, the situation that Australia envisages is th Australia describes as conflicting. at 20 of the Article Agreement would allow scope for the maintenance of a measure that would TRIPS 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 599 by Australia, the two provisions entail "two very different standards" , informed by the specific 600 context of each Agreement. ces, the outcome of the analysis under each Given these differen provision would depend on the circumstances of the case, and it is conceivable that a measure would not be found to be "more trade - Article 2.2 of the restrictive than necessary" under encumb ifiabl y" " , while "unjust ering " the use of trademarks within the meaning of TBT Agreement 601 20 of the TRIPS Agreement , or vice Article versa. 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 602 serves to "further the objectives of GATT 1994" while the TRIPS Agreement , serves to address 603 the "applicability of the basic principles of GATT 1994". We note in this regard the preambular language of the G eneral Agreement on Tariffs and Trade 1947 (G ATT 1947 ) , incorporated into the 604 GATT 1994 , 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 605 trade and to the elimination of discriminatory treatment in international commerce". We also note that very similar objectives figure in the preamble itself, to which both WTO Agreement to the 597 No. 145, para. 2. Australia's response to Panel question 598 75, para. No. 206. (emphasis added) Australia's response to Panel question 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 , enjoy a rebuttable presumption of consistency with TBT Article 2.5 of the Article 2.2, where they Agreement 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 , preamble, second and third recitals. GATT 19 47

162 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 162 - - 606 are annexed. The first recital of the TRIPS TRIPS Agreement Agreement the TBT and the underscores the Agreement's objective of reducing trade barriers and avoiding the creation of Desiring t o reduce distortions and impediments to international trade, and trade restrictions: " 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 607 themselves become barriers to legitimate trade". Further, the TBT 7.104. 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 th". By virtue of the same preambular paragraph, this prerogative of Members human ... life or heal 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 608 Agreement". the provisions of th[e TBT] Likewise, in setting forth that "Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public Article 8.1 of the health", Agreement makes this condi tional on "such measures [being] TRIPS consistent with the provisions of th[e TRIPS] Agreement" . 7.105. 2.2 of the TBT Agreement Article and Article 20 of the Taken in context, therefore, Agreement may each be assumed to reflect a certain balance between at leas t three TRIPS the possibility of adopting the objective of reducing and avoiding trade barriers; (ii) dimensions: (i) measures for legitimate public policy purposes, including public health; and (iii) the imperative of r the relevant provisions of each agreement. The complying with applicable requirements unde requirements under these two provisions may thus be seen as complementary rather than 609 contradictory. 7.106. In light of the above, we see no basis to assume the existence of a conflict between Agreement Article 20 of the T RIPS Agreement and Article 2.2 of the TBT – 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 s. Rather, as elaborated above, we must assume application of both the TBT and TRIPS Agreement 610 that both agreements apply cumulatively and harmoniously. 7.107. measures Having reached these initial determinations, we now consider whether the TPP covered by the Agreement , and more specifically, whether they constitute a technical TBT are regulation within the meaning of that agreement. We will address in that context whether the related requirements of the TPP trademark constitute a technical regulation within the - measures 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 t the end of the Uruguay Round, negotiators fashioned an appropriate preamble for the new A WTO Agreement , which strengthened the multilateral trading system by establishing an inter alia, international organization, 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 Agreement , preamble, sixth recital. TBT 609 The two provisions strike such balance from different perspectives contradictory , which, rather than 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

163 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 163 Agreement . It is only in the event that we would determine that the measures meaning of the TBT 2.2 of the TBT Agreement while being permitted under Article are inconsistent with Article 20 of nt that the situation alleged by Australia to constitute a conflict would arise. Agreeme the TRIPS 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. Whether the TPP measures constitute a technical regulation within the meaning of 7.2.4 1.1 of the Agreement Annex TBT TPP measures The complainants claim that the are covered by the TBT Agreement , as they 7.108. 611 1.1 of the Agreement. fall within the definition of "technical Australia, as regulation" in Annex requirements [under the TPP measures ] are described above, "accepts that the physical 612 regulations within the scope of the TBT Agreement However, it considers that "[t]he technical ". TBT Agreement addresses technical regulatio ns and does not, on its face, appear to be concerned 613 with the exploitation of intellectual property". Article 2.2 of the TBT Agreement applies to "technical 7.109. regulations" by central government 614 1.1 to th e TBT bodies. A "technical regulation" is defined in Annex as a: Agreement 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. 615 Whether a measure constitutes a technical regulation depends on three criteria : 7.110. 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 616 c. " [t]hird , compliance with the product characteristics must be mandatory". 7.111. The parties do not contest the relevance of these criteria f or determining whether a 617 measure is a technical regulation. 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 paras. written submission, 815 - 841; Cuba's first written submission, 391 - 397; Cuba's second written paras. submission, paras. 192 - 197; Indonesia's first written submission, paras. 369 - 384; and Indonesia's second written submission, 211 - 219. paras. 612 Australia's first written submission, para. 507. 613 para. Australia's first written submission, 509. 614 Article 1.2 of th e TBT Agreement , "for the purposes of this Agreement the meaning of the Under 1 to the terms given in Annex 1 applies". See also the second paragraph of the introduction to Annex Agreement . TBT 615 , – Sardines Appellate Body Report, para. 176. EC 616 Appellate Body Report, EC – Sardines , para. 176 (emphasis original) (referring to Appellate Body Report, – Asbestos , paras. 66 - 70). EC 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 507 and 563. Australia's first written submission, paras.

164 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 164 - - characterizing the measure, and, thereby, for determining whether it is subject to the isciplines of the Agreement . The ultimate conclusion as to the legal TBT d characterization of the measure must be made in respect of, and having considered, 618 the measure as a whole. 7.113. above, that With these considerations in mind, we address the three criteria identified must be satisfied in order for the to constitute a technical regulation. TPP measures TPP measures 7.114. We note at the outset that each of the legal instruments comprising the 619 1.1 that technical regulations be co ntained in a "document". satisfies the requirement in Annex TPP measures (i) apply to an identifiable group of We therefore consider further below whether the products, and (ii) lay down one or more characteristics of the products, (iii) with which compliance is mandatory. measures apply to an identifiable group of products TPP 7.2.4.1 Whether the Main arguments of the parties 7.2.4.1.1 The complainants argue that the TPP measures (including the TMA Act) apply to an 7.115. 620 TBT Agreement . identifiable product or group of products in accordance with Annex 1.1 of the 621 contains a definition of "tobacco products" They note that Section Act 4(1) of the for the TPP 622 623 Honduras adds that the Explanatory Memorandum to the purposes of the same Act. TPP Bill 624 clarifies the breadth of this definition. TPP Act ("An Act to Cuba references the subtitle of the 625 discourage the use of tobacco products, and for related purposes") , and observes that Australia 626 indicates that "[t]he tobacco plain packaging requirements apply to all tobacco products ". 618 , EC – Seal Products Appellate Body Reports, para. 5.19 (referring to Appellate Body Reports, US – 188 ( Tuna II (Mexico) , para. EC in turn referring to Appellate Body Reports, – Asbestos , para. 64; and EC – 72. , paras. 192 and 193) ) ; and EC – Asbestos , para. Sardines 619 Tuna In US – II (Mexico) , the Appellate Body held that: cal regulation" by reference to a Annex 1.1 [of the TBT Agreement ] defines the term "techni "document", which is defined quite broadly as "something written, inscribed, etc., which 391 furnishes evidence or information upon any subject". The use of the term "document" could ents or apply to a variety of measures. therefore cover a broad range of instrum _______________ 391 fn original] Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford [* 731. We note that the ISO/IEC Guide 2: 1991, General Terms University Press, 2007), Vol. 1, p. ISO/IEC Guide 2: " and Their Definitions Concerning Standardization and Related Activities (the 1991 " ) establishes that " [a] document is to be understood as any medium with information recorded on o " r in it . – Tuna II (Mexico) , para. 185. See also Appellate US EC – Seal Products , Appellate Body Report, Body Reports, 5.9 - 5.10 (stating that " the scope of Annex 1.1 appears to be limited to those documents that establish paras. , d thus have a certain normative content.") para. 7.291 and fns 1153 See also 1001 . or prescribe something an 1007 below. and 620 Honduras's first written submission, paras. 831 - 833; Dominican R epublic 's first written submission, Republic - 940; Dominican 939 's second written submission, para. 820; Cuba's first written submission, paras. para. 394; Cuba's second written submission, para. 194; and Indonesia's first written submission, paras. - 374 . 371 621 Republic 394; Dominican para. 's first written submission, para. 940; Cuba's first written submission, para. 831; and Indonesia's first written submission, para. Honduras's first written submission, 372. 622 mean According to the Act , " tobacco product TPP 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 para. 832. Honduras's first written submission, 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 igars, roll consumption, and will include, for example, cigarettes, c 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 132). first written submission, para. 125 and referring to Australia's first written submission, para.

165 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 165 - ("Requirements for plain packaging and TPP Indonesia invokes the title of Chapter 2 of the Act appearance of tobacco products") and notes that, according to the "Simplified Outline" of its 627 , "Part 2 of this Chapter specifies requirements for the retail pac kaging and 2 Chapter 628 629 appearance of tobacco products". , the situation under the Thus, Indonesia argues is similar to US – Clove measures Cigarettes , where the panel had found that the relevant TPP identifie[d] the products it cover[ed]"; hence, the products were "not merely measure "explicitly EC – Asbestos " but "[r]ather ... 'expressly 'identifiable', as was apparently the case in 630 identified'". TPP Regulations ' stated "[p]urpose": For Indonesia, this is confirmed by the "prescribe requirements for the retail pack aging and appearance of tobacco products for Part 2 to 631 of Chapter 2 of the [TPP] Act". As noted, Australia accepts that the "physical requirements" of the TPP measures lay down 7.116. 632 ; however, it contests the applicability of the TBT Agree ment to the product characteristics 633 TPP measures . "trademark requirements" of the 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. Analysis by the Panel 7.2.4.1.2 7.117. product, or group of A "technical regulation" must be applicable to an identifiable products", but the term "identifiable" does not require that a technical regulation "expressly 634 t applies are "identifiable". In identify" its product scope, as long as the products to which i assessing whether this criterion is satisfied, we give the most weight to those provisions of the 635 that, in our view, represent their integral and essential aspects. TPP measures 7.118. TPP Act reveal that it app lies to an expressly identified group of products. The terms of the The "simplified outline" in Section 12 of the TPP Act provides that "[t]his Act regulates the retail 636 packaging and appearance of tobacco products". The TPP Act contains the following definition of 637 "tobacc product" : o processed tobacco, or any product that contains tobacco, that: 627 1, JE TPP Act , (Exhibits AUS - - 1), p. 18. 628 62 and 115; and Indon esia's first written submission, para. 372; response to Panel question Nos. second written submission, para. 215. 629 paras. 371 - 372. Indonesia's first written submission, 630 Panel Report, US – Clove Cigarettes , 7.27. para. 631 No. Indonesia's first written submission, para. 62 ( referring to 374; and response to Panel question TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 1.1.4). 632 para. 507. Australia's first written submission, 633 paras. 509 - 512. Australia's first written submission, 634 Acc ording 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 Article 2.9.2 of the TBT Agreement , for consideration also underlies the formal obligation, in 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 " identified products which are actually named , or specified in the regulation. (emphasis added) Although the TBT Agreement clearly applies to "products" generally, nothi ng in the text of that expressly identified in a Agreement suggests that those products need be named or otherwise "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, – for instance, through the "characteristic" that is the subject but simply makes them identifiable of regulation. EC – Asbestos Appellate Body Report, para. 70 (emphasis original; footnote omitted). , 635 Appel late Body Reports, EC – Seal Products , para. 5.19. 636 Act , (Exhibits AUS - TPP - 1), Section 12. 1, JE 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 372. submission, para. 831; and Indonesia's first written submission, para.

166 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 166 is (a) manufactured to be used for smoking, sucking, chewing or snuffing; and is not included in the Australian Register of Therapeutic Goods maintained (b) under the Act 1989 . Therapeutic Goods Note: your - own cigarettes is an example of processed tobacco. Loose tobacco for roll - 638 cigar or cigarette is an example of a product that contains tobacco. A 639 7.119. , the Explanatory Memorandum to the TPP Bill relevantly clarifies the As Honduras notes cope of this definition as follows: s Act ] means that generally any product TPP The definition of "tobacco product" in the [ 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 [ Act ] ... Products TPP 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 640 use and sale of tobacco, and that are not affected by the operation of this Bill. 641 Also, as Indonesia points out 3 of the , Section 7.120. TPP Act (entitled "Objects of the Act") 642 and, as discussed further below, defines the objects of the Act with relates to "tobacco products" 643 reference to the effects of the Act on use of those products. Moreover, the TPP Act 7.121. explicitly defines "tobacco product requirement" as: 638 1), Section 4(1). TPP Act , (Exhibits AUS - 1, JE - 639 para. 832. Honduras's first written submission, 640 - 2, JE - 7), p. 9. TPP Bill Explanatory Memorandum, (Exhibits AUS 641 para. 374; and response to Panel question Indonesia's first written submission, 62 ( referring to No. 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) people who have given up smoking, or who have stopped using discouraging tobacco products, from relapsing; and reducing people's exposure to smoke from tobacco products; and (iv) to give effect to certain obligations that Australia has as a party to the Convention on (b) 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 pursue a legitimate objective. TPP measures

167 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 167 - - [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; a requirement prescribed by regulations mad e under Part 2 of Chapter 2; (b) — a requirement prescribed (c) if subsection 15(2) applies (acquisition of property) 644 by regulations made under section 15. 645 As Indo nesia notes Act , Chapter 2 of the TPP 7.122. is entitled "Requirements for plain packaging and appearance of tobacco products" and, according to th e Simplified Outline of 646 , Part 2 of Chapter 2 "specifies requirements for the retail packaging and appear ance Chapter 2 647 Thus, on its express terms, the TPP Act of tobacco products". 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 TPP Act provides that regulations "may prescribe additional 27 of the requirements in relation to (a) the retail packaging of tobacco products; and (b) the appearance of 649 648 TPP tobacco products". Regulations . This is reflected in the "Purpose" of the Significantly, the TPP Regulations specify that a number of words and expressions used therein have the same 650 TPP Act , including "tobacco product". Moreover, the TPP Act meaning as provided in the defines 651 "this Act" as "includ[ing] the regulations". Thus, like the TPP Act , the Regulations apply, on TPP 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 . ly identify its product scope. We therefore consider whether 7.124. T he TMA Act does not express 652 it nonetheless applies to a group of products that are "identifiable". We recall that the TMA Act 231A, which inserts into the Trade Marks Act 1995 (Cth) ( TM Act ) a new provision, Section provid es as follows: The regulations [made by Governor - (1) General pursuant to their authority under Section ] may make provision in relation to the effect of Trade Marks Act 1995 231 of the (Cth) , and any regulations made the operation of the under Tobacco Plain Packaging Act 2011 , on: that Act (a) a provision of this Act; or a regulation made under this Act, including: (b) a regulation that applies a provision of this Act; or (i) 644 - Act , (Exhibits AUS - 1, JE 1), Section 4(1). TPP 645 Indonesia's first written submission, para. Nos. 62 and 115; and 372; response to Panel question second written submission, 215. para. 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 Act, (Exhibits AUS - 1, JE - 1), Section 27. According to the Explanatory Memorandum to the TPP 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 - General to make regulations specifying requirements for plain packaging and the appearance of Governor jects of the Bill". TPP Bill Explanatory Memorandum, tobacco products among other things, to further the ob - 2, JE - 7), (Exhibits AUS 12. p. 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 70. Appellate Body Report, EC – Asbestos , para.

168 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 168 a regulation that applies a provision of this Act in modified form. (ii) Without limiting subsection (1), regulations made for the purposes of that subsection (2) Tobacco Plain Packaging Act 2011 , may clarify or state the effect of the operation of the 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: something to have (or not to have) happened; or (a) (b) something to be (or not to be) the case; or something to have (or not to (c) have) a particular effect. Regulations made for the purposes of subsection (1): (3) (a) may be inconsistent with this Act; and (b) prevail over this Act (including any other regulations or other instruments made 653 under this Act), to the extent of any inconsistency. The TMA Bill Explanatory Memorandum explains that: 7.125. under new section 231A are not intended to have any effect on the Regulations made operation of the Trade Marks Act in relation to goods or services not governed by the 654 Plain Packaging Act. This indicates that regulations made pursuant to the TMA Act are intended only to address 7.126. and TPP Regulations in relation to trademarks TPP Act the potential impact of the operation of the Act – whose use is affected by the i.e. those relating to tobacco products. TPP A consideration of the terms of Section 231A confirms this view. Spec ifically, the TMA Act 7.127. - General the power to make regulations, which is circumscribed only by the grants to the Governor 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 TM Act or regulations made thereunder. provision of the In light of the above, we find that the TPP Act 7.128. and the TPP Regulations apply to an 655 expressly identified group of products; namely, "tobacco products" as defined by Section 4.1 of not identify expressly the products to which it applies in the the TPP Act . While the TMA Act does same manner, we understand it to apply in relat ion to the same group of products (namely, tobacco products). TPP measures lay down one or more product characteristics Whether the 7.2.4.2 Main arguments of the parties 7.2.4.2.1 7.129. complainants contend that the TPP measures , in particular the TPP Act and the The Regulati ons , lay down product characteristics. According to the complainants, both the TPP 656 under the TPP measures prescribe packaging, marking and trademark and form requirements 657 The Dominican labelling requirements. Republic also argues that the TPP lay do wn measures product characteristics for tobacco products, including cigarette packs and cartons, relating to their 653 4, JE TMA Act, (Exhibits AUS - - 3), S chedule 1(2) . (note omitted) 654 - 5, JE - 5), TMA Bill Explanatory Memorandum, (Exhibits AUS 1. p. 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, 380. para. 395; and Indonesia's first writte n submission, paras. 379 -

169 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 169 composition, size, shape, colour, that are applied through "applicable administrative requirements" 658 as prescribed by the TPP measures . Australia 7.130. epts that the requirements concerning the physical characteristics of tobacco acc down product characteristics' and/or 'deal with terminology, products and packages "'lay[] ... " symbols and packaging, marking or labelling requirements as they apply to a product ' within the 659 TBT Agreement . 1.1 to the However, Australia has "significant concerns about meaning of Annex the systemic implications" of the proposition that the trademark requirements can also be 660 Agreement . the According to Australia, reviewed under the TBT Agreement TBT "does not, on its 661 , and " Article 2.2 ... face, appear to be concerned with the exploitation of intellectual property" does not refer to the use of a trademark at all, but instead encompasses all manner of 662 'technical regulations'". Accordin gly, Australia contends, only the "physical requirements" of the 663 measures are properly subject to examination under Article 2.2. TPP The complainants contend that both the physical and trademark requirements of the 7.131. regulations under the are covered by the definiti on of technical measures TBT Agreement and TPP 664 should be addressed together , 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 665 . TPP Honduras argues that the trademark requirements govern the packaging, measures 666 , whereas the format requirements affect presentation and appearance of tobacco products 667 Honduras maintains that nothing in the packaging of tobacco products and products themselves. 1.1 suggests that trademark requirements would be excluded from the definition of xt of Annex te 668 , and notes that "[n]owhere in the Appellate Body's criteria is there a technical regulations suggestion that measures affecting intellectual property rights fall outside the definition provided 669 in Annex 1.1". In a similar vein, the Dominican Republic argues that Australia advances no 670 arguments for its position based on the text of Annex A ccording to Cuba, Australia does not 1.1. 671 al regulations. The Dominican Republic notes, in this respect, address the definition of technic the "absence of express language, such as 'trademarks' or 'geographical indications' in the definition of 'technical regulation' does not mean that the PP measures are not qualified as [T] 672 hnical regulations'". According to Indonesia, "[t]he terms 'packaging or labelling' in the 'tec TBT are not qualified" and "[t]he Agreement does not limit itself to the 'non - intellectual Agreement 673 Indonesia, "there are a multitude In fact, argues property' aspects of packaging and labeling". of topics that could conceivably be addressed by a technical regulation and the Agreement TBT 674 refers specifically to none of them." 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 675 labelling was covered by the TBT Agreement ". 7.132. complainants also note that the TBT Agreement contains provisions expressly The - matter from its scope. They point ou Articles 1.4 excluding certain subject t, more specifically, to 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, 507. para. 660 para. 509. Australia's first written submission, 661 Australia's first written submission, para. 509. 662 s first written submission, para. 510. Australia' 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 62. and 294; and Indonesia's response to Panel question No. 665 paras. 217 - 219 (referring to, inter alia , Canada, China, the Indonesia's second written submission, 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, 448. para. 669 para. 452. Honduras's second written submission, 670 Dominican Republic 's second written submission, para. 833. 671 para. 193. Cuba's second written submission, 672 para. Republic 's second written submission, Dominican 827. 673 Indonesia's response to Panel question No. 115, para. 44. 674 62, Indonesia's response to Panel question No. para. 61. 675 39. Indonesia's response to Panel question No. 115, para.

170 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 170 governmental bodies for production or consumption requirements of governmental bodies and 676 Agreement . sanitary and phytosanitary measures fall To the outside of the scope of the TBT complainants, this indicates that "when the drafters wanted to exclude certain subject matter from 677 TBT , they did so expressly". the Agreement 1.1, the Domi nican Republic adds that the 7.133. With reference to the second sentence of Annex 678 "packaging", "marking", and "labelling" trademark requirements also amount to "at least" 680 679 Indonesia concurs. Likewise, Cuba maintains that the terms "[t]erminology, requirements. 681 also cover the trademark requirements of the symbols, packaging, marking or labelling" . Honduras and Indonesia add that the terms of the second sentence are TPP measures 682 The Dominican Republic points "unqualified", and make no reference to a trademark exception. out that the second sentence of A nnex 1.1 has been interpreted as a standalone basis for finding 683 that a document qualifies as a technical regulation. Australia 7.134. responds that "terminology, symbols, packaging, marking or labelling TBT Agreement must convey 1.1 of the requirements" under the second sentence of Annex proper information about an intrinsic characteristic of a product. According to Australia, "[a] understanding of the scope of a 'technical regulation' encompasses measures that regulate he physical characteristics of its package, as well as intrinsic characteristics of a product or t insofar as they convey information about the terminology, symbols, packaging, marks or labels 684 ". Whilst Australia recognizes that "[t]he function of a intrinsic characteristics of the product is to distinguish the products of one enterprise from those of another in the course of trademark 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 measure[s] regulates what information a trademark may or may not convey about the [TPP] 685 Australia maintains that "[u]nder a proper intrinsic characteristics of tobacco products". 1.1 ... a mea sure constitutes a 'technical regulation' interpretation of the second sentence of Annex only to the extent that it regulates what information a symbol may or may not convey about an 686 intrinsic characteristic of a product". According to , the TPP measures Cuba lay down both "intrinsic" and related chara cteristics, 7.135. 687 such as packaging, marking and labelling requirements, for tobacco products. and Honduras Indonesia add that the Appellate Body explained that product characteristics may include not only but also related characteristics, such as the features and qualities intrinsic to the product itself, 688 means of identification, the presentation and appearance of a product. Honduras, the Dominican Republic, and Cuba recall that in Trademarks and Geographical Indications (Australia) , EC – ed that a labelling requirement affecting the use of a GI Australia itself argu IP right , which is an 676 Honduras's second written submission, para. 449; Dominican Republic 's second written submission, and ) par a. 830; Cuba's response to Panel question No. 1 ( annexed to its response to Panel question No. 138 No. 115. 115; Indonesia's response to Panel question No. 677 Indonesia's response to Panel question 115, para. 44. See also Honduras's second written No. 's second written submission, Dominican Republic para. para. 830; Cuba's response to Panel submission, 449; No. 1 ( annexed to its response to Panel question No. 138 ) and No. 115; and Indonesia's second question submission, para. 214. written 678 Republic 's second written submission, para. 823. Dominican 679 Dominican Republic No. 115; and Dominican Republic 's second written 's response to Panel question submission, para. 823. 680 Indonesia's first written submission, paras. 379 - 380. 681 Cuba's second written submission, para. 195. 682 No. 115; Indonesia's response to Panel question No. 115; and Honduras's response to Panel question para. 214. Indonesia's second written submission, 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 No. 72, Australia's response to Panel question 198. para. 686 Australia's response to Panel question No. 7 2, para. 198. 687 395; and response to Panel question Cuba's first written submission, para. No. 1. 688 115. Honduras's first written submission, para. 791; and Indonesia's response to Panel question No.

171 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 171 - - Agreement , is a technical regulation under the TBT TRIPS , and that the covered by the Agreement 689 panel agreed with that position. 7.2.4.2.2 Analysis by the Panel Annex 7.136. TBT Agr eement defines the term "technical regulation" as follows: 1.1 of the Document or their related processes and which lays down product characteristics 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, (emphasis added) process or production method. As described by the Appellate Body, "[t]he heart of the definition of a 'technical regulation' 7.137. is that the 'document' at issue must 'lay down' — that is, set forth, stipulate or provide — 690 'product '". The Appellate Body interpreted "product characteristics" in the characteristics following manner: has a number of synonyms that are helpful in understanding The word "characteristic" the ordinary meaning of that word, in this context. Thus, the "characteristics" of a product include, in our view, any objectively definable "features", "qualities", uishing mark" of a product. Such "characteristics" might "attributes", or other "disting inter alia , to a product's composition, size, shape, colour, texture, hardness, relate, 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 with exclusively 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 691 "product characteristics". 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 must not "characteristics", or the document may require, negatively, that products possess In both cases, the legal result is the same: certain "characteristics". document "lays down" certain binding "characteristics" for products, in one case the 692 affirmatively, and in the other by negative implication. 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 ( Panel Report, EC – referring to 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 138); Cuba's second written submission, to its response to Panel question No. 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, a. 213. par 690 Appellate Body Report, EC – Asbestos , para. 67. (emphasis original) 691 , Appellate Body Report, EC – Asbestos para. 67. (emphasis original) 692 (emphasis original) Appellate Body Report, EC – Asbestos , para. 69.

172 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 172 693 , and "this analysis should give particular weight to the 'integral and circumstances of the case'" 694 essential' aspects of the measure". Turning to the measures at issue, as set out in section 2.1.2, the 7.140. requirements in the , operating in conjunction with other legislative requirements that TPP TPP Regulations Act and the are not challenged in these proceedings (such as those relating to GHWs), have the cumulative including their retail packaging) appear in a standardized effect of requiring that tobacco products ( manner, as depicted in section 2.1.2.3.7. The elements of the that prescribe that TPP measures tobacco products (including their retail packaging) appear in this uniform manner, taken together, 695 Act and TPP TPP . stitute the integral and essential aspects of the We thus give con Regulations measures particular weight to these elements in assessing whether the lay down one or more TPP product characteristics. As we observed in section 2.1.2.4, the Act and the TPP Regulations regulate various 7.141. TPP products themselves. Specifically, Section 26 of the TPP elements of the appearance of Act tobacco provides that no trademark or mark may appear anywhere on a tobacco product, other than as 696 TPP . Moreover, Section TPP 27 of the Regulations Act provides that the permitted by the TPP may prescribe additional requirements in relation to the appearance of tobacco Regulations 697 In so doing, Division 3.1 of the TPP Regulations specifies requirements with respe ct to products. 698 699 , the marking of a cigarettes. As discussed , it regulates the colour of the paper casing 700 701 cigarette with an alphanumeric code Division 3.2 of the ; and the colour of filter tips. specifies requirements with respect to other tobacco products, including cigars, TPP Regulations and stipulate that a colour and content (with respect to the brand, business or variant name) of 702 The re quirements of the the single band which may appear around the circumference of a cigar. Act TPP also include a "prohibit[ion of] trade marks from generally appearing on the tobacco 703 products themselves". 7.142. Accordingly, we find that in laying down the requirements for the appearance of tobacco Regulations products in this way, the Act and the TPP , operating together, lay down product TPP 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 of tobacco products. Specif ically, the "tobacco product packaging requirements" set out in Part 2, Chapter 2 of the TPP Act , and elaborated in the TPP Regulations , 704 2 govern the packaging of tobacco products. According to the Simplified Outline of Chapter , Part 2 "specifies requi rements for the retail packaging and appearance of tobacco 2 of Chapter 705 , including, in respect of packaging, "the physical features of retail packaging", products" "the colour and finish of retail packaging", "marks on retail packaging (including a prohibition on trad marks generally appearing on retail packaging)", "wrappers", "retail packaging after retail e 693 EC Seal Products , para. 5.19 ( referring to Appellate Body Report, US – Appellate Body Reports, – Tuna II (Mexico) , para. 188 (referring to Appellate Body Reports, EC , – Asbestos para. 64; and EC – Sardines , paras. 192 and 193)). 694 EC – Seal Products , para. 5.19 ( erring to Appellate Body Reports, Appellate Body Report, EC – ref Asbestos , para. 72). 695 Appellate Body Reports, EC – Seal Products , para. 5.19. 696 TPP Act, (Exhibits AUS - 1, JE - 1), Section 26. 697 1), Act , (Exhibits AUS - 1, JE - Section 27(1)(b). TPP 698 See Section 2.1.2.4.1 above. 699 - 3, JE - 2), Regulation 3.1.1. TPP Regulations, (Exhibits AUS 700 3, JE - 2), TPP Regulations, (Exhibits AUS Regulation 3.1.2(2). - 701 TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 3.1.3. 702 - 3, JE - TPP Regulations, (Exhibits AUS - 3.2.1(3). 2), Regs. 3.2.1(1) 703 T PP 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 1), Section 17. TPP Act, (Exhibits AUS - 1, JE -

173 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 173 706 Act and the TPP Regulations , operating together, sale". Accordingly, we find that the TPP down product characteristics by regulating the packaging of tobacco products. lay requirements under both the TPP Act and the TPP 7.144. Regulations deal with the Moreover, key and symbols that may appear on tobacco products or packaging. For instance, the terminology 707 708 and the TPP Regulations TPP contain detailed "[r]equiremen Act ts for brand, business, 709 company or variant names" and appearance of names on the packaging of tobacco products. As regards symbols and marking, the defines marks as "includ[ing] (without limitation) any Act TPP mage; but (other than when referring to a trade mark) line, letters, numbers, symbol, graphic or i 710 TPP does not include a trade mark". and TPP Regulations contain detailed requirements Act The 711 712 "trade marks or marks on retail packaging" inter , "origin marks" , a concerning alia 713 714 a "measurement mark" , the "marking of name and address on , "calibration mark" 716 715 packaging" , a "mark on wrapper to conceal bar codes" , and the "alphanumeric code for 717 Further, as mentioned, the TPP Act and the TPP Regulations cigarettes". contain a wide array of 718 ts for retail packaging of tobacco products" ranging from the "[p]hysical "[r]equiremen 719 720 , "[t]rade marks and marks on retail features" , "colour and finish of retail packaging" 722 721 , "[b]rand, business, company and variant names" on tobacco packaging packaging" , 724 723 Finally, in some respects, labelling , and "[i]nserts and onserts". "[w]rappers" is regulated: for Regulations contain requirements TPP instance, in the context of "[i]nserts and onserts", the 725 In respect of e ach of these requirements, the relating to "adhesive label health warnings". Act TPP 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 1.1. second sentence of Annex 7.145. As described above, among its requirements on the appearance of tobacco packaging, the Act contains a "[p]rohibition on trade marks and marks generally appearin g on retail TPP 726 of tobacco products, combined with rules addressing "permitted trade marks and packaging" 727 TPP Act stipulates that "[n]o mark" and "[n]o trade Further, the mark may appear marks". 728 egulations". anywhere on a tobacco product, other than as permitted by the r 729 TPP Regulations elaborate on these rules. The In regulating the appearance and packaging of TPP tobacco products, an essential function of the Act and TPP Regulations is to address protected as trademarks or not, comprehensively how both word and figurative signs, whether 706 TPP Act, (Exhibits AUS - 1, JE - 1), Section 17. These terms largely correspond to the headers Act "Requirements for retail packaging of contained in Division 1 of Chapter 2, Part 2, of the TPP , entitled tobacco products". 707 Act , (Exhibits AUS - 1, JE - 1), Section 21. See TPP 708 3, JE - 2), Regulation - 2.4.1. See TPP Regulations, (Exhibits AUS 709 TPP Act , (Exhibits AUS - 1, JE - 1), Section 21, title. 710 1), Section 4, definition of a TPP Act , (Exhibits AUS - 1, JE " 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 3, JE - 2), Regulation - 2.3.2, title. TPP Regulations, (Exhibits AUS 713 AUS - 3, JE - 2), Regulation 2.3.3, title. TPP Regulations, (Exhibits 714 TPP Regulations, (Exhibits AUS - 3, JE - 2), Regulation 2.3.4, title. 715 - 3, JE - 2), TPP Regulations, (Exhibits AUS 2.3.8, title. Regulation 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 Act , (Exhibits AUS - 1, JE - 1), Chapter 2, Part 2, Division 1, title. See also TPP Regulations, TPP - 3, JE 2), Part 2, title. (Exhibits AUS - 719 TPP Regulations, (Exhibits AUS - - 2), Part 2, Division 2. 1, title. 3, JE 720 TPP Regulations, (Exhibits AUS - 3, JE - 2), Part 2, Division 2.2, title. 721 - 3, JE - 2), Part 2, Division 2.3, title. TPP Regulations, (Exhibits AUS 722 - 3, JE - 2), Part 2, Division 2.4, title. TPP Regulations, (Exhibits AUS 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 - 3, JE - 2), Part 2, Division 2.6.1, title. TPP Regulations, (Exhibits AUS 726 - Act, (Exhibits AUS - 1, JE TPP 1), Sect ion 20. 727 See TPP Act , (Exhibits AUS - 1, JE - 1), Section 20(3). 728 (2). TPP Act , (Exhibits AUS - 1, JE - 1), Section 26(1) - 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").

174 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 174 what "terminology" and "symbols" may be represented and how, on shall or shall not appear, i.e. TPP Act and tobacco products and their packaging. The trademark related requirements of the - e of several examples of product characteristics under the Regulations TPP fall within the scop 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 1.1, a measure co nstitutes a 'technical regulation' only to the extent that it regulates what Annex 730 information a symbol may or may not convey about an intrinsic characteristic of the product". For Australia, a "trademark need not relate to any feature or quality intrinsic to t he trademarked 731 product, or to a related process or production method, in order to fulfil these functions". We recall that the second sentence of the definition of "technical regulation" indicates that 7.147. usively excl with terminology, symbols, packaging, a technical regulation "may also include or deal 732 The use of the words "also include" and "deal exclusively labelling requirements". or marking , additional to with" at the beginning of this sentence indicates that it includes elements that are 733 and may be inct from , those covered by the first sentence. dist In addition, the Appellate Body has found that "[t]he[] examples [in the second sentence 7.148. 1.1] indicate that 'product characteristics' include, not only features and qualities intrinsic of Annex to the produc t itself, but also related 'characteristics', such as the means of identification, the 734 – presentation and the appearance of a product". Sardines , the Appellate Body confirmed In EC 735 736 is this a product characteristic" , adding that "[i]n any event, ... a 'means of identification' in itself. Specifically, "product characteristics include not only 'features and qualities intrinsic to the 737 product', but also those that are related to it , such as 'means of identification'". Agreement A "characteristic" within the mea 1.1 of the TBT may refer to, ning of Annex 7.149. alia , "any objectively definable 'features', 'qualities', 'attributes', or other 'distinguishing inter mark' of a product"; "terminology, symbols, packaging, marking or labelling requirements"; as s characteristics "related" to the product itself, such as "the means of identification, the well a 738 This definition of "characteristics" is sufficiently presentation and the appearance of a product". 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. Furthermore, as described above, the integral and essential aspects of the TPP measures 7.150. 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, or labelling requirements" for tobacco products and their retail packaging, with packaging, marking the exception of those governed by measures that are not at issue in these proceedings. That the alia , the scope of these measures is so broad as to encompass all these elements, including, inter display of signs protected as trademarks on the product, does not change the fact that their cts relate to "the means of identification, the presentation and integral and essential aspe or appearance" of tobacco products, as well as all "terminology, symbols, packaging, marking 730 Australia's response to Panel question No. para. 198. 72, 731 198. Australia's response to Panel question No. 72, para. 732 EC – Asbestos , para. 67. (emphasis original) See Appellate Body Report, 733 para. – Seal Products , See Appellate Body Reports, 5.14, in relation to the same sentence in EC 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 EC – Sardines , para. 189 (quoting Appellate Body Report, EC – Asbestos , Appellate Body Report, para. EC – Sar dines , the Appellate Body agreed with the panel's conclusion that the measure at issue 67). In Ibid. para. 193. laid down one or more "product characteristics". 736 Appellate Body Report, EC – Sardines , para. 191 (emphasis original) (quoting Appellate Body Report, EC Asbestos , para. – 67 fn 15). 737 Sardines EC – Appellate Body Report, , para. 189. (emphasis added) 738 67. Appellate Body Report, EC – Asbestos , para.

175 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 175 labelling requirements"; nor, in our view, does it modify or diminish the scope of the definition Agreement . 1.1 of the under Annex TBT EC – Trademarks and Geographical 7.151. We note in this respect the analysis of the panel in , which considered whether a measure requiring the country of origin to be (Australia) Indications clearly and visibly indicated on the label laid down "product characteristics" within the meaning of 1.1 of the Agreement : Annex TBT Article 12(2) of the Regulation The parties disagree as to whether the second indent of . The Panel notes that it expressl y sets lays down a product characteristic 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" 1.1 of the TBT in Annex Agreement expressly refers to "labelling req uirements" as an example of a technical regulation. 1.1 is qualified by the The Panel notes that this example in the definition in Annex words "as they apply to a product, process or production method". The text does not tating what the labels must indicate in order for limit the scope of the example by s 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 is refers to a product characteristic: the label on a product a prod uct characteristic. Therefore, the second indent of 12(2) of the Regulation deals exclusively with a Article 739 labelling requirement "as it applies to a product". 7.152. The panel concluded that "a document that lays down a requirement that a product label 740 must co ntain a particular detail, in fact, lays The panel found down a product characteristic". support for this interpretation in a Decision of the TBT Committee, in which Members agreed as follows: 2.9 of the Agreement, Members are o In conformity with Article 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 which is Members. That obligation is not dependent upon the kind of information 741 provided on the label, whether it is in the nature of a technical specification or not. 7.153. In the present case, the fact that the content of the labelling and marking requirements at rademarks issue relates in part to the use of signs protected as t no l onger does not imply that they constitute "labelling requirement s ", and therefore a "product characteristic", within the meaning of Annex 1.1 of the TBT Agreement . 742 In addition, as observed by some of the complainants 7.154. , 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 EC – Trademarks and Geographical Indications (Australia) Panel Report, , 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 's second written para. 457; Dominican Republic See Honduras's second written submission, 214. submission, paras. 830 - 832; and Indonesia's second written submission, para.

176 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 176 743 outs relate to sanitary or phytosanitary measures and "[p]urchasing regulation". Such carve - specifications prepared by governmental bodies for pr oduction or consumption requirements of 744 governmental bodies". out exists for terminology, symbols, markings and other - No similar carve s . Likewise, in defining the scope of TBT disputes subject to the IP right elements protected by 14.1 of the TBT Agreement references "disputes with respect to any matter affecting DSU, Article the operation of the " (emphasis added). If anything, this broad definition suggests TBT Agreement e subject to that all requirements falling within the definition of technical regulations should b dispute settlement, rather than implying that specific types of requirements should be carved out 1.1 or from the scope of from the scope of the definition of a technical regulation under Annex Agreement in the context of dispute settlement proceedings. review under the TBT A consideration of the object and purpose of the TBT Agreement does not lead us to a 7.155. 745 to the TBT Agreement different conclusion. The fifth recital of the preamble references Members' gulation "[d]esir[e] ... to ensure that technical re including packaging, marking and labelling s ... ... do not create unnecessary obstacles to international trade". The explicit and requirements unqualified reference to technical regulations, further elaborated by the phrase "including 746 ng and labelling requirements", in this preambular provision also does not packaging, marki suggest an intention to carve out requirements relating to signs that are protected as trademarks Agreement in general. A lthough the from the coverage of "technical regulations" or of the TBT 747 Agreement "counterbalanc[es] the trade - liberalization objective TBT sixth recital of the 748 , the "balance set out in the preamble of the TBT expressed in the fifth recital" Agreement ", in particular in its fifth and sixth recitals, is "between ... the desire to avoid creating unnecessary 749 obstacles to international trade and ... the recognition of Members' right to regulate". This does be not suggest a consideration of whether the requirements at issue relate to signs that may also 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 measures relate to trademarks should TPP se lead us to conclude that they cannot be covered per 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 f trademarks would be covered by the disciplines of the Agreement on technical TBT to the use o 1.1 covers terminology, symbols, regulations. The definition of a "technical regulation" in Annex This limits the scope of packaging, marking or labelling requirements "as they apply to a product". 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 750 the availability, scope and use of right s IP 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 Agreement but are addressed in the Agreement on Government Procurement". the provisions of this 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 US – Clove Cigarettes , para. 92. Appellate Body Report, 747 TBT Agreement states: The sixth recital of the preamble to the that no country should be prevented from taking measures necessary to ensure the Recognizing 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 Clove Cigarettes Appellate Body Report, US – , para. 96. 750 preamble and footnote 3 of the TRIPS Agreement. See paragraph (b) of the second recital of the

177 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 177 - - Overall, taking into account the characteristics of the measures at issue and the 7.157. relating to the Act and the TPP Regulations TPP circumstances of this case, the requirements of 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 measures "integral and essential aspects" of the TPP are to regulate comprehensively the appearance of tobacco products and their retail packaging. As described above, this involves a of colours, shapes and other signs and features on such tobacco regulation generally of the use 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 measures as a whole, therefore, these requirements are TPP measures , of the appearance, labelling and only one aspect of the regulation, through the TPP packaging of tobacco products, all of which fall within the scope o f what constitutes a "technical 1.1 the TBT regulation" within the meaning of Annex Agreement . 7.158. On the basis of the foregoing, we find that the TPP Act and the TPP Regulations , in setting co products, including forth requirements relating to the appearance and packaging of tobac 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. With respect to the TMA Act , we note that its text does no t lay 7.159. down any product characteristics. Indeed, it appears to us that it is not the purpose of the TMA Act to lay down such TMA Bill requirements. As the Explanatory Memorandum for the explains, "[n]ew 231A(1) of the Trade Marks Act will provide for the making of regulations under the subsection Trade Marks Act, to govern the effect of the operation of the [ TPP Act ] and [the TPP Regulations ] 751 made under that Act, on the Trade Act, and the Trade Mark Regulations". Marks Whether compliance with the res is mandatory TPP 7.2.4.3 measu Main arguments of the parties 7.2.4.3.1 The complainants argue that the TPP measures are "mandatory" within the meaning of 7.160. TBT Agreement . According to Honduras, this applies to both "the trademark and 1.1 of the Annex TPP measures as these regulate product characteristics "in a binding format requirements" of the 752 753 754 and compulsory fashion". Republic The Dominican and Indonesia both reference the 755 interpretation of the term "mandatory" , and Indonesia refers also to the interpretation of 756 " by the Appellate Body. "compliance All complainants mention the enforcement mechanisms and penalties under the TPP measures , in particular Chapter 3 of the TPP Act , and how such 757 mechanisms and sanctions were taken into account in previous disputes. Cuba adds that 758 18(1) of the TPP are mandatory "under [their] Section demonstrates that the TPP measures Act 759 760 own wording". refers to the Simplified Outline of the TPP Act , which Likewise, Indonesia 751 Item 2, 5, JE - 5), Note on Schedule TMA Bill Explanatory Memorandum, (Exhibits AUS - p. 3. 1, 752 Honduras's first written submission, para. para. 791 ( referring to Appellate Body 841. See also ibid. Report, – Asbestos , EC 68 ) . para. 753 Dominican Republic 's first written submission, para. 948. 754 para. 381. Indonesia's first written submission, 755 US – Tuna II Appellate Body Report, (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 – 844 (discussing , paras. 7.157 - 159); Honduras's first written submission, paras. 843 - COOL enforcement mechanisms); Honduras's first written submission, 845 (referring to case law on para. enforcement mechanisms); Republic 's first written submis sion, para. 948 ( referring to Appellate Dominican Body Report, EC – Asbestos , para. 72 and noting mandatory and enforceable through criminal sanctions with Dominican reference to Panel Report, – Sardines , para. 7.30); EC Republic 's first written submission, para. 949 (noting offences and civil penalties for tobacco products or retail packaging that do not comply, with reference para. to Chapter 3 of the TPP Act and ibid. Annex I); Cuba's first written submission, 396 and Section II.B.4 (noting "mandatory" complianc e as non compliance with TPP measures can attract civil and criminal penalties); - para. 383 (referring to Chapter 3 of the TPP and Indonesia's first written submission, Act ). 758 Section 18(1) of the TPP Act states: "[t]he retail packaging of tobacco products must comply with the following requirements". Act , (Exhibits AUS - 1, JE - 1), Section 18(1). TPP 759 Cuba's second written submission, para. 194. 760 382. Indonesia's first written submission, para.

178 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 178 must comply with the states that "[t]he retail packaging and appearance of tobacco products 761 Indonesia also refers to the use of "must" and "must not" Act". requirements of th[e TPP] 762 , whereas Honduras references the same terms in both the Regulations TPP "throughout" the 763 and the TPP TPP as well as previous disputes relying on the modal verbs used in Act Regulations 764 the challenged measure to find that the latter was mandatory. accepts that the "physical requirements" of the TPP 7.161. measures are Australia regulations "within the scope of the TBT Ag reement " as "[c]ompliance with these technical 765 requirements is mandatory". In advancing systemic arguments concerning the trademark measures requirements of the , Australia is silent on whether it also considers these TPP requirements to be mandatory. 7.2.4.3.2 Analysis by th e Panel 767 766 and Indonesia 7.162. out, in US – Tuna II (Mexico) the As the Dominican Republic point Appellate Body defined the terms "mandatory" and "compliance" as follows: 768 The noun "compliance" is defined as "[t]he action of complying". The verb "comply" 769 with refers t o an "[a]ct in accordance with or The word a request, command, etc." 770 , or "mandatory" means "obligatory in consequence of a command, compulsory" 771 "being obligatory". As noted, "a determination of whether a measure constitutes a technical regu lation 7.163. panel's must be made in the light of the characteristics of the measure at issue and the circumstances of 772 analysis should give particular weight to the 'integral and essential' aspects the case" , and "this 773 We have found that the integral and essential aspects of the TPP of the measure". Act and the are to regulate the packaging and appearance of tobacco products by laying down TPP Regulations TPP Act and the product characteristics. "Tobacco products", as defined for the purposes of the Regulations , ma y be legally marketed in Australia only in accordance with the appearance and TPP packaging requirements, including the trademark requirements, set out in these instruments. is explicit: "[t]he retail packaging and appeara Outline of the TPP Act nce of tobacco The Simplified 761 TPP Act , (Exhibits AUS - 1, JE - p. 14. 1), 762 Indonesia's first w para. 383. ritten submission, 763 Honduras's first written submission, para. 842. 764 – , Honduras's first written submission, para. 791 (referring to Panel Report, US Cigarettes Clove para. para. 842 (referring to Panel Reports, US – 7.39); and Honduras's first written submission, 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 par a. 381. Indonesia's first written submission, 768 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University (footnote original) Press, 2007), Vol. 1, 472. p. 769 (footnote original) Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 20 p. 473. 07), Vol. 1, 770 (footnote original) Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 1694. 771 II Appellate Body Report, US – Tuna (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 ass the legally binding and enforceable character of the instrument, and may "mandatory" may encomp also relate to its contents, prescribing/imposing a certain behaviour. We also note that the Guide ISO/IEC d to mean only 2 establishes that the expression "mandatory requirement", should be use "a requirement made compulsory by law or regulation". US – Tuna Panel Report, (Mexico) , para. 7.103 (footnote s omitted). See also Panel Report, EC - Trademarks II and Geographical Indications (Australia) , para. 7.453. 772 Appellate Body Report, US – Tuna II (Mexico) , para. 188 (referring to Appellate Body Report s , EC – , para. 64; and EC – Sardines , paras. 192 and 193). Asbestos 773 – Appellate Body Reports, EC – , para. 5.19 (quoting Appellate Body Report, EC Seal Products 72). As bestos , para.

179 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 179 774 775 Also, as Indonesia notes products must comply with the requirements of this Act". , the Regulations TPP ' declared "[p]urpose" is to "prescribe requirements for the retail packaging 776 2 of the [TPP] Act". 2 of Chapter and appearance of tobacco products for Part TPP Act 7.164. TPP Regulations is prescriptive in relation Accordingly, the language of the and the 777 , to the requirements at issue. The tobacco product requirements use terms such as "must" 779 778 , and the word "may" combined with terms i , and they do so "must not" n the negative pervasively and in regard to all aspects of the appearance and packaging of tobacco products. In – Trademarks and Geographical Indications (Australia) this context, we note that the panel in EC considered that the terms of the measure at issue, such as the use of the word "shall", may be 780 indicative of mandatory compliance. 7.165. Act and the TPP Regulations in question Further, several of the provisions of the TPP 781 , underscore the universal nature of term "requirements" appear under titles that contain the 782 such requirements ("Retail packaging of all tobacco products" ), or are termed as categorical 784 783 785 , "Retail packaging must not..." , "Retail packaging not to..." prohibitions ("Prohibition on..." , 787 786 Act , and "No trade ). The less numerous permissive provisions of the marks" "No marks" TPP TPP Regulations that relate to product characteristics and use "may" appear either in a and 789 788 or "may appear once on no more than 2 of ..." ... restrictive context ("may ), o r as only" limited, precisely circumscribed, often conditional exceptions to obligations using the above 790 791 terms , or as provisions not contradicting the limits of the above obligations. 774 Act, (Exhibits AUS - 1, JE 1), Section 12. TPP - 775 No. 62, para. 63. Indonesia's response to Panel question 776 3, JE - 2), Regulation 1.1.4. TPP Regulations, (Exhibits AUS - 777 1), Sections 18.1 ( Act - 1, JE - chapeau ), 18.1(b), 18.2 ( chapeau ), 18.2(a), TPP , (Exhibits AUS ( chapeau ), 18.3, 18.3(a), 18.3(b), 18.3(c), 18.3(d), 19.2(a), 18.2(b)(i), 18.2(b)(ii), 18.2(c), 18.3 - 19.2(b)(i) - 21.2(e), 21.3 table, 21.4, 22.1, 22.2, 22.2(a), and 25 (title); and 19.2(b)(ii), 21.1, 21.2(d) Regulations, (Exhibi - 3, JE - 2), Regs. 2.1.1(1) ( chapeau ), 2.1.1(1)(a), 2.1.1(2), 2.1.3(2), ts AUS TPP ), 2.1.5(a) - 2.1.5(b), 2.2.1(1) - 2.2.1(4), 2.3.2(1) - 2.3.2(2), chapeau 2.1.4(1)(a), 2.1.4(2), 2.1.5 ( - 2.3.3(b), 2.3.4(1) - 2.3.4(4), 2.3.5(1), 2.3.6(1)(a) - 2.3.3(a) 2.3.6(4), 2.3.7(2), 2.3.6(1)(c), 2.3.6(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) - - 2.4.4(2)(f), 2.5.2(2), 2.5.2(4) - 2.5.2(5), 2.6.2(2), 2.6.3(2), 2.4.3(2)(c), 2.4.4(2)(b), 2.4.4(2)(e) .2(2), 3.1.3, and 3.2.1(5) - 3.2.1(6). 3.1.1(1), 3.1 778 21.2(b), 23, 25 (title), and 25; and - TPP Act , (Exhibits AUS - 1, JE - 1), Sections 18.1(a), 21.2(a) TPP - 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), Regulations, (Exhibits AUS 2.4.4(2)(a) - 2.4.3(1)(a), 2.4.4(2)(c), 2.6.3(3), 3.1.2(3), and 3.2.1(7). 779 For example, Section TPP Act provides that, with respect to the opening of a cigarette 18.3(b) of the may be rounded, bevelled or otherwise shape d or embellished in pack, "neither the lid, nor the edges of the lid, any way" (emphasis added). See also ibid. Sections - 22.2(c), 24, 26.1, and 26.2. 18.3(c), 20.1, 20.2, 22.2(b) 780 Trademarks and Geographical Indications (Australia) EC – Panel Report, , para. 7.453. See also Appellate Body Report, EC – Sar dines , para. 194 fn 111; and Panel Reports, US – COOL , para. 7.160. 781 Act , (Exhibits AUS - 1, JE - 1), Chapter 2 (title, Part 2 title, Part 2 Div. 1 title, and Part 2, Div. 2 TPP title), and Sections 18.1 - le), 21.4 (title), 22 (title), 22.1, 18.3, 21 (title), 21.1 (title), 21.2 (title), 21.3 (tab - 3, JE 22.2, 26 (title), and 27A; and TPP Regulations, (Exhibits AUS 2), Part 2 (title), and Regulation 2.3.6(1) - ( chapeau ). 782 Act , (Exhibits AUS - TPP - 1), Section 18.1 (title). 1, JE 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 Act , (Exhibits AUS - 1, JE - 1), Section 25 (title). TPP 786 - Act , (Exhibits AUS - 1, JE 1), Section 20.2 (title). TPP 787 TPP Act , (Exhibits AUS - 1, JE - 1), Section 20.1 (title). 788 3, JE TPP Act , (Exhibits AUS - 1, JE - 1), Section 21.2(c); and TPP Regulations, (Exhibits AUS - 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 - Act , (Exhibit s AUS - 1, JE - 1), Section 20.3; and TPP Regulations, (Exhibits, AUS - TPP 2), Regs. 3, JE 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 1), in particular Sections 18(2) cigarette cartons" relative to Sections 18 25 of the TPP Act , (Exhibits AUS - 1, JE - - 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 2.3.2(2). Regulations, relative to TPP Regulations 2.3.2(1) -

180 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 180 A 7.166. Act is supported by an elaborate enforcem ent s the complainants note, the TPP 792 The Simplified Outline of the Act indicates that "[o]ffences and civil penalties apply mechanism. if tobacco products are supplied, purchased or manufactured and either the retail packaging, or 793 the products themselves, do not comply with the requireme nts". Accordingly, Chapter 3 of the 794 addresses "[o]ffences and civil penalty provisions" TPP , in particular "[g]eneral offences and Act 795 - and "[o]ffences civil penalty provisions for non compliant retail packaging and tobacco products" 796 4 establishes ovisions relating to constitutional corporations". and civil penalty pr Chapter 797 "[p]owers to investigate contraventions of th[e TPP] 5 contains provisions Act". In turn, Chapter 798 , such as "[o]btaining a c ivil penalty addressed at "[e]nforcing compliance with th[e TPP] Act" 801 799 800 , "[c]ivil proceedings and criminal proceedings" , and "[i]nfringement notices". order" The enforcement mechanism of the TPP Act applies also in the context of the 7.167. indica 27(1) and 27A of the TPP Act . As the Notes to Sections te, Chapters 3 and 5 TPP Regulations 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 TPP Act or] ... prescribed by regulations made under Part 2 of Chapter 2", i.e. the 2 [of the TPP Regulations . We note that the enforceability of a measure through sanctions, in particular criminal 7.168. 802 , and that the fact that sanctions, has been found to be indicative of mandatory compliance in measures are "legally enforceable and binding under [a Member's] law (they are issued by certa the government and include legal sanctions)" is "an important component of the 'mandatory' 803 character of the measures". For the foregoing reasons, we find that the TPP Act 7.169. TPP Regulations are and the 1.1 of the "mandatory" within the meaning of the definition of a technical regulation under Annex TBT Agreement . The TMA Act 7.170. 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 he purpose of characteristic in that instrument "with which compliance [could be] mandatory" for t 1.1 of the TBT . However, this is a law enacted by Australia and a provision to be Annex Agreement applied by virtue of a governmental mandate. Overall conclusion 7.2.4.4 TPP 7.171. TPP Act and the We have determined above that the Regulations each satisfy the three TBT , in that criteria of technical regulations within the meaning of Article 1.1 of the Agreement they apply to an identifiable product or group of products (tobacco); lay down one or more t to their marking, packaging or labelling); characteristics of those products (including with respec and mandate compliance with those characteristics. TPP measures , the 7.172. With respect to the third legal instrument that forms part of the , we have determined above that, taken in isolation, it applies to a n identifiable group of TMA Act not lay down product characteristics for products (tobacco). We have also concluded that it does 792 - 27A of the TPP Article , (Exhibits AUS 1, JE - 1), addresses the "[l]egal effect of sections 18 to 27" Act as follows: "Sections 18 to 27 have no legal effect other than to specify requirements, and provide for ons specifying requirements, for the purposes of the definition of tobacco product requirement in regulati subsection 4(1)." (emphasis original) 793 - Act , (Exhibits AUS - 1, JE 1), Section 12. TPP 794 TPP Act , (Exhibits AUS - - 1), Chapter 3 (title). 1, JE 795 1, JE TPP Act , (Exhibits AUS - 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 1, JE Act , (Exhibits AUS - - 1), Chapter 5 (title). TPP 799 1, JE TPP Act , (Exhibits AUS - - 1), Chapter 5, Part 2, Division 1 (title). 800 TPP Act , (Exhibits AUS - 1, JE - 1), Chapter 5, Part 2, Division 2 (title). 801 Act , (Exhibits AUS - TPP - 1), Chapter 5, Part 3 (title). 1, JE 802 Appellate Body Report, EC – Asbestos , para. 72. See also Panel Reports, US – COOL , para. 7.160. 803 7.142. Panel Report, US – Tuna II (Mexico) , para.

181 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 181 tobacco products (including with respect to their marking, packaging or labelling), with which uld not, taken in isolation, constitute a technical compliance is mandatory and therefore wo regulation. 7.173. We recall, however, that the definition of "technical regulation" in Annex 1.1 of the Agreement TBT includes "applicable administrative provisions": Document which lays down product characteri stics or their related processes and including the applicable administrative provisions production methods, , with which (emphasis added) compliance is mandatory. We therefore consider whether the TMA administrative 7.174. Act constitutes an "applicable in relation to the provision" Act and TPP Regulation, within the meaning of Annex 1.1. TPP clause "including the applicable administrative provisions" has been 7.175. The appositive 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 804 TBT Agreement . Whether a measure constitutes an "applicable administrative provision" depends on 7.176. ntal mandate in relation to whether there exist "provisions to be applied by virtue of a governme 805 either product characteristics or their related processes and production methods". 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 806 characteristics or their related processes and production methods". As discussed in paragraph 7.127 above, the TMA Act grants to the Governor 7.177. General the - TPP Act and the power to make regulations "in relation to the effect of the operation" of the Regulations on a provision of the TM Act or regulations made thereunder. The TMA Act TPP ides a legal basis to address certain potential consequences of the marking, labelling therefore prov TPP and TPP Regulations Act in respect of the and packaging requirements contained in the law. Specifically, it creates a power to make regulati ons that will limit the application of trademark TPP effect of the requirements in the Act and the TPP Regulations that set out product characteristics, insofar as that effect might disadvantage applicants for trademark registration and 807 registered owners of trademarks. product ... 7.178. The power to make regulations established by the TMA Act is "in relation to 808 characteristics" , insofar as such regulations would ensure that the effect of the requirements TPP Act and TPP Regulations does not extend beyond that wh ich is intended by mandated by the the drafters of those two instruments. On this basis, insofar as its provisions relate to aspects of the Act and Regulations related to the product characteristics that these instruments lay down, TPP Act is an " applicable administrative provision" within the meaning of we conclude that the TMA 809 1.1 of the TBT Agreement . Annex 7.179. TPP measures (i.e. the TPP Overall, therefore, we find that the 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 . TBT Agreement scope of the definition of "technical regulation" under Annex 1.1 of the 804 Sea Appellate Body Reports, EC – l Products , para. 5.13. 805 EC – Seal Products , para. 5.13. Appellate Body Reports, 806 We consider it clear that the TMA Act, as an act of the Australian Parliament, is "applied by virtue of para. a governmental mandate". See Section 2.1.1 above and 7.177 below. 807 p. 5, JE - 5), - 1. TMA Bill Explanatory Memorandum, (Exhibits AUS 808 Appellate Body Reports, EC – Seal Products , para. 5.13. 809 5.13. Appellate Body Reports, EC – Seal Products , para.

182 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 182 - We note the 7.180. 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 l may, in some cases, different elements is one that arises in many disputes. ... A pane 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 where a panel may raised or defences invoked. Conversely, there may be instances choose to consider different elements set out in a single legal instrument as different 810 "measures", for purposes of its analysis. 811 of the TPP As we have already concluded, the "integral and essential aspects" Act and 7.181. TPP Regulation s have the effect of ensuring that tobacco products and their retail packaging the comply with the requirements set effect out in those provisions. This appearance is the combined and the TPP TPP Regulations , through the mandatory requirements set Act o ut in both of the 812 instruments. 813 TPP measures constitute a technical regulation, For these reasons, we consider that the 7.182. down characteristics for the appearance and packaging of tobacco products (including laying marks may be displayed on tobacco products requirements relating to the manner in which trade 814 815 To the extent that the , and mandating compliance with those characteristics. and packaging) TMA Act is an "applicable administrative provision" in respect of the requirements contained in the 816 , it is an "integral part" and the TPP TPP Act of that technical regulation. Regulations Having established that the TPP measures constitute a technical regulation within the 7.183. TBT Agreement , we now consider the claim that they are inconsistent meaning of Annex 1.1 of the Article 2.2 of the TBT Agreement . with 7.2.5 Whether the TPP measures are "more trade - restrictive than necessary to fulfil a legitimate objective" within the meaning of 2.2 Article 7.184. As described above, an assessment of the consistency of a technical regulation under 817 2.2 involves in the first instance a "relational analysis" of three factors: Article 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. 818 7.185. required in These factors will inform the "comparative analysis" that is, in most cases , 819 more - restrictive than necessary. order to determine whether the challe trade nged measure is 810 EC – Seal Products , para. 5.20. (footnotes omitted) Appellate Body Reports, 811 Appellate Body Reports, EC – Seal Products , para. 5.19. 812 27 of the TPP Act provid es that regulations "may prescribe We recall, for example, that Section the retail packaging of tobacco products; and (b) the appearance of additional requirements in relation to (a) tobacco products", and that these requirements are so prescribed in the TPP Regulations. We also recall that he Notes to Sections 27(1) and 27A of the TPP Act indicate that Chapters 3 and 5 apply for failure to comply t with a tobacco product requirement, which includes "a requirement in relation to the retail packaging or 2 [of the in Part 2 of Chapter TPP Act appearance of tobacco products ... specified or] ... prescribed by regulations made under Part 2 of Chapter 2", i.e. the TPP Regulations. 813 TPP Act , the TPP Regulations and the TMA Act, taken together, have been identified While the e he e Report s as "t throughout th TPP measures ", in the plural, this usage is not intended to signal that the s 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 EC – Seal Products Appellate Body Reports, para. 5.13. , 817 See Appellate Body Report, US , COOL , para. 374 ( referring to Appellate Body Report, US – Tuna II – 318). para.

183 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 183 - - restrictive, As described earlier, the complainants argue that the measures are trade - 7.186. TPP restrictive than necessary to fulfil the legitimate objective they - and that they are more trade into account the risks that non - fulfilment of this objective would create. The pursue, taking complainants address all elements of the above test, including the three factors identified above as , in their view, forming part of the "relational analysis" and alternative measures that are reasonably available to Australia, would make an equivalent contribution to its objective, and TPP measures - restrictive than the would be less trade . Australia considers, however, that the complainants have not established that the 7.187. 820 - restrictive. measur es are trade Australia also argues that the TPP measures were adopted in accordance with the 11 FCTC Guidelines and Article 13 FCTC Guidelines, and thus these Article a "in accordance with relevant international standards" within t he meaning of the measures re 821 2.5 of the TBT Agreement . second sentence of Article Consequently, it claims that, to the extent that the definition of a "technical regulation" also encompasses measures affecting the use of a TPP measures are "rebuttably presumed" not to create an unnecessary obstacle to trademark, the international trade under the second sentence of 2.5 and that the complainants have not Article 822 It is undisputed rebutted this presumption. that the burden rests on Australia, as the part y 823 invoking the second sentence of 2.5, to demonstrate that these conditions are met. Article Should Australia do so, the burden would shift to the complainants to rebut the presumption that 824 "[do] not create an unnecessary obstacle to inte rnational trade". the measures TPP Australia concludes that, given the complainants' failure to establish that the measures are 7.188. trade - restrictive, the Panel is not required to engage in any further "relational" analysis under 825 2.2. Article Australia submits in the altern ative, i.e. only in the event that the Panel would are prima facie case that the TPP determine that the complainants have made a measures trade - restrictive, that the complainants have failed to establish a violation of A rticle 2.2, with 826 ditional factors of the "relational analysis" described above. reference to the ad Australia further considers that the complainants have not established that alternative measures would be 818 Agreement Article TBT We note in this regard that it is "not mandatory in respect of for a 2.2 of the 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, 5.229. In – COOL ( Article 21.5 - 5.227 Canada and Mexico ) , para. 5.235 . See also ibid. paras. US – 1299. respect of Article XX of the GATT 1994, see Appellate Body Reports , EC – Seal Products , para. 5.215 fn 819 US – Tuna II (Mexico) , para. 320. See also ibid. para. 318. Appellate Body Report, 820 para. 583. Australia's first written submission, 821 paras. 567 and 584. Australia's first written submission, 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 . The FCTC is therefore a tobacco plain packaging (such as the shape, size, and materials of tobacco packaging) 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 No. 66, para. 85; Indonesia's second question para 220; and Australia's response to Panel question No. written submission, 66, para. 160. . 824 Pigs We note, in this respect, that in – Russia (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 3.2, a finding that Russia's measures "conform to" relevant Article 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. 826 590. Australia's first written submis sion, paras. 586 -

184 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 184 and b reasonably available to it, achieve an equivalent contribution to its objective , e less 827 TPP measures . restrictive than the trade - 828 7.189. For the reasons described earlier , we consider that the possibility that the challenged sentence of measures may benefit from the rebuttable presumption conferred by the second stralia, may have significant implications on the manner in which we Article 2.5, as invoked by Au 2.2 in these proceedings. Article must conduct the remainder of our analysis under The presumption established under the second sentence of Article 2.5 only applies with 7.190. cal regulations that are adopted "for one of the legitimate objectives explicitly respect to techni 2.2. An early consideration of this factor will therefore allow us to determine mentioned" in Article whether the fall within the scope of measures to which the presumption of the measures TPP sentence of 2.5 applies. As described above, the "legitimate objective" at issue is second Article also one of the aspects to be considered in an assessment of whether a technical regulation is restrictive than necessary" wit hin the meaning of the second sentence of "more trade 2.2, - Article independently of the applicability of the rebuttable presumption embodied in the second sentence 2.5. Article of 7.191. In light of these elements, we deem it appropriate, in the circumstances of this case, to 829 continue our analysis TPP measures and whether with a consideration of the objective of the Article such objective is "legitimate" within the meaning of 2.2. Should we determine that the measures TPP he legitimate objectives have been prepared, adopted or applied "for one of t 830 , we will need to consider further whether, as invoked by Article explicitly mentioned" in 2.2 2.5 are met, such that the Australia, the other conditions under the second sentence of Article rebuttable presumption under is applicable and, if so, what this implies for the Article 2.5 831 Article 2.2. remainder of our analysis of the claims before us under Whether the TPP measures 7.2.5.1 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 832 must turn to the question of whether a particular objective is legitimate. This analysis therefore involves both an identification of the objecti ve being pursued by the Member through the measure Article 2.2. and an assessment of its "legitimate" character, within the meaning of In addition, as observed above, an identification of the objective of the TPP measures is 7.193. tances of this case, to determine whether they pursue "one of the also necessary, in the circums 827 - Australia's first written submission, paras. 21, 595, and 700 742. 828 para. 7.36 above. See 829 roach to be conistent with the manner in which the parties have We understand this general app Article 2.5. See, e.g. Honduras's response to Panel question No. 66, p. articulated their understanding of 26; Dominican Republic 's response to Panel question No. 66, 288 - 289 and 292; Cuba's response to Panel paras. question No. 66, p. 216 (annexed to its response to Panel question No. 138) (endorsing Honduras's response to question 66); Indonesia's response to Panel question No. 66, para. 73; Australia's response to Panel No. 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 2.2 and 2.5 (whether the measures constitute a "technical regulation" and the to both Articles 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 nt international standards" and if they are, what the consequences of the "in accordance with releva 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 Article 2.2 in light of our earlier determinations in relation to the second sentence of under 2.5. Article 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 2.2. Article 831 See also paras. 7.36 , 7.41 , 7.187 , 7.189 and fns 824 and 829 above. 832 314. Appellate Body Report, US – Tuna II (Mexico) , para.

185 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 185 mentioned in paragraph 2" (emphasis added) within the meaning of legitimate objectives explicitly 2.5, invoked by Australia. the second sentence of Article the objective of the TPP 7.194. measures is, or, as the Appellate We therefore first consider what Body expressed it, what Australia "seeks to achieve" through these measures, before considering 2.2 of the TBT Agreement , and whether this objective is "legitimate" within the meaning of Article what extent it falls within the scope of the specific objectives listed in the second sentence of to 2.5. Article TPP 7.2.5.1.1 measures The objective of the As described by the Appellate Body: 7.195. ive a [T]he proper approach to be followed by a panel in determining the object 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 e parties, and competing arguments have been raised on the contested between th basis of the text of the measure, its design, architecture, structure, legislative history, 833 and evidence relating to its operation. We are mindful, in approaching this question, of the important distinction to be made, for 7.196. Article that is pursued through the 2.2, between the identification of the the purposes of objective at which the Member aims to achieve this level measure, which we now seek to ascertain, and the objective, which we need not establish in the abstract at this stage of our analysis. As the Appellate Body observed: in general, requires that, in its TBT Agreement 2.2 in particular, nor the Article Neither 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 834 objective. 7.197. Similarly, we are mindful of the fact that the ide ntification of the objective pursued by a how or through what means, that technical regulation is distinct also from the question of objective is to be pursued. This distinction may have an impact on later parts of our analysis, to ison would be required between the degree to which the objective at the extent that a compar issue is achieved by means of the challenged measures and the degree to which an equivalent - restrictive measures attaining the same contribution could be achieved through other less trade 835 objective through different means. 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 e 2.2 provides an indication that this determination in essence relates Articl to an identification of the underlying policy concern that the Member seeks to address through the le measures (and, subsequently, whether this is "legitimate" within the meaning of Artic How 2.2). 833 para. – Appellate Body Reports, , US 395. COOL 834 Appellate Body Reports, US – COOL , para. 390 ( Appellate Body Report, US – Tuna II referring to (Mexico) para. 316: "a WTO Member, by preparing, adopting, and applying a measure in order to pursue a , ular legitimate objective, articulates either implicitly or explicitly the level at which it seeks to pursue that partic para. 7.231 below. The cited passage includes the following original footnote: legitimate objective"). See also sixth recital of the preamble of the TBT Agreement provides that a Member "We have noted above that the 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) referring to Appellate Body Reports, – COOL , para. 390 ( Appellate Body Report, US – Tuna II US (Mexico) , para. 316). 835 COOL See Appellate Body Report s, US – COOL para. 387. See also Panel Reports, US – , 7.320 and 7.326. ( Article 21.5 – Canada and Mexico ) , paras.

186 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 186 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. With this general guidance in mind, we outline the main arguments of the parties in 7.199. TPP measures , before turning to our own assessment of this respect of the objective of the objective. 7.2.5.1.1.1 Main arguments of the parties TPP 7.200. describes the objective pursued by Australia through the Honduras measures as "the 836 improvement of public health by reducing smoking prevalence". Honduras considers that this 837 position is supported by the TPP Act itself and the legislative history of the TPP Act. It explains government's policy objective, which must o bjective that must be identified is the that the relevant chosen by the government to achieve that objective, and be distinguished from the mechanism that in the present case, Australia's prevalence among policy objective is the reduction of smoking 838 TPP Act and related evidence. its population , which is reflected in Section 3.1 of the TPP Dominican Republic also considers that the explicit objective of the The measures , as 7.201. 839 TPP Act , is the improvement of public health by reducing smoking prevalence. stated in the 7.202. explains that the text of the TPP Cuba 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 Bill when it was first TPP proposed, confirms this objective, as it explains that "the objects of this bill are to improve public healt h 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 840 halving the smoking rate of Aborig inal and Torres Strait Islander people". Indonesia 7.203. explains that the Government of Australia stated early in the development of its measures TPP proposal that the ' 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 841 protect health by reducing smoking prevalence". 7.204. Australia explains that "the objectives of Australia's tobacco plain packaging measure are 842 TPP It explains that Subsection 3(1) of the TPP Act ". sets out the Act set out in section 3 of 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 843 smokers. reduction of exposure to smoke, furthering public health by benefitting even non - Australia further explains that the implementing legislation and regulations, the 7.205. Explanatory Memorandum and legislative history of the measure as well as its overall design, – which include giving effect to Australia's structure and operation, and the measure's objectives 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 para. 847. Honduras's first written submission, 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. 843 136. Australia's first written submission, para.

187 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 187 - - 844 human health. Australia explains that Subsection 3(1) of the overall objective of protecting Act sets out the "general objectives" of the TPP Act , which are "to improve public health by TPP 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 845 health by reducing smoking prevalence and tobacco - It further related disease and mortality. explains that the operation of subsection 3(2) of the Act is d esigned to contribute to improving TPP 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 products to mislead consumers about the harmful effects of smoking and use packaging of tobacco 846 of tobacco products. 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 ng exposure to smoke. uptake, encouraging quitting, discouraging relapse and reduci This is an attempt by the complainants to artificially sever the causal link between the - term behavioural effects of the tobacco plain packaging measure, and their long 847 effects on smoking prevalence. 7.207. TPP measures ' objective, "properly defined", as "reducing Australia thus describes the 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 848 harms of smoking". 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 849 – the end or "objective" being the reduction of smoking prevalence. end 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, both the means Australia was unable to maintain a consistent argument that the mechanisms are 850 to achieve the ends and the ends themselves". considers Australia's reference to reduction in smoking as the "general objective" to 7.210. Cuba 851 be achieved through three "specific objectives" or "mechanisms" to be confusing. It argues that, ing as reference the text of the tak Act , its legislative history, and the structure and design of TPP 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 852 of the aesthetic appeal of tobacco products or their packaging. 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 para. Australia's first written submission, 598. 846 para. 599 . Australia's first written submission, 847 para. 602. Australia's first written submission, 848 para. 604. See also Australia's second written submission, Australia's first written submission, paras. 210 and 535. 849 paras. 523 and 524. See Honduras's second written submission, 850 Dominican Republic 's second written submission, para. 280. 851 Cuba's second written submission, para. 207. 852 213. Cuba's second written submission, para.

188 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 188 as the specific mechanisms are the "levers" that Aust ralia hopes will drive down prevalence, but 853 the objective of Australia's plain packaging regime is to reduce prevalence. Dominican Republic comments on Australia's stated objective of giving In addition, the 7.212. effect to certain obligations as a party to the FCTC. In the Dominican Republic's view, the FCTC in any not invoke, does not oblige Australia to adopt plain packaging, and a WTO Member may an obligation under a separate international agreement to justify imposing restrictions that event , e be contrary to WTO law. It argues that if they were so entitled, Members could would otherwis 854 reach agreements outside of the WTO as a means of evading their WTO obligations. Analysis by the Panel 7.2.5.1.1.2 In these proceedings, it is undisputed that the objective of the TPP m easures 7.213. relates to public health protection and more specifically to the protection of public health in relation to the use of tobacco products in Australia. However, the parties articulate the particular objective 7.214. pursued by Australia through the TPP mea sures 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 ough which the measures will contribute to their objective". As r "ignore the causal pathway th is to described above, Australia considers that the objective of the measures, properly defined, e ] "reduc 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 855 consumers about the harms of smoking". In the complainants' view, these three aspects operation of the measures, i.e. the means through which the constitute "mechanisms" in the TPP general objectives identified in the Act are intended to be carried out, and cannot properly be TPP measures within the meaning of article 2.2 of the characterized as "objectives" of the Agreement . TBT 7.215. In light of the diverging descriptions by the parties of the objective of the TPP measures , we should be characterized. In doing so, we should take into next consider further how exactly it 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 dent assessment of the objective that a Member seeks to achieve, we must take account indepen of all the evidence put before us in this regard, including "the texts of statutes, legislative history, 856 and other evidence regarding the structure and operation" of the technical regulation at issue. 7.216. We therefore consider the relevant evidence before us, including the text of the measures, TPP measures , to identify their their legislative history and other evidence on the operation of the objective. The text of the Act 7.217. is the principal legal instrument embodying the plain packaging TPP requirements under the measures and defines its object. It is subtitled "An Act to discourage TPP 857 Section 3 defines the "Object the use of tobacco products, and for related purposes". s of this Act" as follows: The objects of this Act are: (1) (a) to improve public health by: (i) di scouraging people from taking up smoking, or using tobacco products; and 853 para. 166. Indonesia's second written submission, 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 1), cover page. TPP Act , (Exhibits AUS - 1, JE -

189 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 189 - - encouraging people to give up smoking, and to stop using tobacco (ii) products; and discouraging pe ople who have given up smoking, or who have (iii) 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 858 o Control. Convention on Tobacc On its face, therefore, the TPP Act 7.218. 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 Ac t itself: This Act regulates the retail packaging and appearance of tobacco products in order to: (a) improve public health; and 859 (b) give effect to certain obligations in the Convention on Tobacco Control. 7.219. We consider these two "objects" in turn. Improvement of public health With respect to the first "object" identified in the TPP Act , we note that Section 3(1)(a) 7.220. 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 " the use of tobacco products" discourag(ing) (emphasis added). 860 According to the TPP Bill Explanatory Memorandum 7.221. , "[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 861 tobacco products " (emphasis added). The Explanatory Memorandum also describes the broader context against which the TPP Act is adopted: mplementing a comprehensive suite of reforms The Australian Government is i to . As part of these reforms the Government reduce smoking and its harmful effects committed to introduce legislation requiring plain packaging of tobacco products, to 862 remove one of the last frontiers for tobacc o advertising. 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 uptake, encouraging quitting, disco uraging relapse and reducing exposure discouraging 863 864 and in terms of " reducing smoking rates in Australia to smoke" ... ". 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 Act , (Exhibits AUS - 1, JE - 1), Section 12. TPP 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 i TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7), p. 1. (emphas s added) 863 Australia's first written submission, para. 602. (emphasis added) 864 604. (emphasis added) Australia's first written submission, para.

190 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 190 - - health by Article 2.2, with reference to the improvement of public purposes of the analysis under "reducing smoking rates". The overall operation of the measures is described as follows by Australia: 7.223. 11 : Australia's depiction of the operation of the TPP measures Figure Source: Figure 9 of Australia's first written submission, at para. 144. 7.224. TPP measures as the improvement of public The complainants describe the objective of the health by "reducing smoking prevalence " (emphasis added), prevalence being defined as the 865 okers as a percentage of the total population. number of sm 7.225. As we understand it, the underlying objective pursued by Australia through the , as reflected in the text of the TPP Act and in its Explanatory Memorandum, is the TPP measures ecifically through an effort to "reduce smoking" and "reduce improvement of public health, sp 866 The TPP Act does not expressly refer to the reduction of smoking or smoking smoking rates". rates as one of its objects. It is clear however from the Explanatory Memorandum that these measures a to re one element of what Australia describes as "a comprehensive suite of reforms 867 reduce smoking and its harmful effects". As expressed in the Explanatory Memorandum, the 865 See Honduras's first written submission, para. 351; Dominican Republic 's first written submission, 3. para. 50 fn 7; Cuba's first written submission, para. 86; and Indonesia's first written submission, para. 6, fn 866 - 2, JE - 7), p. 1. See also TPP A Regulation TPP Bill Explanatory Memorandum, (Exhibits AUS 11 Explanatory Statement, - 22), p p. (Exhibit JE - 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;  ability and effectiveness of mandated health warnings; increase the notice  reduce the ability of the tobacco product and its packaging to mislead consumers about the harms of smoking; and  e of through the achievement of these aims in the long terms, as part of a comprehensive suit 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), 14. p p. 3 and 13 -

191 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 191 - - Act is intended "to improve public health by reducing people's use of and expos ure to tobacco TPP 868 products". We agree with Australia that a characterization of the objective of the 7.226. measures based TPP prevalence, as proposed by the complainants, would not exclusively on the reduction of smoking through the TPP fully reflect the objective that it pursues , to the extent that this would measures reflect only one dimension of the reduction of smoking that Australia seeks to achieve through the TPP Act make reference to encouraging quitting and measures. While the objects of the discouraging u ptake, which may be seen to relate in particular to reducing smoking prevalence as TPP Act is also intended, by its own terms, to discourage people more generally defined above, the "from using tobacco products" and reducing "exposure to smoke from tobacco products". The TPP measures objective of the 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. do not consider , however, that the objective of the TPP measures , for the purposes of We Article 2.2, should be understood as encompassing the additional aspects our analysis under TPP Act , i.e. identified by Australia as the "specific objectives" or "mechanisms" under the "reducing the appeal of tobacco products, increasing the effectiveness of graphic health warnings, ad consumers about the harms of smoking". In our and reducing the ability of packages to misle view, these "specific objectives" are more properly described 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 869 some of the third parties, that the means should not be confused with the ends in this context. and its Explanatory Memorandum des TPP Act 7.228. As Australia itself explains, the cribe " 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 in troduces 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: reduce the appeal of tobacco products to consumers; and (a) 868 TPP Bill Explanatory Memorandum, (Exhibits AUS 2, JE - 7), p. 6 . See also TMA Bill Explanatory - 5, JE - 5), p . 1, outline; Consultation Paper TPP Bill Exposure Draft, (Exhibits - Memorandum (Exhibits AUS - 120, JE - 10), p p. - 1 - 2;1 AUS 2; Consultation Paper Non - Cigarette Tobacco Products, (Exhibit JE - 11), p p. 3 and 16; TPP A Regulation Explanatory Statement, (Exhibit JE - 22), p and 11, 12, 14 , and 15. p. 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 per se "objective" is cast in an artificial way to include matters that are not 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 - ate or almost eliminate smoking, and alternative measure would exist that would in fact elimin 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 Article 2.2 simply under 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 Me that: xico) [ 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. 7.326. Panel Reports, US – COOL ( Article 21.5 – Canada and Mexico) , para.

192 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 192 increase the effectiveness of health warnings on the retail packaging of (b) tobacco products; and reduce the ability of the retail packaging of tobacco products to mislead (c) c onsumers about the harmful effects of smoking or using tobacco 870 products. As described above, what we are seeking to establish, at this stage of our analysis, is what 7.229. measures , or, in other words, what policy conc ern it TPP Australia seeks to achieve through the the specific how seeks to address. This question is distinct, in our view, from the question of measures at issue are intended to achieve this objective. What we are concerned with here is the of the measures , rather than the specific operational identification of the underlying purpose mechanisms through which they are intended to achieve that purpose. This determination does not imply that the specific mechanisms through which the 7.230. not be relevant to our overal measures are intended to operate will l analysis of the measures' 2.2 of the TBT Agreement . On the contrary, these may form the basis of consistency with Article further aspects of our analysis, should we determine in the first instance that the "objective" of the may become highly relevant, inter alia , to our analysis of the measures is legitimate. They 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 Bod y TPP expressed it, what Australia "seeks to achieve" through the measures . 7.231. In describing Australia's objective under the TPP measures , Cuba and Indonesia have also ents] referred to the "performance benchmarks set under the COAG [Council of Australian Governm 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 871 TPP Explan atory Memorandum. They Bill "performance benchmarks" are referred to in the constitute general targets set in relation to the reduction of smoking rates in Australia, through the 872 measures and other tobacco control measures. These "benchmarks" thus identify a certain TPP level of achievement of the objective. As described above however, targeted 2.2 does not Article require that we discern or identify the level at which Australia wishes or aims to in abstracto 873 not consider, as such, the existence of a specific target or We thus need achieve its objective. enchmark in the achievement of the objective for which Australia may aim as a component of b 874 875 Rather, as described above that objective itself. , the focus of our enquiry is the underlying purpose or rationale of the measures. We are not persuaded, therefore , that the objective of the needs to be characterized, at this stage of our analysis, with reference to the above TPP measures performance benchmarks. In light of the above, we understand the objective pursued by Australia by means of the 7.232. measures TPP 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 identifies, in Section 3(1)(b), a second "Object", namely "to give effect to Act 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 3 Exposure Draft, (Exhibits AUS - 120, JE - 10), p p. 1 and Cigarette Products, - 5; and Consultation Paper Non - (Exhibit JE - p p. 13 - 14. 11), 872 1 - - 10), p p. See, e.g. Consultation Paper TPP Bill Exposure Draft, (Exhibits AUS and 3 - 5; and 120, JE 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 above. See para. 7.229

193 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 193 - - As described above, the term "Convention on Tobacco Control" is defined in the Act as TPP 7.234. 876 Further, the TPP Bill meaning the FCTC. Explanatory Memorandum states that the "in troduction packaging for tobacco of plain products is one of the means by which the Australian Government [FCTC]" and, in this context, refers to 5, will give effect to Australia's obligations under the Articles 877 tory Memorandum adds that Section 11 and 13 of the The TPP Bill Explana FCTC. 3(2) "is not intended to be an exhaustive list of ways in which ... Australia's obligations under the WHO FCTC 878 may be met". As discussed above, Australia has described its "legitimate objectives", "properly defined", 7.235. Article 2.2 of the TBT for th Agreement as "reducing smoking rates in Australia by e purposes of reducing the appeal of tobacco products, increasing the effectiveness of graphic health warnings, 879 harms of smoking". and reducing the ability of packages to mislead consumers about the 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 Act : TPP 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 by means is TPP Act which the objective of improving public health under subsection 3(1) of the 880 achieved. In response to a question from the Panel, Australia clarified that it considers the 7.236. implementation of its obligations under the FCTC to be one of it s "objectives" for the purposes of 2.2: Article Tobacco plain packaging is recommended as a means by which parties to the FCTC may implement their obligations under 11 and 13 of the FCTC. Australia Articles therefore considers the introduction of tobacco plain packaging to give effect to Australia's "General Obligation" to implement and update comprehensive - sectoral strategies under Article 5.1 of the FCTC, as well as its specific multi Articles 11 and 13. As such, giving effect to certai n obligations that obligations under Australia has as a party to the FCTC is one of the measure's legitimate objectives for 881 Article 2.2 of the TBT Agreement . the purposes of 7.237. Honduras, the Dominican Republic and Cuba argue that the implementation of the FCTC not , in any event , does not oblige Australia to adopt plain packaging, and that a WTO Member may invoke an obligation under a separate international agreement to justify imposing restrictions that 882 would otherwise be contrary to WTO law. 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 883 stated objective of reducing smoking behaviour , improving "public health by reducing smoking 884 885 prevalence" and "reducing tobacco prevalence". 876 TPP Act, (Exhibits AUS - 1, JE - 1), Section 4(1). See also para. 2.16 above. 877 7), TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE p. 2. - 878 TPP Bill Explanatory Memorandum, (Exhibits AUS - 2, JE - 7), p. 7. 879 para. 604. Australia's first written submission, 880 Australia's first written submission, para. 600. (emphasis original; footnote omitted) 881 Australia's response to Panel question No. 78, par a. 220. 882 See Honduras's first written submission, paras. 11, 121 and 138 - 140; Honduras's second written 423; paras. submission, para. 465; Dominican Republic 's first written submission, - 187 and 422 Dominican 's second written submission, paras. 286 - 288 and 962; Cuba's first written submission, Republic 289 - 291, 320 fn 406, and 406; Cuba's response to Panel question No. 130, paras. 17; Indonesia's first p. written submission, 92 - 98; Indonesia's comments on Australia's Post - Implementation Report, paras. as. 12 - 13. Honduras also argues that, even if the FCTC required its parties to implement plain packaging, par 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 Republic written submission, para 423; Dominican 's second written submission, para. 287; and Cuba's first . written submission, paras. 290 and 292. 883 ission, Dominican Republic 's second written subm paras. 288 and 962. 884 140. Honduras's first written submission, para.

194 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 194 We do not understand Australia to be suggesting that its objective of "giving effect to 7.238. certain obligations" it has under the FCTC should be considered, for the purposes of determining measures TPP Article 2.2, in a bstraction of, and under the "legitimate objective" of the 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 measures , including the TPP Act , to be directly related to, and in pursuance of, its TPP the and exposure to , tobacco products. objective of improving public health by reducing the use of , As expressed by Australia, "[t]he public health rationale underlying the Act , and the 7.239. TPP is supported by both the Explanatory Memorandum to o achieve this objective, means by which t 886 Act and the FCTC Guidelines ". the TPP Australia further explains that "there is no dispute that 887 measures". public health tralia measures recommended by the FCTC are 'legitimate' As Aus further expressed it: TPP Subsection 3(1)(b) of the expressly provides that the tobacco plain packaging Act measure will giving effect to certain obligations that Australia improve public health by ph 140 of Australia's first written has as a party to the FCTC. As outlined in paragra Bill refers explicitly to the FCTC submission, the Explanatory Memorandum to the TPP Guidelines, which recommend that Parties consider introducing tobacco plain 888 packaging (emphasis added). The objective of the FCTC is s et out in Article 3 as follows: 7.240. health , social, [T]o protect present and future generations from the devastating environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measu res to be in order implemented by the Parties at the national, regional and international levels to reduce continually and substantially the prevalence of tobacco use and exposure to 889 tobacco smoke. (emphasis added) 7.241. the major public health concerns raised by We note the recognition, in the FCTC, of , and its express objective of addressing the "devastating ... tobacco consumption and exposure consequences for tobacco consumption and exposure to tobacco smoke", including on health. 891 890 As indicated by Australia a nd as reflected in the measures' legislative history , the 7.242. measures intend, more specifically, to reflect certain recommendations in the TPP 11 FCTC Guidelines and Article 13 FCTC Guidelines to "consider adopting" tobacco Article 885 para. 320 fn 406 (stating that "the further objective of giving effect Cuba's first written submission, ifying the [T] [T] PP to the FCTC cannot be treated as one which is capable of separately just PP Measures if the 203, 214, and 224. Measures fail to reduce tobacco use"). But see Cuba's second written submission, paras. 886 Australia's first written submission, 601. (emphasis added; footnotes omitted) para. 887 para. 78, Australia's response to Panel question 219. (emphasis added) No. 888 Australia's response to Panel question No. 78, para. 217. (emphasis added) 889 - 44, JE - 19), FCTC (Exhibits AUS 3 (emphasis added). See also para. 2.100 above, and Article 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. para. Ibid. 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), p p. 2 - 3, 6 - 9, 11, 14; and Consultation Paper TPP Bill Exposure Draft, (Exhibit s AUS - 120, JE - 1 0 ), p p. 6 - 7, 11, 1 3 - 14; - TPP Regulation Explanatory Statement, (Exhibit JE A 22), p. 14 of Attachment B. See also Australia's first 140. written submission, para.

195 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 195 packaging as one of the ways to implement those obligations in 11 and 13 of the plain Articles 892 FCTC. TPP Act and its In light of these elements, we consider that the reference made, in the 7.243. 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 that the objective of these measures, for the purposes of our determination under confirms 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 893 products. We therefore need 7.244. not consider further whether the implementation of certain obligations independently onstitute a separate "legitimate objective" under the FCTC might be considered to c 894 of Australia's public health objective described above. Whether the objective pursued by Australia through the TPP 7.2.5.1.2 is a measures Article 2.2 "legitimate objective" within the meaning of The Appel late Body has observed that a "legitimate objective" refers to an "aim or target 7.245. 895 that is lawful, justifiable, or proper". Article 2.2 does not provide an exhaustive list of such While objectives, it expressly identifies a number of objectives as "legitimate objectives". As noted by Article the Appellate Body, a finding that the objective of a measure is among those listed in 2.2 896 will end t he inquiry into its legitimacy. 897 that the objective pursued by Australia through the 7.246. We have determined above is the protection of human health, and more precisely the improvement of public TPP measures health by reducing the use of, and exposure to, toba cco products. 7.247. The "protection of human health or safety" is one of the "legitimate objectives" explicitly 898 2.2. Article We note in this respect that, in the context of Article XX(b) of the GATT identified in through the elimination or reduction of 1994, the preservation of human life and health - well - threatening health risks (in that instance, as caused by asbestos fibers) was known and life 899 considered to be a value "both vital and important in the highest degree". 892 FCTC parties have undertaken in Article 11 of the Convention to implement "effective mea sures" with oduct packaging and respect to the use of health warnings and other appropriate messages in tobacco pr as well as to ensure tobacco product packaging and labelling "do not promote" these products by any labelling, ceptive. FCTC, (Exhibits AUS 44, JE - means that are misleading or de Articles - 11.1(a) and 11.1(b). Under 19), Article 13 of the Convention, FCTC parties have undertaken to apply a "comprehensive ban on all tobacco alia a minimum" shall pro advertisement, promotion and sponsorship" which, " [ a ]s , for a prohibition vide, inter of "all forms of tobacco advertisement ... that promote a tobacco product by any means that are false, misleading or deceptive". Ibid. 13.1, 13.2, and 13.4(a). "Tobacco advertisement and promotion" is, in Articles 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. 1(c). We also note that the TPP Act expressly adopts this FCTC definition . TPP Act , (Exhibits AUS Article 1, - JE 1), Section 4(1) . See also paras. - - 2.109 above. 2.100 893 We note in this respect the acknowledgement by the Dom inican Republic that the FCTC Guidelines could "at most ... confirm the legitimacy of the plain packaging as a measure with the objective of promoting 130, Dominican Republic 's response to panel question public health". para. 315. (emphasis original) No. 894 his determination that, for the purposes of identifying the "objective" of the measures under T 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 Agreement Article 2.2 of the TBT or in relation to other claims before us. 895 ody Reports, US – Tuna II (Mexico) , para. Appellate B US – COOL , para. 370. (footnote 313; and 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". 899 172. See Appellate Body Report, EC – Asbestos , para.

196 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 196 It is undisputed, in these proceedings, t 7.248. hat tobacco use and exposure to tobacco smoke 900 , and that the protection of human health from such risks is thus a cause death and disease TBT Agreement . legitimate public health objective within the meaning of Article 2.2 of the 7.249. servation that it has itself implemented comprehensive tobacco We also note Honduras's ob regulation measures and shares Australia's goal of "reducing smoking prevalence and tobacco 901 Republic considers "the improvement of public health by reducing consumption". The Dominican 902 2.2. prevalence" to be a legitimate objective within the meaning of Article smoking Cuba also accepts that the objective of reducing smoking prevalence is an entirely legitimate objective and 903 that tobacco consumption and exposure to tobacco smoke cause death and disability. Indonesia also does not dispute that measures to reduce smoking prevalence protect public health and does 904 measures . not challenge the legitimacy of the objective pursued by Australia's TPP We further note that "curbing and preventing youth s 7.250. moking" has already been recognized 905 Agreement as a "legitimate health objective" in the context of the and that the Appellate TBT context of applying the TBT Agreement , already recognized "the importance Body has also, in the 906 of Members' efforts in the Wo As described above, rld Health Organization on tobacco control". 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 907 exposu re to tobacco smoke" 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 908 , is to provide "a framework for tobac majority of which are also WTO Members) co 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 909 tobacco smoke". 910 It is clear, in light of the above t the improvement of public health by reducing the 7.251. , tha use of, and exposure to, tobacco products is a "legitimate objective" within the meaning of 2.2 of the TBT Agreement . Article 900 7.2.5.5 below, on the natur e of the risks and gravity of the consequences of See section fulfilment of the objective. See also FCTC, (Exhibits AUS - 44, JE - 19), preamble, second and third recitals, non - Article 3; and WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), para . and 13. See furth er paras. 7.240 - 7.241 above. 901 Honduras's first written submission, paras. 2 and 850. See 902 See Dominican Republic 's first written submission, para. 972. 903 See Cuba's first written submission, 3 and 406. paras. 904 para. 389. See Indonesia's first written submission, 905 236. Appellate Body Report, US – Clove Cigarettes , para. 906 – Clove Cigarettes , para. 235. US Appellate Body Report, 907 - 44, JE - FCTC, (Exhibits AUS Article 3; and WHO/FCTC 19), preamble, second and third recitals, and brief, (Exhibit AUS - 42 (revised)), para . 13. See al so paras. 7.240 - 7.241 above. amici curiae 908 note that most FCTC Parties are also WTO Members (149 out of 180, or around 83%). See We No. 128, paras . 188 - 189; Australia's first written submission, para. 578; Australia's response to Panel question para. 336 (ref and Australia's second written submission, 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 para. 93; and Australia's first written submission, para. 103. Additionally, "[a] ll parties to [these submission, Member States . " WHO/FCTC Request for P ermission to Submit Information, disputes] are WHO ) - 42 ( revised) AUS , para. 12. (Exhibit 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 - See also para. before Zimbabwe became a Party in March 2015). 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 above. See , e.g. paras. 7.232 , 7.246 , and 7.247

197 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 197 - - We understand the reference in the second sentence of Article 2.5 to the "obje ctives 7.252. mentioned in Article 2.2" (emphasis added) to relate to those objectives listed in explicitly 2.2 and identified in paragraph 7.247 above, which includes "the protection of human Article 911 , that the measures are health". We therefore also find, and the parties do not dispute TPP "prepared, adopted or applied for one of the objectives explicitly mentioned in paragraph 2", within the second sentence of Article 2.5 of the the meaning of Agreement . TBT 7.253. Accordingly, we now consider whether the TPP measures are, as Australia argues, "in accordance with relevant international standards". Whether the TPP measures are "in accordance with relevant international 7.2.5.2 Article 2.5 (second sentence) standards" under 7.2.5.2.1 Overview of the arguments of the parties Australia 7.254. Guidelines for Implementation of Article 11 of the FCTC and argues that the FCTC the FCTC Guidelines for Imple mentation of Article 13 of the FCTC ( Article 11 and Article 13 912 FCTC , constitute a "relevant international standard" for tobacco plain packaging, and Guidelines) accordance TPP have been prepared, adopted or applied "in measures with" these Guidelines. the With respect to the first element ("relevant international standards"), Australia contends 7.255. Article 11 and that the Article 13 FCTC Guidelines are "standards" within the meaning of the TBT Agreement because they are "documents" that, 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), including with respect to the ir packaging, as well as "related processes and 913 production methods" (manufacture and sale of tobacco products). It further considers that the are, in addition, "international" in character because they Article Article 11 and 13 FCTC Guidelines were adopte d 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 a Members. t least all Australia also contends that the complainants do not dispute that these two FCTC Guidelines are "relevant" to the TPP measures . have been 7.256. With respect to the second element, Australia contends that the TPP measures adopted "in with" the Article 11 and Article 13 FCTC Guidelines because, as the accordance effect" to "certain obligations" that measures themselves state, they have been adopted to "give 914 Australia recalls, in this respect, that the Article 11 and Article Australia has under the 13 FCTC. specifically recommend tobacco plain packaging measures as a means to FCTC Guidelines implement the obligations in Articles 11 and 13 of the FCTC regarding packaging and labelling of advertising, promotion and sponsorship, respectively . Australia tobacco products and tobacco argues that when the scope of these plain packaging recommendations in these FCTC Guidelines is TPP measures are "in accordance with" them, includi ng "properly identified", it is clear that the TPP measures "extend[] to: regulation of the use of manufacturer or brand names insofar as the 911 66, Dominican 's response to Panel question No. See, e.g. para. 290; Dominican Republic 's Republic second written submission, paras. 850 - 851; Australia's first written submission, para. 269; and Australi a's second written submission, para. 314. 912 individually , we will refer to the FCTC Guidelines for For simplicity and convenience, when mentioned Guidelines for Implementation of Article the FCTC 11 of the FCTC and Article 13 of the Implementation of as, respectively, the Article FCTC, FCTC Guidelines and Article 13 FCTC Guidelines. See also 11 paras. 2.107 - 2.109 above. 913 See also Australia's response to Panel question No. 73, para. 200 (stating that "[t]he FCTC trademark elements of tobacco plain packaging (such as the use of logos, Guidelines address both the physical elements of tobacco plain packaging (such as the shape, size, and colours, or brand images) and the dard whether the Panel materials of tobacco packaging). The FCTC is therefore a relevant international stan considers the term 'technical regulation' to encompass only the physical requirements of the tobacco packaging measure, or whether it considers that term to encompass both the trademark and physical plain requirements." (footnote omi tted) (emphasis added)). 914 TPP Act itself does not specify what these "certain obligations" in the FCTC are, Although the Australia indicates that the TPP 13 Bill Explanatory Memorandum refers specifically to the Article 11 and Article above. FCTC Guidelines (see , e.g. Australia's first written submission, para. 140). See also paras. 7.233 - 7.234

198 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 198 - - on individual cigarettes and other tobacco products such as cigars; restrictions on wrappers inside f information permitted to appear on tobacco packs; specification of location and orientation o 915 tobacco packaging; and the number of times certain information may appear on the pack." TPP 7.257. meet Based on the foregoing, Australia requests the Panel to find that the measures sentence of Article the conditions , and should therefore be "rebuttably under the second 2.5 Article 2.2 of the presumed not to create an unnecessary obstacle to international trade" under 916 Agreement Australia argues, in addition, that the complainants have "failed to adduce any TBT . 917 As a consequence, evidence of the type that would be required to rebut" this presumption. Article Australia requests the Panel "to reject all of the complainants' claims under 2.2 on the 918 2.5 ". grounds that they had not rebutted the presumption established under Article complainants consider that Australia has not demonstrated that the conditions of the 7.258. The Article 2.5 are met. They argue that the Article 11 and Article 13 FCTC second sentence of Guidelines do not constitute a "relevant bacco plain packaging, first, international standard" for to TBT because they do not meet the definition of "standard" under Annex Agreement . 1.2 of the Guidelines could not be Second, even if they could, the complainants argue that these two FCTC considered an "international" standard because they were not adopted by an "international 919 Article The complainants further contend that, even assuming that the standardizing body". 11 and Article 13 FCTC Guidelines were "relevant international standards", the TPP measures could ed as being "in not be consider accordance with" this international standard, given the insufficient degree of correspondence between them and the FCTC Guidelines. The complainants submit, in TPP this respect, that the measures implement "plain packaging" by regulating certain tobacco forth in the Article 11 and product or packaging features that are not even set 13 FCTC Article 920 and regulate certain other "plain packaging" Guidelines (thus going "beyond" these instruments) 921 feat ures in a manner that is different from the way they are addressed under these Guidelines. 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, th e 915 paras. 519 and 584; Australia's second written See, e.g. Australia's first written submission, submission, 316, 318 and 321 - 345; Australia's opening statement at the first meeting of the Panel, paras. para. 83; Austral ia's response to Panel question No. 135, paras. 21 - 32; and Australia's response to Panel 35 question 150, paras. - 36. No. 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 2.5. of the type that would be required to rebut" this presumption under the second sentence of Article Australia's second written submission, paras. 347 - 35 3 . 917 - paras. 308 and 347 s second written submission, 355. Australia' 918 Australia's second written submission, para. 356. 919 Dominican Republic also makes the point that, even assuming that the WHO or the FCTC COP The - setting activities in some specific areas, such activities do not include those that engage in recognized standard regulation at issue in these proceedings. Consequently, it says, the Article 11 are "relevant" to the technical and Article 13 FCTC Guidelines cannot be considered as "relevant" international stand ards. See, e.g. Dominican 's opening statement at the second meeting of the Panel, para. 28 and fn 37; and Republic 147, Dominican 's comments on Australia's response to Panel question No. Republic paras. 9, 11 and 24. 920 para. Indonesia's response to Pan el question No. 136, See, e.g. 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 paras. 507 - 508 and 515); Honduras's response to Panel question No. 66, p p. 26 and 34; per No. p. 129, p Honduras's response to Panel question 41 - 42; Honduras's opening statement at the second 's second written submission, para. meeting of the Panel, Dominican Republic paras. 842 - 911 (including, its 22; 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 paras. written submission, 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 13. See also the parties' respective responses to Panel question 150, para. No. question No. 150 as well ts' comments on each other's responses to that question. Australia's and the complainan

199 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 199 - - measures TPP cannot be rebuttably presumed not to create an unnecessary obstacle to 922 international trade. 7.2.5.2.2 Approach of the Panel 923 Agreement As described above Article 2.5 of the TBT , the second sentence of provides 7.260. ebuttably presumed not to create an unnecessary obstacle to that a technical regulation "shall be r sets of cumulative conditions: international trade" when it meets the following two 924 a. prepared, adopted or applied "for one of the legitimate it is a "technical regulation" entioned" in 2.2; and objectives explicitly m Article it is "in accordance with relevant international standards". b. 925 Having determined above that the TPP 7.261. constitute a technical regulation measures 926 prepared for a legitimate objective expressly mentioned in Article 2.2 , and therefo re meet the first of these conditions, we now consider whether these measures are "in accordance with 927 relevant international standards", as argued by Australia. On its face, a technical regulation is "in accordance with relevant international standards", 7.262. international standards" exist, and, second, if two cumulative elements are met: first, "relevant the measure(s) at issue is "in accordance with" these international standards. 7.263. Article 11 and Article 13 FCT C Guidelines, We therefore first need to consider whether the or elements 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" tho se Guidelines. Should we, however, find otherwise, 928 we will not need to proceed any further. 922 See, e.g. Honduras's second written submission, 462. Additionally, assuming arguendo that the para. 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 o the level of specificity of the international standard", this means 2.5 "must be calibrated t sentence of Article that "there could be no, or at most a very weak, presumption created by the FCTC Guidelines, given the loose arguments in support of its manner in which they are formulated", and then arguing that the "evidence and case under Article prima facie 2.2 are sufficient to overcome any such presumption"). 923 See paras. 7.37 7.38 above. and 924 We note that, as part of one of the twelve paragraphs of Article TBT Agreement , the 2 of 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 . Technical regulations from central government bodies local or non - governmental bodies (as defined in Annexes 1.7 and 1.8 of the TB T 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 trademarks may be displayed on tobacco products and packaging), and relating to the manner in which mandating compliance with those characteristics. 926 See para. 7.252 above. See also para. 7.246 para. 7.232 above, where we recall our conclusion in that the objective pursued by Australia through the measures TPP 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 Article requirement in TPP measures are] 'in accordance with relevant international 2.5, namely, whether the [ standards'"). 928 above, it is undisputed that, in these proceedings, the burden of As we have stated in para. 7.187 demonstrating that all the conditions under the second sentence of Article 2.5 are met rests on Australia, as the party invoking this provision.

200 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 200 Whether the 7.2.5.2.3 11 and Article 13 FCTC Guidelines constitute "relevant Article international standards" the existence of 7.264. These are the first panel proceedings in which a party invokes standards" within the meaning of the second sentence of Article "relevant international 2.5 of the 929 Agreement . We will therefore first determine what elements must be present for a "relevant TBT international standard" to exist within the meaning of this provision. We will then examine, in light 11 and of these determinations, whether the Article 13 FCTC Guidelines, or relevant Article elements thereof, as identified by Australia, constitute a "relevant international standard" for packaging for the purposes of that provision. tobacco p lain The notion of "relevant international standards" in 2.5 (second 7.2.5.2.3.1 Article sentence) Main arguments of the parties Honduras consider s that "an instrument constitutes a relevant international standard if it 7.265. 930 as follows: (i) "[t]he instrument is a 'standard' according to meets the requirements outlined" 931 1.2 of the ; (ii) Agreement " the definition established in Annex "[t]he standard m ust be TBT 932 933 "[t]he standard must be 'relevant'". ; and (iii) 'international'" The takes the view that assessing whether a document is a "relevant 7.266. Dominican Republic international standard" requires the following "cumulative" and "sequential steps" be addressed : whether "the document was prepared by an 'international standardizing body'; (ii) whether "the (i) whether "the document is 'relevant' to document constitutes an 'international standard'; and (iii) 934 The Dominican Republic considers the measure at issue". not dispute" that that Australia "does 935 this assessment consists of these "sequential steps". Cuba initially endorsed Honduras's view that the two questions to be assessed are: 7.267. (i) izing body"; and whether the body that adopted the "document" is an "international standard 936 forth an "international standard". whether the "document" at issue sets It later expressed (ii) 1.2 to the second question in terms of whether the "document" is a "standard" as defined in Annex 937 Agreement . Specifically, it argued the that the TBT 11 and Article 13 FCTC Guidelines Article 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 938 body". esia 7.268. Indon considers that the first question to be answered under "relevant international 939 standards" is whether "an 'international standard' exists". It argues that responding to this 929 In – Clove Cigarettes , noting the parties' agreement that no "relevant international standard" US Article 2.5 existed, the panel remarked that it would not sentence of within the meaning of the second therefore begin assessing the claim under 2.2 "from any rebuttable presum ption that the ban on Article US – Clove cigarettes is not an unnecessary obstacle to trade." Panel Report, Cigarettes , para. 7.331 clove No. (also cited in Honduras's comments on Australia's response to Panel question para. 40; and in Cuba's 147, second written submission, 179 - 180 and 188). paras. 930 478. Honduras considered that these three elements Honduras's second written submission, para. para. 492. constituted the "legal standard" for this particular assessment. Ibid. 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, 486 - 489 (in particular, the heading for subsection paras. VI.B.2(b) of this submission). 933 Hon duras's second written submission, paras. 490 - 492 (in particular, the heading for subsection VI.B.2(c) of this submission). 934 para. Republic 's response to Panel question No. 66, 291 (emphasis omitted ). See also Dominican Republic 's second written Dominican submission, para. 851. 935 Dominican Republic 's second written submission, 852. para. 936 Cuba's response to Panel question No. 66, p p. 15 - 16 (annexed to its response to Panel question No. . 138) 937 - paras. 168 Cuba's second written submission, 181 and 182 - 188. 938 para. 47. Cuba's second written submission, 939 74. See also Indonesia's second written Indonesia's response to Panel question No. 66, para. 222. submission, para.

201 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 201 of the definition in question requires, first, assessing whether a "standard" exists in the sense 940 Agreement , and second, if so, whether such "standard" is more precisely 1.2 to the Annex TBT an "international standard". Whether an "international standard" exists, Indonesia claims, depends standard; (ii) adopted by an international therefore on the presence of three element s: "(i) 941 made available to the public". standardizing/standards organization; and (iii) initially considered that, in order to show a "relevant international standard" 7.269. Australia 2.5, "a party must demonstrate that there is: (i) a exists under the second Article sentence of adopted by an international standardizing/standards body or organization; and 'standard'; (ii) 942 (iii) 'made available to the public'". This party should, in addition, demonstrate that the 943 "relevant". interna Later in the proceedings, Australia expressed tional standard is (iv) (iii) differently, describing it as whether the standardizing element body or organization was one 944 Subsequently, "whose Membership is open to the relevant bodies of at least all Members". Australia stated that "the parties are largely in agreement that" demonstrating "relevant international standards" depends on three "cumulative conditions", namely: "(i) the document international' in character, in that it has must meet the definition of 'standard'; (ii) it must be ' the international standard must be been approved by an 'international standardizing body'; (iii) 945 'relevant' to the technical regulation at issue". Analysis by the Panel The term "relevant international standards" is common to Articles 2.4 and 2.5 of the 7.270. Agreement Article 2.4, has been addressed in prior . The meaning of this term, as used in TBT rulings. All parties to these proceedings rely on the interpretations develope d in that context, to international standards" under the inform their understanding of the meaning of "relevant 946 sentence of Article second 2.5. We agree that the use of the same terms in consecutive paragraphs of the same of the TBT Agreement sugg ests that they are intended to have the Article n considering this Article 2.4 as same meaning in both paragraphs. Nonetheless, i term as used in term in the second sentence of Article 2.5, we should also be context for interpreting the same 947 guided more generally by the similarities and differences between these provisions. 940 No. 66, Indonesia's response to Panel question 74. para. 941 Indonesia's response to Panel question No. 66, para. 75 (footnote omitted) ( referring to Panel US – Report, Tuna II (Mexico) , para. 7.663). 942 para. 570 (including fn 750, omitted, referring to Panel Report, Australia's first written submission, 7.664). Tuna US (Mexico) , para. – II 943 Au stralia's first written submission, para. 581. 944 fn – Australia's response to Panel question No. 66, para. 157 (recalling, in 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, 315. para. 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 Article 2.5, a final "cumulative condition": that the technical regulation is under the second sentence of "in cordance with" the relevant international standard. This condition is, however, a separate one that, as ac 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, p p. 32 - 33; Dominican Republic 's response to 308; Panel No. 66, paras. 291 - question 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, ond written submission, paras. 74 - 76; Indonesia's sec paras. - 224; Australia's first written submission, paras. 567 - 581; Australia's response to 222 question No. 66, para. 157 (first indent); and Australia's second written submission, paras. 315 - 341. Panel 27 (stating that it "does not see any nse to Panel question No. 66, p. See, however, Honduras's respo Articles 2.4 and 2.5, second sentence] for the purposes of this dispute"). interaction between [ 947 See, e.g. Appellate Body Report, US – Tuna II (Mexico) ( Article 21.5 – Mexico) , para. 7.347 (stating that, "so long as between Article 2.1 of the TBT Agreement the similarities and differences 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. 4.423 paras. 7.89 - 7.90 and 7.345. See also Appellate Body Report, US – Carbon Steel (India) , para.

202 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 202 In this respect, we note that 7.271. 2.4 and the second sentence of Article 2.5 both serve, Article Agreement together with other provisions of the TBT , the purpose of "harmonizing technical 949 948 TBT Agreement . This is a key purpose of the As regulatio ns on as wide a basis as possible". the Appellate Body observed: Agreement recognizes the important role that TBT In several of its provisions, the international standards play in promoting harmonization and facilitating trade. For 2.5 of the TBT example, establishes a rebuttable presumption that Article Agreement technical regulations that are in accordance with relevant international standards not create unnecessary obstacles to trade. Article 2.6, for i ts part, encourages do 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 Agreement . The third recital of the Preamble recognizes the important the TBT 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 out in Article 2.4 would undermine the important regulations from the obligations set ds in furthering these objectives of the Agreement . TBT role of international standar 950 Indeed, it would go precisely in the opposite direction. Article 2.4 and the second sentence of Article 7.272. 2.5 aim to promote harmonization in distinct but complementary ways: the former by creating an "obligation" and the latter by conferring, in 951 Article 2.4 consists the words of the Appellate Body, a "privilege". In this respect, we note that 952 that is applicable to all technical regulations, irrespective of the specific obligation of an legitimate ob jective they pursue. This obligation is triggered when a Member decides to adopt a regulation to fulfil a legitimate objective, and where either "relevant international technical not yet exist, "their completion is imminent". In such a standards" already "exist" or, if they do parts") "as a basis for" its technical situation, that Member "shall use them" (or their "relevant Article 12.7 of the SCM Agreement and (identifying various "textual similarities and differences" between Article - Dumping Agreement, and its associated Annex II, to conclude that the latter provides 6.8 of the Anti [ ] dditional context for the interpretation of" the former). But see Appellate Body Report, Japan – " a 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. 6.3 and 15.5 deal with different subject matters and Articles in these Articles" identical meaning to the common phrase therefore it is not appropriate to accord an (emphasis added)). 948 Agreement Article 2.6 of the TBT 66; and Uruguay's . See also Japan's third - party submission, para. third - para. 72. The TBT Agreement also articulates this "harmonization" purpose with party submission, Articles 5.5 and Annex 3.G, respect to "conformity assessment procedures" and national "standards" (see t in EC – Sardines respectively). We also note tha 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 2.4 "applies" to measures adopted before the entry into force of t Article TBT Agreement on 1 January 1995, he 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 recital), mble (sixth SPS Agreement (see, e.g. prea 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 Agreement is intended to "further", as stated in the second recital of the TBT 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 – Sardines Appellate Body Report, paras. EC 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, US Appellate Body Report, – Sardines , para. 277; and Panel Report, – Clove Cigarettes , EC paras. 7.447 - 7.448. 952 – Appellate Body Report, EC – Sardines para. 27 5. See also Appellate Body Report, US , 379 and 390. Tuna II (Mexico) , paras.

203 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 203 - - 953 sentence of Article 2.5, for its part, provides for a The second regulation. – or, a "privilege" – presumption" of conform ity with a particular obligation (i.e. that "rebuttable under accordance with" relevant Article 2.2). That is, technical regulations that are "in international standards are "rebuttably presumed" not to create an unnecessary obstacle to Article 2.2. However, unlike Article meaning of 2.4, this privilege is international trade within the regulations: those pursuing one of the legitimate available only in respect of a subset of technical 954 2.2. objectives "explicitly mentioned" in A determination that "relevant in Article ternational standards" exist, under either of these provisions, therefore has important implications for all WTO " he obligations and privileges associated with international standards pursuant to the Members: t Agreement WTO apply with respect to all Members, not merely those who participated in the TBT 955 . " development of the respective standard We further note that Article 7.273. only "relevant international standards" that 2.4 covers not 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 956 that already "exist". Additionally, the second sentence of Article 2.5 requires a regulation to be "in accordance with" the "relevant international standard" without also technical Article 2.4, that the measure simply rely, alternatively, on mitting, as it is the case in per 957 "the relevant parts" of those international standards. Finally, we note that Article 7.274. sentence of Article 2.5 establish distinct 2.4 and the second criteria in term s of the degree of correspondence required between the relevant international for", in as standard and the technical regulation at issue, as reflected by the terms "use ... a basis 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, to" relationship b etween the terms should "conform be informed by the in A rticle 3.2 of the SPS Agreement and "based on" in Articles 3.1 and 3.3 of the same Agreement, as clarified by the 958 Appellate Body in – Hormones . EC We note in this respect the conceptual similarities between 953 not required to use relevant international This obligation is not, however, absolute: a Member is standards "as basis for" its technical regulation when such standards (or "r elevant parts" thereof) would be a an "ineffective" or "inappropriate" means for the fulfilment of the legitimate objectives pursued. See Appellate EC Sardines , para. 274 (comparing the requirements under – 3.1 of the SPS Agreement Body Report, Article Article 2.4 of the TBT Agreement with with respect to "relevant international standards", and those under absolute (emphasis added)). stating that "[n]either of these requirements in these two agreements is " 954 These are: " national security requirements"; the "prevention of deceptive practices"; the "protection 7.252 of human health or safety, animal or plant life or health, or the environment". See also above. para. 955 Appellate Body Report, US – Tuna II (Mexico) , para. 390. (emphasis original) 956 Agreement supports this understanding. Had the The context provided by other provisions of the TBT Article intended the second 2.5 to include not only already adopted drafters of the Agreement sentence of 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, drafters intend a given obligation to cover already adopted international standards, they either used when TBT .5, refer to Articles 2.9, 5.6, and 12.4) or, as in the second sentence of Article 2 the term "exist" (see, e.g. Article "international standards", without qualification (see, e.g. 3.J (second paragraph), 6.1.1 and Annex Article 5.4 and Annex 3.F). 957 No. 150, para. 11; and See also, in the same vein, Indonesia's response to Panel question No. 150, para. 22. Indonesia's comments on Australia's response to Panel question 958 The complainants consider the term "in accordance with" to require a high degree of correspondence the basis for such interpretation they first between the measure and the international standard. In explaining note that Article 2.4 of the TBT Agreement and the second sentence of Article 2.5 of the TBT Agreement use - "as a basis for" and "in accordance with", respectively - different terms ing to internati onal when referr 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 The complainants then argue that the interpretation of "in Agreement, uses the term "conform to". ning of the ordinary mea accordance with" in the second sentence of Article se 2.5 has to be based on the seen in light of the object and purpose of the TBT Agreement as well as under their proper context , terms, which include, in particular, the term "conform to" in Article 3.2 of the SPS Agreement , as clarified by the mones Appellate Body in EC – Hor . 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 Agreement, there should be a "sufficient degre of Article 2.5 of the TBT e of correspondence" between that

204 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 204 959 Th e different Agreement. isions and the corresponding provisions in the SPS these TBT prov s , similarly to the reflected in Articles 2.4 and 2.5 of the TBT Agreement wording that suggest sentence of Article 2.5 may require a comparable provisions in the SPS provisions, the second between the measure at issue and the relevant closer or higher degree of correspondence 960 2.4. As indicated above , we will consider international standard than that required under Article 13 FCTC Guidelines are Article Article this aspect further if we first find that the 11 and "relevant international standards". 7.275. Taken together, these differences suggest to us that the more limited scope of application degree of correspondence required under t he second and the higher Article 2.5 sentence of nternational standard between a technical regulation adopted by a Member and the relevant i standard, such that Article 3.2 of the SPS international , the , as in the case of measure and that Agreement , that the measure would be, as in ompletely". This means, they continue measure "embodies" the standard "c of the case 3.2 of the SPS Agreement , "for practical purposes", basically "converting" the international Article standard "into a municipal standard". The complainants also consider that this interpretation also indicates that ational standard is an element for assessing "in accordance with". For them, n intern the level of specificity of a this means that in assessing the degree of correspondence required between the technical regulation and the onal standard, a panel must consider whether such a standard " is sufficiently precise" so as to be able internati 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 so goes al the standard, cannot be considered as being "in accordance with" that standard. Australia beyond considers that the complainants' analogy with Article 3.1 of the SPS Agreement, and the corresponding the of its terms , "is inapposite" for the interpretation of the term "in accordance jurisprudence on meaning 2.5 . While acknowledging that one of the ordinary with" in the second sentence of Article of the TBT Agreement argues ", Australia that a panel should inst ead be guided by the other ity meanings of "accordance" is "conform relevant ordinary meanings for "accordance", namely: "agreement", "harmony". For Australia, these meanings 2.5, indicate not a "high" but, of the term "in accordance with", as used in the second sentence of Article 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 11 of the DSU. See , e.g. should depend on an "objective assessment of the fa cts" in accordance with Article question No. 150 as well Australia's and the complainants' comments on Parties' respective responses to Panel question N o. 66, p. 27; each other's responses to that question. See also Honduras's response to Panel Dominican 's second written submission, paras. 903 - 907; Indonesia's second written submission, Republic 255; and Australia's second written submission, paras. 342 343. On the similarities between the second para. - 961 TBT Agreement and Article 3.2 of the SPS Agreement, see fn below. sentence of Article 2.5 of the 959 In – Sardines , the Appellate Body observed the existence of "strong con ceptual similarities" EC 3.1 and Agreement and, on the other hand, Articles between, on the one hand, Article 3.3 of the 2.4 of the TBT SPS Agreement. The Appellate Body explained that such "strong conceptual similarities" stemmed from the fact their that "the hear t" of Article 3.1 of the SPS Agreement consisted of a requirement that Members base SPS international standards, guidelines, or recommendations, much like "the heart" of Article 2.4 measures on basis Agreement consisted of bers use international standards as a a requirement that Mem for their of the TBT EC – Hormones technical regulations. The Appellate Body thus concluded that its previous reasoning in on the 3.3 of the SPS Agreement to be "equally apposite" for their task 3.1 and EC – Sardines meaning of Articles in 2.4 of the TBT Agreement . Appellate Body Report, EC to clarify the meaning of Article – Sardines , paras. 274 - 275 . See also Appellate Body Report, India – Agricultural Products , para. 5.77. Similarly, we note ween the second sentence of Article the conceptual similarities bet 2.5 of the TBT Agreement and Article 3.2 of 3.2 and 3.3 of the the SPS Agreement, and the conceptual parallelism in the relationships between Articles SPS vely. See also fn Agreement and Articles 961 below. 2.4 and 2.5 of the TBT Agreement, respecti 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 sec ond sentence of Article 2.5, which is the counterpart of that SPS provision in the TBT Agreement. This is given that " is one (even if it is not, as Australia notes, the particularly so , as the parties agree, "conformity of the ordinary meanings of the term "in accordance with" . We note, in this respect, that in EC – only one) of the Hormones Body, after considering that the ter m "base ... on" in Article 3.1 , the Appellate 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 me asure that conforms to an international standard. Such a measure would embody the international . Such a standard completely and, for practical purposes, converts it into a municipal standard 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. Animals paras. 160 - 172. See also, more recently, Panel Report, US – , para s . 7.218 - 7.220 . 960 above. See paras. 7.44 and 7.263

205 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 205 reflect the fact that, through this provision, Members confer the "privilege" of a rebuttable Agreement , which is uncommon presumption of conformity with a key obligation under the TBT 961 a We take due account of this overall context in considering how the the covered in greements. existence of "relevant international standards" within the meaning of the second sentence of Article 2.5 ma y be established. The core component of "relevant international standards" is the existence of "international 7.276. 962 The parties have identified the elements that, in their view, must be considered in standards". assessing whether "international sentence of standards" exist for the purposes of the second 2.5 of the TBT Agreement . Article Honduras 7.277. considers that the existence of "international standards" requires demonstrating is a "standard" in Annex according to the definition established document two elements: that the 963 964 in character . , The Dominican 1.2 of the TBT Agreement which is, in addition, "international" understands the notion of "international standard" as included in the first two of the "four Republic cumulative, sequential steps" that it considers "must be established" in order to show that a tandards" for the purposes of the technical regulation is "in accordance with relevant international s Article 2.5, namely: "1. the document was prepared by an 'international second sentence of 965 standardizing body'; 2. The Dominican the document constitutes an 'international standard' ...". r "international standards" exist includes assessing conformity Republic further states that whethe 966 1.2. with the definition of "standard" in Annex Cuba considers the "international standard" assessment as requiring a demonstration that the "measure" must be adopted by an "international 967 ndardizing body". Indonesia considers that an "international standard" exists "where there is: sta a standard; (ii) that (i) adopted by an international standardizing/standards organization; and (iii) 968 Australia ia, considers that such assessment is made available to the public". , like Indones 961 The only other covered agreement that confers a similar presumption of conformity with treaty Agreement (in 2.4 and 3.2). We note, in particular, that under Article 3.2 of the Articles obligations is the SPS Agreement, m easures "which conform to international standards, guidelines or recommendations shall be SPS deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with 1994 the relevant provisions of this Agreement and of GATT SPS provision does not ". Although the latter expressly state it, the Appellate Body has clarified that such presumption is not absolute, but instead a in EC – Hormones , para. 170. Article 3.2 of the SPS Agreement is, "rebuttable" one. Appellate Body Report, . These provisions are, however, Article 2.5 of the TBT Agreement sentence of this sense, similar to the second 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 1994, whereas Agreement, but also of the GATT Article TBT Agreement provides a presumption only with respect to Article 2.2 of the TBT Agreement . 2.5 of the We further note that the covered agreements may also occasionally confer types of presumptions other than those in the form of with an obligation. But even those are uncommon. For instance, recently, in consistency – Agricultural Products , the Appe llate Body clarified that a finding of a violation of India 5.1 and 5.2 of Articles the SPS Agreement "may give rise" to a rebuttable presumption of in consistency 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; para EC – Sardines , pertinent". Appellate Body Report, s. 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 No. p. nduras's response to Panel question 25 - 26; and second written submission, Ho 66, p paras. 478 - 489. 965 Dominican Republic 's second written submission, 850 - 851 (emphasis original). See also paras. Dominican Republic 's response to Panel question No. 66, para. 291. 966 Republic 's second written submission, para. Dominican 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 7.663). No. 66, para. 75 (relying on the Panel Report, US – Tuna II (Mexico) , para.

206 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 206 a 'standard'; (ii) entails "demonstr[ating] that there is: (i) adopted by an international 969 standardizing/standards body or organization; and (iii) 'made available' to the public". term "international 7.278. standards" is not defined in e The Panel notes that, while the composit 970 , Annex the 1 to the Agreement contains definitions of relevant related terms, TBT Agreement 971 and "international body or including definitions of the terms "standard" (Annex 1.2) (Annex 1.4). In in terpreting the term "international standards" as used in Article 2.4 of system" Agreement the TBT , the Appellate Body relied on these two definitions, concluding that the 972 and of an international body ". standard Agreement "establishes the characteristics of a 973 A " 1.2 to the TBT Agreement as a: 7.279. standard" is thus defined in Annex 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. This definition is accompanied by the following Explanat ory note 7.280. : 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 2 may be mandatory or voluntary. For the s as defined by ISO/IEC Guide 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 para. 570 (relying on the Panel Report, US – Tuna II (Mexico) , Australia's first written submission, 7.664). Australia, however, seems to indicate the elements for "international standards" somewhat para. differently when listing them as part of the broader term "relevant international standards". Australia considers "relevant 11 and Article that proving that the 13 FCTC Guidelines are international standards" requires Article a 'standard'; (ii) demonstrating that they constitute: "(i) 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 66, para. No. 157. (footnote omitted) is (iv) 'relevant'". Australia's response to Panel question 970 See Appellate Body Report, US – Tuna II , para. 350. We observe, however, that the (Mexico) 1979 Tokyo Round Agreement on Technical Barriers to Trade (Tokyo Round Standards Code), which preceded TBT Agreement , contained a definition for "international the WTO's 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. plurilateral agreement was terminat ed with the entry into force of the WTO. Panel Report, 81. This GATT Sardines , para. 7.86 fn EC 2 to Article – 2.4 of the Agreement on Preshipment 85. We also note that footnote Inspection (on the application of international standards with respect to quantity and quali ty inspections) - governmental body defines "international standard" as being "a standard adopted by a governmental or non 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, – Tuna II (Mexico) , para. 359. See also, in the same vein, the parties ' respective responses to US 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 (Mexico) instance, in US – Tuna II Body was whether , a threshold question before the Panel and the Appellate the measure at issue was a "technical regulation" or a "standard"; which, in turn, depended on whether the r these terms in Annexes 1.1 and 1.2 to the TBT Agreement , respectively. measure fell within the definitions fo Report, US – Tuna II (Mexico) , paras. See, e.g. Panel 7.48 - 7.49; and Appellate Body Report, US – Tuna II (Mexico) , 171 and 178 . paras. 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

207 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 207 Overall, this definition suggests that a "standard" exists for the purpose of the 7.281. 974 , including the second sentence of Article 2.5, when a given instrument: Agreement TBT 975 s a "document" ... ;  i 976 ... "approved by a recognized body" ...;  977  ...; ... that provides "rules", "guidelines" or "characteristics" 978 ... "for products" or "related processes and production methods" ...;  979 ..."for common and repeated use" ; and  980 guidelines or characteristics is "not mandatory".  "compliance" with these rules, Each of these elements describes a specific aspect of the conditions that, taken together, 7.282. 1.2 of the TBT Agreement . A would allow an instrument be defined as a "standard" under Annex "document" will there fore constitute a "standard" when all of these elements are met 981 cumulatively. We note that this understanding is consistent with the manner in which the parties 982 have presented their arguments in these proceedings. 974 written submission, para. 479; Dominican Republic 's second written See Honduras's second ubmission, para. 894; Cuba's second written submission, para. 182; Indonesia's second written submission, s 222 - 223; and Australia's first written submission, paras. 571 - 572. paras. 975 "terminology, symbols, packaging, marking or labelling requirements", This element also applies to fn below. 979 as described in the second sentence of the definition. See 976 This element also applies to "terminology, symbols, packaging, marking or labelling requirements", fn 979 as described in the second sentence of the definition. See 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 below. production method". See also fn 979 979 r common and repeated use" only appears in the first sentence of the The composite term "fo 1.2, but not in the second, which refers to a definition of "standard" in Annex "document" that includes or deals equirements". We consider that when exclusively with "terminology, symbols, packaging, marking or labelling r 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 , it becomes clear that, to be a "standard", instrument( s) TBT Agreement 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 "approved by a recognized body" "for common and a "document" that was ; that these requirements are repeated use"; and that they are requirements "with which compliance is not ry". A different mandato 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 "standard". In any event, no party or third - party of these proceedings, implicit regulation" or a (national) 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, 7.280 which is set out in full at para. bove, referring to the mandatory nature of technical regulations, further a clarifies that for the purpose of TBT "standards are defined as voluntary ... documents" . Agreement 981 This understanding is consistent with prior interpretations and application of the definitions in 1.1 ("technical regulation") and 1.2 ("standard") to the TBT Agreement , which are similarly drafted. Annexes paras. EC – Asbestos , 66 - 75 (assessing, sequentially and cumulatively, the See, e.g. Appellate Body Report, measure at issue agains t the elements forming the definition of "technical regulation" in Annex 1.1 to the r TBT Agreement ); Appellate Body Report, EC – Sardines , para. 176 (recalling its previous eport 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)

208 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 208 983 The Appellate Body also considered cert Guide 2: 1991 7.283. as ain definitions in the ISO/IEC 985 984 The , to the extent that Annex applicable and relevant 1 definitions do not depart from them. Guide 2: 1991 defines the term Appellate Body noted, in particular, that the ISO/IEC standard" as "international a "standard that is adopted by an international standardizing/standards 986 organization and made available to the public". The Appellate Body further found that this definition suggests that "it 7.284. is primarily the standard that lends the standard its 'international' characteristics of the entity approving a not appear to be character". By contrast, it added, "the subject matter" of a standard would 987 The Appellate Body "material" for determining whether the standard is "international". "i concluded that er to constitute an ' international standard ' , a standard has to be adopted by n ord 988 " for the purposes of the TBT Agreement ' . international standardizing ' an body Whether an " international standardizing body" exists requires, in turn, assessing whether 7.285. is one that has recognized activities in standardization and whose membership is open to this body 989 the relevant bodies of at least all Members. Overall, the foregoing suggests that, for an instrument to be considered an 7.286. standard" under the second "international ntence of Article 2.5, it must: se a. constitute a "standard" under Annex 1.2; and 990 be also "international", a condition primarily b. predicated upon whether it was adopted 991 by an "international standardizing body". - 183 nex 1.1 definition of "technical regulation"); and Panel paras. 189 (also with respect to elements in the An – Sardines , paras. Report, 7.63 - 7.65 (with respect to the individual elements in the Annex 1.2 definition of EC "standard"). 982 See, in particular, Indonesia's response to Panel question No. 66, para. 74. See also Honduras's paras. 493 - 507; Honduras's response to Panel question No. 129, p p. second written submission, 41 - 42; Dominican Republic 's second written submission, para. 894; Dominican Republic 's response to Panel 's second written submission, 66, para. 305; Cuba para. 182; and Australia's first written question No. paras. 571 - 574. See also, e.g. Canada's third - submission, No. 1 party response to Panel question (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 702. – (19 91) (ISO/IEC Guide 2:1991). See also Appellate Body Report, US Tuna II (Mexico) , para. 353 fn 984 1 to the TBT Agreement states that the "terms presented in the The introductory clause of Annex 2:1991], shall, when used in this Agreemen t, have the same meaning as given in the [ISO/IEC Guide 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 , US departure. Appellate Body Report, 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 – - clause 3.2.1 (as quoted in Appellate Body Report, US ISO/IEC Guide 2:1991, sub Tuna II (Mexico) , para. 353). 987 II Appellate Body Report, US – Tuna (Mexico) , para. 353. 988 Appellate Body Report, US – Tuna ppellate Body II (Mexico) , para. 356 (emphasis original). The A also explained that: Agreement TBT 1.4 Annex 1.2 to the refers to a "body", not to an "organization", and Annex defines an "international body or system", but not an "international organization". This suggests BT Agreement , "international" standards are adopted by "bodies", T that, for the purposes of the which may, but need not necessarily, be "organizations". . para. 356. Ibid 989 II US – Tuna Appellate Body Report, (Mexico) , para. 359. 990 As noted in para. 7.284 above, " it is primarily the characteristics of the entity approving a standard 353 that lends the standard its 'international' character." ate Body Report, US – Tuna II (Mexico) , para. Appell (emphasis added). However, as observed by the Appellate Body, the texts of the definition of "international standard" in the ISO/IEC Guide 2: 1.2 1991 and the " Explanatory note " to the definition of "standard" in Annex both suggest that, besides the adoption by an "international standardizing body", there to the TBT Agreement

209 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 209 Taking into account the broader context described above, including the complementary 7.287. 2.4 and 2.5 in promoting harmonization through the use of relevant international role of Articles 992 espect of the term standards , we see no basis to assume that the above guidance, given in r "international standards" as contained in Article 2.4, would not be equally relevant to the 993 2.5. determination of the meaning of the same term in the second sentence of Article e party invoking the presumption 7.288. It is undisputed that the burden rests on Australia, as th 994 2.5, to demonstrate that all the conditions under this provision are met. under of Article We therefore consider first whether the instruments identified by Australia as constituting 7.289. tobacco plain packaging constitute a "standard" for a "relevant international standard" for plain tobacco packaging. If we find that this is the case, we would then proceed to consider owever, should whether such standard is also "international" in character. H we not find that the , we would not need to proceed any dentified by Australia constitute such a "standard" instruments i 995 further. for the may be "additional procedural conditions" to be met for a standard to be considered "international" purposes of the Agreement, i.e. whether, in addition, the standard was "based on consensus" and "made (Mexico) Tuna available to the public". Appellate Body Report, – , para. 353. In that dispute, however, the US II y was limited to the characteristics of the entity approving an "international" question before the Appellate Bod standard. The Appellate Body therefore considered it unnecessary, in that case, to address further whether the conditions". In these proceedings, as document at issue complied with those two "additional procedural 7.268 , 7.269 and 7.277 above, some parties have, for instance, identified demonstrating described at paras. the public" as elements forming the "international standards" that the document was "made available to 2.5. This element, together with other "additional procedural Article assessment under the second sentence of however, to the second ("international") and not the first ("s tandard") prong of the conditions", belongs US – assessment of whether a document is an "international standard ". See, e.g. Appellate Body Report, Tuna II (Mexico) , paras. 353 and 359 fn 709. 991 Appellate Body Report, – Tuna II (Mexico) , paras. 353 and 356. See also paras. 7.284 and US 7.285 above. 992 para. 7.271 above. See 993 Additionally, as we stated in para. 7.270 above, the use of the same terms in consecutive Article suggests that they are intended to have the same paragraphs of the same of the TBT Agreement meaning in both paragraphs. Nonetheless, i n considering this Article 2.4 as context for term as used in term in the second interpreting the same Article 2.5, we should also be guided more generally by sentence of in ilarities and differences the similarities and differences between these provisions. We considered such sim 7.271 to 7.275 above paras. . 994 para. 7.187 above. In considering whether See the above guidance of the Appellate Body for the Article 3 of the SPS Agreement can be of use for the equivalent provisions in "comparative assessment" under TBT Agreement , we also note that an important difference between these two Agreements is that, unlike the A(3)) the three TBT , the SPS Agreement lists (see, e.g. Annex Agreement bodies that adopt international the standards for its purpose. This difference, in turn, may impact the burden of proof for the party invoking the Article 2.5 of the TBT Agreement (as well as the role of the Panel examining that second sentence of cerning the meaning of the instrument claimed to be an "international provision), in terms of identifying and dis Article 2.5 it is incumbent on the party invoking that provision to standard". Under the second sentence of 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 A greement . TBT 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, para. We note that the Appellate Body has clarified that the Honduras's second written submission, 507. sing the "international" interpretation of the term "international standardizing body", for the purpose of asses Article 2.4, is a "holistic exercise in which the components of the definition are to character of a standard under . Appellate Body Report, US be considered together" – 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 unnecessary to address the other "components" of that it 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 be "relevant international standards" (i.e. "standard", "international" and "relevant") should individually and

210 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 210 Whether the 7.2.5.2.3.2 11 and Article 13 FCTC Guidelines constitute a Article "standard" for tobacco plain packaging within the meaning of Annex 1.2 of the Agreement TBT 996 7.290. As indicated above , 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 TBT Agreement , respectively. "standard" in Annexes As the Appellate Body 1.1 and 1.2 to the 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. TBT Annex , however, narrows the scope of measures that can 1.1 to the Agreement be characterized as a "technical regulation" by referring to a document that down product characteristics or their relat ed processes and production methods, "lays 997 including the applicable administrative provisions". Agreement Similarly, the surrounding terms in 1.2 to the 7.292. Annex "narrow[] the scope" TBT 998 of the measures that can be characterized as a "standard" ion. For instance, it under that definit 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 999 packaging, marking or labelling requirements"). exclusively with terminology, symbols, 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 1000 with or include packaging or other requirements) with a specific purpose, i.e. "for common and 1001 The Appellate Body has also clarified that the term "documents", as used in that repeated use". note ", "must refer to standards in general , and not on ly to those adopted by entities " Explanatory 1002 international bodies". other than We also consider the Appellate Body's observation that under Annex 1.1, "a 'document' 7.293. may comprise multiple legal instruments in a given circumstance" to be equally relevant in the 1003 2 context of Annex 1. 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 struments, simultaneously addresses other issues, and one which, together with various other in cumulatively (or "holistically") considered, where this is not necessary to the determination in light of the circumstances. 996 para. . See 7.281 997 US – Tuna II (Mexico) , para. 185 (footnote omitted). See also Appellate Body Appellate Body Report, 5.10. Reports, EC – Seal Products , paras. 5.9 - 998 US – Tuna II (Mexico) , that the ISO/IEC Guide 2: 1991 We also note, as the Appellate Body did in establishes, broadly, that "[a] document is to be understood as any medium with information recorded on or in it". Appellate Body Report, – Tuna II US , para. 185 fn 391. However, as we have explained at (Mexico) 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 fn See para. 7.337 and 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 document ", the text of its " Explanatory note " refers to " document s ". Nonetheless, as 1.2 refers to " clarified Body, these two terms "must be interpreted as having the same meaning" for the by the Appellate para. EC – purposes of this provision. Appellate Body Report, Sardines , 222. 1002 Appellate Body Report, EC – Sardines , para. 222 (emphasis original). See also Eu ropean Union's third para. 45 and fn 44 (also referring to Appellate Body Report, EC party submission, – Sardines ) . - 1003 US – COOL ( Article 21.5 – Canada and Mexico) , fn 708. See also fn 1007 Appellate Body Reports, below.

211 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 211 themselves, would not be an forms part of a broader context or framework. These situations, in obstacle to demonstrating the existence of a "document" that can be characterized as a Article 2.5. e meaning of "standard", or as a "relevant international standard" within th We consider that, properly understood in the above context, the term "document" 7.294. 1.2 requires, as a indicates that an assessment of whether a "standard" exists under Annex step, a sufficiently clear and distinctive identifica tion of the components or elements of the first 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 1004 if related to, the specific matter at issue in the challenged technical regulation. We note that this initial task of precisely identifying the components of the instrument( 7.295. s) at issue forming the "document" is a necessary first step for both the second sentence of 2.5, and Article 2.4. Under both provisions, such identification is necessary for the Article rrespondence between subsequent "comparative assessment" needed to assess the degree of co 1005 regulation, as specified under each provision. the international In standard and the technical TBT Agreement , an examination of whether a relevant Article 2.4 of the the context of ... as a basis international standard was "use[d] a technical regulation "must be limited to for" - 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 1006 all address rts [of the international standard]". Similarly, under the second of those relevant pa Article sentence of 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 1007 below. fn 1005 ond sentence of Article 2.5, or "use ... as a basis for", That is: "in accordance with", under the sec under Agreement which are equivalent to Article 2.4. We also note that, under those provisions of the SPS provisions (those under 3 of the SPS Agreement, for instance), there is a similar need to Article these two TBT standard in order to, first properly identify the components of the instrument allegedly containing the SPS 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 3.1, 3.2 or 3.3 of the SPS Agreement, respectively). See also Articles and fn 961 above, where we also discuss these TBT and SPS terms. para. 7.274 1006 – Body Report, EC Appellate Sardines , para. 250 (emphasis original). The Appellate Body based this 2.4. As we noted at understanding on the composite term "or relevant parts of them", used in Article para. and fn 956 above, the second sentence of Article 2.5, however, does not contain th is 7.273 term. This, in turn, appears to indicate that, under the second sentence of Article 2.5, it may not be composite regulations to be "in accordance with" international standards by only assessing these possible for technical parts", rather than the entirety, of these standards. We also note the following measures against the "relevant EC observations by the Appellate – Sardines when applying this understanding to the facts of that Body in case: - consistency of the requirement set out in Article 2 of the This dispute concerns the WTO Sardina pilchardus Regulation that only products prepared exclusively from the species may EC 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 Article them", as used in 2.4, implies two things for the case before us. First, the determination whether Codex an 94 has been used "as a basis for" the EC Regulation must stem from an St 94 relating to the use of the term analysis that is limited to those "parts" of Codex Stan ude not "sardines" for the identification and marketing of preserved fish products. Those parts incl 2.1.1 of Codex only sections Stan 94, which sets 6.1.1(i) and 6.1.1(ii), but also section 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. Sardines Body Report, EC – Appellate , 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 Regulation should be compared". The Appellate Body f the standard and the whole of the EC 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 252. that [were] irrelevant to [that] dispute." Ibid. para.

212 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 212 - - assessment of whether the challenged technical regulation is "in accordance with" such 1007 standard. Body has provided similar 7.296. Article 3 We note that the Appellate guidance, in the context of Agreement, on the manner in which a panel should conduct the of the SPS assessment" between an SPS measure and the relevant international standard, for "comparative on", "conforms to", or "results in a the purpose of determining whether that measure is "b ased standard . higher level of protection than", that international 3.1, 3.2 and 3.3 of the Articles 1008 Agreement, respectively , as observed above SPS , have a comparable structure and function to he TBT Agreement : Articles 2.4 and 2.5 in t assessment between the challenged measure [A] panel must engage in a comparative standard. In this respect, because the international standard and that international Article 3 is to be serves as the benchmark against which a Member's compliance under 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 ant relevant interpretative principles, including relev 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 vant standard. For example, panels may wish to have recourse to the views of the rele standard - A(3) to the SPS Agreement, through setting body, as referred to in Annex evidence on the panel record or through direct consultation with that body, or with other experts , pursuant to Article in the relevant fields Agreement a nd 11.2 of the SPS 1009 13 of the DSU. Article 1007 COOL ( ermination of the Appellate Body in – We note, in this respect, the det Article 21.5 – US 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 Article 2.2, and in particular for an analysis of the "contribution" of the challenged technical obligation in 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 he degree of contribution of all of those elements then being taken into account when assessing t 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 150, para. 21; Dominican Republic 's comments on Australia's' response to Pane No. No. 147, l question 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 5.79. Applying the above understanding Body Report, India – Agricultural Products , para. Appellate to the "circumstances of that dispute", the Appellate Body then said: A(3)(b) [of the SPS Agreement] provides that the relevant international standards ... are those Annex OIE out in the [World Organization for Animal Health ( 10.4. )] Code, in particular, Chapter set 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.

213 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 213 The above statements provide, 7.297. mutandis , relevant guidance for properly mutatis identifying the document identified by Australia as "relevant international standards" in relation to uments have been identified, their meaning will tobacco plain packaging. Once the relevant instr 1010 also need to be discerned and understood. 7.298. With the foregoing in mind, we now examine the instruments that Australia identifies as 1.2, forming the "document" that, within the meaning of the definition of "standar d" in Annex constitutes a "relevant international standard" for tobacco plain packaging for the purposes of the 2.5. Article second sentence of Main arguments of the parties Australia considers that the FCTC Guidelines, "as a 7.299. whole", could be conside red "relevant Article 2.5 of the international standards" for the purposes of the second sentence of 1011 Agreement TBT . 7.300. Australia further explains that, for the purpose of determining whether "relevant packagi ng, the "document(s)" to be assessed are, international standards" exist for tobacco plain 1012 Article 13 FCTC Guidelines. 11 and Australia further clarifies that it more specifically, the Article makes this assertion "rel[ying] primarily" on the following paragraphs of these two Guidelines: FCTC a. paragraph 46 of the Article 11 FCTC Guidelines; and 1013 16 and 17 of the Article 13 FCTC Guidelines. paragraphs b. Australia also notes that, besides these three specific paragraphs, the Article 11 and 7.301. 13 FCTC Guidelines also contain "other elements" th at "do not specify 'plain packaging'" but Article are nonetheless "relevant" for characterizing these FCTC standard instruments as an international of the 11 and for tobacco plain packaging. Australia considers the following paragraphs Article para. 5.80 (footnotes omitted) Ibid. 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 discerning the meaning of SPS Agreement consisted of: (i) identifying the relevant international standards; (ii) such international standa rds; and (iii) assessing the measures at issue in light of these international standards on" the standards. – Pigs Russia (EU) , Panel Report, in order to determine whether the measures are "based 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 paras. on the legal test for "discerning meaning"). ( 1010 , referring to the Russia – Pigs (EU) We note in this respect the observations of the panel in Appellate Body's determinations in – Quantitative Restri ctions : India 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 of the Terrestrial Code. In this respect, and how it has undertaken its assessment of the meaning India – the Panel has remained mindful of the reasoning of the Appellate Body in Quantitative that a panel may not delegate its judicial function to an international organization Restrictions 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. , – Pigs (EU) para. 7.282 (footnotes omitted). See also Appellate Body Report Panel Report, Russia India – Agric ultural 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 below. parag raph 17 itself does not concern "plain packaging" per se . See also para. 7.311 and fn 1031

214 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 214 - - 13 FCTC Guid elements", in particular given that Article elines to be "examples" of these "other 1014 TPP measures "incorporate[]" : they "set out" requirements that the FCTC Guidelines paragraphs 10 and 54 of the Article 11 (dealing, respectively, with a. "adhesive labels"); and "inserts and onserts" and paragraph 15 of the Article b. (dealing with "packaging and product 13 FCTC Guidelines features"). aspects" of the Article 11 and Article 13 7.302. Australia further submits that "other Guidelines that are "relevant", include those addre ssing FCTC "misleading or deceptive packaging 1015 and labelling" and "misleading or deceptive advertisement and promotion". not contest Australia's identification of paragraph omplainants 7.303. The c 46 of the Article 11 do FCTC Guidelines and paragraphs 16 - 17 of the Art icle 13 FCTC Guidelines as being the parts of 1016 these instruments expressly addressing "plain Honduras questions, however, packaging". Guidelines, "as a whole", qualify as an Australia's broad claim that all the currently adopted FCTC standard for the purpose of these proceedings. Honduras recalls that the FCTC international COP has adopted FCTC Guidelines for the implementation of other provisions of that Convention, such Articles 8, 9, 10 and 14. Honduras considers that, "absent further clarif ication by as those for Australia, [such] general assertions are insufficient to discharge Australia's burden under [the 1017 TBT Agreement ". Article 2.5 of the second sentence of] 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. P to date contain extensive Guidelines adopted by the FCTC 7.305. We first note that various CO text dealing with a broad range of regulatory aspects of various types of tobacco - control measures 1018 provisions that these Guidelines relate to. addressed in the specific FCTC L ike other FCTC Guidelines, the Article 11 FCTC Guide lines and the Article 13 FCTC Guidelines are - binding instruments "intended to assist the Parties in meeting their obligations and in non 1019 increasing the effectiveness of measures adopted". set of guidelines contain extensive Both 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 to Articles 11 and 13 of the Convention effectiveness of measures ado pursuant pted 1020 It is notable in this respect that, as indicated by the complainants, . respectively 1014 Australia's response to Panel question No. 129, para. 202. 1015 129, para. 203. Australia's response to Panel question No. 1016 See, e.g. Honduras's second written submission, para. 495; and Indonesi a's second written paras. submission, 183 and 186. 1017 Honduras's second written submission, 504. para. 1018 - 109, DOM - 44), containing a See FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS Article 6 FCTC Guidelines (Exhibit AUS - 111), adopted in 2014. compilation of all adopted Guidelines, except the 1019 paras. amici curiae brief, (Exhibit AUS - 42 (revised)), WHO/FCTC 20 - 22 (referring to the texts of the - ding nature of bin respective opening paragraphs of these two FCTC Guidelines). We further discuss the non 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 warnings, including with respect to th eir "rotation" (paras. and use of health 19 - 22) and their "content" 23 - 27), and the Article 13 (paras. 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. - 14, recommending banning them); "internet sales" (paras. 18 - 21, 12 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 alia media" 31, inter (para. 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 24 the Article dissuasive penalties"). Further, paragraphs 22 - with further respect to 13 FCTC Guidelines, which define and recommend ba nning "brand stretching" and "brand sharing", they state that these types of branding

215 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 215 packaging" is not, as such, a specific type of tobacco control "plain measure expressly identified in 11 or 13 of the FCTC themselves (or in any other provision of the either Article Article 1021 Convention). 7.306. In light of this and our observations above on the importance of a precise identification of 1022 the "document" at issue for the remainder of our analysis , we agree with Honduras that, as an of the FCTC Guidelines have initial step in our assessment, "it is necessary to identify which parts 1023 been invoked by Australia as the alleged relevant international standards". As described above, Australia states that the FCTC ines "as a whole" could be 7.307. Guidel sentence of considered "relevant international standards" for the purposes of the second 2.5. Nonetheless, Australia also identifies the relevant instruments in respect of tobacco Article plain packaging as being, more specifical 11 FCTC Guidelines and the Article 13 FCTC ly, the Article Guidelines. It then further identifies three specific paragraphs of these two Guidelines upon which primarily" for the purposes of determining the existence of a "relevant international it "relies standard" in respect of tobacco plain packaging: paragraph Article 11 FCTC Guidelines, 46 of the 16 and 17 of the 13 FCTC Guidelines (in fact, the " recommendation " text and paragraphs Article 1024 hese two sets of Guidelines, in following paragraph 17). These are the specific texts, within t "plain packaging" is expressly mentioned and described. which tobacco Paragraph 46 of the Article 11 FCTC Guidelines (entitled " Packaging and labelling of 7.308. ") is the sole provision under a heading entitled "P lain tobacco products 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 packaging). This may increase the noticeability and effectiveness of health (plain warnings and messages, prevent the package from detracting attention from them, and address industry package design techniques that may suggest that some products 1025 e less harmful than others. ar 7.309. 16 of the Article 13 FCTC Guidelines (entitled " Tobacco advertising, promotion Paragraph and sponsorship "), provide that: The effect of advertising or promotion on packaging can be eliminated by requiring plain and white or two other contrasting colours, as prescribed by packaging: black 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 41 and fn submission, para. . 20 - 21 (referring to this recommenda tion and informing that "many WTO s stretching"). Members", including Ukraine and Indonesia", have implemented measures regulating "brand 1021 paras. Honduras's first written submission, 125 - 127; Honduras's second written See, e.g. submission, 468; Dominican Republic 's first written submission, paras. 183 and 194; Cuba's first written para. paras. 291 - 294 ; and Indonesia's first written submission, para. 94. We note, however, that certain submission, 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 Article GHWs in tobacco packaging are measures that are expressly addressed both in 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 12 Article - 20), Annex, paras. 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 22. 1022 See paras. 7.291 - 7.297 above. 1023 Honduras's second written submission, para. 495. (emphasis a dded) 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 46. Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para.

216 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 216 - - individual cigarettes or other tobacco inside or attached to the package or on 1026 products. Paragraph 16 of the Article 13 FCTC Guidelines is contained (together with paragraphs 15 7.310. and 17, both quoted below) under a heading entitled "Packaging and product features". This wing footnote: heading contains the follo 11 of the Convention, which Article See also the guidelines for implementation of address plain packaging with regard to health warnings and misleading 1027 information. Paragraph 17 of the 7.311. 13 FCTC Guidelines, which refers to, but does n ot Article 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 rases, coloured cigarette papers, consumers such as animal or other figures, "fun" ph 1028 attractive smells, novelty or seasonal packs. Paragraph 17 of the Article 7.312. 13 FCTC Guidelines is immediately followed by this Recommendation: promotion. Packaging and product design are important elements of advertising and Parties should consider adopting plain packaging requirements to eliminate the effects of advertising or promotion on packaging. Packaging, individual cigarettes or other n features tobacco products should carry no advertising or promotion, including desig 1029 that make products attractive. 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 1030 The WHO and FCTC Secreta riat similarly identify these three provisions of the FCTC products. 1031 Guidelines, as specifically addressing "plain packaging". The WHO and FCTC Secretariat identify, in addition, paragraph 15 of the Article 13 FCTC 7.314. Guidelines as addressing "plain alia instead argues that paragraph 15 is one of packaging". Austr the "other not specify 'plain packaging'" but are nonetheless elements" in these Guidelines that "do "relevant" for characterizing these FCTC instruments as an international standard for tobacco plain 16 and 17, is packagi 15 of the Article 13 FCTC Guidelines, like paragraphs ng. Paragraph 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 Packaging Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE 21), Annex, fn 2 accompanying " - 15; and FCTC Guidelines for Implementation (2013 edition), and product features " headi ng above para. (Exhibits AUS - - 44), Article 13, fn 4. For simplicity, we will henceforth refer to this footnote as 109, DOM Article 13 FCTC Guidelines. footnote 4 to the 1028 21), Annex, Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - 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 specifically addressing "plain paragraph 15 of the 13 FCTC Guidelines as Article packaging". 1031 Additional Information to Panel, See WHO/FCTC at paras. 60 and 62 - 63 , fn 63 above. See also WHO/FCTC brief, (Exhibit AUS - 42 (revised)), paras. 59 - 71. We note that, like Australia, the WHO amici curiae 13 and FCTC " for plain packaging in the Article Secretariat refer to the text of the " Recommendation 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 " ", which is unnumbered, follows, rather than is contained within, paragraph 17 of the Recommendation 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 packaging" also Article 11 FCTC Guidelines is "plain else in the . presented as a " Recommendation ", as in the Article 13 FCTC Guidelines

217 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 217 Packaging is an important element of advertising and promotion. Tobacco pack or used in various ways to attract consumers, to promote products product features are 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 1032 other tobacco products. ustralia also considers "other aspects" of the Article 11 and Article 13 FCTC Guidelines to 7.315. A be "relevant" for plain packaging, citing, as "examples", certain specific provisions from these 1034 1033 0 and 54 1 of the paragraphs instruments. Specifically, it identifies as "relevant" 11 FCTC Guidelines and, as we already noted above, paragraph Article Article 13 15 of the aspects" of the Article 11 and Article 13 FCTC Guidelines. Australia further submits that "other Guidelines that are "relevant" include those a ddressing "misleading or deceptive packaging FCTC 1035 The WHO and FCTC and labelling" and "misleading or deceptive advertisement and promotion". Secretariat, but not Australia, also refer to paragraph 43 of the Article 11 FCTC Guidelines as forming part of the "br context" for plain packaging as expressly addressed in paragraph 46 oader of these same Guidelines. They explain that paragraph 43 is relevant because it "stress[es] that Article s, but that the the terms included in 11.1(a) [of the FCTC] are indicative of misleading term 1036 list is not exhaustive". 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 1037 measures are key components of a comprehensive, integrated approach to tobacco control". Finally, Australia and the WHO and FCTC 7.316. itself and its Secretariat agree that both the FCTC 1038 of provisions relevant to plain packaging" and that, consequently, Guidelines contain "a number the parts of the Article 11 and Article 13 FCTC Guidelines expressly addressing plain packaging 1039 "must be read in light" of the context provided by these provisions. Having identified the parts of the Article 11 and Article 13 FCTC Guidelines on which 7.317. 1040 , as well as the measures " TPP Australia "relies primarily ... as international standards for the 1032 15. para. Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - 21), Annex, 1033 10 of the Article 11 FCTC Guidelines states, under a heading entitled "Design elements": Paragraph 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, as tax stamps and markings as per the when establishing the size and position of other markings, such 15 of the Convention, that such markings do not obstruct any part of the health requirements of Article warnings and messages. 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, Article 10. para. 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 nd onserts do not obscure, obliterate or undermine health warnings manufacturers' promotional inserts a 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. 1 1 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. 54. Article 1035 7.302 See 7.299 paras. above. - 1036 WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), para. 62. The WHO and FCTC Secretariat 46 of the also refer, as context to the plain packaging recommendation in paragraph Article 11 FCTC Guidelines, to paragraph 12 of these same Guidelines, which "provides specific guidance with respect to the warnings increases with their size" (Ibid. size of health warnings", recognizing that "the effectiveness of health 64). They also poin t out to paragraph 60 of the Article 11 FCTC Guidelines (which recommends health para. 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 para. 65). dically [...]". (Ibid. 1037 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. 3, as quoted in Article WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), para. 63. 1038 amici curiae brief, (Exhibit AUS - WHO/FCTC para. 59. 42 (revised)), 1039 WHO/FCTC Additional Information to Panel, paras. 61 and 64 , at fn 63 above. 1040 202. Australia's response to Panel question No. 129, para.

218 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 218 1041 elements" or "aspects" (at least those that it lists expressly) that Australia identifies as "other parts of these ose "relevant" in this context, we need to consider whether, taken together, th instruments constitute a "document" that could be considered to contain a "standard" for tobacco . TBT plain Agreement of Annex 1.2 of the packaging, within the meaning Article 11 and Article 7.318. 13 FCTC Guidelines referred to above, We first recall that the adopted by the FCTC COP are, as stated in their respective opening paragraphs, "intended to ations and in increasing the effectiveness of measures assist the Parties in meeting their oblig 1042 The WHO and FCTC Secretariat further explain that "the status of each adopted". set of 1043 Guidelines is governed by its own wording". Specific FCTC provisions can thus be, and most are, supplemented by certain instruments 7.319. aimed at furthering them and their implementation, chief among them being Protocols and 1044 Article 7 of the FCTC thus provides that the FCTC COP shall propose Guidelines for Guidelines. 1045 the implementation of the provisions of Towards this end, the 8 t Articles o 13 of the FCTC. 1046 COP adopted in November 2008, by consensus, two separate Guidelines: one for the FCTC 11 and another for the implementation of Article implementation of Article 11 Article 13, i.e. the 1047 13 FCTC Guideline s at issue in these proceedings. Article and The WHO and FCTC Secretariat also note that the "overarching obligation to implement 7.320. effective measures" is reflected not only in Article 7 of the FCTC, but also, importantly, in the 1048 CTC. Articles wording of The WHO and FCTC Secretariat thus explain that: 11 and 13 of the F 11 obliges Parties to implement to ensure that tobacco Article effective measures not promote tobacco products by means that are false, packaging and labelling does 11.1 Article (a)) and to ensure that tobacco packaging carries misleading or deceptive ( health warnings describing the harmful effects of tobacco use ( Article 11.1(b)). 13 obliges Parties to undertake a comprehensive ban on tobacco Article Similarly, 1049 advertising, promotion and sponsorship. 1041 FCTC Guidelines and paragraph 10 and 54 of the Article That is: paragrap hs 15 of the Article 13 11 fns 1033 and 1034 FCTC Guidelines, set out, respectively, in para. 7.314 above. See also paras. 7.301 , and and above. 7.307 1042 20 brief, (Exhibit AUS - 42 (revised)), paras. amici curiae - 22 (referring to the texts of the WHO/FCTC respective opening paragraphs of these two guidelines). 1043 WHO/FCTC amici curiae - 42 (revised)), paras. 20 - 22 (referring to the texts of the brief, (Exhibit AUS respective opening paragraphs of these two guidelines). 1044 See section 2.4 above, in particular 2.99. para. 1045 above. WHO/FCTC Additional Information to Panel, para. 50, at fn 63 1046 11 and Article 13 FCTC Guidelines by consensus, see WHO/FCTC On the adoption of the Article 19; and WHO/FC curiae - 42 (revised)), para. brief, (Exhibit AUS TC Additional Information to Panel, amici 19, at fn 63 para. above. (containing "timetable 2" and "timetable 3", more specifically the seventh bullet in h bullet in p. 8). See also ibid, 7 and sevent 46. See also Australia's first written submission, para. 106 p. para. 166; and UICC and CCA amici curiae brief, (Exhibit AUS - 38), para. 7.2. Indones ia , but not the other and fn 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 pt" plain packaging. Indonesia considers that this means that the Article recommendations to "ado 11 and Article 13 FCTC Guidelines were not in fact "adopted by consensus" and for this reason cannot be "international Article 2.5 of the TBT Agreement . Indonesia's second written submission, para. 225. We standards" under 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 esented with any other evidence demonstrating otherwise. pr 1047 WHO/FCTC amici curiae - 42 (revised)), para. 19; and WHO/FCTC Additional brief, (Exhibit AUS 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 he development of health warning and messages." FCTC Guidelines, which was "primarily devoted to t para. 130. See also Honduras's response to Panel question No. 164, Honduras's first written submission, p. 18 - 20; and Australia's comments on Honduras's response to Panel question Nos. p paras. 121 - 124. 164, S WHO/FCTC Additional Information to Panel, para. ee, e.g. 19 (first bullet under "timetable 2", p. 6) and Annex 3, p. 33, at fn 63 above. 1048 Additional Information to Panel, paras. 50 - 51 WHO/FCTC at fn 63 above. , 1049 WHO/FCTC Addi tional 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

219 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 219 - - Th WHO and FCTC Secretariat note that the "overarching obligation to implement e 7.321. 11 and Article 13 effective measures" is further articulated in the opening paragraphs of the Article 1050 , which enunciate the "purpose" of each set of Guidelines. T FCTC Guidelines hese state, respectively: [ 11 FCTC Guidelines]: Article [FCTC COP], Consistent with other provisions of the [FCTC] and the intentions of the 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 Article 11 stipulates that the effectiveness of their packaging and labelling measures. 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 1051 Party. 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 , for those Parties that are not in a position to undertake a sponsorship or comprehensive ban owing to their constitutions or constitutional principles, for applying restrictions on tobacco advertising, promotion and sponsorship that are as 1052 comprehensive as possible. 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 1053 established by the FCTC, and also in light of the immediate context tobacco control context" provided by, and together with, certain other specific provisions of the FCTC Guidelines as well as 1054 the provisions of the FCTC itself. Thus, as e xplained by the WHO and FCTC Secretariat, paragraph 7.323. Article 11 FCTC 46 of the 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. 248) (cited at Indonesia's - 30), p. 9, Issue 6 (2014), (Layton and Lowe, The FCTC and the WTO), (Exhibit IDN 119). first written submission, para. 95 fn 1050 Additional Information to Panel, paras. 52 - 53 , at fn 63 above. See also WHO/FCTC amici WHO/FCTC curia e brief, (Exhibit AUS 42 (revised)), para. 61. - 1051 20), Annex, 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - para. 1. Article 1052 Guidelines, FCTC/COP/3(12), (Exhibit JE 13 FCTC - 21), Annex, para. 1. See also ibid. Article 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 all forms of tobacco advertising, promotion and sponsorship that promote a tobacco FCTC Party shall "prohibit any means by - 44, JE - 19), Articles 1 and 13 (emphasis added). that are false, misleading". FCTC, (Exhibits AUS Finally, in paragraph 15 of the Article 13 FCTC Guidelines, set out at p ara. 7.314 above , it is stated that "[p] Article 13 FCTC Guidelines, ackaging is an important element of advertising and promotion". FCTC/COP/3(12), (Exhibit JE - 21), Annex, para. 15. 1053 - WHO/FCTC amici curiae brief, (Exhibit AUS 42 (revised)), para. 73. 1054 above. See , e.g. para. 7.315

220 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 220 - - provisions" of that Convention that are "also relevant to implementation of "other 1055 out in They explain that plain packaging, as addressed in paragraph 46 "is set plain packaging". a broader context of other packaging and labelling measures", including those with respect to the size of health pecific guidance" in these same warnings, which are also the object of "s 1056 Article 11 FCTC Guidelines: Guidelines. This "broader context", they explain, means that the to a number of other packaging [R]ecommend adoption of plain packaging in addition and labelling measures, including health warnin gs that cover as much of the principal 1057 display areas as possible and other measures prohibiting misleading packaging. 7.324. Article 13 FCTC Guidelines that they describe With respect to the three paragraphs of the packag ing (paragraphs 15, 16 and 17), the WHO and FCTC as specifically addressing tobacco plain Secretariat similarly explain that "these paragraphs need to be read in their context". For the WHO passages" in the Article 13 FCTC Guidelines; and FCTC Secretariat, such context includes "other 1058 Article 13 the text of out in the Convention". of the FCTC itself, and "other obligations set 7.325. We note, in this respect, that the FCTC defines "tobacco control" as "a range of supply, by demand and harm reduction strategies that aim to improve the health of a population eliminating or reducing their consumption of tobacco products and exposure to tobacco 1059 smoke". 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 1060 measures covered by the Convention addressing the "demand - side" of tobacco products. Overall, we consider that the above elements, taken together, includin 7.326. g the text of the Guidelines as well as mation provided by the WHO and FCTC the relevant infor FCTC and its 11 and Secretariat, suggest that, while certain specific paragraphs and texts of the Article 13 FCTC Guidelines expressly refer or relate to tobacco plain packaging, and invite Article parties to "consider adopting" such measures, these recommendations can only be fully FCTC - understood as part of a broader set of inter related tobacco control measures and policies. This, in Article 11 and our view, includes not only those measures and policies recommended under the e 13 FCTC Guidelines and other Guidelines (among which is "plain packaging"), but also those Articl mandated under the FCTC itself. From the texts of the FCTC and its Guidelines, and consistent with 1061 Parties adopt , it is clea r that FCTC the FCTC's legal nature as a "framework convention" 1055 at Add itional Information to Panel, para. , WHO/FCTC fn 63 above. 61 1056 WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), paras. 62 - 65. 1057 66 (emphasis added). See also ibid. WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), para. 73 (first, explaining that the "approach set out in the [FCTC]" is that "tobacco control relies upon - paras. 72 implementation of comprehensive multi - as cumulative interventions in a sectoral measures that work together 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), 1(d). See also para. 2.102 above , and more broadly, Article paras. 7.233 - 7.244 below . 1060 III of the Convention, entitled "Measures relating to the These measures are addressed in Part only covers three "supply - reduction of demand for tobacco". In contrast with Part IV of the FCTC (which 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 8); regulations of " exposure to tobacco smoke " ( Article 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); tobacco advertising, promotion and sponsorship ( measures on " Article 13); and " demand reduction measures " 14). FCTC, (Exhibits AUS " ( Article concerning tobacco dependence and cessation - 44, JE - 19). See also para s. 2.102 - 2.105 above and paras. 7.233 - 7.244 below . 1061 , e.g. Framework Convention/Protocol Approach, FCTC Paper 1, (Exh See - 141, IDN - 31); ibits HND 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.

221 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 221 - purpose of assisting them to meet their under certain specific Guidelines with the obligations 1062 provisions of that convention. 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 1063 - implementation process". governments would benefit from in the treaty Based on all the ev idence and information before us in these proceedings, therefore, it 7.327. appears to us that, under the legal regime established by the FCTC, parties commit to ing various supply - side and demand - side tobacco control measures in a comprehensive implement 1064 i By their own terms, when the Article sectoral manner. 11 and Article 13 FCTC - and mult propose certain measures or otherwise make certain policy recommendations to Guidelines so within the particular context of being part of a comprehensive FCTC Parties, they do international instrument conferring certain rights and obligations towards the attainment of the 1065 In other words, the objectives that those parties jointly agree that instrument should pursue. 1066 , have been drafted 11 and Article 13 FCTC Guidelines, like all other FCTC Guidelines Article 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 er tobacco control measures under Convention implementation of a constellation of oth 1067 obligations. 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 "document" under Annex 1.2 from the broader context under which these instruments were form a 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 i ntended to help Parties to meet their obligations under the respective pr They reflect the consolidated views of Parties on different aspects ovisions of the Convention. 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 ackn owledged as a valuable tool in the implementation of the Convention . FCTC Guidelines for Implementation (2013 edition), (Exhibits AUS - 44). (emphasis added) 109, DOM - 1063 Australia's first written submission, 573 (footnote omitted) (quoting part of th is statement by para. fn 1062 above). Dr H. Nikogosian, quoted in full at 1064 See FCTC, (Exhibits AUS - 44, JE - 10), Article 5.1, set out at para. 2.101 above . See also 7.236 para. and 1057 above. See also, e.g. WHO/FCTC amici curiae brief, (Exhibit AUS - 42 (revised)), paras. fn 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 at the national, regional and international levels in order to reduce continually and by the Parties substantially the prevalence of tobacco use and exposure to tobacco smoke. - 44, JE - 10), Article 3. See also para. FCTC, (Exhibits AUS 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), p p. 4, 19, 33, 73 and 117, respectively. Article 6 FCTC Guidelines, see Exhibit AUS - 111, p. 1. For the 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 101. response to Panel question No. 158, para. 74 fn

222 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 222 - - in relation to tobacco the broad range of treaty obligations (FCTC) undertaken by FCTC Parties 1068 In this respect, we note the existence of certain differences in the manner in which control. Australia and the WHO and FCTC Secretariat identify the "core" plain packaging elements of the 1069 Article 13 FCTC Guidelines. Australia and the WHO and FCTC Article Secretariat also 11 and Guidelines, which do not expressly appear to identify differently the other parts of these two FCTC packaging", that are to be considered "relevant" and what implications refer to or describe "plain ave on the scope of the "document" claimed to constitute the "relevant international these h 10 and 54 of the standard" and its contents. For instance, while Australia considers paragraphs 11 FCTC Guidelines as "other provisions" that are "relevant" for pl ain packaging, the WHO Article Secretariat do not expressly identify these when describing the context provided by and FCTC 1070 other provisions of these Guidelines. Conversely, none of the paragraphs in the Article 11 FCTC Secretaria context" for Guidelines that the WHO and FCTC t identify as forming part of the "broader 1071 packaging as addressed in paragraph has been, at least expressly, plain 46 of those Guidelines identified by Australia among the examples of "other elements" that it considers to be "also 1072 relevant". 7.329. We also note that some of the references made by Australia and the WHO and FCTC Article or 11 and Article 13 FCTC Guidelines, Secretariat to related or relevant provisions of the to certain obligations in the FCTC itself, are presented in a non - exhaustive and/or more generally 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 1073 products are less harmful than others an d paragraphs addressing the size of health warnings". 46 of the 11 FCTC Guidelines "is set out in a broader context They also state that paragraph Article of other packaging and labelling measures", including those with respect to the size of warnings, which are also object of "specific guidance" in these same Article 11 FCTC health Guidelines. The WHO and FCTC Secretariat also refer, this time more specifically, to a number of of the Article 11 FCTC Guidelines as forming part of the "broader context" of the paragraphs 1074 Finally, th 46: paragraphs 3, 12, 43, and 60. packaging recommendation of paragraph e plain Articles 11 and 13 of the FCTC itself, along with "other WHO and FCTC Secretariat state that provisions" of the Convention, are also important context for implementing tobacco 1075 packaging, as addressed in each set of Guidelines. plain The fact that these FCTC elements have been referred to in a non - exhaustive, or generic, manner further confirms that the three (or Article 11 and four, in the description of the WHO and FCTC Secretariat) paragraphs of the 13 FCTC Guidelines Article 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 p art of the FCTC, for the purpose of establishing the existence of a "relevant international 2.5. As standard" on tobacco plain packaging, within the meaning of the second sentence of Article 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 Article 2.5 of t he TBT Agreement . Australia's response to Panel question of the second sentence of 129, No. 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 13 FCTC Guidelines among the "plain packaging" requirements, while Australia does not. Article 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 . See also and 60 (where, para. 7.315 inter alia , paragraph 3 is partially quoted) and fn 1036 above. See also p ara. 7.323 above. 1072 paras. 7.301 , 7.302 and 7.307 above. See 1073 Additional Information to Panel, para. 61, WHO/FCTC fn 63 above. They also included, in this at respect, the Article 13 FCTC Guidelines. 1074 inter alia , fn See, 1071 above. 1075 WHO/FCTC Additional Information to Panel, para. 61, at fn 63 above. See also i bid. para. 64 (specifically referring to the text of Article 13 of the FCTC, and then, generically, to "other obligations set out in above. the Convention") See also paras. 7.314 - 7.316

223 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 223 - - Body, addressing a comparable si tuation under 2.4 of the we observed above, the Appellate Article Agreement all of those relevant provisions of TBT , determined that "this analysis must address 1076 Similarly here, we must be able to [the document], and must not ignore any one of them". Article nstruments at issue (the 11 and Article 13 FCTC ascertain what parts of the relevant i 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 t he 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 are "in accordance with" such standard. measures 7.331. In making this determ ination, as described above, we are not suggesting that a 1.2 (and, "document", for the purposes of meeting the definition of "standard" in Annex sentence of specifically, constituting a "relevant international standard" under the second Article d not be contained within an instrument that simultaneously addresses other 2.5), coul issues or, together with various other instruments, form part of a broader context or 1077 Rather, what is relevant is that all relevant product framework. requirements, or other fications related to the specific subject matter that is claimed to be the object of the "relevant speci plain packaging") be identifiable with international standard" (in the present case, "tobacco sufficient clarity to allow a "comparative assessment" to be pr operly conducted, to determine 1078 whether the challenged measure is "in accordance with" with that international standard. 7.332. The next element of the definition of "standard" under Annex 1.2 of the TBT Agreement , as 1079 outlined above issue has been "approved by a recognized body". , is whether the "document" at 1080 international standard" under the second sentence of As described above , in respect of an " Article 2.5, this requirement is informed by the definition of "standardizing body" in the 1081 Guide 2: 1991 , ISO/IEC "[w]ith respect to other necessary features of a body that can approve 1082 an 'international' standard". 7.333. The "international" character of a standard is thus primarily predicated upon whether the . Whether an " instrument was adopted by an "international standardizing body" 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 1061 See, e.g. para. 7.293 and fn above. 1078 The identification of the parts of the instrument claimed to be an "(international) standard" - matter is also important because, without it, an containing all "relevant" requirements to a given subject "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 Agreement , are defined in TBT [ a ] ny procedure used, directly or indirectly, to determine that Annex 1.3 of the Agreement as " requirements in technical regulations or standards are fulfilled". (emphasis added) relevant 1079 para. 7.281 above. See 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 US – Tuna II (Mexico) , para. 357. Appellate Body Report, 1082 Body found, in particular, Appellate Body Report, US – Tuna II (Mexico) , para. 357. The Appellate that: Annex 1.2 to the TBT Agreement provides that a "standard" must be approved by a "recognized body". 2: 1991 does not conflict with As we see it, the definition of "standardizing body" in the ISO/IEC Guide TBT Agreement . Instead, the definition in the I SO/IEC Guide 2: the definition in the 1991 adds to and complements the definition in the Agreement , specifying that a body must be "recognized" with TBT respect to its "activities in standardization". The Appellate Ibid. 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 Appellate Body f the international standardization community." Report, EC – Sardines , para. 227. See also Panel Report, US – Animals , para. 7.224 fn 679 (stating that, in when it interpr that panel's view, what the Appellate Body concluded in EC – Sardines 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, original)). etc.)" (emphasis

224 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 224 - - we focus primarily the alleged standard is "international" in character. At this stage of our analysis, on the nature and contents of the "document" alleged to be an international standard. We therefore consider, next, following the order of elements of the Annex 1.2 7.334. 1083 definition , whether the "document" alleged to constitute a "standard" provides "rules", methods) . "guidelines" or "characteristics" for produ cts (or their related processes and production Article Specifically, 11 and Article 13 FCTC Guidelines we consider whether the aspects of the provide "rules", argued by Australia to constitute a standar d in respect of tobacco plain packaging "guidelines" or "characteristics" (including with respect to terminology, symbols, packaging, for products or their related PPMs marking or labelling requirements and whether, in addition, ) they are common and repeated use". Finally, we consider whether compliance with such "for requirements is "not mandatory". Article 11 and Article 13 FCTC Guidelines provide " rules, guidelines or Whether the " characteristics for products ines or characteristics for products" in Annex 1.2 The notion of "rules, guidel 1.2 refers to a document "that provides rules, 7.335. The definition of "standard" in Annex 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. Article 11 and Article 13 FCTC Guidelines comply with these Australia claims that the ich provide for the conditions because they constitute a document in the form of "guidelines" wh "characteristics" of a "product" (tobacco) as well as its "related processes and production 1084 methods", i.e. manufacture and sale of tobacco products. As the use of the disjunctive "or" in the phrase "rules, guidelines or characteristics " 7.337. indicates, a document can satisfy this component of the definition of a "standard" if it 1085 "provides" either one of these three elements. Dictionary definitions of the noun "rule" suggest be defined, that it may when used in relation to "regulations or pr inciples", as "[a] principle, 1086 , while the term "guidelines" can be defined regulation, or maxim governing individual conduct" 1087 as "a down as a guide to procedure, policy, etc.". These directing or standardizing principle laid 1088 Agreement of, are found in other provisions of the two terms, or variations there as well as TBT 1083 para. 7.281 above. See 1084 Australia's first written submission, para. 573; and second written submission, para. 316. 1085 Oxford English as a provision or arrangement". The verb "provide" can be defined as "to lay down Dictionary Online, definition of "provide, v. ", available at: www.oed.com/view/Entry/153448?rskey=1jZVfC&result=2&isAdvanced=false#eid May < >, accessed 2 http:// regulation" in Annex 1.1 similarly refers to a document 2017 (emphasis added). The definition of "technical " product characteristics (emphasis added) . As noted by the Appellate Body, the verb lays down "which "lay down", is defined as to "establish, formulate definitely (a principle, a rule); prescribe (a course of action, Appellate Body Reports, US – Tuna II (Mexico) , para. – 185; and EC limits, etc.)". Seal Products , para. 5.10 (both the Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, referring to p. 1562). Merriam - Webster defines the transitive verb "provide" as "to have as a condition: 2007), Vol. 1, stipulate ". Merriam - Webster Dictionary online, p definition of "provide", < https://www.merriam - webster.com/dictionary/provide >, accessed 2 May 2017. (emphasis added) 1086 available at: Oxford English Dictionary online, definition of "rule", http://www.oed.com/view/Entry/168717?rskey=0cxA2d&result=1#eid acce ssed 2 May 2017. , < > 1087 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. p. 15, 16, 488, 719, 1174, (Shorter Oxford English Dictionary, Vol. 1 AUS Excerpts, Part 2), (Exhibit 1, p 232 (arguing that, "[i]nherent in the - p. 1174. See also A ustralia's second written submission, para. 539), AUS 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 relevant 5.1.1). The Agreement , however, also refers to "guides", as in " TBT 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.

225 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 225 1089 1090 1091 Agreement agreements , GATT 1994 , the in other covered , including the SPS 1092 1093 1094 , and the Customs Valuation Agreement. We note that the term Agreement SCM , GATS discussed in the context of the application of the Antidumping greement A " has also been " rules se Body considered that per (but not, , as a term of that Agreement). In that context, the Appellate it was irrelevant whether a given prescription was binding or not in order to deter mine the Body, is rather whether it was existence of a "rule or norm". The question, concluded the Appellate ... setting forth rules or norms that are intended to have general and prospective an "act [] 1095 14 of the SCM Agreement, has been The term "guidelines", as used in application". Article found to refer to a "framework" or "parameters" for calculation of "benefit", rather than a "detailed (a) through (d) of that provision should not be method of calculation", such that paragraphs 1096 s that purport to contemplate every conceivable factual circumstance". interpreted as " rigid rule Rather, the term "guidelines" was understood as conveying "a certain degree of flexibility" in the 1097 14(d). analysis under Article ment at issue to have a certain 7.338. The above suggests, in our view, the need for the docu 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 n of a given measure with a degree of flexibility frameworks or parameters for the adoptio and – "rules" which would define more clearly a norm or measure to be followed. The inclusion of both – 1.2 indicates that either type of prescription may terms in the definition of a "standard" in Annex TBT rm the basis of a "standard" within the meaning of the . The fact that the FCTC fo Agreement Guidelines, or relevant parts thereof, would constitute "guidelines", rather than strict "rules", and herefore not, in itself, be an obstacle to would thereby entail a certain degree of flexibility, would t their being considered to fall within the scope of this definition, at least with respect of this 1.2 definition. The fact that the instrument at issue meets this particular element of the Annex 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 TBT Agreement . Both the GPA (in fn 4 to 1.2 to the VI:2(b)), and the Amended GPA (in Article I(s)), con tain definitions of "standard" that, with the Article 1.2 to the exception of the additional references to "service(s)", are virtually identical to that in Annex TBT . However, to date, these definitions have not been discussed in any dispute involving ei ther Agreement TBT and the GPA, see the GPA or the Amended GPA. With respect to the relationship between the Agreement 1.4 of the TBT Agreement (stating that, while "[p]urchasing specifications prepared by governmental Article bodies for production or consumption re quirements of governmental bodies" are not subject to the provisions TBT Agreement of the , they are, on the other hand, "addressed in the Agreement on Government Procurement, according to its coverage"). 1090 and Agreement contains various references to " international standards, guidelines The SPS 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 (EU) odies that "establish", "develop" or "promulgate" them. As recently noted by the panel in b , Russia – Pigs however, individually, none of these three terms, including "guidelines", have been interpreted and, in any event, the SPS uire a fine distinction between [them] for its proper application." See Agreement "does not req Russia – Pigs (EU) , para. 7.274 fn 413. Panel Report, 1091 See, e.g. the reference to "rules" in I:1 of GATT 1994 (as used in the phrase: "all rules Article and with importation and exportation"). (emphasis added) formalities in connection 1092 See, e.g. the reference to "guidelines" in the chapeau of Article 14 of the SCM Agreement, requiring shall, that "any method" for calculating the amount of a subsidy in terms of the benefit to the recipient, alia guidelines : ...". (emphasis added) , "be consistent with the following inter 1093 See, e.g. the reference to "guidelines" in Article III:3 of the GATS (as used in the phrase: "new, or administrative guide lines any changes to existing, laws, regulations or which significantly affect trade in services covered by its specific commitments"). (emphasis added) 1094 I See, e.g. the reference to "guidelines" in the Customs Valuation Agreement, under Annex Interpretative Notes , ( , Use of Generally Accepted Accounting Principles ), which defines what General Note "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 uidance and created expectations measure at issue had "normative value", as it provided administrative g Ibid. According to the Appellate Body, a measure will be among the public and among private actors. such" when it may be seen as considered "as " rule or norm of general and prospective application" as a opposed to "as appli ed", 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 tted) Appellate Body Report, US – Softwood Lumber IV , para. 92. (footnotes omi 1097 4.332. The same interpretation was Appellate Body Report, US – Carbon Steel (India) , para. 483. recalled in Appellate Body Report, US – Countervailing and Anti - Dumping Measures (China) , para.

226 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 226 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". As described above, the Ann ex - matter that 7.339. 1.2 definition also identifies the type of subject 1098 The definition thus needs to be addressed for a document to constitute a "standard". encompasses documents that provide "characteristics for products or related processes and 1099 production met hods". This part of the definition is almost identical to the relevant aspects of 1100 TBT the definition of a "technical regulation" in Annex . In the context of 1.1 to the Agreement e "... any objectively Annex 1.1, the "characteristics" of a product have been understood to includ 1101 , definable 'features', 'qualities', 'attributes', or other 'distinguishing mark' of a product" including, for instance, a product's "composition, size, shape, colour, texture, hardness, tensile 1102 strength, flammability, conductivity, de nsity, or viscosity". As discussed earlier, "product characteristics" may "be prescribed or imposed with respect to products in either a positive or a 1103 We see no reason not to understand the term "characteristics for products [or negative form". related p rocesses and production methods]" to have the same meaning in the definition of a "standard" in Annex 1.2. The second sentence of the definition in Annex 7.340. 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 1104 is identical to the second sentence of the definition of "technical regulation" in Annex In 1.1. d earlier, these terms have been interpreted with reference to the term that context, as discusse 1105 "characteristic", as used in the first sentence of the definition. As above with respect to the term "characteristics", we see no reason not to apply the same understanding regarding these 1106 terms, as used in the definition of "standard" in Annex As is the case in Annex 1.1, the use 1.2. of the words "also include" and "deal exclusively with" at the beginning of this sentence further al to, and may be distinct from, those covered indicates that it includes elements that are addition 1107 by the first sentence. 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 regulation" as a "[d] Annex 1.1 to the TBT Agreement ocument which lays down defines "technical 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 Body Reports, Appellate Body Report, EC – Asbestos , para. 69. See also Appellate EC – para. Products , Seal 5.11. 1104 – Appellate Body Report, US Tuna II (Mexico) , para. 187. 1105 Body Report, EC – Asbestos , para. 67 ("In the definition of a 'technical regulation' in Appellate 'termino TBT Agreement itself gives certain examples of 'product characteristics' – Annex logy, 1.1, the 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 1.1. Annex 1107 in relation to the same sentence in See Appellate Body Reports, EC – Seal Products, para. 5.14, 1.1. Annex

227 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 227 11 and 13 FCTC Guidelines contain "rules, Whether the Article Article guidelines or characteristics" for products TPP measures , we conside r that 7.341. As we have determined above in relation to the prescriptions relating to tobacco packaging and labelling requirements relate to characteristics within the meaning of Annex 1.1 and may also constitute packaging, product marking or labelling requirements. Accordingly, to the extent that relevant a spects of the Article 11 and 13 FCTC Guidelines would prescribe requirements in relation to tobacco Article 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. We also note, however, that different parts of the 11 and Article 13 FCTC Guidelines Article 7.342. tobacco plain evant international standard" for identified by Australia as containing the "rel packaging describe somewhat differently the relevant product characteristics or marking, packaging or labelling requirem ents that are "recommended" under each set of Guidelines. packaging" measures seems narrower, as 7.343. We first note that the scope of "tobacco plain 46 of the Article 11 FCTC Guidelines, relative to the descriptions in the described in paragraph 13 FCT C Guidelines: paragraph 46 of the Article 11 FCTC Guidelines Article only concerns elements for regulating tobacco "packaging", with no express indication as to whether it also covers features such as cigarettes or concerning the labelling or appearance of individual tobacco products, 1109 1108 13 FCTC Guidelines do contain such references. cigars , while the Article Secondly, the prohibitive elements relating to "plain packaging" in paragraph 46 of the 7.344. 11 FCTC Guidelines seem to allow a certain degree of flexibili ty: under this part of the Article parties can implement "plain packaging" requirements that either "prohibit" the Guidelines, FCTC 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 plain packaging elements addressed in paragraph 46 of the Article seems that the permissive 11 FCTC Guidelines only cover two features: "brand names" and "product names" (these two itted when "displayed in a standard colour and font style"). No reference is elements are perm made to other features, such as, for instance, government - mandated information (e.g. warnings, tax stamps), variant names, package design or package materials. As observed health by the complainants, no further guidance is given, for instance, on the choice of colour, font size as the number of times, and where, or font type that should be used, nor on aspects such 1110 "brand names" may appear in packaging. names" and "product packaging" in more detail relative to 7.345. The Ar ticle 13 FCTC Guidelines address tobacco "plain paragraph Article 11 FCTC Guidelines. Tobacco plain packaging measures are expressly 46 of the Article 13 FCTC Guidelines: in para graph 16 and in the addressed and described in two parts of 1111 17. When read together, and in light of the "Recommendation" text that follows paragraph information presented to us, including from the WHO and FCTC Secretariat, these texts seem to 13 of the FCTC indicate that "plain Article packaging" adopted for the purp ose of implementing 1108 Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. 46, set out at parties with implementing para. above . We recall that the Article 11 FCTC Guidelines aim to assist FCTC 7.308 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 21), Annex, para. See, e.g. Article 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - 16 ( " There should be no advertising or promotion ... on individual cigarettes or other tobacco products"). 1110 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. 46. Set out at Article 7.308 above. para. 1111 Set out, respectively, at 7.309 and 7.312 above. As we indicated at fn 1031 above, the text paras. 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 concern plain packaging measures. "Plain packaging" is per se 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".

228 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 228 1112 covers both tobacco "packaging" as well as the appearance of tobacco "products" themselves. This contrasts with the scope of paragraph Article 46 of the 11 FCTC Guidelines, which, as noted above, seems to only ad dress "packaging" requirements. We note, however, that even here these Article 13 FCTC Guidelines mostly relatively more detailed plain packaging requirements under the concern tobacco "packaging", while relatively fewer specific guidance is given with res pect to 1113 res" related to the appearance (or labelling) Tobacco of tobacco "products" themselves. "featu Article 13 FCTC Guidelines, plain packaging requirements, as addressed and recommended in the also seem to cover measures providing for certain prohibiti ve elements that, as compared to those 46 of the Article 11 FCTC Guidelines, appear more stringent in that they allow for under paragraph a lesser degree of flexibility in respect of their implementation. For instance, under the provisions Article 3 FCTC Guidelines expressly addressing plain packaging, the use of "logos" must be 1 in the ..."). This suggests that "logos" cannot be simply "restricted", as prohibited ("... without any logos 1114 Article 11 FCTC Guidelines. 46 of the appears to be possible under paragraph The Article 13 FCTC Guidelines also appear to include and describe various other features 7.346. 11 FCTC Guidelines. Article in addition to, and sometimes differently from, those under the 1115 instance, under the Article 13 FCTC Guidelines , plain pa For prohibit ckaging measures should "advertisement and promotion" that appear either "inside or attached" to the tobacco package or Article "on" individual cigarettes or other tobacco products. The 11 FCTC Guidelines, in contrast, prohibiting or restricting the "use of ... promotional refer, more generically, to information on 1116 Under the Article 13 FCTC Guidelines, plain packaging measures are expressly packaging". permitted to, besides "brand and product names", allow certain other information to appear in t details", and "quantity of pac product". These kaging, such as the "manufacturer's name", "contac - Guidelines also expressly allow the inclusion of "government mandated information or markings", rticle warnings" and "tax stamps". Paragraph A 11 FCTC Guidelines, in such as "health 46 of the contrast, only refers to "brand and product names" as those features expressly permitted in 1117 packaging. Article 13 FCTC Guidelines give some specific guidance on how Further, the r instance, as described in these Guidelines, packaging appearance should be standardized. Fo 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 46 o paragraph Article 11 FCTC Guidelines, in contrast, no guidance is given with respect to f the the appearance of the packages themselves in terms, for instance, of their size, shape or the Article 11 FCTC Guidelines materials; instead, ect to the give general guidance with resp 1112 above para. As indicated at , these key "plain packaging" te xts of the 7.310 Article ". 13 FCTC Guidelines are contained under a heading entitled " Packaging and product features 1113 para. 7.309 above, the text of paragraph 16 of the Article 13 FCTC Guidelines starts As set out at packaging can be eliminated by requiring with the phrase "[t]he effect of advertising or promotion on packaging" (emphasis added). This is then followed by a description of certain packaging requirements plain (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 16, which simply say, in relevant parts, that "[t]here should be no addressed in the last sentence of paragraph e advertising or promotion ... on individual cigarettes or other tobacco products." The text of th " " following paragraph 17 carries similar guidance that tobacco products "should carry no Recommendation 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, above, do contain relatively more detailed references to set out, respectively, at 7.314 and 7.311 paras. 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 inter alia TC images" on packaging, a term not used in the parts of Article 13 FC the use of, Guidelines , "brand packaging (although in paragraph 31 and the " Recommendation " text that follows it, expressly addressing plain 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 21), Annex, 13 FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - para. 16, last sentence (" ... Article there should be no ..."). 1116 A rticle 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. 4 6. 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 and effectiveness of health warnings and messages". packaging "may", inter alia , "increase the noticeability

229 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 229 appearance of "brand names" and "product names" as they appear in packaging, stating that they 1118 should be only "displayed in a standard colour and front style". 11 FCTC Guidelines and of the Article 13 Overall, therefore, the specific parts of the 7.347. Article FCTC Guidelines each describe certain recommended features of "plain packaging" for tobacco different levels of detail. in products, but do so in different terms and 11 and Article 13 FC TC Whether the Guidelines provide rules , guidelin es or Article characteristics "for common and repeated use" 7.348. We now consider, based on the sequence of elements of the definition of "standard" under 1119 TBT 1.2 of the outlined above , whether the relevant "rules, guideli nes or Annex Agreement for the plain packaging of tobacco products under the Article characteristics" provid ing 11 and are "for common and repeated use" within the meaning of Annex 1.2. Article 13 FCTC Guidelines The notion of "common and repeated use" in Annex 1.2 7.349. common and repeated use" in the T he parties disagree on the meaning of the phrase "for sentence of 1.2 and for the purpose of applying the second definition of "standard" in Annex 2.5 of the TBT Agreement . Article The argue that a "document" w ould be suitable "for common and repeated 7.350. complainants to achieve sufficiently use" only when the product requirements it provides for "are precise 1120 harmonization by permitting different countries to implement them uniformly". If "documents" were not required to contai n such "sufficient degree of precision", this would result in "each 1121 Member [being able] to adopt very different technical regulations" , rendering such documents - ill – in particular international standards, i.e. suited to perform the functions of all standards 1122 For promoting harmonization, improving efficiency, creating predictability and facilitating trade. inter , reflected in the third, fourth and eighth recitals of the complainants, such functions are, alia 1124 1123 , as well as i n certain TBT Committee instruments Agreement TBT the preamble of the 1118 Article 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. Compare 46 with FCTC Guidelines, FCTC/COP/3(12), (Exhibit JE - 21), Annex, para. 13 Article 16. The two sets of Guidelines differ slightly in this regard: paragraph 46 of the Article 11 FCTC Guidelines refers to brand names and seem to colour and font product names displayed in a "standard 16 of the Article 13 FCTC style", while paragraph Guidelines refers to the standardization of - mandated these elements (along with others, like government size ". Ibid. (emphasis added). information) in terms of "prescribed font style and 1119 See para. above. 7.281 1120 Honduras's second written submission, paras. 480 - 481. (emphasis added) 1121 Republic 's response to Panel question No. 66, para. Dominican 306. See also, e.g. Indonesia's response to Panel question No. 163, para. 21. 1122 paras. 481; Honduras's response to Panel question Honduras's second w ritten submission, - 480 No. 42, and No. 163, p p. 16 and 18; Dominican Republic 's second written submission, para. 896; 129, p. Republic para. No. 66, 306; Dominican Rep ublic 's second written Dominican 's response to Panel question Dominican Republic 's response to Panel question No. 868; 150, para. 150; submission, para. Republic 's comments on Australia's response to Panel question No. 163, para. 34; Cuba's second Dominican para. written submission, No. 163, p. 9; Indonesia's second written 182; Cuba's response to Panel question paras. paras. 228; Indonesia's response to Panel question No. 163, 227 18 - 20; and Indonesia's submission, - No. 163, paras. 37 - 38. comments on Australia's response to Panel question 1123 No. 70, p. 33 fn Honduras's response to Panel question 145 (also referring to the Appellate Body's TBT EC – Sardines , para. 214, that "the Agreement statement in recognizes the important role that international standards play in promoting harmonizat ion and facilitating trade"); Honduras's response to Panel Republic No. p. 18 fn 97; Dominican 163, 's second written submission, para. 895 fn 912; question Republic 's response to Panel question No. Dominican paras. 297 and 305, and No. 163, para. 149; Cuba's 66, response to Panel question 70, p. 16 No. No. 138) (agreeing with (annexed to its response to Panel question Honduras's response to this question), and No. 163, p. 9 fn 34; and Indonesia's response to Panel question No. para. 10 (quoting the texts of the third and fourth recitals of the preamble of the TBT Agreement ). 150, 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 para. Annex 4, (TBT Committee Six Principles Decision), Annex 4, 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

230 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 230 1125 , and "certain [r]ecognized international standardizing Members' statements before that body 1126 Agreement bodies under the [that] expressly mention trade facilitation in their mandate". WTO that requiring standards to be "precise" is important for 7.351. The complainants also consider standard under the second sentence of assessing whether a document is an international Article Article 2.2 to 2.5, so as to avoid conferring a rebuttable presumption of consistency with egulations internalizing "documents" that could be implemented in different ways, r technical 1127 including some that may constitute an unnecessary obstacle to trade. 1128 and Cuba argue that standards must also be prescriptive . 7.352. In Honduras's Honduras tandards must also be documents the product specifications of which view, this means that s 1129 "suggest[ed]", to include in their measures. Members are "require[d]", as opposed to simply 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 2.5 would Article Dominican effects on fair competition 's second , or stifle innovation and technological development". Republic para. 858 (emphasis added by the Dominican R epublic ). Reference was also made to a written submission, statement the Committee made in paragraph 20 of the aforementioned document, when it adopted the in order for international standards to make a maximum contribution to the achievement of the Decision, that, " ilitating objectives of the [ TBT trade fac ], it was important that all Members had the opportunity to Agreement participate in the elaboration and adoption of international standards Dominican Republic 's second written ". para. added by the Dominican Republic ). submission, 857. (emphasis 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 iency of production and facilitate the conduct of international trade ". contribute to improving the effic p. No. 33 (emphasis added by Honduras) (quoting Australia's Honduras's response to Panel question 70, 8) . communication to the Committee on Technical Barriers to Trade, G/TBT/W/139, 28 July 2000, para. Honduras further states that "this position [by Australia] was also supported by other WTO Members such as tes and reflects the common understanding among WTO Members that international standards the United Sta No. should be aimed at facilitating trade". Honduras's response to Panel question 70, p. 33 (referring to United rriers to Trade, G/TBT/W/305, 12 March 2009). See States' communication to the Committee on Technical Ba Republic 's second written submission, para. Dominican Dominican Republic 's response to Panel also 859; and No. 66, para. question 297. 1126 33 Honduras's response to Panel question No. 70, p. fn 142 (referring to World Organization for Animal Health, "Procedures Used by the OIE to Set Standards and Recommendations for International Trade, Terrestrial 161), Introduction). See also with a Focus on the - and Aquatic Animal Health Codes ", (Exhibit HND Dominican lic 's second written submission, para. 874 fn 885 (observing that the OIE Terrestrial Code Repub trade with an optimal level of sanitary safety in animals and animal products to take place aims to allow " while erring to OIE ref avoiding unjustified restrictions , How to Use the Terrestrial Code to Set Health on trade", and (Exhibit DOM - 339) (emphasis original) ) . The Measures for Trade in Terrestrial Animals and Products, Dominican Republic notes, more broadly, that the ISO, C odex , OIE , and I nternational Plant Prote ction Convention Commission (IPPCC) all have "an express to develop international standards, with [] the mandate purpose Dominican Republic 's second written of promoting international trade through harmonization". submission, para. 871 (emphasis original). The Dominican Republic provides the passages of the statu t es and other similar documents of these bodies where this, or other related purposes, are, in its view, expressly Dominican Republic 's second written submissi on, para. 872 (stating the ISO's mandate includes indicated. See "promot[ing] the development of standardization ... in the world ... with a view to facilitating international Codex exchange of goods and services " (emphasis original)), para. 873 (noting that repare "a is mandated to p collection of internationally adopted food standards presented in a uniform form ", the purpose of which is "to facilitate harmonization promote the standardization of foodstuffs in the various parts of the world, to of further the development of the international food trade " (emphasis original)), to standards, and in so doing para. 874 (noting that the OIE is required to develop standards "to facilitate safe international trade in animals para. 875 (no ting the stated objectives of the I nternational Plant and their products" (emphasis original)), and Protection IPPC ) include "provid[ing] a framework for the development and application of Convention ( le harmonized the elaboration of international standards to that effect ", whi phytosanitary measures and 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 Dominican Republic 's 2.5 thus requires a sufficiently detailed standard"). See also 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 . 1129 482. Honduras's second written submission, para.

231 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 231 obligation to implement that i nstrument even though countries approved effectively impose a WTO 1130 This, such instrument on their understanding that no legal obligations were being created." 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 2.4 of the hand, the existing obligation Members also have under Agreement to use Article TBT 1131 such instrument as a basis for their technical regulations. The Dominican Republic adds tha t the phrase "for common and repeated use" derives from 7.353. Guide 2: 1991 as the the definition of "standardization", which, in turn, is defined in the ISO/IEC common and "[a]ctivity of establishing, with regard to actual or potential problems, provisions for 1132 repeated use aimed at achievement of the optimum degree of order in a given context ." For , Republic, this means that a standard must set forth "standardized terms of the Dominican rder" through international trade" that are capable of achieving "the optimum degree of o 1133 It concludes that, accordingly, to allow for "common and repeated use", an harmonization. instrument must meet a minimum threshold of precision regarding the standardized terms of the l policy statements that allow for national regulation. Loosely defined guidelines or genera not meet this considerable variation in the content of national implementing measures do 1134 requirement. 7.354. Australia considers that, properly interpreted, the phrase "for common and repeated use" 1135 not set forth any minimum threshold of specificity or prescriptiveness" "does and that the 1.2 or the se sentence complainants' interpretation has no basis in the texts of either Annex cond 1136 Article of 2.5. With respect to specificity , Australia argues that, while the definition of "standard" in 7.355. 1.2 requires that the "document" provide requirements for "common and repeated use", it Annex also establishes that such "document" can be one "that provide mere 'guidelines' for products and 1137 related process and production methods". According to Australia, inherent in the ordinary meaning of the term "guidelines", as used in that definition, is the notion that a standard may "certain degree of flexibility" in terms of how relevant product characteristic, or related allow for a 1138 For Australia, the fact that "precise details processes and production methods, are prescribed. 1130 para. 483. Honduras's second written submission, 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 Article 2.5, countries that app roved actually constitutes a "relevant international standard" in terms of 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 standards whenever they exist. While such countries base their technical regulations on international may have originally understood the hortatory language to mean that no obligations were created, the a panel's consideration of this instrument as a "relevant international standard" would, in effect, create WTO obligation for those countries to adopt those international guidelines. submission, para. Honduras's second written (footnote omitted) 484. 1132 Dominican Republic 's response to Panel question No. 163, para. 148 (referring, in turn, to added Australia's No. 128, para. 183) (emphasis reference to this definition in its response to Panel question by the Dominican Republic ). 1133 para. Republic 's response to Panel question No. 163, Dominican 149. See also Dominican Republic 's 894 second written submission, pa ras. - 895. 1134 Republic 's response to Panel question No. para. 151 (footnote omitted). See also Dominican 163, Republic 's second written submission, para. 897 (adding that this means that in "setting a standard, Dominican dy must, therefore, specify the features of an appropriate regulation to salient an international standardizing bo render the standard suitable for 'for common and repeated use' as a model for countries to adopt on a harmonized basis" (emphasis original)). 1135 323; and Australia's response to Panel question Australia's second written subm ission, para. No. 67, para. 165. 1136 Australia's second written submission, 322 - 323; and Australia's response to Panel question paras. 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 d referencing Shorter Oxford English Dictionary, Vol. 1 AUS Excerpts, Part 2, "a standardizing principle" a n

232 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 232 of a standard may be prescribed by sovereign states does not mean t hat guidelines are in any way 1139 - ill suited for 'common and repeated use'". 7.356. Australia also rejects the view that, in order to be suitable for "common and repeated use", a standard must be also ed" by . For Australia, such a view is "directly contradict prescriptive another key element in the definition of a "standard": that it should be a document that provides mandatory". Therefore, and consistent with the for requirements with which compliance is "not at the existence of "variations in how non - mandatory nature of standards, Australia considers th standards are implemented by States" is something "unremarkable", and, in fact, 1140 standards "routinely allow" for such domestic implementation differences. international on of "standard" in Annex 1.2 to the 7.357. Australia also does not agree that the definiti Agreement contains a requirement that a "document" be TBT - facilitating rather than trade 1141 . - Australia explains that international standards under Article 2.5 may pursue trade restrictive Article 2.2 suggests that these 2.2, and nothing in Article ed in the legitimate objectives specifi 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 Agreement , that its disciplines do not prevent a WTO TBT Member from pursuing legitimate 1142 objectives in a manner that restricts trade. Australia concludes that, overall, the text of the Annex 1.2 definition indicates that it is 7.358. r prescriptive, that standards can ensure that measures only by being flexible, and not strict o Article using them are effective and, ultimately, able to attain the objectives enshrined in 2.2 of 1143 the Agreement TBT . l, the In support of their respective views, and in response to a question by the Pane 7.359. parties also refer to certain "international standards" adopted by certain international bodies, 1144 mostly from the International Organization for Standardization (ISO). - p. 1174 ) . See also Australia's re sponse to Panel question 539), 163, para. 101; and (Exhibit AUS No. No. Australia's comments on complainants' responses to Panel question para. 32, and No. 163, para. 119. 150, 1139 Australia's response to Panel question 163, para. 101. See also Australia's comments on No. lainants' responses to Panel question No. 163, para. 119. comp 1140 103 (listing as examples certain Australia's response to Panel question 163, para. No. ISO standards). 1141 328. Australia's second written submission, para. 1142 para. Body Report, US – 329 (referring to the Appellate Australia's second written submission, Cigarettes , para. 95) (emphasis original; footnote omitted). See also Australia' opening statement at the Clove second meeting of the Panel, 142 (agreeing that international standards "fulfil an important para. harmonization function", while also rejecting Republic 's assertion that "international standards that Dominican (footnote omitted). See, TBT protect human health are 'antithetical' to the objectives of the ") Agreement 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. par a. 35. 150, 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 considers, in addition, that a "similar level of precision is manifest in the The Dominican Republic 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 International Standard 3394, "Packaging - Complete, Filled Transport Packages ISO Dimensions of Rigid Rectangular Packages", ISO 3394:2012(E), (ISO 3394), (Exhibit and Unit Loads - - 121). Ho nduras's response to Panel question No. 129, p p. HND 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 then concluding that this ISO standard is thus one that is "suitable rigid rectangular transport packages"; and common and repeated use given the level of precision of its requirements"). See also Honduras's second for written submission, para. 503; Honduras's response to Panel question No. 163, p. 17; Dominican Republic 's No. second written submission, 896; Dominican Republic 's response to Panel question 163, para. 151 para. fn 96; and Cuba's opening statement at the second meeting of the Panel, para. 48. not support the complainants' interpretation. Australia Australia claims that this ISO standard doe s argues that ISO standard 3394 is, in fact, an example of a standard that allows for flexibility for its dopt, and implementation given that it "provides choices as to which of the various packaging sizes to a

233 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 233 The Panel 7.360. common and repeated use" in Annex 1.2 of the observes that the phrase "for Body. We therefore begin by TBT has never been interpreted by the Appellate Agreement discerning the meaning of this composite term with reference to the definitions of its 1145 key ter ms. and 7.361. We first note that the adjectives "common" and "repeated", together ("common alia as: inter repeated"), qualify the noun "use". The adjective "common" may be defined, , elonging equally to more than one" ; " possessed or shared alike by both or " [b] all (the persons or 1146 general application, general". "; "of The adjective "repeated" may be things in question) 1147 again or many times; renewed; frequent". , as "[d]one defined, inter alia 1148 are relevant, 7.362. we consider While the separate meanings of the words "for" and "use" that the meaning most relevant to an interpretation of these terms in the phrase "for common and repeated use" is that of the composite ... use", employed with a "modifying word". In this term "for ... use" is defined as something "[i] ntended or designed for a specific purpose". sense, "for ... Examples of "for use", when employed with a "modifying word" (indicated in italics), include: 1149 winter use"; "for needful use"; and "for recreational use". "for In the phrase "for common and use", "com and repeated" are the "modifying words" preceding "use" and following repeated mon Article 2.5, a document and its content) "for", denoting the fact that something (in the context of purpose, that is, "common and repeated is i us e". ntended or designed "for" a specific Taken together, these definitions therefore indicate that something can be said to be 7.363. common and repeated use" when it is intended or designed for the specific purpose of being "for ovides us with a "useful starting This pr frequently shared alike by all persons or things in question. does not specify every possible variable that one could think of with regard to packaging". Australia's No. 163, para. 119. Australia also refers to certain comments on complainants' responses to Panel question standards as confirming the opposite view: that the TBT definition, overall, and the term "for other ISO common and repeated use", specifically, do not require that documents be precise and prescriptive. Australia in this respect, to the following three standards adopted by the ISO: (1) ISO 6385, (Exhibit AUS refers, 596); - (2) ISO 26000, (Exhibit AUS - 597); and (3) ISO 14001, (Exhibit AUS - 598). See Australia's response to Panel 163, standards, according to Australia, confirm that, consistent question No. para. 103. These and other IS O with their non - standards "routinely allow for differences when implemented at mandatory nature, international Australia's response to Panel question 163, para. 103; and comments on the domestic level". No. 163, para. 119. complainants' responses to Panel question No. 1145 We observe that, among the WTO's Multilateral Trade Agreements, this composite term is unique to TBT ar, from which we could Agreement . There is no equivalent term(s) in the SPS Agreement, in particul the draw any useful contextual interpretative guidance. See, in this respect, Panel Report, – Pigs (EU) , Russia para. 7. 274 fn 413; and Panel Report, US – Animals , para. 7.231 (both observing that Annex A to the SPS Agreement "does set forth a specific definition of ... 'standards' " not ... 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 us e" is present in one of the WTO's Plurilateral Trade 4), and the Amended GPA ( Agreements: both the GPA ( VI:2(b), fn Article 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 common, adj. ", available at: Oxford English Dictionary online, definition of " < http://www.oed.com/view/Entry/37216?rskey=Us5wII&result=3&isAdvanced=false#eid >, accessed 2 2017. The Dominican Republic a lso partially quotes this definition to support the view that the word May "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 on terms of trade". 147, Republic 's comments on Australia's response to Panel question No. comm Dominican 34 and fn 54. (footnote omitted) para. 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 conj. Oxford English Dictionary online, definition of "for, p. and See " , available at: pre < 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)

234 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 234 1150 common and repeated use" as used in for discerning the meaning of the term "for point" 1151 Annex 1.2 and in light of other relevant context. es or As used in the definition of a "standard" in Annex 1.2, it is the "rules, guidelin 7.364. 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. common and repeated use" is consistent with the normative dimensio n The phrase "for 1152 It implied by the terms "rules, guidelines or characteristics" discussed in the previous section. suggests that the content of the document at issue must be expressed in such a way as to provide including l abelling or packaging "requirements" – "rules" or "guidelines" or "characteristics" that – are intended or designed for the specific purpose of being frequently shared alike by all persons or things in question use". At the same time, the fact that common and repeated , i.e. that are "for be mandatory makes it clear that the condition that rules, guidelines or t compliance mus not common and repeated use" does characteristics must be "for not relate to their legally binding in which the these status. Rather, this element of the definition addresses, in our view, the manner rules, guidelines or characteristics (including labelling or packaging requirements) are formulated 1153 and the purpose for which they are intended. In this respect, we agree with the complainants that a degree of precision and 7.366. "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 in terms of promoting the harmonization of technical regulations, as desc ribed Agreement 1154 , which assumes the intention of following certain commonly shared norms or practices. above We consider, however, that for the purpose of applying this element of the definition under degree of specificity of such requirements is a matter to be assessed on a 1.2, the Annex precise - case basis, depending on the particular context and the nature of the issue being - case by addressed. We note in this respect that paragraph "I" of Annex 3 of the TBT Agreement (containing 7.367. Preparation, Adoption and Application of Standards") states that the "Code of Good Practice for the [w]herever appropriate , the standardizing body shall specify standards based on product " 1155 requirements in terms of performance rather than design or descriptive characteristics". 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 ject and purpose " . interpreted in isolation from the context in which it appears and in the light of the treaty's ob 167 India – Additional Import Duties , para. fn 324 (also referring to Appellate Body Appellate Body Report, Reports, EC 59). – Chicken Cuts , para. 175; and US – Softwood Lumber IV , para. 1151 3.2 of the DSU. Article 1152 See 7.338 above. para. 1153 In this regard, we note that the Appellate Body considered that the terms "document" and down product characteristics" and the term "with which compliance is mandatory" (only used for "lays "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 ." Appellate Body Reports, EC – Seal certain normative content Products , para. 5.10 (emphasis added). We do not believe, however, that this statement contradicts our understanding, at para. 7.338 above, on the f a standard. In this respect, we note again here that the texts of normative content as part of the definition o 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 mea ns 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 , technical specifications , codes of practice and regulations ". (empha sis original) standards 1154 para. See , e.g. 7.271 above. 1155 . Emphasis added. See also, with respect to technical regulations, Article 2.8 of the TBT Agreement

235 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 235 sugges ts that the level of specificity of requirements in standards, and the manner in which the 1156 relevant requirements are defined may vary, depending on the circumstances. Explanatory to Annex 1.2 to the TBT note Agreement refers to We also observe that the 7.368. community". The term "[s] tandards prepared by the international standardization Agreement TBT not defined in the "standardization" is present in various provisions of the , but is 1157 The reference to "standardization" in this note indicates that the Agreement. Explanatory meaning of this term may provide additional useful context to the understanding of the term common and repeated use". The term "standardization" is defined in the "for Guide Article 1.2 of the Agr eement and the introductory ISO/IEC 2:1991. In accordance with Guide 2:1991, when used in the paragraph of Annex 1, the terms presented in the ISO/IEC 1158 , have the same meaning as given in the said Guide. TBT The term "standardization" Agreement Guide as: is defined in this ISO/IEC [T]he "[a] ctivity of establishing, with regard to actual or potential problems, aimed at the achievement of the optimum provisions for common and repeated use, 1159 ". degree of order in a given context The definition of "standard" in Annex 1.2 to the TBT Agreement 7.369. d together with the , rea 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 nt "provisions", in this context, should be 1.2. Releva understood to refer to those concerning, for example, product characteristics or packaging We note, in this respect, that t he Appellate Body has related the term "provisions", requirements. Guide definition, with elements of the definition of "standard" in as used in this ISO/IE C 1160 Annex The definition of "standardization" suggests therefore that documents that 1.2. 1.2 are those providing such product characteristics (or other constitute standards under Annex vant features) "for rele common and repeated use" with a particular aim in mind, i.e. "the 1161 achievement of the optimum degree of order in a given context". 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 – Cigarettes concerning the level Clove of "specificity" required of technical regulations for the purposes of applying 2.8. See Panel Report, US – Article Clove Cigarettes 7.484. paras. 7.468 - 7.497. See, in particular, paras. 7.473 - , 1157 Article 1.1); it otherwise The term "standardization" appears alone only once in the Agreement (in appears as part of the following composite standardization"; "international terms: "international standardization a activities". See, e.g. preamble, eighth recital; Annex 1.2, ctivity"; and "standardization Agreement " Explanatory note "; and Annexes s, e.g. 3.C, 3.G and 3.J. These terms also appear in other WTO the Agreement on Preshipment Inspection, 2 to Articl e 2.4, as part of the definition of "international footnote fn above, and the Agreement on Agriculture, Annex 2.2(e), referring to 970 standard", quoted at purposes". "standardization 1158 See also Appellate Body Reports, EC – Asbestos , para. 66; and US – Tuna II (Mexico) , para. 184. 1159 ub - clause 1.1 of the ISO/IEC Guide 2: 1991 (emphasis added). See also Appellate Body See s para. US Report, Tuna II (Mexico) , 360; Australia's response to Panel question No. 128, para. 183; – and Dominican Republic 's response to Panel question No. 163, para. 148. T his definition for "standardization" has been kept unchanged in subsequent versions of this Guide. See, e.g. ISO/IEC Guide 2: 2004 (8th edn), sub - 1.1. clause 1160 US – Tuna II (Mexico) , para. 360 (" With respect to the 'provisions' that are Appellate Body Report, TBT established through standardization, we recall that the definition of a standard in the Agreement refers to nd a 'document ... that provides ... rules, guidelines or characteristics for products or related processes a 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 rules, guidelines or characteristics for products or r TBT as a 'document ... that provides ... Agreement 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 Arti cle 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 185. Parties". Ibid. para.

236 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 236 Based on the above, we conclude 7.370. for the purposes of the definition of "standard" in that, e Agreement , a document provides product characteristics (or other relevant Annex TBT 1.2 of th features, such as packaging requirements) "for common and repeated use" when these are shared alike by all persons or things in designed for the specific purpose of being frequently 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 a they need to possess 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 lem" giving achieve the optimum degree of order required to address the "actual or potential prob 1162 , the exact degree of specificity needed for rise to them. At the same time, as clarified above a case - by - such requirements to be "for common and repea ted use" can only be assessed on case the document claimed to be a standard, basis, depending on the type of "problem" addressed by and the "context" under which this problem arises. 7.371. With these clarifications in mind, we now examine whether, as claimed by Australia, any ided by the product characteristics or labelling, marking and packaging requirements prov 11 and Article Article 13 FCTC Guidelines in respect of tobacco plain packaging are "for common Agreement and repeated use" within the meaning of the definition in Annex 1.2 of the TBT . Articl 11 and Article 13 e Whether the product characteristics provided in the FCTC Guidelines in respect of tobacco plain packaging are "for common and repeated use" Main arguments of the parties The 7.372. argue that the Article 11 and Article 13 FCTC Guidelines are not suitable complainants 1163 "for common and repeated us e" because, as mere hortatory general policy statements 1164 guidance on the implementation of a treaty (the FCTC) not provide for developed as , they do packaging requirements that are sufficiently and prescriptive as required by specific tobacco plain 1165 the TB and cannot be uniformly transposed by Members into their technical T Agreement 1166 products and their packaging. The complainants consider that regulations addressing tobacco Article 11 and Article the 13 FCTC Guidelines may result in countries implementing plain packaging 1162 para. 7.366 above. See 1163 See, e.g. Honduras's response to Panel No. 66, p. 29 (stating that these instruments are question not "sufficiently prescriptive" as they "incorporate[] non - binding guidelines that contain only hortatory 92 ( references to plain packaging"). See also Indonesia's response to Panel question submitting No. 67, para. that these two FCTC . They point Guidelines only possess "vague references to a general regulatory approach") out, in particular, that such hortatory nature stems from the Guidelines' own terms, given that in both texts tobacco plain Parties "should consider adopting". See, packaging is simply described as a measure that FCTC ten submission, paras. 22 and 499; Cuba's opening statement at the second e.g. Honduras's second writ para. meeting of the Panel, para. 226. 49; and Indonesia's second written submission, 1164 See, e.g. Dominican 's comments on Australia's response to Panel question No. 163, Republic par a. 43 (arguing that the Article 11 and Article 13 FCTC Guidelines were "designed as a policy ligation under the FCTC" and were not therefore recommendation for implementing a particular ob use "intended to lay down specific guidance for by legislators on how to standardize the common and repeated 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." Republ (emphasis original)). See also Dominican 's second written submission, ic paras. 901 - 902. 1165 para. 498 (accepting that these Guidelines "provide See, e.g. Honduras's second written submission, 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 No. 66, para. response to Panel question 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 2.5"). Article 1166 See, e.g. Honduras's response to Panel question No. 70, p. 33 ( submitting that these See also FCTC content") . instruments lack the necessary "technical 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 cannot be an 'international standard'"). the Guidelines –

237 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 237 1167 , so that they cannot perform the core functions of standards, specifications in different ways 1168 namely promoting harmonization, improving efficiency of production, and facilitating 1169 international trade. 7.373. 11 FCTC Guidelines ements in the texts of the The complainants identify certain el Article 13 FCTC Guidelines illustrating a lack of precision making them unsuitable "for common and Article 1170 They also point out that nowhere in the Article 11 and Article 13 FCTC and repeated use". is it recommended that plain packaging measures should fully prohibit the display of Guidelines brand names or variant names in tobacco products themselves, including in individual cigarettes or 1171 cigar sticks. The complainants also consider that other provisions ide 7.374. ntified as relevant by Australia, – addressing "inserts and onserts", "adhesive labels" and the "importance of packaging" are "even packaging". While less detailed" than the provisions of the Guidelines expressly addressing "plain 11 and acknowledging that the te Article xts of these other paragraphs of the 13 FCTC Article 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 308 (arguing that the fact Republic 's response to Panel question No. 66, para. Dominican See, e.g. Article 11 and Article 13 FCTC Guidelines are just policy statements rather than standards, "is that the out by the fact that 100 Members could follow the policy statements by adopting 100 very borne different packaging requirements, which would not enhance efficiency or facilitate trade") (emphasis original). See also, Dominican blic 's response to Panel question No. 163, para. 154; Honduras's response to e.g. Repu question p. No. 129, p. 42; Cuba's response to Panel question No. 163, 9; Indonesia's second written Panel 227 - 228 (referring to Nicaragua's third - party submiss ion); Indonesia's response to submission, paras. No. 163, para. 21; and Indonesia's comments on Australia's response to Panel question Panel question 163, para. 39. No. 1168 paras. 493 - 507; Honduras's response to Panel See, e.g. Honduras's second written submission, No 902; 70, p. 33; Dominican Republic 's second written submission, paras. 894 - question Dominican Republic 's . 188; Cuba's response to Panel question 163, para. 154; Cuba's second written submission, paras. 182 - No. response to Panel question No. 70, p. 33 (agreeing wit h Honduras's response to the same question); 226 Indonesia's second written submission, paras. 136, - 228; and Indonesia's response to Panel question No. para. 10. 1169 Article 11 and Article 13 T he complainants observe, in particular, that the ultimate purpose of the is to eliminate the tobacco trade. This, they claim, provides further confirmation that these FCTC Guidelines instruments are not intended, as documents "for common and repeated use" should, to facilitate international ee, e.g. Honduras's response to Panel question No. trade, but rather to restr p. 33; ict it. S 70, Republic Dominican No. 66, para. 307; and Cuba's response to Panel question 's response to Panel question No. 70, p. 33 (annexed to its response to Panel question No. (agreeing with Honduras's response to the 138) 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": ulators "restrict" the use of logos, colours, brand images or promotional information, or "prohibit" Should reg 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 para. 498. See also, e.g. Cuba's second written submission, Honduras'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; what font and size to require, and (iii) (ii) 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 packaging" means, when it "chose to require that packs must have a background interpretation" of what "plain brown (colour Pantone in d 448C), that the brand dark name must be displayed in Lucida Sans no larger rab points in size, and that packs may only be made of cardboard"). See also, e.g. Honduras's response to than 14 second written submission, Panel question 129, p p. 42 - 44; and Cuba's paras. 182 - 186. No. 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 noting that, while paragraph No. 136, para. 4 ( 16 and the " Recommendation " response to Panel question following paragraph 17 state that there should be no advertising or promotion on individual cigarettes or other tobacco products (inc , they do not recommend prohibiting the appearance of any mark at luding cigar sticks) 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").

238 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R 238 - - not stipulate precise product characteristics that are capable of being these paragraphs "do implemented in a common and repeated manner by authorities of different countries", they do not 1172 qualify as "standards" for purposes of the TBT Agreement . The co mplainants further argue that, even seen in combination, the plain packaging 7.375. elements contained in the Article 13 FCTC Guidelines still lack precision. In this Article 11 and lines do not respect, the Dominican Republic argues that for packaging requirements, the Guide specify standardized terms in respect of the type face, font colour, and font size for the brand and the location of the brand and variant name variant name; the background colour of the packaging; on the packaging; the size or shape of the pa ckaging; the type of opening mechanism; and, the hard or soft pack). For individual cigars, the Guidelines lack specificity in materials to be used ( e.g. terms of the type face, font colour and font size for the brand, variant and country name; and the kground colour of the cigar band. National regulators are consequently left with considerable bac 1173 discretion to decide on these key features of a plain packaging measure. terms" of the Article 11 and Article 13 Finally, the complainants compare the "general 7.376. packaging", against the FCTC Guidelines' texts identified by Australia as addressing "plain "detailed" terms of two standards they consider as "documents" containing product requirements 1174 common and repeated use" "for : an ISO standard, setting forth precis e dimensions for rigid 1175 rectangular transport packages and a Codex Alimentarius Commission (Codex) standard on , 1176 the description of sardines and sardine type products. - 7.377. Australia argues that the Article 11 and Article 13 FCTC Guidelines' tobacco plain common and repeated use". Even assuming that packaging requirements are provided "for 1177 would be relevant for that definition, minimum thresholds of specificity or prescriptiveness Article 11 and Article 13 FCTC Gu idelines are, in any event, Australia considers that the use". This, in "sufficiently precise" and, consequently, suitable "for common and repeated Australia's view, is attested by the fact that these Guidelines are already being used as such by 1178 basis for their own other Members as packaging measures. a In this respect, tobacco plain 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 11 and Article 13 FCTC Guidelines "explicitly", "clearly" and Article "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 para. 502 (also finding support to this view in the text of Honduras's second written submission, 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 cons umers [...]", and then stating that "[i]t is hard to see how this type of policy statement can be regarded as 187. a 'standard' for purposes of the TBT Agreement ."). See also Cuba's second written submission, paras. 186 - 1173 Republic 's response to Pan el question No. 163, para. 153 (noting, in fn 97, with respect Dominican Article to the "background colour of the packaging", that the 13 FCTC Guidelines refer to "black and white or minican Republic 's second two other contrasting colours, as prescribed by national authorities"). See also Do para. written submission, 899. 1174 para. 503; Honduras's response to Panel question See, e.g. Honduras's second written submission, 70, p. 33; Hondur as's response to Panel question No. 129, No. 42; Dominican Republic 's second wri tten p. submission, 896; and Cuba's opening statement at the second meeting of the Panel, paras. 48 - 49. para. 1175 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 ISO pages", and then claims that this stands in "sharp[] of these documents cover "from 20 to more than a 100 contrast with the one paragraph hidden in the FCTC Articles 11 and 13 that generally refers to Guidelines 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 70, 94 , referenced at fn above. See Honduras's response to Panel question No. Codex Stan 1006 p. 33 (recalling that in EC – the Appellate Body and the panel held that Codex Stan 94 constituted a Sardines, "relevant international standard" for the purposes of Article 2.4 of the TBT Agreement ; and also noting that this Codex six pages long [and] contains, inter alia , a detaile d description of the product to which standard "is 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 104. See also, e.g. Australia's first Australia's response to Panel question No. paras. 101 - 163, 324. written submission, para. 573; and Australia's second written submission, para.

239 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 239 the restriction or prohibition of the use of logos, colours, brand images or promotional information , the use on packaging or on individual tobacco products, and with respect to permitting, inter alia mandated - s, and certain government of brand names, product and/or manufacturer name Article 11 and information. Australia also notes, in this regard, that these key provisions of the inter alia Article the colours 13 FCTC Guidelines "specify in detail", , the following elements: (i) 1179 content of a pack ("nothing other ); (ii) the ("black and white or t wo other contrasting colours" than a brand name, a product name and/or manufacturer's name, contact details and the quantity ngs, tax of product in the packaging, without any logos other features apart from health warni 1180 ); (iii) stamps and other government the font - mandated information or markings" 1181 "prescribed font style and size" the format ("standardized shape, size and ); and (iv) (a 1183 1182 ). materials" Australia also rejects the argument that the Article 11 and Ar ticle 13 FCTC Guidelines 7.378. not include requirements prohibiting the display of brand names on individual cigarettes or do Article 13 FCTC Guidelines recognise that "[p]romotional cigars. Australia first notes that the e brought about by the use of words, designs, images, effects, both direct and indirect, may b 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 1184 or by the use of a part or parts of words, designs, images and colours." or importers, Australia also claims that, contrary to the complainants' assertions, the 13 FCTC Guidelines Article rettes and other "specifically refer to packaging and product features, including individual ciga 1185 tobacco products". Australia does not agree that the 7.379. 11 and Article 13 FCTC Guidelines cannot be Article use" because they are designed to limit, common and repeated considered as being intended "for rather than facilitate, international trade. Australia argues that "there is no conflict between the WTO Agreement s and the public health objectives of the [FCTC]. trade liberalization goals of the 1186 Trade and public health can and should be mutually supportive." 1179 Paragraph 16 of the Artic le 13 Guidelines. FCTC 1180 FCTC Paragraph Article 13 16 of the Guidelines. Australia also refers to paragraph 46 of the 11 FCTC Guidelines. Australia's response to Panel question No. Article para. 26. 135, 1181 Paragraph 16 of the Article FCTC Guidelines. 13 1182 Paragraph 16 of the Article 13 FCTC Guidelines. Australia notes that paragraphs 16 of the 15 and Article FCTC Guidelines specifically refer to "materials on or in packs" as well as "advertising or promotion 13 inside or attached to the package", and inclu de within their scope "promotional packaging and product design 135, para. 29. No. features". Australia's response to Panel question 1183 paras. 324 - 325; Australia's response to Panel question Australia's second written submission, 135, paras. No. - 32; Aust ralia's response to Panel question No. 163, para. 102; and Australia's comments on 21 No. 163, paras. 114 - 116. Australia also makes references to the complainants' responses to Panel question rallel plain packaging elements in paragraph 46 of the Article 11 FCTC Guidelines, "... measures to restrict or pa other than brand prohibit the use of logos, colours, brand images or promotional information on packaging ...". Australia's names and product names displayed in a standard colour and font style (plain packaging) No. 135, para. r 26 (emphasis original). Australia also notes, referring to the text of esponse to Panel question 10, that the Article 11 FCTC Guidelines "specifically require [FCTC] Parties to ensure that health its paragraph bstructed by other required packaging and labelling markings or by warnings and messages are not o 46 of the Article 11 FCTC Guidelines commercial inserts and onserts". Australia also recalls that paragraph Parties to "consider adopting" plain packaging because it is a me asure that "may increase recommends FCTC 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 135, para. 29. No. 1184 23 (quoting part of 135, para. No. the text of paragraph 9 of Australia's response to Panel question Article 13 FCTC Guidelines). the 1185 No. 135, par a. 24 (quoting, in particular, certain parts of Australia's response to Panel question 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 Article 13 FCTC Guideline s addressing plain packaging measures with respect to the appearance of tobacco the products. Australia's response to Panel question No. 135, paras. 27 - 28 (quoting the " Recommendation " in which references are made to following paragraph 17 and paragraph 15 of the Article 13 FCTC Guidelines, 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

240 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 240 The parties also refer in this context, to certain similarities or differences in the manner in 7.380. TPP and in packaging requirements have been implemented in the which tobacco plain measures 1187 e parties submitted and Th adopted or draft tobacco control legislation from other Members. 1188 1189 discuss evidence relating to measures adopted or drafted by Ireland , Kingdom , the United 1191 1193 1190 1192 Zealand and Norway. , New France , Hungary and measures complainants argue that the different ways in which the The measures 7.381. TPP packaging requirements domestically are evidence r Members implemented tobacco plain from othe 11 and Article that the 13 FCTC Guidelines are not amenable "for common and Article 1194 repeated use". Australia in packaging 7.382. contends that significant similarities exist between the pla 1195 and those in measures from other Members and that these TPP requirements in the measures 142; response any reference to such attributes); opening statement at the second meeting of the Panel, para. paras. 192 - 194; and comments on complainant s' responses to Panel question No. 128, to Panel question No. para. 35. 150, 1187 Although in another context in these proceedings, Australia also made reference to a 2015 report informing that Chile's Senate had approved a Bill introducing tobacco plain packaging, and that the news ralia's second written submission, Bill was awaiting "clearance in the lower house". Aust 245 fn 256 para. referring to Packaging Business Review, Chile Proposes Plain Packaging for Cigarettes - 554)). ( , (Exhibit AUS 1188 Ireland, (Exhibits AUS - 612, CUB - 94 , Public Health (Standardized Packaging of Tobacco) Act 2015 ). Act: Ireland, Public Health See also the following evidence related to the legislative history of the 2015 (Exhibit HND - 167); Ireland House of the Oireachtas, Report , (Standardized Packaging of Tobacco) Bill 2014 550); and D. Hammond, "Stan (Exhibit AUS - dardized Packaging of Tobacco Products: Evidence Review, ), (Exhibit AUS 555). Hammond Review - Prepared on Behalf of the Irish Department of Health", March 2014, ( was notified to the TBT Ireland's ommittee Public Health (Standardized Packaging of Tobacco) Bill 2014 C June 2014 in document G/TBT/N/IRL/1. See, e.g. Honduras's comments on Australia's response to Panel in para. 17 fn 1. questions, Introduction, 1189 The Standardised Packaging of Tobacco Products Regulations 2015, (Exhibit United Kingdom, - 613). Republic. Dominican Republic's AUS The text of this measure is also indicated by the Dominican 147, para. 42 fn 63. See also the following evidence comments on Australia's response to Panel question No. 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, - 61); and Statement of J. Ellison, UK Under - Secretary of State for Public Health, on publication of Chant ler CUB Report , (Exhibit AUS 551). The UK's draft "Standardised Packaging of Tobacco Products Regulations" was - September 2014 in document G/TBT/N/GBR/24. See, e.g. Honduras's notified to the TBT Committee in Introduction, para. 17 fn comments on Australia's response to Panel questions, 1. 1190 See France, LOI n° 2016 - 41 du 26 janvier 2016 de Modernisation de Not re Système de Santé, igarettes C Article 27 , (Exhibit AUS - 614); and Draft Decree , N eutrality and S tandardisation for the P ackaging of and R obacco , (Exhibit AUS - 615). This Draft Decree was notified to the TBT Committee on June 2015 in olling T 552. See also Honduras's comments on - document G/TBT/N/FRA/163, submitted by Australia as Exhibit AUS 1 Republic's comments on Australia's response to Panel questions, Introduction, para. 17 fn ; and Dominican 147, para. 42 fn 63. Australia's response to Panel question No. 1191 Hungary, Draft Amendment to G , (Exhibit AUS - 616). This Draft overnment Decree 39/2013 Committee on December 2015 in do cument G/TBT/N/HUN/31. See, e.g. Amendment was notified to the TBT para. 17 fn 1; and Honduras's comments on Australia's response to Panel questions, Introduction, Republic 's comments on Australia's response to Panel question No. 147, para. 42 fn 63. Dominican 1192 - free Environments (Tobacco Plain Packaging) Amendment Bill ( 2014 ) , (Exhibit New Zealand, Smoke 617). See also Consultation Paper, New Zealand Ministry of Health, (Exhibit AUS - 549). This Bill was AUS - Committee on February 2014 in document G/TBT/N/NZL/62/Add.1. See, e.g. Indonesia's notified to the TBT para. 226 fn 338. The consultation document preceding the introduction of this Bill second written submission, July 2012 in document G/TBT/N/NZL/62. See, e.g. Honduras's comments Committee in was notified to the TBT ponse to Panel questions, Introduction, 17 fn on Australia's res 1. para. 1193 Norway, Draft Amendments - 618). See also Norway Standardised Tobacco Packaging , (Exhibit AUS (Exhibit AUS 553). The draft amendments were notified to the TBT Committee Consultation Paper, - May 2015 in document G/TBT/N/NOR/23. See, e.g. Honduras's comments on Australia's response to Panel in para. 17 fn questions, Introduction, Dominican Republic 's comments on Australia's response to Panel 1; and question 147, para. No. fn 63. 42 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 226 No. question p. 9; and Indonesia's second written submission, paras. - 227 and fn 338. 163, 1195 No. 163, para. 118 and Australia's comments on complainants' responses to Panel question 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

241 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 241 Guidelines are examples demonstrate that the "permissive and prohibitive elements of the FCTC d repeated use by countries in sufficiently clearly expressed so as to allow for common an 1196 designing their own tobacco plain packaging measures". 7.383. The parties also discuss the relevance of the fact that Australia and other Members notified measures to the TBT Committee to the characterization of the Artic le their 11 and Article 13 TPP as a "standard". The complainants point to the fact that these notifications have FCTC Guidelines 2.9.2 of the TBT been made under Agreement , which requires notifications to be submitted Article 1197 Australia considers that the Panel only when a relevant international stand ard "does not exist". to the TBT Committee TPP measures "should afford no probative value" to its notification of the since this notification was made in accordance with its practice "maintaining a high level of 1198 Agreement ". transparency in fulfilling obligations under the TBT Analysis by the Panel 1199 7.384. As we have concluded above , a document may be considered to provide product common and repeated use", for the purposes characteristics and other relevant requirements "for of the definition of "standard" in Annex 1.2, if these characteristics or requirements were designed purpose of being frequently shared alike by all persons or things in and intended for the specific with the aim of achieving the optimum degree of order in a given context. question, We further le consistent found that, to fulfil such function, a degree of clarity and specificity sufficient to enab 1200 and predictable implementation is required. This is particularly important where what it is being 1201 , given that "documents" not possessing assessed is the existence of an "international standard" 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. In this insta Article 11 and 7.385. nce, as discussed above, those aspects of the 13 FCTC Article that directly address tobacco plain packaging do not do so in a single location or in an Guidelines uniform way; instead, tobacco "plain aragraph 46 of the packaging" is addressed and described in p Article 11 FCTC Guidelines, on the one hand, and in paragraph 16 as well as in the Article "Recommendation" following paragraph 17 of the 13 FCTC Guidelines, on the other hand. formulates the relevant plain packa ging recommendation in terms that Each of these Guidelines specific treaty obligation the implementation of which by are related to the terms of the Parties they intend to support. FCTC variant name; (ii) health warnings and other prescribed colour and shape for cigarette packages; (iii) government mandated information permitted in standardized form; and (iv) standardized appearance of 117. See also cigarettes. Australia's commen ts on complainants' responses to Panel question No. 163, para. Australia's second written submission, para. No. 164, 245; and Australia's response to Panel question 104. para. 1196 n No. 163, paras. 113 and 116. Australia's comments on complainants' responses to Panel questio para. See also Australia's second written submission, 327 (arguing that the number of other Members plain tobacco considering 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 u ities", this does not render them instruments h o r exact colour and size ... to be prescribed by national a t ill suited "for common and repeated use"). - 1197 ritten submission, paras. 516 - 517; Dominican Republic 's second See, e.g. Honduras's second w - para. 845 and fns 859 860; Cuba's second written submission, paras. 160 and 167; and written submission, Indonesia's response to Panel question No. 70, paras. 98 - 99. 1198 Australia's response to P No. 127, paras. 178 - 180 (also stating that if the Panel would anel question "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 Agreement , which are TBT - re porting"). self 1199 7.370 above. See para. 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 7.370 above. para. 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 above. 7.275

242 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 242 1202 We have discussed above the different ways in which the Article 11 and Article 13 FCTC 7.386. Guidel ines address, and make recommendations in respect of, plain packaging of tobacco Article 11 FCTC Guidelines and products. In this context, we observed that relevant parts of the n packaging", or Article 13 FCTC Guidelines each describe certain recommended features of "plai different levels of in more generally, of tobacco packaging, but do so in different terms and 1203 detail. These differences (including in scope, stringency of requirements, etc.) suggest that pa ckaging" measures "in accordance FCTC parties intending to devise tobacco "plain with" one or the other set of Guidelines would have a range of options available to them, with respect in name", particular to the regulation in packaging and/or products themselves of "brand imagery", "logos" etc. F "brand packaging or instance, two Members may implement plain measures that are both significantly different in terms of their packaging specifications, and may Article 11 FCTC yet be equally consistent with the guidance provided under paragraph 46 of the 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 er, fully allowed on the face of the package ("brand names" and "product names" would be, howev 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 1204 colour and font style"). 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 packaging are part of the legal framework established under the FCTC, whereby FCTC Parties plain commit to implement a wide range of interconnected effective tobacco control measures. Against 11 and Article 13 FCTC Guidelines, by their own terms, may be understood this context, the Article 1205 packaging" differently as recommending "plain because they intend this measure solely to serve as a means of assisting FCTC Parties in the implementation of obligations that, although 1206 related, addr for tobacco: ess different aspects or angles of policies to reduce demand 11 (by regulating tobacco labelling and packaging with respect to the obligation to avoid Article consumers being misled and also to enhance effectiveness of health Ar ticle 13 (by warnings) and regulating "packaging and product features" as part of a comprehensive ban on 1207 advertising, promotion and sponsorship"). "[t]obacco These considerations are also an indication, in our view, that the specific elements of the 7.388. 11 and Article 13 FCTC Guidelines addressing plain packaging that Australia has identified Article as constituting an international standard for tobacco plain packaging were not intended to provide ain packaging, within a unified document "for common and repeated use" in respect of tobacco pl the meaning of Annex Agreement (and therefore for the purpose of the 1.2 to the TBT sentence of 2.5 of the Agreement), in isolation from the broader context of second Article 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, the FCTC Guidelines, various modalities through which parties to the Convention may through implement these obligations in light of their particular circumstances. 1202 See paras. - 7.347 . 7.335 1203 . See 7.347 above para. 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 t para. 7.325 and fn 1060 As indicated a Arti cles 11 and 13 are both contained under Part III above, 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. as being those " 7.310 above, refers to the Article 11 FCTC Guidelines which address plain packaging with regard to health warnings and misleading information ". See Article 13 FCTC Guidelines, FCTC/COP/3(12), 2). (Exhibit JE - 21), Annex, fn 4 (appearing erroneously as fn

243 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 243 The parties have al 7.389. so discussed the extent to which differences or similarities between the packaging measures adopted or drafted by other Members TPP and certain tobacco plain measures 11 and Article 13 FCTC Guideline s are confirm their respective views as to whether the Article "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, Zealand and Norway. We do not consider an examina tion of these domestic Hungary, New We are not persuaded, in particular, that evidence practices to be necessary to our assessment. relating to domestic practices can directly inform whether these Guidelines, as such, constitute a particular, to the extent standard. In 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 1208 ion to make such assumptions. posit Whether compliance with the product characteristics and packaging requirements 11 and Article 13 FCTC Guidelines in respect of tobacco plain provided in the Article packaging is "not mandatory" We now turn to whether complia 7.390. nce with the product characteristics and packaging Article 11 and Article 13 FCTC Guidelines, as defined above, "is not requirements provided by the 1.2 of the mandatory", which is the final element of the definition of "standard" under Annex 1209 Agreement relating to the contents of the alleged standard, as outlined above . TBT 7.391. Australia claims that this condition has been also met because the Article 11 and Article 13 1210 "employ conditional rather than obligatory language." Indonesia and Cuba FCTC Guidelines Indonesia argues that the Article 11 and isagree. Article 13 FCTC Guidelines are instead d compliance with that definition. Indonesia argues that, while these "mandatory" and, thus, not in FCTC Guidelines "purport to be non - binding recommendations", ultimate ly, they are intended to be Articles 11 and "recommendations on how Parties should implement the 'mandatory' provisions of 1211 on tobacco packaging and advertising. For Indonesia, the fact that no 13 [of the FCTC itself]" packaging requirements, as described in the tobacco company has ever "adopted voluntarily" plain 1212 voluntary nature. Article 13 FCTC Guidelines, further confirms their non - Cuba Article 11 and - binding documents that provide product characteristics understands the reference to non for use, in the definition of "standard" in the TBT Agreement , as addressing common and repeated 1213 ment authorities. Based on these conditions to "producers" of these products, and not govern such understanding, and after comparing how the Article 11 and 13 FCTC Guidelines Article 1214 address tobacco plain standard addresses dimensions for rigid packaging with how an ISO rectangular transport packages, Cuba argues: FCTC g uidelines ke those [ISO] standards, the Unli are completely different and aim to authorities to impose binding technical regulation on producers. The encourage the g uidelines FCTC not, and were never intended to be, binding technical standards are to be directly observed by producers. That is why the g uidelines are not precise FCTC 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 11 ad TBT can sh ed any light on the question of whether the Article Agreement 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 127, para. 180. No. 1209 See para. 7.281 above. 1210 Australia's first written submission, para. 573. See also Australia's second written submission, para. 330. 1211 para. 229. Indonesia's second written submission, 1212 Indonesia's second written submission, para. 229 (also contrasting the Article 11 and Article 13 "dolphin - safe labelling scheme" at issue in US – with the US Tuna II (Mexico) , and saying that, FCTC Guidelines 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 121) loads - Dimensions of rigid rectangular packages " ( Exhibit HN D - (already referred at fns 1144 and 1175 . above)

244 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - - 244 detailed technic 11 46 of the guidelines of al guidance for producers. Paragraph Article Parties should consider adopting even explicitly addresses the FCTC Parties: " measures to restrict or prohibit the use of logos colours, trademark images or promotional information ow could a producer ever be expected to apply and use ". H 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 1215 3394. will know exactly what to do when using ISO TBT Agreement is relevant both for the 1.2 to the 7.392. The definition of "standard" in Annex (domestic) standard (as national legal characterization of a measure under the Agreement as a 1216 opposed to a technical and for various TBT lines addressing regulation) discip Articles 2.4 and 2.5. As can be inferred from the way they are international standards, including disciplined in the inter alia , as references for Agreement TBT , international standards can serve, regulations or domestic s of either the development and adoption by government domestic 1217 From this perspective, given this "dual" standards. purpose, we see no basis for, and therefore disagree with, Indonesia's and Cuba's arguments that the voluntary nature of a "standard", as 1.2 of the TBT Agreement , should only be assessed vis à - vis the way the defined under Annex - document is addressed to "producers" of the products concerned, and not governments. 7.393. Article 11 and With respect, more specifically, to the "not mandatory" nature of the Article 13 FCTC Guidelines, we note that in two of the relevant parts of these instruments packaging" (paragraph 46 of the Article 11 FCTC Guidelines and in the expressly addressing "plain 17 of the 13 FCTC Guidelines), both texts state that FCTC Parties text following paragraph Article 1218 consider adopting should " plain packaging "measures" or "requirements". " Additionally, plain packaging is addressed in paragraph 7.394. Article 11 46 of the Guidelines in the form of a "recommendation". This language stands in contr ast, for instance, FCTC 1219 11 and 13 of the FCTC. with that employed by We also note that this contrasts also Articles 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 1220 and labelling, including when used as part of a brand name or trademark." Similarly, the 13 FCTC Guidelines contain a "recommendation" that "Parties should ban 'brand stretching' Article 1221 and 'brand sharing', as they are means of tobacco advertising and promotion." compliance with the product characteristics and 7.395. For the foregoing reasons, we find that ents provided by the Article packaging requirem Article 13 FCTC Guidelines , as defined 11 and 1.2 to the above, "is not mandatory" , within the meaning of the definition of "standard" in Annex 1222 TBT Agreement . 1215 para. 49. (emphasis original) Cuba's opening statement at the second meeting of the Panel, 1216 US – Tuna II (Mexico) . Appellat e Body A threshold question that was at issue, for instance, in US – Tuna II (Mexico) , paras. 178 and 187 - 188. Report, 1217 Article 2.4 and Annex 3.F to e.g. the TBT Agreement , respectively. See, 1218 Paragraph 1 of the Article 11 FCTC Guidelines also clarifies that the purpose of this instrument is, , to " propose measures that Parties can alia use to increase the effectiveness of their packaging and inter labelling measures". (emphasis added) 1219 Articles See, e.g. 11.1(b) and 13.4 of the FCTC. These FCTC provisions, however, seem to often describe such commitments in a Article 11.1(b) of the FCTC qualified manner. For instance, the full text of Article 11 [...] 1. Each Party shall [...] adopt and implement, in accordance with its national law, reads: " effective measures to ensure that: [...] (b) each unit packet and package o f tobacco products [...] also carry may include other appropriate messages. These warnings and messages: (i) shall be health warnings [...] and be rotating; [...] (iv) should be 50% ... but shall approved by the competent national authority; (ii) be no shall 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 11 FCTC Guidelines, FCTC/COP/3(10), (Exhibit JE - 20), Annex, para. Article 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 Agreement purposes of the definition of "standard" in Annex 1.2 to the TBT . In these proceedings, Australia

245 WT/DS435/R • WT/DS441/R • WT/DS458/R • WT/DS467/R - 245 - Guidelines as a "s 11 and 13 FCTC Article tandard" Article Conclusion on the 7.396. We have examined the instruments Australia claims constitute a "standard" for Article 11 and Article plain packaging: the 13 FCTC Guidelines. We have found that the tobacco sing plain packaging, relevant parts within these instruments, including those explicitly addres do not constitute a "document" taken in isolation from their context as part of the FCTC, containing a "standard" within the meaning of the definition of "standard" in Annex 1.2 of the Agreement parts of the Article 11 and TBT Article . We also concluded that, while the 13 FCTC packaging could be considered to be "guidelines" providing Guidelines explicitly addressing plain for "product characteristics" (including with respect to packaging requirements), they do so in flecting the flexibility provided to FCTC parties in determining how to implement different ways, re 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 13 of the FCTC. These Guidelines, and the obligations that they relate to, must be read "in Article FCTC itself, as well as "other provisions" of that Convention light" of the relevant obligations in the 1223 that are "also relevant to implementation of plain packaging". 13 FCTC Guidelines provide 7.397. 11 and Article Article Overall, therefore, we find that, while the in addressing packaging, and, as relevant, implementing plain important guidance to FCTC parties packaging as an element of a comprehensive scheme of effective tobacco control policies, Australia they constitute a "standard" under Annex 1.2 of the TBT Agreement has not demonstrated that h respect to tobacco plain packaging . wit Overall conclusion on whether the Article 11 and Article 13 FCTC Guidelines 7.2.5.2.4 TPP measures are "in are "relevant international standards" and whether the accordance with" these Guidelines under Article 2.5 (second senten ce) 1224 We recall our statement above 7.398. 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 also "international" in character, including in terms of "recognition" they are of 1225 the body that has adopted them . In the present proceedings, the parties disagree on whether the body which adopted the 7.399. 1226 Article 11 and 13 FCTC Guidelines , the FCTC COP , is an " international standardizing Article 1227 s of assessing the "international" character of these instruments , and body" for the purpose whether it has "recognized activities in standardization" such that it should be considered an 2.5 of the TBT Agreement . "international standardizing body" for the purposes of Article Article Having determined that Australia has not established that the 11 and Article 13 7.400. FCTC Guidelines constitute a "standard" for tobacco plain packaging within the meaning of Annex 1228 acter. 1.2, we need not assess further whether they are We therefore "international" in char FCTC is an international standardizing body make no determination in respect of whether the COP or has recognized activities in standardization within the meaning of the relevant definition of of the TBT "international standard", for the purposes Agreement . sentence only claims that the instruments that constitute a "relevant international standard" under the second Article 2.5 are specific aspects of the Article 11 and Article 13 FCTC Guidelines, not the Convention itself . of 1