This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favour of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.

Background In October 2018, the Conference of the Parties of the Framework Convention on Tobacco Control (FCTC or Convention) adopted its first decision on novel and emerging tobacco products, including heated tobacco products (HTPs). The decision remains ambiguous, e.g. by making a distinction between tobacco sticks and HTP devices. Against this background, the article seeks to answer two interrelated questions: whether and to what extent HTPs are covered by the FCTC, and whether regime provided by the Convention is suitable for their regulation. Results HTPs need to be classified under the FCTC as tobacco products. The distinction made by the Conference of the Parties between sticks and devices leads however to unsatisfactory results as it creates loopholes in tobacco control standards existing at the international level. A better approach, as argued in this article, is to conceptualize the notion of ‘tobacco products’ in functional terms as a combination of both a device and stick. While subjecting HTPs to all FCTC disciplines is, in light of our current scientific knowledge, a rational approach, such classification can be modified in the future once a sufficient amount of new evidence on their risk profile is collected. Any decision on the optimal regulatory model for HTPs will need to take into account not only health risks and potential benefits for individual users, but also the specific systemic concerns (e.g. HTPs as a gateway product). The state of scientific research is however not the only factor that will determine the fate of HTPs under the Convention. What is equally important is a conceptualization of the FCTC’s objectives. If a complete eradication of the tobacco epidemic is the ultimate goal, reduced levels of risk may not be enough to justify the different (i.e. more lenient) regulatory regime for HTPs. Conclusions The Conference of the Parties should clarify the definition of tobacco products in light of recent changes in the market. When designing the regulatory regime for HTPs under the FCTC in the future, one has to consider not only scientific evidence but also pay attention to the objective of the Convention (or more generally to the values that underlie the current tobacco control paradigm).

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The World Health Organization (WHO) has attracted an unprecedented level of criticism over its handling of the response to the COVID-19 pandemic. To enhance its legitimacy and better prepare for a future pandemic, various proposals to reform the WHO and the International Health Regulations have been made. Against this background, this article seeks to contribute to the ongoing discussions by investigating the nature of WHO’s work and its activities. Starting from the premise that much of the criticism stems from the uneasy coexistence of politics and expertise in WHO’s work, this article analyses some of the most controversial aspects of WHO’s initial response to the COVID-19 pandemic: (i) the alleged leniency towards China; (ii) the delay in declaring a public health emergency of international concern (PHEIC); and (iii) the delay in recommending the use of face masks for the general population. The article shows that politics infiltrates WHO activities in different ways, influencing even the processes that are conventionally seen as purely technical and science-based. At the same time, it argues that the influence of politics in WHO’s work should not be seen as some kind of atrophy, but should rather be considered a natural element that should be managed rather than dreaded.