Trade Treaties and Alcohol Advertising Policy

Abstract

Restrictions on alcohol advertising are vulnerable to challenge under international trade agreements. As countries negotiate new trade treaties and expand the scope of existing ones, the risk of such a challenge increases. While alcohol advertising restrictions normally do not distinguish between foreign and domestic products, this neutral character does not protect them from being challenged under trade rules. The article analyzes four provisions of trade agreements – expropriation, de facto discrimination, market access, and necessity – in relation to the jeopardy they pose for alcohol advertising restrictions. Key cases are reviewed to illustrate how these provisions have been used to either overturn existing advertising restrictions or prevent new ones from coming into force. The article also reports on the mixed results governments have had in trying to justify their regulations to trade panels and the stringent criteria imposed for proving that a regulation is “necessary.”