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Marina Foltea and Bryan Mercurio

Some countries regulate ENDS in the same way as traditional tobacco products, while others classify them as medicinal products or create a sui generis category subject to unique rules. A number of countries have simply prohibited their sale and possession. Although ENDS definitely require a regulatory response, applying highly trade restrictive measures to them may potentially damage business operators, while governments may be missing an opportunity to tackle the tobacco epidemic. Just as with any other product, highly trade restrictive measures may not be allowable under the system established by the WTO. Against this background, this chapter examines the applicability of the WTO nondiscrimination provisions to cases where a general ban on trade in ENDS is adopted. It is argued that so long as cigarettes are traded freely across borders, it is not at all obvious that a ban on ENDS will be compliant with the WTO rules.