Chapter 4 examines the wave of cases before international courts and tribunals (ICTs) against the most innovative tobacco control measures, focusing in particular on Philip Morris v Uruguay (ICSID) and Australia – Plain Packaging (WTO). It contends that the alleged ineffectiveness of the tobacco control measures was one of the key arguments of the claimants, who supported their claims by submitting a hefty amount of evidence. These evidentiary challenges presented novel and demanding tasks for adjudicators of ICTs. Against this backdrop, this chapter first analyses the nature and features of the evidentiary challenges to tobacco control measures (Section 4.2). Second, it reviews how the ICTs have assessed them, zooming in on the interpretation of flexibilities and the use of different sources of evidence (Section 4.3). The picture that emerges from this chapter is that of unnecessary, manufactured complexity. Shifting the discussions on tobacco control measures from the WHO/FCTC to trade and investment ICTs, the tobacco industry has effectively managed to masterfully use international law to its own advantage. It has reframed the debate, all while starting expensive and lengthy judicial proceedings that have taken almost a decade to be concluded.

Chapter 1 sets the historical and theoretical background of the book. It starts by describing the regulatory battles that took place from the 1970s to adopt more stringent tobacco control measures. Then, it illustrates how the negotiations of the WHO Framework Convention on Tobacco Control and the subsequent WTO and international investment disputes can be considered the internationalisation of the tobacco wars. In this context, the concept of ‘lawfare’ is introduced as a descriptive device and analytical tool for the analysis of the book. The second part of the introduction introduces the second fil rouge of the book: evidence. It begins by defining the notion of evidence and by showing how, in the context of tobacco control, it can refer to different bodies of evidence that pertain both to the risk assessment and risk management dimension of tobacco control measures. This second part, moreover, shows how evidence has always been one of the key points of contention in the tobacco wars and has continued to be so in the international tobacco control lawfare. The introduction concludes with an explanation of the methodology employed, a reflection on its limits, and an outline of the content of the book.

Chapter 2 analyses the negotiation of the WHO Framework Convention on Tobacco Control (FCTC, 1998–2003). It illustrates that evidence was a key element of the negotiations and argues that the FCTC was developed as an evidence-based treaty to counteract the attacks on evidence by the tobacco industry. After a historical introduction, Section 2.2 outlines the theoretical background of the chapter, introducing the notion of ‘treaty entrepreneurs’. Sections 2.3, 2.4, and 2.5 proceed to delineate and analyse how the strategy on evidence unfolded during the FCTC negotiations. Section 2.3 illustrates how legal expertise from international environmental law was borrowed to build a treaty that could embed and develop evidence. Section 2.4 describes how evidence was mobilised to build the treaty. First, the treaty entrepreneurs relied on existing knowledge within the WHO; second, they served as a catalyst for the production of additional evidence from other relevant actors, most notably the World Bank. Section 2.5 reviews how the treaty entrepreneurs framed the available evidence and how the label ‘evidence-based’ started being used. Section 2.6, finally, draws some conclusions on the implications of adopting a strategy on evidence to push forward the negotiations of a treaty.

In addition to summarising the main findings of the book, this final chapter offers some reflections on the lessons that emerge from the history of the international tobacco control lawfare. The reflections are organised around the two main themes of the book: lawfare (Section 5.1) and evidence (Section 5.2). The first part offers some thoughts on the value of using ‘lawfare’ as an analytical tool, zooming in on the role of business actors in international regulation (Section 5.1.1) and on a reflexive account on one’s research (Section 5.1.2). The second part summarises the main topics related to evidence that have emerged in the book: the different types of evidence in risk assessment and risk management (Section 5.2.1), international law’s overreliance on evidence (Section 5.2.2), evidence as a weapon (Section 5.2.3), and evidence as an ideological battleground (Section 5.2.4).

Chapter 3 analyses how evidence has become a central element of the FCTC regime (2005–present). Section 3.1 captures the most important developments since the conclusion of the FCTC in 2003. Section 3.2 provides the theoretical framework of the chapter, focusing on the concept of path dependence in international organisations. Section 3.3 proceeds by showing that the development of the guidelines by the FCTC Conference of the Parties (COP) has been in effect a continuation of the strategy on evidence. Section 3.4 in turn highlights the second facet of the FCTC as an evidence-based regime, that is how the FCTC has mobilised new evidence at the national level. Sections 3.5 and 3.6 reflect on the consequences that the evidence-based approach has had on the outlook of the FCTC regime. Section 3.5 uses in-depth qualitative analysis to demonstrate that the evidence-based approach has reinforced the importance of the expertise of civil society organisations. Finally, Section 3.6 illustrates how the evidence-based approach has started to show its shortcomings in the work of the FCTC COP – particularly in the approach to new products like e-cigarettes (or ENDS) and in the (lack of) development of strategies to foster the implementation of tobacco control measures.