Published online by Cambridge University Press: 20 January 2017
In September 2011, the World Trade Organization (WTO) panel report in US – Clove Cigarettes was released. The report addressed a complaint brought by Indonesia concerning prohibitions on certain flavored tobacco products implemented by the United States (US). The dispute is one of a number of contemporary disputes under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). Given that relatively few disputes have been resolved under the TBT Agreement, the outcome may have significant implications for interpretation of the agreement and risk regulation through technical regulations. The panel report may also have more specific implications for risk regulation in the context of tobacco products (author's headnote).
1 Federal Food, Drug, and Cosmetic Act. 21 U.S.C. § 387g(a)(1)(A).
2 Family Smoking Prevention and Tobacco Control Act, HR 1256, section 907(a)(1)(A).
3 Menthol Cigarettes and Public Health: Review of the Scientific Evidence and Recommendations (as reviewed at the TPSAC meeting on March 18, 2011), available on the Internet at <http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/TobaccoProductsScientificAdvisoryCommittee/UCM247689.pdf>, p. 204 (in the PDF version) (last accessed on 31 October 2011).
4 Partial Guidelines for Implementation of Article 9 and 10 of the WHO FCTC, Regulation of the Contents of Tobacco Products and Regulation of Tobacco Product Disclosures, available on the Internet at <http://www.who.int/entity/fctc/protocol/guidelines/adopted/article_9and10/en/index.html>, para. 126.96.36.199 (last accessed on 31 October 2011).
5 For discussion see McGrady, Benn, Trade and Public Health: The WTO, Tobacco, Alcohol and Diet (New York: Cambridge University Press, 2011), pp. 91–94 CrossRefGoogle Scholar.
6 Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, [hereinafter US – Clove Cigarettes], WT/DS406/R, para. 7.119.
7 Ibid., para. 7.182.
8 Ibid., para. 7.210.
9 Ibid., para. 7.268.
10 Ibid., para. 7.273.
11 Ibid., para. 7.276.
12 Ibid., para. 7.291.
13 Ibid., para. 7.369.
14 Ibid., paras. 7.373–7.374.
15 Ibid., para. 7.389.
16 Ibid., para. 7.401.
17 Ibid., para. 7.414.
18 Ibid., para. 7.422. 19 Panel Report, US – Clove Cigarettes, para. 7.425.
20 Ibid., para. 7.427.
21 Joost Pauwelyn, “What Does Clove Cigarettes Mean for Discrimination under GATT and Investment Treaties?”, available on the Internet at <http://worldtradelaw.typepad.com/ielpblog/2011/09/what-does-cloves-cigarettes-mean-for-discrimination-under-gatt-and-investment-treaties.html#comments> (last accessed on 31 October 2011).
22 Panel Report, US – Clove Cigarettes, para. 7.289.
23 Ibid., paras. 7.124–7.148.
24 The evidence discussed by the panel, and in the TPSAC report, suggest that menthol cigarettes are particularly attractive to youth, as compared to tobacco flavored cigarettes.