United States' tobacco regulations

Ban on clove cigarettes


Timeline

June 2009:
The Family Smoking Prevention and Tobacco Control Act which became U.S. law in June 2009 bans the sale of flavoured cigarettes, but exempts menthol.

August 2009:
Indonesia expressed concerns through the WTO TBT Committee, saying:

"There is no scientific or technical information indicating that clove cigarettes pose a greater health risk than menthol cigarettes and menthol cigarettes are consumed in much greater quantities.  The Government of Indonesia maintains that these measures discriminate against imported clove cigarettes and are thus incompatible with the United States’ obligations under the above-mentioned agreements because they infringe, among other provisions"

November 2009:
The issue was discussed at the November 2009 TBT Committee meeting.

April 2010:
Indonesia formally applied for consultations, advancing the issue towards dispute settlement.

June, 2010:
Indonesia asked the WTO's Dispute Settlement Body (DSB) to establish a panel to consider the issue.  Under WTO procedures, the respondent country can block the first request for a panel, which the United States Did.

July 2010:
The DSB established a panel.

The WTO has assigned this dispute the case number DS406. 

September 2010:
The composition of the panel was agreed to. 

The EU, Brazil, Guatemala, Turkey, Norway, Colombia, Dominican Republic and Mexico reserved 3rd-party rights.

March 2011:
The Chair of the panel informed the DSB that the report was expected before the end of June 2011. 

September 2, 2011:
The panel report was circulated to WTO members and made public.

September 15, 2011:
Indonesia and the United States requested an extension of the 60 day period for appeals to January 20, 2012

January 10th, 2012:
The U.S. notified the WTO that it would be appealing the panel decision.

January 16, 2012:
The Jakarta Post reports that the Indonesian government had decided it would not appeal.

April 4, 2012:
WTO's Appellate Body issues its report, reaching the same decision as the panel report.

Short title: US — Clove Cigarettes
Complainant: Indonesia
Respondent: United States
Third Parties: Brazil; Colombia; Dominican Republic; European Union; Guatemala; Mexico; Norway; Turkey
Agreements cited:
(as cited in request for consultations)
Sanitary and Phytosanitary Measures (SPS): Art. 3, 5, 7, 2
Technical Barriers to Trade (TBT): Art. 2, 12, 2.1, 2.2, 2.3, 2.5, 2.8, 2.9, 2.10, 2.12
GATT 1994: Art. XXIII:1(a), III:4, XX
Request for Consultations received: 7 April 2010
Panel Report circulated: 2 September 2011
Appellate Body Report circulated: 4 April 2012

 


WTO docs

TBT Committee

* Communication from Indonesia
 - 17 Aug 2009
G/TBT/W/323

* Minutes of TBT Committee - 5-6 Nov 2009
G/TBT/M/49 - 22 Dec 2009

* Indonesia - request for consultations
April 2010
G/TBT/D/38 -
G/SPS/GEN/1015
G/L/917
WT/DS406/1

Dispute Settlement

United States - Measures Affecting the Production and Sale of Clove Cigarettes - Request for the Establishment of a Panel by Indonesia
WT/DS406/2
11/06/2010

United States - Measures Affecting the Production and Sale of Clove Cigarettes - Constitution of the Panel Established at the Request of Indonesia - Note by the Secretariat
WT/DS406/3
14/09/2010

United States - Measures affecting the production and sale of clove cigarettes - Communication from the Chairman of the Panel
WT/DS406/4
09/03/2011

United States - Measures Affecting the Production and Sale of Clove Cigarettes - Dispute panel (and Appendix)
WT/DS406/R

Appellate Body Report
WT/DS406/AB/R


More info

* USTR background

Articles:

COMMENT:
Losing Flavor: Indonesia's WTO Complaint Against the U.S. Ban on Clove Cigarettes
Lucas Ballet
26 Am. U. Int'l L. Rev. 515
"This Note argues that the U.S. ban on clove cigarettes is inconsistent with WTO member obligations arising from current interpretations of GATT Articles III and XX."

(contact us for a copy if you cannot access through your own library)

Briefing Paper - 12 September 2011 T%Tobacco Product Regulation and the WTO: US – Clove Cigarettes
Benn McGrady
O'Neill Institute

Blogs

Discussion on
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