Another WTO "Sin" Dispute?

Why is it that so many of the good discrimination cases are about products like alcohol and cigarettes?  Here's another one that is in its early stages but might lead to a formal complaint at some point:

The [Indonesian] government has warned the United States Trade Representative against violating a WTO agreement if the U.S. decides to adopt a ban on the sale of clove cigarette.

...

"Our formal opinion stands clear. We have no issue with other kinds of flavors. However, there is no ground for exempting menthol from the ban. Such discrimination violates the agreement on sanitary and phytosanitary agreements under the WTO."

The bill, which is currently undergoing the legislation process in the U.S. Senate, would require the U.S. Food and Drug Administration to restrict tobacco advertising, regulate warning labels and remove hazardous ingredients.

It would also adopt a ban on clove-flavored cigarettes and other types of flavor including strawberry, grape, orange, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry or coffee, but exempted menthol from the list.

The measure banning flavored cigarettes is aimed to discourage children from smoking.

...

"I understand that the legislators are concerned about certain kind of flavors that may lure the underage to smoke. But clove is not one of them. Clove has been used for ages as a flavor in cigarettes," Indonesian Clove Cigarette Producers Association chairman Ismanu Soemiran told the Post on Wednesday.

The article mentions the SPS Agreement, but claims under the GATT are likely as well.  The proposed measure could raise all the usual issues that arise in these kinds of cases:

• Are clove-flavored cigarettes "like" menthol or other non-clove-flavored cigarettes?
• Do clove-flavored cigarettes make up a higher percentage of Indonesian cigarette production than they do of U.S. production, so that such a ban would have a disparate impact on Indonesian producers?
• Can such a measure, purportedly intended to discourage kids from smoking, satisfy the various aspects of the Article XX exception?
• And, of course, what exactly is the Article III non-discrimination standard, which seems to have fluctuated quite a bit over the years? 

Comments

[Sander]

One of the reasons why "so many of the good discrimination cases" are about alcohol and tobacco must be the fact that states tax those products heavily, so there are major interests involved in their international trade.

[David Palmeter]

I have a vague recollection of reading somewhere some time ago that clove cigarettes are more of a health hazard than regular cigarettes. I don't recall why that's supposedly the case, but if it is true, it would change the posture of the dispute.

[Luca]

Beyond the Article III claim, it is the TBT Agreement that would apply to this set of facts, rather than the SPS Agreement as mentioned: insofar as human health is concerned, the SPS Agreement applies only in relation to risks arising from food (e.g. Hormones, GMOs) or diseases carried by plants/animals (e.g. avian flu).

[Simon Lester]

Luca,

I think you are probably right about this. Although if one wanted to try a novel argument, I did notice an article the other day which said that second-hand smoke can harm pets (http://www.sciencedaily.com/releases/2007/08/070831123420.htm ) So perhaps the measure could be brought under the SPS Agreement through Annex A(1)(a).

[koho]

cloves have been found not to be any more harmful than reg cig. push that aside, why stop trade w/another country that total is only $10M/yr yes 10 million not 10 billion- a tick on the side of the big dawgs. it's grandstanding of the grandest kind. and, if someone really cared about cigs, stop all tobacco manufacturing. i think it is discriminatory cloves or not, to place another's country ability to export in jeopardy.

[koho]

cloves have been found not to be any more harmful than reg cig. push that aside, why stop trade w/another country that total is only $10M/yr yes 10 million not 10 billion- a tick on the side of the big dawgs. it's grandstanding of the grandest kind. and, if someone really cared about cigs, stop all tobacco manufacturing. i think it is discriminatory cloves or not, to place another's country ability to export in jeopardy.