Todd Tucker of Global Trade Watch points to a recent Brazilian ban on all flavored cigarettes:
Unless you're an avid reader of Spanish and Portuguese language news wires, you probably missed Brazil's announcement last month of a ban on all flavored cigarettes: cloves, chocolates, and even menthols. Both importers and domestic firms are subject to the same limits.
So is this the answer to how to regulate flavored cigarettes in a way that is consistent with WTO rules? Todd notes that Indonesia is not happy with the ban, even though it is non-discriminatory, because its clove cigarettes are affected. Indonesia's reaction is not surprising, but the real question, of course, is whether such a ban would be found in violation. Todd says:
There's a range of other provisions of WTO agreements that Indonesia could invoke against a broader ban, perhaps under the General Agreement on Tariffs and Trade, rather than the Technical Barriers to Trade agreement. While the relatively shallow and new TBT jurisprudence has shown itself to be stacked against national regulation, the GATT record is little better.
It is certainly true that a challenge could be brought under various provisions. But it is likely to be much more difficult to win such a complaint than it was to win the complaint against the U.S.