Not a DSU complaint yet, though. Just a communication to the TBT Committee. Here's a link: http://docsonline.wto.org:80/DDFDocuments/t/G/TBT/W323.doc (Note that it's a Word document). In the communication, Indonesia briefly sets out the legal issues, and then has the following questions for the U.S.:
(a) Section 907 prohibits a cigarette or any of its components from containing a natural or artificial flavour (other than tobacco or menthol) or an herb or spice. Why was menthol singled out as the only flavour, herb, or spice excluded from this provision.
(b) We know that clove cigarettes are an important industry in Indonesia. Are clove cigarettes also produced domestically in the United States?
(c) Section 907 further indicates that the prohibition on a natural or artificial flavour, herb or spices applies if it is “a characterizing flavour” of the tobacco product or the tobacco smoke. However, the bill does not define what elements of a cigarette constitute a “characterizing flavour”. How does FDA plan to interpret the concept of a “characterizing flavour”?
(d) Cigarettes contain many ingredients other than tobacco. Under Section 907, how will it be possible to distinguish certain “ingredients” from “characterizing flavours”?
(e) Menthol is an artificial flavour derived from mint, which is clearly an herb or spice. Does the United States believe that menthol cigarettes would fall under the provisions of Section 907 and would be prohibited absent the exception granted in the bill?
(f) Physically, both clove and menthol cigarettes contain tobacco with an herbal flavour additive with soothing properties. The end use of both clove and menthol cigarettes is the same, i.e., both are used to smoke tobacco. Does the United States believe that clove cigarettes and menthol cigarettes are like products?
(g) A primary purpose of the bill, as stated in the bill’s finding, is to reduce the incidence of youth smoking. The findings further indicate that additional regulation of tobacco products and tobacco marketing is necessary to prevent under-age youth from obtaining cigarettes. However, the evidence available to us indicates that many more youth smoke menthol cigarettes than clove cigarettes. Are you aware of any data to the contrary that indicate clove cigarettes are used by youth in greater quantities than menthol cigarettes?
(h) The WTO does allow members to take measures to protect human health, but these measures must be based on sound science. Are you aware of any scientific studies that show that clove cigarettes pose a greater health risk than menthol cigarettes?
(i) Several of the other flavoured cigarettes that would be prohibited by Section 907 (e.g., cherry, strawberry, chocolate) were created and marketed to appeal to youth. Clove cigarettes have been sold for decades and are not marketed to youth. Clove cigarettes are sold primarily through speciality tobacco shops. Are you aware of any specific advertising of clove cigarettes that has been viewed as targeting or appealing to youth?
(j) Flavoured cigarettes other than menthol are banned under Section 907. Menthol cigarettes will be subject to study and regulation by the FDA. Why is it necessary to ban other flavours but only necessary to study and regulate menthol cigarettes?
For background, see these posts:
http://worldtradelaw.typepad.com/ielpblog/2009/06/more-on-kreteks.html
http://worldtradelaw.typepad.com/ielpblog/2009/06/canadian-tobacco-ban.html
http://worldtradelaw.typepad.com/ielpblog/2008/08/kreteks.html
http://worldtradelaw.typepad.com/ielpblog/2007/08/another-wto-sin.html
