From the proposed revision to the EU's tobacco products directive, mentioned in the last post:
(15) The likelihood of diverging regulation is further increased by concerns over tobacco products, including smokeless tobacco products, having a characterising flavour other than tobacco, which may facilitate uptake of tobacco consumption or affect consumption patterns. For example, in many countries, sales of mentholated products gradually increased even as smoking prevalence overall declined. A number of studies indicated that mentholated tobacco products can facilitate inhalation as well as smoking uptake among young people. Measures introducing unjustified differences of treatment between flavoured cigarettes (e.g. menthol and clove cigarettes) should be avoided 36.
36 WTO Appellate Body, AB-2012-1, United States – Measures Affecting the Production and Sale of Clove Cigarettes (DS406).
Would this take care of claims about discrimination? Seems likely that it would. How about claims relating to such measures being "more trade restrictive than necessary"?
ADDED: That quote is from the Preamble. Article 6, paragraph 1 then sets out the following requirement: "Member States shall prohibit the placing on the market of tobacco products with a characterising flavour."
