Indonesia brought a claim against the United States regarding a statutory ban on the production or sale in the United States of cigarettes containing certain additives including clove. Indonesia alleged that the measure is inconsistent with various provisions of the General Agreement on Tariffs and Trade 1994 (GATT), the Agreement on Sanitary and Phytosanitary Measures (SPS) and Agreement on Technical Barriers to Trade (TBT), as the United States excluded from the restriction the production and sale of menthol-flavored cigarettes. Indonesia claimed that the ban on clove cigarettes was discriminatory and unnecessary. The WTO Panel found the menthol-flavored and clove-flavored products similar and held that the ban was contrary to the TBT Agreement because it treated clove cigarettes less favorably than menthol-flavored cigarettes. Nonetheless, the WTO Panel held that restriction was consistent with the TBT Agreement as far as it was not more trade-restrictive than necessary to satisfy the legitimate objective of reducing youth smoking. Finding that the United States had acted inconsistently with the TBT Agreement, the Panel recommended that the United States bring its actions into conformity with its obligations under the TBT Agreement.
The Parties settled the case while negotiating appropriate remedies. In addition to other commitments, the United States agreed to not arbitrarily or unjustifiably discriminate against cigars or cigarillos from Indonesia.
Indonesia v. United States, United States - Measures Affecting the Production and Sale of Clove Cigarettes, World Trade Organization (WTO) Panel, WT/DS406/R, circulated to WTO Members 2 September 2011.
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
Type of Tobacco Product
None
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"The WHO Partial Guidelines reinforce our understanding. As indicated above, these Guidelines, "drawing on the best available scientific evidence and the experience of Parties", show a growing consensus within the international community to strengthen tobacco-control policies through regulation of the content of tobacco products, including additives that increase the attractiveness and palatability of cigarettes. In this regard, the WHO Partial Guidelines state that "[r]egulating ingredients aimed at reducing tobacco product attractiveness can contribute to reducing the prevalence of tobacco use and dependence among new and continuing users". They therefore recommend, among other things, that the "[p]arties should regulate, by prohibiting or restricting, ingredients that may be used to increase palatability in tobacco products". Targeted ingredients include those that are used to increase palatability and among the ingredients that increase palatability listed in the WHO Par al Guidelines are masking agents, such as menthol as well as spices and herbs which include mint and may cover clove. In our view, the evidence reviewed above basically speaks for itself: it is not correct, as Indonesia asserts, that the scientific basis for banning clove and/or other flavoured cigarettes consists of a "single line from a single study". Rather, there is extensive scientific evidence supporting the conclusion that banning clove and other flavoured cigarettes could contribute to reducing youth smoking."
"In considering whether Indonesia has had sufficient time to prepare itself for the ban on clove cigarettes, the Panel notes that Indonesia has participated in the U.S. legislative process that resulted in the adoption of Section 907(a)(1)(A) and was thus aware that the ban on clove cigarettes was coming. In this respect, Indonesia tells us that it communicated its concerns to the White House and the Office of the U.S. Trade Representative ("USTR") on multiple occasions. For example, on 5 May 2009 during Ministerial-level bilateral meetings in Washington DC, Indonesia communicated to USTR its concerns about the discrimination against clove cigarettes contained in the Act. When the United States House of Representatives first considered the legislation in July of 2008, then Secretary of Health and Human Services Mike Leavitt sent a letter to the Ranking Member of the House Energy and Commerce Committee, Congressman Joe Barton, expressing concerns with the legislation as drafted. Among the concerns raised by Secretary Levitt was that:
"Our trading partners believe that by banning the sale of clove cigarettes but not prohibiting the sale of menthol cigarettes, the bill raises questions under U.S. international trade obligations. The government of Indonesia has repeatedly objected to the bill on the grounds that this disparate treatment is unjustified and incompatible with WTO trade rules. Accordingly, I would recommend that the Committee further review the relevant language in this light to ensure the bill is consistent with US trade obligations.""
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Indonesia brought a claim against the United States regarding a statutory ban on the production or sale in the United States of cigarettes containing certain additives including clove. Indonesia alleged that the measure is inconsistent with various provisions of the General Agreement on Tariffs and Trade 1994 (GATT), the Agreement on Sanitary and Phytosanitary Measures (SPS) and Agreement on Technical Barriers to Trade (TBT), as the United States excluded from the restriction the production and sale of menthol-flavored cigarettes. Indonesia claimed that the ban on clove cigarettes was discriminatory and unnecessary. The WTO Panel found the menthol-flavored and clove-flavored products similar and held that the ban was contrary to the TBT Agreement because it treated clove cigarettes less favorably than menthol-flavored cigarettes. Nonetheless, the WTO Panel held that restriction was consistent with the TBT Agreement as far as it was not more trade-restrictive than necessary to satisfy the legitimate objective of reducing youth smoking. Finding that the United States had acted inconsistently with the TBT Agreement, the Panel recommended that the United States bring its actions into conformity with its obligations under the TBT Agreement.
The Parties settled the case while negotiating appropriate remedies. In addition to other commitments, the United States agreed to not arbitrarily or unjustifiably discriminate against cigars or cigarillos from Indonesia.