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Briefing paper on tobacco product regulation and the WTO after US – Clove Cigarettes

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For those interested in matters of trade and health we have posted a briefing paper on the recent World Trade Organization panel report in US – Clove Cigarettes on the O’Neill Institute homepage ( See the ‘recent news’ section.
The abstract is as follows:
On September 2, 2011, the World Trade Organization (WTO) released the report of a panel tasked with considering a complaint brought by Indonesia concerning prohibitions on certain flavored tobacco products implemented by the United States (US). The panel concluded that the US violated WTO law by prohibiting clove-flavored cigarettes, but not menthol-flavored cigarettes. More specifically, the measure was found to discriminate against Indonesian clove cigarettes in favor of menthol cigarettes of US origin. 
This briefing paper discusses those aspects of the dispute most relevant to public health, explains the panel’s decision, examines the implications for tobacco control and public health more generally and outlines the options open to the US. The analysis suggests that the decision represents a mixed outcome for public health. Some aspects of the decision reinforce domestic regulatory autonomy, while other aspects are a concern from a public health perspective.  As a next step, the US will have to choose between appealing the outcome, implementing the decision by prohibiting menthol cigarettes or permitting clove cigarettes, or refusing to comply with the outcome of the decision. 
I also recommend the ongoing discussion of the case on the worldtradelaw blog  Whereas the briefing paper aims at providing a summary of the dispute and its implications, there are a few blog posts and comments focused on the question of how the Agreement on Technical Barriers to Trade should be applied. The dispute is quite an important one in terms of how WTO law affects domestic regulatory autonomy in a health context and it will be interesting to see whether either the US or Indonesia will appeal. On the one hand, the US was found to violate WTO law, and in the absence of a successful appeal, will have to bring its domestic law into conformity with WTO law. On the other hand, Indonesia also did not get the outcome it was seeking because the panel rejected the argument that bans on clove cigarettes are not necessary to protect human health.

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