From the minutes (Word doc) of the 5-6 November 2009 TBT Committee meeting, here is the discussion of the U.S. and Canadian tobacco laws that affect clove cigarettes and burley tobacco, respectively (a favorite blog topic of mine):
(ii) United States – Ban on Clove Cigarettes (G/TBT/W/323)
6. The representative of Indonesia raised his delegation's concern as outlined in document G/TBT/W/323 with respect to the US "Family Smoking Prevention and Tobacco Control Act", which had entered into force on 22 June 2009. He particularly regretted that the new measure prohibited the production and marketing of cigarettes containing certain additives, including clove, but permitted the production and sale of other flavoured cigarettes, such as cigarettes containing menthol. Indonesia believed that the US measure discriminated against imported clove cigarettes and created an unnecessary barrier to trade under the TBT Agreement. Therefore, the representative of Indonesia urged the United States to revoke the measure.
7. The representative of the United States indicated that the United States was not going to reverse the ban on clove cigarettes given the high priority the Obama Administration placed on protecting the health of Americans, especially youth. US health authorities support a ban on clove cigarettes to protect the public health. He noted that clove cigarettes were particularly appealing to youth and represented a "starter product" that could lead to the use of regular cigarettes. In particular, he stressed that clove cigarettes made it easier for new smokers to start smoking by masking the harshness of cigarette smoke and, like other banned fruit flavours, could ease the transition to addiction. Evidence also indicated that clove cigarettes could pose a range of additional health risks over conventional cigarettes. With regard to the allegation of discrimination, the US representative noted that substantial differences related to consumption, use patterns, and epidemiology existed between clove and menthol cigarettes, which made the two situations not comparable. He noted that the US Food and Drug Administration (FDA) had established a Scientific Advisory Committee that would support additional studies of menthol cigarettes before deciding an appropriate public health action. His delegation was open to further discussing the issue with Indonesia, so that Indonesian regulators could better understand the scientific basis for the US action.
(iii) Canada – Bill C-32 amendment to Tobacco Act
8. The representative of Argentina raised a concern regarding Canada's legislation "Cracking Down on Tobacco Marketing Aimed at Youth Act", which had entered into force on 8 October 2009. He stressed that his delegation supported Canada's objective to prohibit the production and marketing of tobacco products which could attract youth. However, he emphasized that this measure was more trade restrictive than necessary to achieve Canada's legitimate objective. The representative of Argentina noted that the measure prohibited the use of various additives in certain tobacco products, including cigarettes, cigarillos and blunt wraps. In this regard, he stressed that cigarettes made of several types of tobacco, such as blended cigarettes, contained several additives prohibited by the Canadian regulation. These additives, however, were not used to give a characterizing flavour to the product, rather they were used as an essential component to mitigate the strong flavour of Burley tobacco. A prohibition of these additives could therefore represent a de facto prohibition of blended cigarettes. The representative of Argentina further noted that a ban on the production and sale of products with a certain flavour would represent a less trade-restrictive mean to achieve Canada's objective, and thus be in line with Article 2.2 of the TBT Agreement. He also said that Canada based its legislation on the ingredients contained in a product without considering the effects of such ingredients on the final product, contrary to the obligations under Article 2.8 of the TBT Agreement. The Argentinean delegate noted that Canada had not notified the measure to the WTO. In this regard, he informed the Committee that prior to the adoption of the measure, the Argentinean Federation of Tobacco Producers and the Government of the Province of Salta had sent written comments to the Canadian Ambassador in Buenos Aires expressing their concern. However, these comments had not been taken into account. Finally, Canada was invited to amend this measure according to its obligations under the TBT Agreement.
9. The representative of Mexico supported the comments made by Argentina with regard to the Canadian legislation and regretted that Canada had neither notified the measure to the WTO nor taken into account other Members' views. In this regard, Mexico expressed a systemic concern regarding legislative branches in a number of countries, including Canada, not seeming to see themselves bound by the transparency obligations of the TBT Agreement.
10. The representative of Switzerland shared the concerns expressed by previous speakers. While Switzerland supported the objective of protecting human health, concerns remained that the legislation had not been notified to the WTO.
11. The representative of Colombia echoed the concerns expressed by Argentina, Mexico and Switzerland regarding the new Canadian legislation on tobacco. She believed that the legislation was not consistent with Article 2.2 of the TBT Agreement which stipulated that "technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective". While the legislation had the de facto effect of banning blended tobacco, there was no scientific evidence proving that blended cigarettes were more attractive to youth than traditional cigarettes, which represented ninety-eight per cent of the Canadian tobacco market. Therefore, Colombia invited Canada to consider less trade-restrictive alternatives to achieve its objective and ensure that its measure was consistent with the obligations under the TBT Agreement. The delegation of Colombia further emphasized that, absent such changes, exports of tobacco products to Canada would be seriously disrupted and the development of expansion plans for the growing of Burley tobacco would be negatively affected.
12. The representative of the European Communities joined other delegations in expressing concern regarding Canada's measure on tobacco. In particular, the EC representative reiterated the importance of Members fully complying with their transparency obligations under the TBT Agreement, in particular those related to the notification of technical regulations and conformity assessment procedures. She also noted that this issue had been raised in an EC submission to the Fifth Triennial Review of the Operation and Implementation of the TBT Agreement. The EC representative regretted that the Canadian measure had not been notified to the WTO and recalled that, according to Article 2.9 of the TBT Agreement, Members needed to ensure that draft legislation that could have a significant impact on trade be notified to the TBT Committee at an early appropriate stage when comments could still be taken into account. Therefore, the European Communities urged Canada to postpone the implementation of the legislation and notify the Committee at an early stage any measure which laid out its implementing provisions.
13. The representative of Turkey echoed concerns expressed by others. He emphasized the importance of tobacco exports for the Turkish economy and noted that the measure was currently under consideration by Turkish authorities. Comments on the legislation would be provided in due time.
14. The representative of the United States strongly supported Canada's objective of deterring youth from tobacco use. However, he asked the Canadian delegation to provide further information on the approach taken and on any measures necessary to implement the new regulation. Could Canada confirm when Sections 4 and 5 of the Tobacco Act would enter into force? Could Canada confirm that its Government had the authority to amend the schedule of additives regulated? Was the Government of Canada considering any amendments to the schedule of additives? Could Canada provide further information on the criteria used to develop the list of prohibited additives? Finally, could Canada explain what specific efforts had been made to identify the relationship in general between prohibited additives and products marketed to or that are innately attractive to youth? The United States looked forward to receiving Canada’s responses and improving the US understanding of the measure and its relationship to the TBT Agreement.
15. The representative of the Former Yugoslav Republic of Macedonia (FYROM) supported the comments made by previous delegations with regard to the Canadian legislation and highlighted the importance of the tobacco sector for his delegation's economy. While the Former Yugoslav Republic of Macedonia supported the objective of protecting human health, concerns remained that the regulation could constitute an unnecessary barrier to trade.
16. The representative of Canada explained that the "Cracking Down on Tobacco Marketing Aimed at Youth Act" was designed to address public health concerns by reducing the incentives for young people to smoke. She clarified that the new legislation prohibited, inter alia, the use of various flavours and other additives in certain tobacco products, including cigarettes, cigarillos and blunt wraps sold in Canada. She stressed that the legislation did not ban any type of tobacco or tobacco product. In this regard, it was Canada's understanding that since non-blended Burley cigarettes were currently sold on the Canadian market it was not correct to state that the ban on additives constituted an implicit ban on Burley tobacco. The Canadian delegate assured delegations that Canada's trade obligations had been taken into account in drafting the legislation and that Canada was committed to respecting its international trade obligations while meeting its legitimate public policy objectives.
17. With respect to the allegation on the lack of scientific evidence, Canada believed that the dangers of tobacco use were well documented in scientific and public health literature; indeed there was sound scientific evidence to demonstrate that certain additives, including flavours, increased the attractiveness of tobacco product. In this regard, the Canadian representative explained that some documents produced by the tobacco industries and subsequently made public by courts through litigation, had shown that the use of the additives banned by Canada made tobacco products more appealing to youth. She further noted that several other countries had introduced legislation that aimed at protecting youth from tobacco marketing. However, while the approach of such countries was only limited to banning specific flavours, the approach of the Canadian Government targeted a broader range of additives that were used to make cigarettes and other products more appealing to youth and novice smokers. In particular, the Canadian legislation introduced a list of prohibited additives that included additives with flavouring properties but also other additives such as sweeteners, vitamins, minerals and colouring agents. It was Canada's view that this legislation provided for more precision and certainty and that there was sound scientific evidence for prohibiting the use of such additives.
18. With regard to more systemic concerns about the non-notification of mandatory measures, the Canadian representative said that comments would be conveyed to capital for due consideration. She also reassured Members that any implementing measure of the tobacco legislation would be notified to the WTO at an early stage.
It's interesting to see how the U.S. addresses the issues related to the Canadian legislation. It just asks a lot of questions. Recall that the Canadian legislation is what is blocking some USTR appointments, as Senator Jim Bunning wants USTR to take stronger action on this matter and won't release his hold on the appointments until they do.
