Speaking of Todd, he also has a long post in which he discusses the timing of implementation in the Clove Cigarettes case, and various options the U.S. might have for implementing.
This is just off the top of my head, and I haven't put too much thought into it, but here's what I might think about doing if I were the U.S.
First, assuming the parties can't agree on the time for implementation, and the case ends up before an Article 21.3 arbitrator, the U.S. could argue that complicated scientific issues are involved, and thus it needs a good deal of time for compliance in order to do some proper studies. To what extent do clove cigarettes induce people, young or old, to smoke? How about menthols? Other flavors? Recall that the Panel had said the following about the evidence before it:
7.209 Bearing this in mind, we note that the evidence on consumer preferences submitted by the parties may not provide clear guidance in this regard. On the one hand, Indonesia argues that "smokers are known to switch among clove, menthol and tobacco cigarettes, which shows that they are, in fact, willingly substituting the products to achieve the same end use of smoking".422 Subsequently, Indonesia asserts that "almost 90 per cent of youth smokers (under 18 years of age) are not using clove cigarettes".423 The United States, on the other hand, submits in its first written submission that clove cigarettes are especially appealing to youth, while adults prefer to smoke tobacco and menthol cigarettes regularly.424 In its second written submission, the United States focuses its argumentation on the fact that "[y]oung people within the window of initiation are enticed by the appealing physical characteristics of clove cigarettes, and do not view them as interchangeable with tobacco or menthol cigarettes".425
7.210 We observe that, in order to support these arguments, both parties rely on a series of surveys addressing smoking patterns in the United States.426 These surveys, however, do not share the same research parameters. Indeed, they examine different age groups427, pose different questions428 and are based on different methodological approaches.429 Therefore, as the information from the different surveys presented by the parties is not directly comparable, we consider that we cannot rely on the information they provide on market shares for the purposes of analysing the consumers' tastes and habits criterion. 430
The Appellate Body thought the Panel should have done more with the evidence (see paras. 150-151), but there may not have been much more they could have gleaned from it. I tried looking through some of the evidence at one point, but didn't see any clear conclusions that could be drawn. However, I have little doubt that better surveys could be done to get at the important questions. Are flavored cigarettes the first cigarette many people smoke? If so, which flavors? Do people often settle on particular flavored cigarettes after trying regular cigarettes? Are flavored cigarettes simply an additional cigarette that people smoke on occasion, aside from their normal cigarette? And, of course, many other questions that people who -- unlike me -- have some familiarity with smoking might think of. These studies will take a little bit of time, and it's worth taking the time to do them right. Thus, the U.S. could try putting forward an argument that due to the existing scientific uncertainty, new studies are needed.
And second, and I suppose this is obvious, but once there is some good evidence to use, the U.S. would then develop a measure that reflects that evidence. Easier said than done, I know! What the U.S. could do, in fact, is adopt a temporary measure that says it will carry out a proper study and then take a final measure that is to be "based on" the findings of the study.
This is all a big hassle for U.S. law-makers, and it makes legislating/regulating a lot more difficult. Perhaps it makes the resulting measure better (more effective); perhaps it makes regulating so difficult that it is, effectively, "deregulatory." It's difficult to draw the line. I tend to think that what the Appellate Body did with Article 2.1 draws the line in the right place. I'm more concerned with the line under Article 2.2, which we should hear about next month in Tuna.
Again, just off the top of my head. Any thoughts?
