From Rob Howse, who asked me to post this for him:
At the May 24 DSB meeting the United States made the following statement concerning implementation of the Cloves ruling:
This morning, as provided for in the first sentence of Article 21.3 of the DSU, the United States wishes to state that it intends to implement the recommendations and rulings of the DSB in a manner that protects public health and respects the obligations of the United States under the WTO Agreement.
- In this regard, the United States would emphasize the DSB finding that the U.S. measure reflects the overwhelming view of the scientific community that banning clove and other flavored cigarettes benefits the public health by reducing the likelihood that youth will enter into a lifetime of cigarette addiction.
- Accordingly, the DSB found that a ban on clove cigarettes meets the requirements of Article 2.2 of the TBT Agreement and is thus no more trade restrictive than necessary to fulfill a legitimate public health objective.
The United States will need a reasonable period of time in which to implement in this dispute.
By emphasizing that the ban on cloves was consistent with 2.2 of TBT and saying that the US will implement in a manner consistent with public health, the US seems to be making it pretty clear that it has no intention of lifting the ban on clove cigarettes. The options therefore will be either to take steps to impose a ban on menthol cigarettes or (as I have suggested in earlier posts) to take additional steps to ensure that its different treatment of menthol cigarettes is in fact based on a legitimate regulatory distinction, With respect to banning menthol, I wonder whether, if the US can show that it is now making an effort to develop a political consensus for an effective ban on menthol at manageable regulatory cost that is equal to the effort it put into bringing about the cloves ban, and if it makes that equal effort within the reasonable period of time, it would satisfy the even-handedness demanded by the Appellate Body. Even-handedness arguably refers to treatment rather than the requirement of the same outcome or result. It would be quite useful for the AB to clarify in fact whether it sees what it calls even-handedness as an obligation of conduct or result or perhaps one or the other or both depending on the context. This is also relevant to what implementation might entail in US-Tuna.