At the latest TBT Committee meeting, Malawi has offered a very interesting communication (G/TBT/W/360) related to the EU's proposed Tobacco Products Directive. In short, they think it violates various TBT Agreement provisions. They raise several aspects of the measure in particular:
- the ingredients bans: There is a prohibition on "characterising flavours", including menthol; a prohibtion of certain additives in tobacco products, including those that "create the impression" of health benefits, and additives that are "associated with energy and vitality"; and a prohibition on the use of flavourings in filters, papers, and packages.
- labelling provisions: The TPD would require the use of "combined health warnings" comprising a text warning and a colour photograph, along with "smoking cessation information". The combined health warnings must cover 75 % of the front of the package.
- packaging: A cigarette package must have a "cuboid shape" and must include at least 20 cigarettes. Moreover, the package cannot contain "an opening that can be re-closed or re-sealed after the opening is first opened, other than the fliptop lid".
- ban on small diameter cigarettes: Cigarettes with a diameter of less than 7.5 mm are banned.
Here are some things that interest me about Malawi's arguments.
First, they do not refer to Article 2.1 at all. Instead, Article 2.2 is the focus. Is this strategic? Do they not want people to get hung up on the discrimination elements? Do they not want to call attention to the absence of discrimination?
Second, the issue of "trade-restrictiveness" under Article 2.2 continues to fascinate me. Malawi says:
The ingredients bans are clearly trade-restrictive, as they will have the effect of banning the importation into the EU market of tobacco products with a "characterising flavour", including menthol, even though it is unclear what a "characterising flavour" actually is, and how this will be applied through the implementing acts.
How do we assess whether an ingredients ban is trade-restrictive? Can we look at the actual impact of the measure on trade, i.e., whether the quantity of imports falls? Is it only about the conditions of competition, such that we can analyze the trade impact based on the measure in the abstract? Does the examination exclusively focus on imports, or does the relative impact on imports and domestic goods matter?
Along the same lines of this measure and these issues, here's a proposed measure from New York's Mayor Bloomberg:
Mayor Michael R. Bloomberg, fresh off a defeat in his campaign to limit large servings of sugary drinks, is returning to a front where he has enjoyed far more success: making it more difficult to smoke, by proposing legislation on Monday requiring stores to put cigarettes out of sight.
Mr. Bloomberg said his bill would make New York the first city in the nation to force retailers to keep tobacco products hidden. He said they could be kept, for example, in a cabinet or a drawer, behind the counter or a curtain, but not anywhere where customers could see them.
The campaign is intended to shield children from tobacco marketing and to keep people who have quit smoking from buying cigarettes on impulse, he said.
“Such displays suggest that smoking is a normal activity, and they invite young people to experiment with tobacco,” Mr. Bloomberg said at a news conference.
This measure seems to have a similar objective as "plain packaging": Don't let attractive packaging entice people to smoke. So, in terms of "trade-restrictiveness," how does this measure compare to plain packaging? Is it less trade-restrictive, because it doesn't require cigarette companies to modify the package? Is it more trade-restrictive, because it prevents cigarette companies from getting their name in front of consumers so as to compete in the market?
