G/TBT/W/369  
 
2 July 2013  
(13-3431)  Page: 1/2  
Committee on Technical Barriers to Trade  Original: English  
 
 EUROPEAN UNION – TOBACCO PRODUCTS, NICOTINE  CONTAINING PRODUCTS AND 
HERBAL PRODUCTS FOR SMOKING. PACKAGING FOR RETAIL SALE OF ANY OF THE 
AFOREMENTIONED PRODUCTS  
STATEMENT BY MALAWI TO THE COMMITTEE ON  TECHNICAL BARRIERS TO TRADE AT ITS 
MEETING OF 17, 19-20 JUNE 2013 
The following communication, dated 25 June 2013, is being circulated at the request of the 
delegation of Malawi. 
 
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1.  We have placed this item on the agenda to reiterate the continued serious concerns of Malawi 
about the WTO-consistency of the EU Tobacco Products Directive (TPD).  
2.  Members will recall the detailed intervention of Malawi at the last meeting of this Committee in 
March. We also submitted written comments and questions to the EU TBT Enquiry Point in April. We asked the EU to provide credible scientific ev idence to support the TPD in the context of a 
number of specific issues. With regret, we note th at the EU has not answered any of our questions 
or addressed any of our concerns.  We therefore take this opportunity to request for written responses from the EU. 
3.  Mr. Chairman, before turning to Malawi's specific concerns, it is worthwhile to recall that the 
TBT Agreement reflects a carefully-negotiated balance of rights and obligations among WTO 
Members. This balance is embodied in particular in TBT Article 2.2. On the one hand, Article 2.2 recognizes that Members may take measures to promote their legitimate objectives, including the 
protection of human health. On the other hand, technical regulations cannot be more trade-
restrictive than necessary to fulfil such legitimate objectives. Thus, Mr. Chairman, while no one questions the EU's goal of protecting health, the means to achieve those goals must comply with 
the disciplines of the TBT Agreement. This was th e bargain accepted by the EU, Malawi and other 
Members at the conclusion of the Uruguay Round. 
4.  The need to maintain this careful balance is particularly acute for least-developed countries 
such as Malawi, which does not have a widely-diversified economy, and which depends on 
maintaining its negotiated access to the markets of developed countries. We would highlight for 
Members some of the facts that we provided to the EU TBT Enquiry Point: 
a. Out of a population of 15 million people in Malawi, 1.5 million are tobacco farmers. 
Tobacco is the backbone of their economic activities as a cash crop.  
b. 25% of the tax base that supports government operations comes from the tobacco 
industry. 
c. Tobacco contributes at least 60% of Malawi's foreign exchange earnings.  
5.  Thus, the adoption and implementation of the TPD would have disastrous consequences not 
only on the livelihood of Malawians, but for the national economy as a whole. We therefore insist that no trade restrictive tobacco regulation should be introduced in the EU in the absence of strong 
and credible scientific evidence to justify such measures. To do otherwise disrupts the balance G/TBT/W/369 
 
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  embodied in the TBT Agreement which should be considered every time when a new technical 
regulation is proposed. 
6.  Mr. Chairman, a number of measures set out in the TPD are indeed "more trade-restrictive 
than necessary" to fulfil the EU's health objectives, contrary to the EU's obligations under Article 
2.2. I would highlight for Members a few examples of such WTO-inconsistencies: 
a. First, the ingredients bans do not have a valid scientific basis. The prohibition against 
placing on the market any tobacco products with a "characterising flavour" is extremely 
vague, as is the ban on additives that "create the impression" of health benefits. Mr. 
Chairman, additives do not "create impressions", and a measure based on such ill-defined concepts as these does not provide a serious basis for a health regulation. These measures are not based on science and eviden ce and would therefore be in violation of 
the EU's obligations under the TBT agreement. 
b. Second, the enlarged health warnings are similarly problematic. Such enlarged warnings 
are based on two fundamentally wrong assumptions: that consumers currently lack 
information on the risks associated with smoking, and that larger warnings will 
discourage smoking, particularly at the stage of smoking initiation. Such assumptions are demonstrably incorrect. The Commission has ignored the real factors that contribute 
to smoking initiation, particularly social interaction within peer groups. 
c. Third, the prohibition against "misleading" elements also lacks a scientific basis. All 
Members would agree that no product can be promoted through misleading means, but the Commission has yet to explain how colours or small-diameter cigarettes can 
"mislead". 
d. Fourth, we also see no legitimate basis for the Commission's requirements regarding the 
appearance and contents of unit packs. For ex ample, cigarettes must be sold in "cuboid" 
packages. We are at a loss to understand why mandating sales in "cuboid" packages 
makes any contribution at the EU's health objectives.  
7.  Mr. Chairman, I would stress that these are simp ly examples rather than an exhaustive list.  
8.  We would also note that other developing countries have also expressed concerns about the 
WTO-consistency of the TPD, including the Dominican Republic, Guatemala, Mexico, Nicaragua, Nigeria, Indonesia, the Philippi nes, Zambia and Zimbabwe.  
9.  Before closing, Mr. Chairman, I would like to stress one extremely important point. Malawi is 
not seeking any favours from the EU, and is not in this context invoking any "special and 
differential treatment". Rather, we are seeking to ensure only that the EU respects the binding 
obligations that it undertook when it accepted the TBT Agreement at the end of the Uruguay 
Round. One way to do this is to ensure that its technical regulations have a valid scientific and 
evidentiary basis that can withstand scrutiny. To da te, this evidence has been entirely lacking in 
the EU's purported justifications of the TPD. 
10.  Mr. Chairman, we thank Members for their attention, and once again we urge the EU to 
ensure that the TPD is brought into conformity with its WTO obligations. 
 
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