G/TBT/W/367  
2 July 2013  
(13-3422)  Page: 1/3  
Committee on Technical Barriers to Trade  Original: Spanish  
 
  EUROPEAN UNION – TOBACCO PRODUCTS , NICOTINE CONTAINING PRODUCTS 
AND HERBAL PRODUCTS FOR SMOKING. PACKAGING FOR RETAIL SALE 
OF ANY OF THE AFOREMENTIONED PRODUCTS 
STATEMENT BY THE DOMINICAN REPUBLIC TO THE COMMITTEE  
ON TECHNICAL BARRIERS TO TRADE,  
17, 19 AND 20 JUNE 2013 
The following submission, dated 25 June 2013, is being circulated at the request 
of the delegation of the Dominican Republic. 
  
_______________ 
  
1  INTRODUCTION 
1.1.  On 18 January 2013, the European Union (EU) notified the TBT Committee that the 
European Commission had published its proposal for a new Tobacco Products Directive  
(hereinafter "the notified Directive").
1 We know that the notified Directive is being examined 
by the European Parliament (EP), which has appointed the Committee on the Environment, Public Health and Food Safety (ENVI) as the main legislative committee. We take note of a recent draft report (hereinafter "draft EP report") submitted on 10 April by the rapporteur 
of that Committee, Ms Linda McAvan.
2 
1.2.  The Dominican Republic has already expressed its concern regarding the notified Directive's 
consistency with the EU's WTO obligations, both before the TBT Committee (6 March 2013) 
and before the TRIPS Council (11 June 2013).3 We explained that a number of the proposed 
measures, including various packaging requirements, were not based on credible evidence, and that, if the EU were to adopt them, they would undermine the EU's health objectives instead 
of favouring them. These requirements would theref ore appear to be inconsistent with the EU's 
obligations under the TBT Agreement , the TRIPS Agreement , and the GATT 1994. 
1.3.  Today, rather than reiterate our position on the notified Directive, we would like to share our 
deep concern regarding a number of the proposed requirements that appear in the recent draft 
report submitted by the rapporteur of the ENVI Committee. 
1.4.  First of all, the Dominican Republic wishes to emphasize that its concerns are not related 
to the health objectives pursued by the EU. The Dominican Republic admires and in fact shares 
these health objectives. However, any ensuing measure must be firmly backed by credible 
and solid evidence that it contributes effectively to the pursued policy objective. Furthermore, the 
objective must be fulfilled in the least trade-restrictive manner possible. Only then would such 
measures favour the legitimate interests in question and be in keeping with the WTO's overall 
objective of providing security and predicta bility to promote development and trade. 
                                               
1 G/TBT/N/EU/88. 
2 European Parliament, Comm ittee on the Environment, Public Health  and Food Safety, "Draft report on 
the proposal for a directive of the European Parliament  and of the Council on the approximation of the laws, 
regulations and administrative provisions of the member  States concerning the manufacture, presentation and 
sale of tobacco and related products" (PE508.085, 10 April 2013). 
3 G/TBT/M/59. G/TBT/W/367 
- 2 - 
  2  DESCRIPTION OF THE PROPOSED TOBACCO PRODUCTS DIRECTIVE 
2.1.  The notified Directive imposes a series of new requirements for tobacco products. 
We have previously expressed our deep concern over a large number of these, including the packaging requirements, the ban on "slim" ciga rettes, the ban on flavours, and the information 
requirements.
4 We have expressed our view that if these requirements were adopted they would 
undermine the competitive opportunities of high-quality imported tobacco products, unjustifiably hamper the use of trademarks and have a wide ra nge of damaging effects on international trade. 
2.2.  The recent draft EP report, however, appears to go even further than the notified Directive. 
It proposes the introduction of new tobacco product requirements aimed at reinforcing and extending the requirements set forth in th e notified Directive. These new requirements 
include the following: 
a. Plain packaging: The draft EP report prop oses that plain packaging be required 
for cigarettes and roll-your-own tobacco (RYO).5 Trademarks or any other mark 
would be prohibited, apart from the brand name and any variant name. 
The European Commission would also be empowered to control the shape, size 
and background colour of unit packets, as we ll as the font type and size to be used 
for the brand name, and any variant name. This proposal clearly goes further 
than the notified Directive, which does not require  plain packaging but contains 
a provision permitting  EU Member States to introduce unspecified additional 
regulations for tobacco products.6 
b. Authorization requirement for novel tobacco products7: Secondly, the draft EP report 
proposes that pre-marketing authorization be required for novel tobacco products.8 
The notified Directive, however, merely sets forth a notification requirement for such products.
9 
c. Ban on cross-border distance sales: Lastly, the draft EP report proposes a ban 
on cross-border distance sales. EU Member States would be required to prohibit retail 
outlets established on their territory from engaging in cross-border distance sales.10 
The notified Directive, on the other hand, merely proposes a registration requirement 
for retail outlets within and outside the EU.11 
3  INCONSISTENCY WITH THE TBT AGREEMENT  
3.1.  The Dominican Republic is concerned th at if the additional requirements 
contained in the draft EP report are adop ted, they will constitute a violation 
of Article 2.2 of the TBT Agreement . 
3.2.  Article 2.2 of the TBT Agreement  stipulates that technical regulations "shall not be more 
trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks 
non-fulfilment would create". The additional requ irements proposed in the draft EP report would 
undermine the competitive opportunities of imported tobacco products, without making 
any positive contribution to the legitimate human health objectives pursued by the EU. 
3.3.  Regarding the WTO-inconsistency of plain packaging, we refer back to our previous statement 
in relation to Ireland, in which we explained th at plain packaging does not contribute to human 
health. On the contrary, the evidence available sh ows that plain packaging will cause an increase 
                                               
4 G/TBT/M/59. 
5 Draft EP report, pages 26-28. 
6 Article 24.2 of the notified Directive. 
7 In accordance with Article 2.23 of the notified Directive, novel tobacco products are defined as 
"products containing tobacco which do not fall within any of the established product ca tegories (e.g. cigarette, 
roll-your-own tobacco, pipe tobacco, water-pipe tobacco, cigar, cigarillo, chewing to bacco, nasal tobacco or 
tobacco for oral use) and which are placed on the market after the entry into force of the Directive". 
8 Draft EP report, pages 12-13, 17, 36-38. 
9 Articles 1 and 17 of the notified Directive. 
10 Draft EP report, pages 32-33. 
11 Article 16 of the notified Directive. G/TBT/W/367 
- 3 - 
  in the legal and illegal consumption of tobacco. We urge the EU to delay the implementation 
of any plain packaging requirements until th e Dispute Settlement Body (DSB) has ruled 
on the WTO-consistency of Australia's plain packaging measures, which are currently contested by a number of WTO Members.
12 
3.4.  With regard to the authorization requirement for novel tobacco products and the ban 
on cross-border distance sales, the same key error has been made for these proposed requirements as for so many of the other requirements in the notified Directive: the EU 
has not managed to provide any credible evidentiary basis showing that the proposed 
requirements would make a truly effective contribution to the EU's health objectives. For instance, the Dominican Republic wonders why it is necessary to require pre-marketing authorization for novel tobacco products, when such products must in any case comply fully with all the other 
provisions in the Directive. The Dominican Republic also wonders why it is necessary, under 
EU health objectives, to prohibit distance sales of  tobacco products when sellers of such products 
must comply fully with all the requirements in the Directive. The Dominican Republic would 
appreciate some clarification from the EU as to why, under its legitimate health objectives, novel 
tobacco products and distance sales are treated differently from any other tobacco product and mode of sale, respectively. The Dominican Republic would also like to know if less 
trade-restrictive alternative measures have been en visaged and, if so, why and on what basis they 
were considered inadequate. 
3.5.  We recall that, on a previous agenda, we emphasized the importance of the tobacco sector 
for the Dominican Republic's economy. Measures su ch as those set forth in the draft EP report 
would have a severe impact on trade in a developing country like the Dominican Republic. 
Such an impact cannot be justified when a measure lacks a reliable and credible evidentiary basis and could be replaced by alternative, less restrictive measures. 
3.6.  For the aforementioned reasons, the Dominican Re public requests the European Union to give 
greater consideration to its WTO obligations under the TBT Agreement  and other WTO Agreements 
when adopting new requirements for tobacco products. 
__________ 
                                               
12 WT/DS434; WT/DS435; WT/DS441.