G/TBT/W/365  
2 July 2013  
(13-3421)  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 
17, 19 and 20 June 2013 
STATEMENT BY CUBA 
The following submission, dated 25 June 201 3, is being circulated at the request 
of the delegation of Cuba. 
 
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1.  You will recall that at the meeting in May my delegation reserved the right to revert 
to this Directive at a later date, as it was still being reviewed internally. 
2.  Although we regret that we were unable to formulate our comments by the April deadline, 
today we would like to associate ourselves with those Members that have, since the last meeting, expressed concern over this measure's impact and its trade-restrictive nature which goes beyond 
what is necessary to meet legitimate health objectives - objectives which I reiterate 
are also a priority for the Cuban government. 
3.  I would like to make a number of specific co mments regarding the Directive that we are here 
to examine. First of all, we welcome the fact th at the proposal provides exemptions for tobacco 
other than cigarettes on the grounds that cigars in particular are smoked primarily by older 
consumers, while the focus of the proposal is to regulate tobacco products with a view to discouraging young people from taking up smoking. 
4.  At the end of the fourth paragraph of sect ion 3 ("Legal elements of the proposal") 
of the Explanatory Memorandum, the proposal states that: "Member States shall ensure that provisions or conditions set out under REACH are applied to tobacco products as appropriate". 
Article 5 later reaffirms this. In this respect, could the EU please explain which specific provisions 
or conditions it is referring to and what the basis for this decision is? We are very concerned about the restrictive nature of REACH being replicated for tobacco. This measure is a constant cause of concern for various Members in the Committee and has been for Cuba for a number of years 
now, most notably due to its trade-restrictive nature and the administrative and economic burden 
that its represents for small and medium-sized enterprises, above all in countries with small economies. 
5.  R e g a r d i n g  t h e  a c t u a l  t e x t  o f  t h e  D i r e c t i v e ,  w e  w o u l d  a l s o  l i k e  t o  c o m m e n t  o n  s e v e r a l  
of the Whereas clauses: 
6.  Whereas clause 40 states that a Member State that "deems it necessary to maintain more 
stringent national provisions for aspects falling insi de the scope of this Directive should be allowed 
to do so, for all products alike…". Does this mean that the exceptions made for cigars in the subsequent articles could be annulled indirectly by an internal decision taken by Member States? What legal certainty would there be in such circumstances for manufacturers, 
particularly in developing countries? G/TBT/W/365 
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  7.  Whereas clause 41 provides Members with the possi bility to "maintain or introduce provisions 
providing standardisation of packaging of tobacco products provided that those provisions are compatible with the Treaty, with WTO obligations and do not affect the full application of this Directive". At the meeting in March, the Europe an delegation confirmed that the use of plain 
packaging was not mandatory, which we recognise as a positive sign. Nevertheless, 
our interpretation is that its use is left to the discretion of Member States. Indeed, Ireland's decision, made public on 28 May, is a highly illustrative response. How is this decision considered 
consistent with the provisions of the TBT Agr eement and the TRIPS Agreement, above all within 
the context of various ongoing disputes? 
8.  Please also explain how this measure is consistent, firstly with the assertion that the focus 
of the proposal is to regulate tobacco products
 in such a way as to discourage young people 
from taking up smoking, which led to the exclusion of cigars, when such products would however 
be affected by plain packaging, which paradoxically is a more restrictive measure that detracts from the objective pursued by the Directive itself. 
9.  Secondly, is the fact that plain packaging will lead to an increase in the counterfeiting of these 
products at all consistent with Article 14 on traceability and security features? In other words, will the Directive's efforts to limit illicit trade not be undermined or diminished if, at the same time, 
it leaves to Member States' discretion whether or not they use plain packaging, the very 
formulation of which will facilitate counterfeiting and a form of trade that is so harmful to consumers? Has the EU considered that it would be taking a step back in terms of consumer protection, especially the protection of young people who are the main focus of this measure 
and who, unfortunately, tend to be more daring than adults when it comes to making decisions 
about obtaining the products they want? Does the EU not think that plain packaging will therefore 
affect the very application of this Directive and go against the attainment of its objectives? 
10.  Regarding Whereas clauses 40 and 41 could the European Union please explain whether prior 
approval will be required from the Commission and, if so, what requirements must be met 
by Member States in order to receive such approval? 
11.  In relation to Chapter I on ingredients and emissions, which contains Articles 3 to 6, 
manufacturers are required to submit a comprehensive list of the ingredients used in the manufacture of tobacco products by brand name and type, as well as their emissions and yields. This will place a considerable administrative and economic burden on industries 
in small countries such as Cuba, thus rendering the measure more restrictive than necessary. 
Furthermore, cigars should be excluded until the introduction of internationally agreed standards 
for measuring cigar smoke yields, which for the moment do not exist. 
12.  The measurement methods regulated by Article 4 require the use of laboratories 
that are approved and monitored by the co mpetent authorities of the Member States. 
This will undoubtedly force us to use European laboratories, which will lead to an increase 
in the cost of our exports. Such laboratories al so lack the necessary knowledge of our products. 
This is without doubt a very trade-restrictive measure that will place a burden on our small and vulnerable economies and result in their exclusion from the market, especially in respect of products such as cigars. We therefore cons ider it excessive and believe that it should 
be withdrawn or modified so that exporting countries can use their own laboratories or, where 
this is not possible, receive the necessary tech nology transfer under preferential conditions. 
We are quite sure that all the southern countries would very much appreciate this form of special 
and differential treatment. 
13.  We warn that these control measures will serv e little purpose if the content of the Directive 
encourages an increase in smuggling, especially in border regions and municipalities. In our view, 
the banning of certain characteristic ingredients,  flavours and forms may lead consumers of such 
products to try to obtain them on the black market, where there is no form of health control and they would be acting outside Member Stat es' tax systems. Concern is expressed that 
the Directive may lead to an increase in the illicit trading of tobacco, which will have a negative 
impact on the sector's entire value chain without actually reducing consumption of the product. G/TBT/W/365 
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  14.  In addition to this, the ban on displaying tobacco products at the point of sale would 
disproportionately affect the cigar industry, as cigars must be protected and displayed in a special container or humidor where the humidity level is 65-70% and the temperature 16-18°C. 
15.  Mr Chairman, we would like to draw attention to the Resolution on Tobacco that was approved 
by the ACP Council of Ministers at its 97
th Session on 5 June, in which this group of countries 
urged the EU to take into consideration the implications of its proposal for small, vulnerable and under-developed producing and exporting economies and invited it to reconsider its proposal, 
taking into account that it is more restrictive to trade than necessary to achieve its legitimate 
policy objectives. We hope that the voice of such an important group will be properly taken into account. 
16.  Lastly, we would be grateful if the EU could pr ovide us with an update on the current status 
of this Directive and the subsequent steps to be taken in this regard. 
17.  We will shortly circulate these questions, and any others that we may have, in writing 
so that replies can be provided. We urge the EU to give serious consideration to this request. 
At this stage we must admit that we deeply regret that neither Australia nor New Zealand 
have yet replied to our questions under previous specific concerns on measures relating to this same product, in clear breach of the special and differential treatment provisions 
of the TBT Agreement. 
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