G/TBT/W/360  
 
14 March 2013  
(13-1403)  Page: 1/3  
Committee on Technical Barriers to Trade  Original: English  
 
 EUROPEAN UNION – TOBACCO PRODUCTS DIRECTIVE 
STATEMENT BY MALAWI TO THE COMMITTEE ON  TECHNICAL BARRIERS TO TRADE AT ITS 
MEETING OF 6-7 MARCH 2013 
 
The following communication, dated 12 March 2013, is being circulated at the request of the 
delegation of Malawi. 
  
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1.1.  Malawi is deeply concerned that the EU's proposed Tobacco Products Directive (TPD) will significantly restrict trade, and is inconsistent with the EU's binding obligations under the TBT 
Agreement. 
1.2.  We wish to make a critically-important poin t. No one is questioning the right of the EU to 
take measures to protect public health. That is not at issue. Rather, when the EU or any other 
Member acts to protect public health, it must do so in a WTO-consistent manner . This key concept 
is embodied in the TBT Agreement that was accept ed by the EU, Malawi and other Members at the 
end of the Uruguay Round. 
1.3.  The Appellate Body summarized this key principle succinctly in its ruling last year in US – 
Clove Cigarettes . It emphasized that "we are not saying that a Member cannot adopt measures to 
pursue legitimate health objectives such as curb ing and preventing youth smoking" but that "if it 
chooses to do so, this has to be done consistently with the TBT Agreement".  
1.4.  The EU TPD falls short of this standard, as it pursues its health objectives in a manner that is 
not consistent with the TBT Agreement. This should be a serious concern to all WTO Members. 
1.5.  Turning to the specifics of the TPD, Malawi would highlight in particular four aspects of the 
proposed measure that would breach the TBT Agreement:  
1.6.  I begin with the ingredients bans. The TPD in cludes three types of ingredients bans. First, it 
provides that EU Member States must prohibit th e placing on the market of tobacco products with 
a so-called "characterising flavour", including menthol. Second, EU Member States are required to 
prohibit the use of certain specified additives in tobacco products, including those that "create the 
impression" of health benefits, and additives that are "associated with energy and vitality". Third, 
Member states are also required to prohibit the us e of flavourings in filters, papers, and packages. 
1.7.  It is Malawi's strong conviction that these ingredients bans are inconsistent with the EU's 
binding obligations under TBT Article 2.2, as they are clearly "more trade-restrictive than necessary" to fulfil the EU's health objectives.  
1.8.  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. G/TBT/W/360 
 
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  1.9.  In US – COOL , the Appellate Body made clear that assessing the consistency of a measure 
with TBT Article 2.2 includes consideration of wh ether it "actually contributes to the achievement 
of the legitimate objective". The TPD, by its ow n terms, focuses on the "initiation of tobacco 
consumption, in particular by young people". The EU has provided no evidence to demonstrate 
that these ingredients bans will actually contribute to lower rates of smoking initiation by young 
people. Indeed, the initiation of smoking by young pe ople is principally the result of social factors 
such as peer pressure rather than "characterising flavours". It is also unclear to us how additives 
can "create impressions" or are "associated with energy and vitality". These bans thus breach 
Article 2.2. 
1.10.  Second, the labelling provisions of the TPD are similarly inconsistent with Article 2.2. 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. These labe lling requirements will clearly restrict trade by 
imposing costly compliance requirements on companies seeking to export to the EU market. The 
measure will not contribute to the EU's health objectives. There is no evidence that such enhanced 
warnings will provide consumers with information they do not already have, or will change their behaviour.  
1.11.  Third, the TPD also includes WTO-inconsistent new rules on 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". 
1.12.  These strict and unprecedented requirements  restrict trade by prohibiting the importation 
and sale of packages that do not conform to such specifications. It is not apparent to us, Mr. Chairman, why the shape of a package or the number of cigarettes inside it would reduce 
smoking, and the EU has not provided any credible information on why it would. The packaging 
requirements will not fulfil the EU's health objectives, and are more trade-restrictive than necessary within the meaning of Article 2.2. 
1.13.  These packaging requirements also breach the requirement in TBT Article 2.8 that Members 
are to specify technical regulations based on product requirements "in terms of performance rather than design or descriptive characteristics". 
1.14.  Fourth, the TPD will ban small diameter cigarettes from the EU market, following an 
unexplained legislative pronouncement in the draft Directive that such products "shall be deemed 
to be misleading". This breaches Article 2.2. 
1.15.  An import ban is clearly highly trade-restrictive. There is no basis to consider that such an 
arbitrary measure would promote the EU's health objectives. Nowhere in the TPD is there any 
indication as to why cigarettes with a diameter of less than 7.5 mm is "misleading".  
1.16.  Thus, according to the TPD, cigarettes with a diameter of 7.4 mm would be "misleading", 
while those with a diameter of 7.6 mm would not be  "misleading". The logic of this would escape 
most people and, we assume, most WTO Members.  
1.17.  The ban on small-diameter cigarettes is also clearly based on "design or descriptive 
characteristics" rather than the "performance" of the product, in breach of Article 2.8. 
1.18.  As Members are well aware, Article 12.3 provides that Members preparing technical 
regulations shall – not should – "take account of the special development, financial and trade needs of developing country Members", with a view to ensuring that such technical regulations "do 
not create unnecessary obstacles to exports from  developing country Members." The onerous new 
obligations of the TPD will clearly create new, unnecessary obstacles to the tobacco exports of developing countries. I must also stress that this will disproportionately hit least-developed 
tobacco exporters such as Malawi. 
1.19.  These comments are not exhaustive of Malawi 's views on the TPD, and we reserve our right 
to make additional statements in future meetings. G/TBT/W/360 
 
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  1.20.  Malawi has some specific requests for the EU. We would ask the EU to please provide 
credible scientific evidence to support the TPD, pa rticularly the evidence to support the position 
that: 
a. Ingredients bans, including those on "characterising flavours" and additives "associated 
with energy and vitality" will reduce the "initiation of tobacco consumption, in particular 
by young people";  
b. Enhanced health warnings, including the 75% combined health warnings on the 
package, will provide consumers with information they do not already have, or will 
change their behaviour;  
c. Prescriptive rules on packaging, and minimu m cigarettes per package requirements, will 
reduce smoking initiation and smoking rates; and 
d. Cigarette diameter sizes can "mislead", and increasing prescribed diameter sizes will 
reduce such smoking initiation and smoking rates. 
1.21.  We also respectfully request the European Union to ensure that the TPD is fully consistent 
with its binding obligations under the TBT Agreement.  
 
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