WORLD TRADE  
ORGANIZATION   
G/TBT/W/339 
21 June 2011  
 
(11-3050) 
Committee on Technical Barriers to Trade Original:   Spanish 
  
 
STATEMENT BY THE DOMINICAN REPUBLIC TO THE COMMITTEE 
ON TECHNICAL BARRIERS TO TRADE, 15 JUNE 2011 
 
  The following statement, dated 15 June 2011, is  being circulated at the request of the 
delegation of the Dominican Republic. 
 
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 I. INTRODUCTION 
1. On 8 April 2011, Australia notified to the Committee on Technical Barriers to Trade the 
"Tobacco Plain Packaging Bill 2011" ("the Bill") (G/TBT/N/AUS/67).  The notification also refers to 
a "Plain Packaging of Tobacco Products Consultatio n Paper", which describes further provisions and 
other measures that Australia is considering for adoption for the purpose of implementing the Bill or 
regulating the packaging of tobacco products. 
2. The Dominican Republic is seriously concerne d about the impact of the measures proposed 
and their consistency with the WTO Agreement on Trade-Related Aspects of Intellectual Property 
Rights ("TRIPS Agreement") and the WTO Agreement on Technical Barriers to Trade ("TBT Agreement").  At the meeting of the Council  for TRIPS on 7 June last, our delegation already 
highlighted the issues that concerned the TRIP S Agreement.  We now wish to refer to the 
TBT Agreement. 
3. We are particularly worried about the impact that the proposed measures could have on small 
and vulnerable economies which are largely depende nt on the production and export of tobacco and 
tobacco products.  In this connection, I s hould emphasize that in the Dominican Republic 
55,000 people are employed directly in tobacco production and 63,000 more work in the tobacco 
industry, i.e. a total of 118,000 people plus their families that are dependent on this subsector, which 
accounts for 9.2 per cent of the Dominican agricultural sector.  This already gives some idea of the 
tremendous social impact that excessively rest rictive measures may have on poor countries. 
II. GENERAL ASPECTS OF THE BILL 
4. The Bill would authorize the adoption of a series of regulations requiring "plain packaging for 
tobacco products", amounting to a ban on the u se of registered trademarks, logos and other 
distinguishing features on tobacco packaging apart from the brand name, which would be subject to 
specified lettering and placement. 
5. The Consultation Paper lays down the steps proposed for implementation of the Bill as it 
concerns cigarette packaging.  For other tobacco products, the Paper states that the proposed design 
features for the plain packaging are still under deve lopment and that consultations will be held on 
them in the second half of 2011.  According to the Consultation Paper, Australia will also require that 
all tobacco packets be coloured a shade of dark oliv e brown with matt finish and that cigarette packets G/TBT/W/339 
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  display graphic health warnings that cover 75 per cent  of the front of the packet in addition to the one 
already covering 90 per cent of the back, together with a further warning to cover one of the side 
panels (the other side panel is to display the manuf acturer's details and a bar code).  No details are 
given of changes in warning requirements for ot her tobacco products such as cigars.  The Paper 
further states that all cigarette packs must be r ectangular in shape with a flip-top opening, and that 
no branding, colours or design features other than those specified will be permitted. 
6. These requirements would be in addition to Au stralia's existing laws and other provisions 
which prohibit the use of tobacco brand nam es on non-tobacco products  and ban advertising 
campaigns that target consumers.  Retail displa ys of tobacco products are likewise either banned 
already or to be banned in all Australian states and territories. 
III. IMPACT OF THE PROPOSED MEASURES 
7. The proposed measures would require all produ cers and importers of tobacco products to 
adopt highly standardized packaging which woul d in turn prevent sellers from asserting their 
intellectual property rights on packaging for cigarette s and other tobacco products, thereby depriving 
consumers of important information on the pr oducts they buy.  As explained below, the 
Dominican Republic is concerned as to the consiste ncy of these measures with Australia's obligations 
as a WTO Member. 
8. Because the measures have serious consequences, it is important to be sure that the policy 
objectives they underpin are legitimate.  According to Australia's notification to the TBT Committee, 
the measures are designed to "reduce the appeal of  tobacco products to consumers;  increase the 
effectiveness of health warnings on the packaging of tobacco products;  and reduce the ability of the 
packaging of tobacco products to mislead cons umers about the harmful effects of smoking".  
Apparently, each of these objectives forms part of a broader plan that seeks to reduce the number of 
smokers in Australia.  However, the Dominican Repub lic is unclear as to how the proposed measures 
would contribute to meeting that goal. 
9. The Dominican Republic is also concerned that plain packaging might have unwanted effects 
that undermine the proposed health objectives.  For ex ample, if tobacco products were to be sold in 
standard packs that make product differentiation difficult, sellers may feel compelled to compete 
solely on the basis of price, causing a drop in reta il prices which might in turn produce an increase in 
the demand and consumption of tob acco products, including cigarettes and cigars.  Furthermore, the 
sale of tobacco products in plain packaging might make it easier to produce and to sell counterfeit and 
contraband tobacco products, which would increa se the sale and consumption of non-regulated 
products.  In other words, the plain packaging measures proposed could actually run counter to the 
objectives sought. 
IV. THE TBT AGREEMENT 
10. As Australia acknowledged in its notificati on to the TBT Committee, the plain packaging 
measures proposed are technical regulations covered by the TBT Agreement.  As such, the measures 
must comply with Article 2.2 of the TBT Agreement,  which stipulates that "technical regulations shall 
not be more trade-restrictive than necessary to fulfil a legitimate ob jective, taking account of the risks 
non-fulfilment would create". 
11. The plain packaging requirements proposed may ve ry well (and this in fact appears to have 
been the objective sought) have a disproportionate impact on the trademarks for tobacco products.  
The Dominican Republic thinks that there is a genuine possibility of the proposed requirements 
leading to a decline in imports of finished trad emark products derived from tobacco (as well as of the 
tobacco used in such trademark products).  Mo reover, the law would also reduce future trade G/TBT/W/339 
Page 3 
 
 
  opportunities for legitimate manufacturers by signifi cantly increasing the difficulties of introducing 
new brands into the Australian market.  The Domini can Republic questions whether such restrictions 
are warranted, because it is not certain that the pr oposed measures will fulfil  the legitimate objective 
of reducing tobacco consumption.  As has alread y been emphasized, the plain packaging requirement 
might in fact have unwanted consequences that c ould lead to an increase in tobacco consumption. 
V. THE FRAMEWORK CONVENTION ON TOBACCO CONTROL OF THE WORLD 
HEALTH ORGANIZATION (WHO) DOES NOT REQUIRE USE OF PLAIN PACKAGING 
12. We understand from the notification that Australia is of the view that the plain packaging 
requirements proposed are part of Australia's commitments under the WHO Framework Convention 
on Tobacco Control.  The Framework Conve ntion does not require plain packaging. 
13. Article 11 of the Framework Convention - the only provision that specifically addresses the 
question of packaging - prohibits packaging that is false or misleading.  However, the plain packaging 
requirements proposed would ban the use of any desi gn elements, regardless of whether or not they 
are misleading. 
14. Article 13 of the Framework Convention deals not  with packaging but with promotion.  It 
requires a ban on tobacco advertising or, as a minimu m, on advertising that is false or misleading.  
Packaging is not part of advertising but an integral  part of the product as su ch.  As has already been 
pointed out, the measures proposed would prohibit the use of any type of design, whether it is misleading or not. 
15. We understand that the Conference of the Parti es to the Framework Convention has prepared 
non-binding Guidelines  recommending that the Parties should "consider" using plain packaging.  
These Guidelines  do not, however, require the use of plain packaging, nor do they indicate that the 
design elements and registered trademarks used  on the packets are in themselves misleading.  
Furthermore, as stated previously, there is no cl ear evidence requiring the Contracting Parties to 
"consider" using plain packaging. 
16. The Dominican Republic kindly requests Australia  to respond to the following questions to 
help clarify its position on these matters. 
VI. QUESTIONS 
(a) Would Australia please specify the eviden ce it used as a basis for proving that the 
plain packaging requirement would meet the objectives set out in the notification and, more generally, how tobacco consumption would be reduced.  Would Australia also 
kindly supply the references to relevant studies and a summary of the conclusions of 
such studies. 
(b) Has Australia explored the kind of effects th at the use of plain packaging would have 
on low-budget generic-type tobacco products and on unregulated trade in tobacco products entering the country illegally as c ontraband?  If so, would Australia please 
provide the results of its analysis. 
(c) Would Australia please explain whether it has considered and assessed the trade 
impact of the measures proposed, and how it has ensured that such measures will not 
impose unnecessary restrictions on trade in light of the objective of reducing tobacco consumption. G/TBT/W/339 
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  (d) Would Australia please explain how, pursuant  to Article 12.3 of the TBT Agreement, 
it has "take[n] account of the special de velopment, 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". 
17. Lastly, we would strongly urge Australia to ta ke into account the concerns expressed by the 
Dominican Republic and other countries and to amend the aforementioned measure.   
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