WORLD TRADE  
ORGANIZATION  G/TBT/W/330 
16 June 2010 
 
 (10-3274) 
Committee on Technical Barriers to Trade Original:   English 
  
 
THE EFFECTS OF CANADA'S "TOBACCO ACT" ON KENYA 
 
  The following communication, dated 14 June 2010,  is being circulated at the request of the 
delegation of Kenya
. 
 
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I. INTRODUCTION 
1. Kenya as a tobacco growing and manufacturing country is concerned about the possible 
effects by the enactment of Canada’s Cracking Down on Tobacco Marketing Aimed at Youth Act , on 
its tobacco leaf manufacturing and exports.  The la w prohibits the manufacture and sale of cigarettes, 
little cigars and blunt wraps that contain any of the flavourings and additives listed in a Schedule 
appended to the law.  Kenya is deeply concerned that this law is inconsistent with Canada’s 
obligations under the WTO Agreement on Technical Barriers to Trade  (Articles 2.2, 2.8, 2.9 and 12.3 
of the TBT Agreement ) and will have a negative effect on Ke nya’s long term economic prospects. 
2. Kenya understands that the spirit and purpose of the law is to reduce the incidence of youth 
smoking by, among other things, prohibiting the ma nufacture and sale of confectionary and fruit 
flavoured tobacco products that Ca nada believes are designed to appeal to youth.  Whereas Kenya 
fully supports this noble and moral objective, she is  deeply concerned that the law is far too trade 
restrictive than necessary to achieve this goal.   
3. Specifically Kenya is concerned that the law eff ectively bans "traditional blended" cigarettes.  
It is important to note that traditional blended cigarettes are one of the two major categories of cigarettes in the world.  They are produced with th ree types of tobacco, Virginia, Burley and Oriental 
tobacco, and blended with certain additives that the law now seeks to prohibit.   
4. Additives are an essential component of traditio nal blended cigarettes. They are merely 
applied as manufacturing aids to blend the three differ ent types of tobaccos, i.e. Burley, Oriental and 
Virginia, and as flavourings to confer on each bra nd its unique tobacco taste.  Additives in traditional 
blended cigarettes do not lend a characterizing fruit or confectionary flavour to the end product.  
Thus, by banning the additives, the law effectivel y bans traditional blended cigarettes, even though 
such cigarettes do not exhibit any discernible confecti onary, fruit or other flavour that is particularly 
attractive to youth. 
5. Kenya is a significant producer of tobacco leaf in the world, with an approximate annual crop 
volume of 20 million Kgs.  Approximately 40,000 farmers grow tobacco in Kenya.  All of Kenya’s 
crop total tobacco crop is bought by cigarette manuf acturers to be used in both domestic and export 
production.  Measures which restrict blended cigarett es will, therefore, have a detrimental impact on 
Kenya’s tobacco production and finished goods exports. G/TBT/W/330 
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  6. The issues with the Canadian law could easily be  resolved by equally effective but less trade-
restrictive alternatives that would address the objectiv e of the legislation but also ensure compliance 
with Canada’s obligations under the TBT Agreement.   
II. OPERATION OF THE PROPOSED TECHNICAL REGULATION 
7. The Canadian law would ban the manufacture a nd sale of any cigarettes, little cigars and 
blunt wraps that contain any of the flavourings an d additives listed in a Schedule appended thereto.  
The list includes "additives that have flavourin g properties or that enhance flavour."   
8. This law prohibits the listed additives regardless of the amount used in the finished tobacco 
product even if they do not impart a characterizing fl avour to the tobacco product.  In effect, the law 
out rightly bans the manufacture and sale of trad itional blended cigarettes in Canada which do not 
have the characterizing flavours that were the ta rget of the Cracking Down on Tobacco Marketing 
Aimed at Youth Act.  
III. CONCERNS REGARDING THE CONSISTENCY OF LAW WITH THE TBT 
AGREEMENT 
9. As explained further herein below, Kenya has serious concerns about the consistency of law 
with Articles 2.2, 2.8, 2.9 and 12.3 of the TBT Agreement . 
A. A
RTICLE 2.2 
10. Article 2.2 of the TBT Agreement  states that "technical regulations shall not be more trade-
restrictive than necessary to fulfil a legitimate obj ective; taking account of the risks non-fulfilment 
would create".  It further states that, "in assessing such risks, relevant elements of consideration are, 
inter alia:   available scientific and technical informa tion, related processing technology or intended 
end-uses of products".  Kenya requests that Canada explains how its law is consistent with these 
requirements.  
11. The objective as stated in the law is to reduce the incidence of youth smoking by banning the 
manufacture and sale of candy and fruit flavoured ciga rettes that are particularly enticing to youth.  
This is a legitimate concern.  However, rather than banning ci garettes with a distinctive or 
characteristic confectionary or fruit flavour, Canada  has instead banned the use of additives, in any 
amount, even if they do not impart a characteristic flavour to the tobacco product.  There is no basis 
for this approach.  If a consumer cannot taste a candy or fruit flavour when smoking a cigarette 
product, and the product instead tastes simply like tobacco, there is no reason to assume that youth would be uniquely attracted to it.  Presumably th is is why the law permits the continued sale and 
manufacture of flue-cured cigarettes, the dominant t ype of cigarette sold in Canada, which tastes like 
tobacco.  It is not at all clear why Canada is proposing to ban traditional blended cigarettes, which 
similarly taste like tobacco. 
12. Canada has not cited any evidence showing that  traditional blended cigarettes are any more 
attractive to youth than flue-cured cigarettes, nor  has it provided any eviden ce demonstrating that 
traditional blended cigarettes are as attractive to y outh as candy or fruit flavour ed products.  If Canada 
is concerned with flavours that are particularly appealing to youth, th ere are less trade-restrictive ways 
to deal with the problem.  For example, Cana da could, only ban products with characterizing 
confectionary or fruit flavours.   
13. In short, based on the information available,  Kenya fails to see how Canada has sought to 
ensure that the law is not more trade-restrictive than necessary to fulfil its legitimate objective.   G/TBT/W/330 
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  B. ARTICLE 2.8 
14. Article 2.8 of the TBT Agreement states that "wherever appropriate, Members shall specify 
technical regulations based on product requirements in  terms of performance rather than design or 
descriptive characteristics."   
15. Canada has sought to regulate the design of the product – the inputs into the cigarette – 
without regard to how these inputs affect the performance ( i.e. the characteristic flavour) of the 
product.  Kenya asks that Canada consid er adopting a performance-based approach. 
C. ARTICLE 2.9 
16. Article 2.9 of the TBT requires members to notif y at an early appropriate stage any technical 
regulation that may have a significant effect on trade of other members, in such a manner as to allow interested parties to get acquainted with it, and allow reasonable time for other Members to make 
comments. Kenya is concerned that Canada did not notify other members of this regulation.  
D. A
RTICLE 12.3 
17. Article 12.3 of the TBT Agreement requires WT O Members to ensure that their technical 
regulations "do not create unnecessary obstacles to e xports from developing country Members".  In 
light of this obligation, Kenya’s status as a Developing Country and its heavy dependence on tobacco growing, manufacturing and export, Kenya request s Canada to consider adopting a less trade-
restrictive approach. 
IV. CONCLUSION 
18. Given the potentially significant repercussions of  the Canadian legislation on Kenyan trade, 
Kenya requests Canada to respond to the attached lis t of questions so as to enable WTO Members to 
better evaluate the basis for Canada’s decision. 
19. Section 7 of the Canadian Tobacco Act  allows Canada to amend the list of additives and 
products that are covered by the ban administratively, i.e., without further legislative action.  Canada 
can use this authority to ensure that the ban only applies to cigarettes that exhibit discernible 
confectionary or fruit flavours.  We urge  Canada to consider this approach. 
20. While Kenya fully supports the purpose of the la w, the approach taken in the proposed law is 
far too trade restrictive than necessary to address th e problem of youth smoking encouraged by candy 
and fruit flavoured tobacco products.  Kenya looks fo rward to Canada’s response to the concerns we 
have raised.   
V. QUESTIONS 
(a) On what basis were the additives include d in the schedule, and how are they 
particularly appealing to youth?   
(b) Would Canada consider ame nding the Schedule of products and additives affected by 
the ban to ensure that the ban only app lies to cigarettes exhibiting a discernible 
confectionary or fruit flavour? 
(c) What scientific evidence did Canada rely u pon in relation to its claims that blended 
tobacco products are more toxic, more addictive and more attractive to youth. 
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