WORLD TRADE  
ORGANIZATION  G/TBT/W/329 
24 March 2010 
 
 (10-1599) 
Committee on Technical Barriers to Trade Original:   English 
  
 
THE EFFECTS OF CANADA'S TOBACCO ACT ON MALAWI 
 
  The following communication, dated 23 March 2010, is being circulated at the request of the 
delegation of Malawi
. 
 
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I. INTRODUCTION 
1. Malawi, as a tobacco producing c ountry is concerned about the ultra vires  effects of the 
Cracking Down on Tobacco Marketing Aimed at Youth Act , on its tobacco leaf exports.  The law 
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.  Ma lawi is deeply concerned that 
this law is inconsistent with Canada’s obligations under the WTO Agreement on Technical Barriers to 
Trade  (TBT Agreement ) and will have a negative effect on Ma lawi’s long term economic prospects. 
2. Malawi understands that the purpose of the law is to reduce the incidence of youth smoking 
by, among other things, prohibiting the manufacture and sale of confectionary and fruit flavoured 
tobacco products that are designed to appeal to y outh.  Malawi fully suppor ts this objective but is 
deeply concerned that the law is far too trade r estrictive than necessary to achieve this goal.   
3. In particular, the law would effectively ban “traditional blended” cigarettes.  Traditional 
blended cigarettes are one of the two major categorie s of cigarettes in the world.  They are produced 
with three types of tobacco, including burley tobacco, and certain additives that the law would 
prohibit.   
4. While additives are an essential component of tr aditional blended cigarettes, they are intended 
as manufacturing aids to blend the three different type s of tobaccos, i.e. Burley, Oriental and Virginia, 
and as flavorings to confer on each brand its uniqu e tobacco taste. Additives in traditional blended 
cigarettes do not lend a characterizing fruit or confec tionary flavour to the end product.  Thus, by 
banning the additives, the law effectively bans traditional blended cigarettes, even though such 
cigarettes do not exhibit any discernible confectionary , fruit or other flavour that is particularly 
attractive to youth. 
5. Malawi is the largest producer of Burley tob acco in the world, with an approximate annual 
crop volume of 208,682 tones. Approximately 70 0,000 farmers work on tobacco cultivation in 
Malawi. 100% of Malawi’s total tobacco crop is b ought by cigarette manufacturers to be used in 
international production. Measures which restrict ble nded cigarettes will, therefore, have a detrimental 
impact on Malawi’s tobacco production. 
6. The problems with the Canadian law could easily  be resolved by equally effective but less 
trade-restrictive alternatives that would address th e objective of the legislation but also ensure 
compliance with Canada’s obligati ons under the TBT Agreement.   G/TBT/W/329 
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  II. OPERATION OF THE PROPOSED TECHNICAL REGULATION 
7. As noted, the law would ban the manufacture and sale of any cigarettes, little cigars and blunt 
wraps that contain any of the flavourings and add itives listed in a Schedule a ppended to the law.  The 
list includes “[a]dditives that have flavouring properti es or that enhance flavour.”  It then identifies 
eight specific additives and incorporates virtually w holesale the list of flavouring agents compiled by 
the Joint FAO/WHO Expert Committee on Food A dditives and the additives identified as flavouring 
substances by the Flavour and Extract Manufacturers A ssociation (FEMA) Expert Panel in its lists of 
Generally Recognized as Safe (GRAS) flavoring su bstances.  Twelve specific additives, including 
menthol, are excluded from coverage. 
8. The law would prohibit the listed additives re gardless of the amount used in the finished 
tobacco product and even if they do not impart a characterizing flavour to the tobacco product.  In 
fact, the law would ban the manufacture and sale of traditional blended cigarettes in Canada which do 
not have the characterizing flavors that were the target 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 below, Malawi has serious concer ns about the consistency of law with Articles 
2.2 and 2.8 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 fu lfil a legitimate objective, taking account of the risks non-fulfilment 
would create.”  It further states that, “[i]n 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.”  Malawi requests that Canada  explain how its law is consistent with these 
requirements.  
11. The objective of 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 health objective.  However, ra ther than banning cigarettes 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 characterizing fl avour 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, like other WTO Members like France, 
Australia, and the United States, only ban products with characterizing confectionary or fruit flavours.    G/TBT/W/329 
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  13. In short, based on the information available, Malawi fails to see how  Canada has sought to 
ensure that the law is no more trade-restrictive th an necessary to fulfill its legitimate public health 
objective.  
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.”  Other WTO Members ha ve adopted a performance-based standard that 
only bans fruit or confectionary additives that impart  the characterizing flavour of the cigarette.  In 
contrast, 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.  The “characterizing flavour” approach is mu ch more precise and targeted than an approach 
banning a list of additives in any quantity and regardless of their effect on the flavour of the final 
tobacco product.  Malawi asks that Canada cons ider adopting a similar performance-based approach. 
C. ARTICLE 12.3 
15. 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 and Malawi’s status as a Least Developed Country (LDC), Malawi asks that 
Canada consider adopting a less trade -restrictive approach, as discussed above. 
IV. CONCLUSION 
16. Given the potentially significant repercussions of the Canadian legislation, we ask that 
Canada respond to the attached list of questions so as to enable WTO Members to better evaluate the 
basis for Canada’s policy. 
17. We believe that there is a simple fix Ca nada could implement without amending the 
legislation.  Section 7 of the Canadian Tobacco Act  allows Canada to ame nd 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. 
18. While Malawi fully supports the purpose of law, th e approach taken in the proposed law is far 
too trade restrictive than necessary to address the problem of youth smoking encouraged by candy and 
fruit flavoured tobacco products.  Malawi looks forw ard to Canada’s response to the concerns we 
have raised.   
V. QUESTIONS 
(a) How was the list of additives and flavouri ngs included in the Schedule created?   
(b) What scientific evidence has Ca nada considered that supports the view that the over 
5,000 additives referenced in the list are par ticularly appealing to youth, regardless of 
the quantity used in a cigarette or whether they give the finished cigarette product a 
characterizing fruit or confectionary flavour? 
(c) Is there any scientific or technical inform ation Canada relied upon in deciding that the 
additives and flavours used in traditiona l blended cigarettes should be banned? G/TBT/W/329 
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  (d) Is there any scientific or technical info rmation Canada relied upon that specifically 
demonstrates that traditional blended cigarettes are particularly appealing to youth?  
(e) Does Canada believe that traditional blende d cigarettes exhibit a confectionary or 
fruit flavour?  If not, what is the basis for effectively banning traditional blended 
cigarettes?  
(f) Does Canada intend to notify the legislation to the TBT Committee, and, if so, when?  
If not, why does Canada believe that th e legislation should not be notified? 
(g) Would Canada consider using the authority set forth in subparagraph 7.1(1)(a) of the 
Tobacco Act  to amend the Schedule of products a nd additives affected by the ban to 
ensure that the ban only applies to cigare ttes exhibiting a discernible confectionary or 
fruit flavour? 
 
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