. /.   WORLD TRADE  
ORGANIZATION  WT/DS406/1 
G/L/917 
G/SPS/GEN/1015 G/TBT/D/38 
14 April 2010 
 
 
(10-1908) 
 Original:   English 
 
  
UNITED STATES – MEASURES AFFECTING THE PRODUCTION  
AND SALE OF CLOVE CIGARETTES 
 
Request for Consultations by Indonesia
 
  
 The following communication, dated 7 April 2010, from the delegation of Indonesia to the delegation of the United States and to the Chairman of the Dispute Settlement Body, is circulated in 
accordance with Article 4.4 of the DSU. 
 
_______________ 
 
  My authorities have instructed me to request consultations with the United States pursuant to 
Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, 
Article XXII of the General Agreement on Tariffs and Trade 1994, Article 11 of the Agreement on 
the Application of Sanitary and Phytosanitary Measures, and Article 14 of the Agreement on 
Technical Barriers to Trade with respect to the measure applied by the Government of the United 
States regarding the ban of clove cigarettes. 
 
 The President signed the " Family Smoking Prevention Tobacco Control Act of 2009" Public 
Law 111-31 ("the Act"), on 22 June 2009. In Section 907 of the Act, the United States applied a ban 
on all flavoured cigarettes except menthol beginni ng 90 days after the Act is signed.  The Act 
prohibits, among other things, the production or sal e in the United States of cigarettes containing 
certain additives, including clove, but would con tinue to permit the pr oduction and sale of other 
cigarettes, including cigarettes containing menthol.   The Government of Indonesia has repeatedly co mmunicated our steadfast view that Sec. 907 
of the Act is inconsistent with the general prin ciples of the World Trade Organization ("WTO") on 
non-discrimination including, but not limited to th e WTO Agreement on Technical Barriers to Trade.  
On 20 August 2009, Indonesi a submitted document G/TBT/W/323 to the Committee on Technical 
Barriers to Trade (TBT) – WTO that addressed some  questions concerning the measure at issue, 
however as per today, we have not received any formal response.   The Government of Indonesia maintains that the ban on the sale of clove cigarettes in the 
United States is inconsistent with various US  obligations under the WTO rules and principles, 
including:  
(a) Discrimination under Article III:4 of the GATT 1994 between clove cigarettes and 
menthol cigarettes which are deemed to be  "like products": Indonesia sees that these 
measures discriminate against imported clove cigarettes where clove cigarettes sold 
in the United States are imported (primarily from Indonesia), while virtually all of the WT/DS406/1, G/L/917,  
G/SPS/GEN/1015, G/TBT/D/38 Page 2 
 
 
  menthol cigarettes sold in the United States are produced domestically (imports are 
negligible). 
(b) Article XX of GATT 1994 provides that any measures taken shall only be applied to 
the extent necessary to protect human, anim al or plant life or health. The measures 
shall not constitute a means of arbitrary or unjustifiable discrimination or a disguised 
restriction on international trade. 
(c) The TBT Agreement Article 2 obligates the United States to, inter alia , ensure that 
technical regulations accord imported products treatment that is no less favourable than that afforded to like products of national origin. Article 2 also obligates the 
United States to ensure that its technical regulations are not more trade-restrictive 
than necessary, thereby creating unnecessary obs tacles to international trade.  Article 
2 also sets out additional commitments for th e preparation, adoption, and application 
of technical regulations.  In that regard, the TBT Agreement requires that the United States take account of scientific and techni cal information in adopting regulations. 
(d) Article 12 of the TBT Agreement obligates th e United States to take into account the 
special development and trade needs of developing country Members, such as 
Indonesia and to ensure that technical regula tions to not create unnecessary barriers to 
exports from developing countries. 
(e) The SPS Agreement Articles 2, 3, 5, a nd 7 provides detailed obligations on the 
adoption of sanitary and phytosanitary me asures necessary to protect human, animal, 
or plant life or health. 
 The measure identified in this request has nullif ied or impaired benefits accruing to Indonesia 
directly or indirectly under the cited agreements within the meaning of Article XXIII:1(a) of the 
GATT 1994.  Therefore, the Government of Indonesia requests the Government of the United States to remove the discriminatory measure contained in  the Act to bring it into conformity with the 
fairness of the General Agreement on Tariffs and Trade 1994, the Agreement on the Application of 
Sanitary and Phytosanitary Measures as well as th e Agreement on Technical Barriers to Trade. 
 For the measure referred to above, this requ est also covers any am endments, replacements, 
extensions, implementing measures or other relate d measures. Indonesia reserve its rights to raise 
additional matters during the course of these consu ltations and in any future request for panel 
proceedings. 
 We look forward to receiving your reply to the present request and to setting a mutually 
convenient date for consultations. 
__________