WORLD TRADE  
ORGANIZATION  G/TBT/W/323 
20 August 2009 
 (09-3962) 
Committee on Technical Barriers to Trade Original:   English 
  
 
CERTAIN NEW MEASURES BY UNITED STATES ADDRESSING  
THE BAN ON CLOVE CIGARETTES  
 
Communication from Indonesia
 
 
 
 The following communication, dated 17 August 2009,  is being circulated at the request of the 
delegation of Indonesia . 
 
_______________ 
 
 1. Indonesia is concerned about the new measures applied by the Government of the United 
States regarding Section of Family Smoking Prevention Tobacco Control Act , and in particular 
whether this measure is in conformity with the pr inciples of the World Trade Organization (“WTO”).  
We understand that the Government of the United States has recently signed the ”Family Smoking 
Prevention Tobacco Control Act of 2009”, Public Law 111-31 (”the act”)  on 22 June 2009, where on 
Section 907 of the Act, the United States applied bans for all flavoured cigarettes except menthol 
beginning 90 days after the Act is signed.   
2. The Indonesian Government has repeatedly comm unicated our steadfast view that Sec. 907 of 
the Act is inconsistent with the general princi ples of the World Trade Organization (“WTO”) on non-
discrimination as well as the WTO Agreement on the Technical Barriers to Trade. 
3. The Act prohibits, among other things, the producti on or sale in the United States of cigarettes 
containing certain additives, including clove, but wo uld continue to permit the production and sale of 
other cigarettes, including cigarettes containing ment hol.  While all clove cigarettes sold in the United 
States are imported (primarily from Indonesia), virtually all of the menthol cigarettes sold in the United States are produced domestically (imports are negligible).  
4. There is no scientific or technical information indicating that clove cigarettes pose a greater 
health risk than menthol cigarettes and menthol ci garettes are consumed in much greater quantities.  
The Government of Indonesia maintains that th ese measures discriminate against imported clove 
cigarettes and are thus incompatible with the Un ited States’ obligations under the above-mentioned 
agreements because they infringe, among other provisions: 
(a) Articles 2, 3, 5, and 7 of the Agreement on the Application of Sanitary and 
Phytosanitary Measures; 
(b) Articles 2 and 12 of the Agreement on Technical Barriers to Trade; and 
(c) Articles III and XXIII of the General Agreement on Tariffs and Trade 1994. 
5. We are of the view that the TBT Agreement ob ligates the United States to ensure that, in 
respect of its technical regulations, products imported from the territory of any WTO Member shall be G/TBT/W/323 
Page 2  
 
  accorded treatment no less favourable than that accorded to domestic like products and to like 
products originating in any other country.  The TBT Agreement also obligates the United States to 
ensure that its technical regulations are not more  trade-restrictive than necessary, thereby creating 
unnecessary obstacles to international trade. In that  regard, the TBT Agreement requires that the 
United States take account of scientific and techni cal information, as well as  the special development 
and trade needs of developing country Members, su ch as Indonesia.  Similar obligations exist under 
the WTO Agreement on Sanitary and Phytosanit ary Measures (SPS Agreement) and the General 
Agreement on Tariffs and Trade 1994. 
6. The measure identified in this request has nullif ied or impair benefits accruing to Indonesia 
directly or indirectly under the cited agreements. Th erefore, the Government of Indonesia request the 
Government of the United States to remove trad e restrictive measures contained in the “Family 
Smoking Prevention and Tobacco Control Act of 20 09”, Public Law 111-31 (“the Act”) and to bring 
into conformity to the fairness of the General Agreement on Tariffs and Trade 1994 , the Agreement 
on the Application of Sanitary and Phytosanitary Measures , and as well as the Agreement on 
Technical Barriers to Trade .  
7. Referring to Section 907 of the Family Smoking Prevention and Tobacco Control Act , the 
Government of Indonesia also requests the Unite d States to address the following questions:   
(a) Section 907 prohibits a cigarette or any of  its components from containing a natural 
or artificial flavour (other than tobacco or menthol) or an herb or spice. Why was menthol singled out as the only flavour, herb, or spice excluded from this provision. 
(b) We know that clove cigarettes are an important industry in Indonesia. Are clove 
cigarettes also produced domestically in the United States? 
(c) Section 907 further indicates that the prohibition on a natural or artificial flavour, 
herb or spices applies if it is “a charact erizing flavour” of the tobacco product or the 
tobacco smoke. However, the bill does not define what elements of a cigarette 
constitute a “characterizing flavour”.  How does FDA plan to inte rpret the concept of 
a “characterizing flavour”? 
(d) Cigarettes contain many ingredients other th an tobacco. Under Section 907, how will 
it be possible to distinguish certain “i ngredients” from “characterizing flavours”? 
(e) Menthol is an artificial flavour derived from mi nt, which is clearly an herb or spice.  
Does the United States believ e that menthol cigarettes w ould fall under the provisions 
of Section 907 and would be prohibited absent the exception granted in the bill? 
(f) Physically, both clove and menthol cigarett es contain tobacco with an herbal flavour 
additive with soothing properties.  The e nd use of both clove and menthol cigarettes 
is the same, i.e., both are used to smoke tobacco.  Does the United States believe that 
clove cigarettes and menthol cigarettes are like products? 
(g) A primary purpose of the bill, as stated in th e bill’s finding, is to reduce the incidence 
of youth smoking.  The findings further indicate that additional regulation of tobacco 
products and tobacco marketing is n ecessary to prevent under-age youth from 
obtaining cigarettes.  However, the evidence available to us indicates that many more 
youth smoke menthol cigarettes than clove cigarettes.  Are you aware of any data to 
the contrary that indicate clove cigarettes are used by youth in greater quantities than menthol cigarettes? G/TBT/W/323 
Page 3 
 
 
  (h) The WTO does allow members to take measures to protect human health, but these 
measures must be based on sound science. Are you aware of any scientific studies 
that show that clove cigarettes pose a greater health risk than menthol cigarettes? 
(i) Several of the other flavoured cigarettes th at would be prohibited by Section 907 
(e.g., cherry, strawberry, chocolate) were created and marketed to appeal to youth. 
Clove cigarettes have been sold for decades and are not marketed to youth. Clove 
cigarettes are sold primarily through speciality tobacco shops.  Are you aware of any specific advertising of clove cigarettes that has been viewed as targeting or appealing 
to youth?  
(j) Flavoured cigarettes other than menthol  are banned under Section 907. Menthol 
cigarettes will be subject to study and regulation by the FDA.  Why is it necessary to 
ban other flavours but only necessary to st udy and regulate menthol cigarettes? 
 
__________