Analysis Of United States’ Measures Of Affecting The Production And Sale Of Indonesian Clove Cigarettes

This dispute concerns a tobacco-control measure adopted by the United States in2009, inSection907(a)(1)(A) of the Federal Food, Drug and Cosmetic Act, that prohibitscharacterizing flavors cigarettes to control young people to smoke, without prohibits mentholcigarettes produced by the United States. Before the prohibition, clove cigarettes are mainlyproduced and imported from Indonesia. According to Indonesia, clove cigarettes produced byIndonesia and menthol cigarettes produced by the United States are like products, thetobacco-control measure gives imported clove cigarettes from Indonesia less favorabletreatment than domestic menthol cigarettes, according to Article2.1of the TBT Agreement.This thesis can be divided into five parts:The first part: introduce the case, describe the development process and list the threemain disputes of the case.The second part: analyze whether tobacco-control measure can be defined as technicalregulation, to be specific, analyze whether tobacco-control measure applies to an “identifiableproduct or group of products”, lays down one or more “product characteristics”, and whethercompliance with the product characteristics is mandatory.The third part: analyze whether the tobacco-control measure complies with Article2.1ofthe TBT Agreement. Firstly, identify whether clove cigarettes produced by Indonesia andmenthol cigarettes produced by the United States are like products by discussing the standardof “like product”, end-uses and consumer tasted and habits. Secondly, identify whether thetobacco-control measure gives imported clove cigarettes from Indonesia less favorabletreatment than domestic menthol cigarettes by discussing the definition of “treatment no lessfavorable”, product scope of the treatment no less favorable, and temporal scope of thetreatment no less favorable.The fourth part: analyze whether the tobacco-control measure complies with Article2.12of the TBT Agreement. firstly, discuss whether Doha Ministerial Decision could beconsidered as reasonable interpretation to Article2.12of the TBT Agreement accorded to9.2 of WTO Agreement and3.13of Vienna Convention. Secondly, discuss whether the UnitedStated have given reasonable interval to Indonesia producer to adjust by demonstrating thatthe United States should bear the burden of proof.The fifth part: analyze the response measures Chinese should adopt by learning this case.