United States – Measures Affecting the Production and Sale of Clove Cigarettes,(WT/DS406/AB/R), Appellate Body Report issued on 4 April 2012, adopted on 24 April 2012

This dispute concerns Section 907(a)(1)(A) of the United States Federal Food, Drug and Cosmetic Act (the ‘FFDCA’). Section 907(a)(1)(A) was added to the FFDCA by Section 101(b) of the Family Smoking Prevention and Tobacco Control Act (the ‘FSPTCA’), and became law on 22 June 2009. Under Section 907(a)(1)(A), beginning three months after the enactment of the FSPTCA -that is, as from 22 September 2009: ‘… a cigarette or any of its components (including the tobacco, filter, or paper) shall not contain, as a constituent … or additive, an artificial or natural flavour (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, liquorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavour of the tobacco product or tobacco smoke’. According to the House Report prepared by the House Energy and Commerce Committee (H.R. Rep. No. 111 58, Pt. 1 (2009)), the objectives of the FSPTCA are to provide the Secretary with the proper authority over tobacco products in order to protect the public health and to reduce the number of individuals under 18 years of age who use tobacco products. Indonesia claimed that the United States, by adopting the legislation prohibiting the marketing of cigarettes with characterizing flavours other than tobacco or menthol, thus banning Indonesian clove cigarettes, acted inconsistently with its substantive and procedural obligations under, inter alia, the Agreement on Technical Barriers to Trade.