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fter unsuccessful attempts to reduce tobacco consumption through several measures, such as high taxes or a minimum legal age for smoking, some countries have introduced plain tobacco packaging as the latest solution.

A law requiring plain packaging for tobacco products was first implemented by Australia in 2012. Since then, France, the United Kingdom and Ireland have also implemented this measure. Some other countries are either in the process of developing laws to implement plain packaging or have announced their intention to do so in the future.

What is actually the objective of plain packaging? According to paragraph 46 of the World Health Organization Framework Convention on Tobacco Control (FCTC), plain packaging is a measure to restrict or prohibit the use of logos, colors, brand images or promotional information on packaging other than brand names and product names displayed in a standard color and font. Therefore, the appearance of all tobacco packs would be uniform, including their color.

Indonesia, as one of the world’s largest tobacco producers, has raised concerns about this plain packaging measure. In fact, Indonesia has challenged Australia’s plain packaging law for tobacco products before the World Trade Organization (WTO) dispute settlement system.

The final ruling on this case has not been released yet. But Bloomberg reported last year that according to a confidential draft, Australia’s laws were considered a legitimate public health measure to uphold plain packaging.

The United States, instead of following Australia’s lead and that of its neighboring country, Canada, which is currently moving toward a plain-packaging policy, is proposing a different kind of measure to reduce the number of smokers in the country, and also to prevent youths and young adults from taking up the habit.

On March 21, the US passed its Food and Drug Administration’s (FDA) advance notice of proposed rulemaking (ANPRM) on the Tobacco Product Standard for Nicotine Level of Combusted Cigarettes to the WTO Committee on Technical Barriers to Trade. By issuing this ANPRM, the FDA seeks to obtain information to develop a standard on tobacco products that sets a maximum nicotine content for cigarettes.

The FDA is considering to reduce the nicotine content in cigarettes to minimize the risk of addiction, help smokers kick their habit and prevent children from becoming addicted smokers. It has invited interested parties to submit either electronic or written comments on the ANPRM by June 14, at the latest.

The US also notified the FDA’s proposed Regulation of Flavors in Tobacco Products on April 3, for which the FDA is seeking comments and information about the role of flavors in attracting youths to start using tobacco products, as well as in helping adult smokers to reduce their habit and/or switch to a potentially less harmful tobacco product.

Based on studies involving cigarettes, the addition of sweet flavors increased the attractiveness of these products, particularly among youths. In addition, the different flavors preferred by smokers vary depending on age, product (cigars, waterpipes, smokeless tobacco and so on), and cigarette smoking status (former, never and current cigarette smoker).

Although its share was not significant, cloves and spices were among smokers’ preferred flavors based on the 2013 to 2014 National Adult Tobacco Survey.

Under WTO law, a government is allowed to introduce a measure to fulfill its legitimate policy objective, in this case protection of human health or safety. However, in preparing, adopting and applying the measures, the principle of non-discrimination should be followed.

In the case of the US ban on clove cigarettes, the WTO Appellate Body found that the ban was discriminatory because a similar product, menthol cigarettes, could still be sold in the US. In addition, the US was instructed to ensure that the proposed measures were not more trade-restrictive than necessary to fulfill the legitimate objective, by taking into account available scientific evidence.

As a tobacco exporter, Indonesia should monitor the development of this measure closely. In 2017, Indonesia was the sixth-largest exporter of tobacco and manufactured tobacco substitutes with total exports worth US$1.14 trillion, or an increase of 12.89 percent from $1.01 trillion in 2016.

The main export destinations for Indonesia’s tobacco and manufactured tobacco substitutes products in 2017 were Cambodia ($281.9 million) Malaysia ($227.2 million), the European Union ($124.04 million), Singapore ($123.1 million) and Vietnam ($61.7 million).

The export value of tobacco to the US in 2017 totaled $19.8 million, making it the 10th largest export destination for Indonesia. Although the overall performance of Indonesia’s export for these products in 2017 improved from the year before, export value to the US decreased by 15.73 percent from $23.5 million in 2016. The decline was due to the drop in the US’ total tobacco imports.

For a proposed rule to become final, it must follow several steps. According to standard rulemaking procedures, the FDA will issue the proposed rule after gathering more data through the issuance of the ANPRM. The proposed rule is also open for public comments. Once the FDA has received and reviewed the comments, it might decide to end the rulemaking process, to issue a new proposed rule or to issue a final rule.
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