THE FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT (FSPTCA) ON THE CLOVE CIGARETTE DISPUTE BETWEEN INDONESIA AND THE UNITED STATES: A WTO-TBT AGREEMENT ANALYSIS

Abstract

This article examines the dispute over clove cigarette imports 
between Indonesia and the United States arising from the implementation of 
the Family Smoking Prevention and Tobacco Control Act (FSPTCA). The 
purpose of this study is to assess whether the measure is consistent with the 
United States’ obligations under the World Trade Organization (WTO), 
particularly Article 2.1 of the Technical Barriers to Trade Agreement (TBT 
Agreement) concerning the principle of non-discrimination. Employing a 
normative legal analysis, the study reviews the findings of the WTO Panel and 
Appellate Body in United States – Measures Affecting the Production and Sale 
of Clove Cigarettes. The analysis demonstrates that the ban on imported clove 
cigarettes, combined with the exemption granted to domestically produced 
menthol cigarettes, resulted in less favorable treatment of like imported 
products and thus constituted a violation of Article 2.1 of the TBT Agreement. 
The implications of this dispute reinforce the role of the WTO in maintaining a 
balance between Members’ regulatory autonomy in pursuing legitimate 
public health objectives and their obligations to ensure fair treatment in 
international trade.