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According to Article 2.1 of Agreement on Technical Barriers to Trade (TBT Agreement): “Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.” As it can be seen from this provision, the multilateral trade system made sure that any technical regulation that might be imposed by a country member of the World Trade Organization (WTO) must also tackle the domestic industries producing such products through similar legislation. Indeed, a member state cannot simply impose a technical regulation restricting trade on a particular product that is usually being exported from a foreign country without doing the same for domestic products. Such behavior is considered discriminatory and hides protectionism purposes. In this regard, the question that could be asked concerns the main element on the basis of which a technical measure could be considered as discriminatory or not. As such, Article 2.1 made clear that same treatment must be accorded to products that are like. Thus, every time there is a new regulation imposed prohibiting the entry of a foreign product into the market of a country, it is important to analyze whether similar regulations are imposed on products that are like. In fact, the WTO defined the term “like” under Article III:4 of the General Agreement on Tariffs and Trade (GATT) of 1994. As such, four elements are normally considered to determine whether two products can be considered as like products or not: “a) the property, nature, and quality of products (physical characteristics), which also include the existence of health risks; b) the end-uses of the products; c) consumer tastes and habits; and d) the tariff classification of products under examination.” In the Chapter “Product Safety in the Framework of the WTO Agreement on Technical Barriers to Trade,” the authors Lukasz Gruszczynski, Tivadar Otvoes and Paolo Davide Farah have examined this matter while mainly focusing on a specific case study that was filed before the WTO by Indonesia against the United States of America (USA) claiming that the US technical measures banning the production and sale of flavored cigarettes including clove cigarettes have violated Article 2.1 of the TBT agreement and hide protectionism purposes as like products, in this case, menthol cigarettes were exempted from such measures and were being sold domestically. As such, there was a need to examine whether clove cigarettes and menthol cigarettes are like products or not. In this context, the panel regarded both products as like products which meant that it had to be treated in a similar manner from a legal perspective. Hence, it was revealed that the government did not impose similar measures on menthol cigarettes because the authorities saw the great economic losses that could occur as a result of banning these products. It is important in this regard to mention that the panel applied a regulatory context test and not a competition test to determine the likeness of the products.
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