U.S. Thumbs Nose at World; Public Citizen Defends Ban on Clove Cigarettes

July 24th was the deadline for the U.S. to comply with a World Trade Organization (WTO) ruling which found that the federal ban on flavored cigarettes - with its exemption for menthol cigarettes - is a discriminatory trade practice because it protects domestic cigarettes with no rational public health justification.

The U.S. could have complied either by rescinding the ban on clove cigarettes or extending the ban to cover menthol cigarettes. However, so far the federal government has done neither. Since the deadline has passed without U.S. action, Indonesia may now appeal to the WTO to have trade sanctions implemented against us.

Public Citizen's Global Trade Watch argues that Indonesia and the WTO are misguided and that the flavored cigarette ban was a valid action to "keep tobacco companies away from our children."

According to its press release: "As the World Trade Organization (WTO) deadline passes today for the United States to comply with a WTO ruling against a U.S. ban on sweet-flavored cigarettes targeting youth, the spotlight shifts back to the WTO, which could now authorize trade sanctions if requested by Indonesia, the country that won the WTO challenge. “We now have to wait and see whether the World Trade Organization will slam us with trade sanctions because the United States wants to maintain a policy to keep tobacco companies away from our children,” said Lori Wallach, director of Public Citizen’s Global Trade Watch."

"“After last year’s rulings against U.S. dolphin protections and popular consumer labels letting Americans know where their food comes, will the WTO depart from its anti-consumer legacy or choose to punish the United States for a common sense public health law?” Yesterday, the Food and Drug Administration (FDA) requested public comment on an issue related to the WTO ruling: the health implications of menthol cigarettes. The Obama administration stated that FDA’s action constitutes compliance with a 2012 World Trade Organization order to alter a key component of the Obama administration’s landmark Family Smoking Prevention and Tobacco Control Act of 2009 (FSPTCA)."

"That law bans sweet-flavored cigarettes that entice youth to smoke. It shut down the sales of chocolate, strawberry and other sweet-flavored cigarettes sold only by U.S. firms as well as the sale of clove-flavored cigarettes that both U.S. and foreign tobacco companies were marketing. The WTO’s April 2012 final ruling against the FSPTCA concluded that the United States could only ban sweet-flavored cigarettes marketed to youth if it banned all flavored cigarettes, including menthols." ...

"It remains to be seen whether Indonesia will accept the FDA announcement or appeal to the WTO to enact trade sanctions against the United States. Indonesia convinced the WTO that the ban on its U.S. sale of clove-flavored cigarettes violated WTO anti-discrimination rules. U.S. consumer and health groups were outraged by the ruling, which effectively forbade incremental policies designed to target anti-smoking efforts at key populations – in this case, children."

The Rest of the Story

Please don't take this as a criticism of Public Citizen because I think most highly of the organization; however, on this issue, I think Public Citizen has it wrong. Public Citizen is giving Congress credit for taking an action to protect the health of children when in fact, the action was exactly the opposite.

The cigarette flavoring ban was not, as Public Citizen suggests, a policy to "keep tobacco companies away from our children." If the intent of Congress was to keep tobacco companies away from our children, then it certainly would have included menthol cigarettes in the ban, since about half of our children who smoke choose menthol cigarettes and at least three-fourths of African American youth smokers choose menthol-flavored cigarettes.

Instead, Congress decided to exempt the one flavor that actually is enticing youth to smoke and to ban flavors that haven't been used in cigarettes for years. In contrast to Public Citizen's statement, the Tobacco Act did not shut down the sales of "chocolate, strawberry, and other sweet-flavored cigarettes sold only by U.S. firms." There were no such cigarettes on the market at the time of the law's enactment. In fact, not a single major tobacco company had a chocolate, strawberry, or other sweet-flavored cigarette on the market at the time of the Tobacco Act.

The truth is that the only flavored cigarette actually smoked by more than a few youths in the country that was taken off the market was clove cigarettes. Essentially, the Tobacco Act's flavoring ban was a selective ban on clove cigarettes, with no other cigarette brands affected.

So Indonesia actually had more than a legitimate argument: it had a strong and compelling argument. The effect of the Tobacco Act's flavorings ban was to remove clove cigarettes from the market and nothing else. It was in no way intended to protect the health of children because the flavored cigarettes that youth actually smoke - menthol ones - were exempt from the law. The clear intent of Congress was to make it look like it was doing something to protect children but without actually endangering domestic cigarette sales.

In other words, the Tobacco Act was an intentional effort to discriminate against foreign-made cigarettes under the guise of being a legitimate public health policy.

Public Citizen is wrong when it suggests that the flavoring ban was "designed to target anti-smoking efforts at ... children." The rest of the story is that the ban was designed to create the appearance that Congress cares about children's health while actually being designed to protect cigarette sales at children's expense. In other words, it was designed as the exact opposite of what Public Citizen implies.

This can hardly be called a "common sense public health law." 

Moreover, Public Citizen is incorrect in asserting that the WTO's ruling precludes the United States from protecting the health of children. If the U.S. were really interested in doing that, it could simply ban flavored cigarettes, which was supposedly its intent in the first place.

The rest of the story is that it was never the intent of Congress, or of the anti-smoking groups who supported the Tobacco Act, to protect the health of children by preventing the tobacco companies from marketing flavored cigarettes to them. It was the intent of Congress and the anti-smoking groups to make themselves look good politically while actually protecting cigarette companies' ability to market the most youth-prevalent flavored brands: menthol cigarettes.