Wednesday, April 11, 2012

Public Citizen Blasts WTO Ruling on Menthol Exemption, Argues that Exemption Was Science-Based

In a press release issued last week, Public Citizen condemned the World Trade Organization's (WTO) final ruling on Indonesia's international trade complaint, in which the WTO held that the U.S. ban on clove and other flavored cigarettes, with an exemption for menthol, violated a number of trade agreements. Public Citizen urged the U.S. not to comply with the WTO ruling.

The April 4 press release states: "With today’s ruling, the WTO Appellate Body has now ordered the U.S. to water down or get rid of a key plank of its landmark Family Smoking Prevention and Tobacco Control Act of 2009 (FSPTCA), one of the few policy achievements of the Obama administration’s first term. The act banned sale of candy and other sweet-flavored cigarettes used to attract children to smoking. 'The Obama administration and Congress must not bow to yet another ruling from a so-called trade agreement tribunal demanding that the U.S. get rid of yet another important health or environmental policy,' said Lori Wallach, director of Public Citizen’s Global Trade Watch. 'The Obama administration must stand with the thousands of Americans who have signed a Consumer Rights Pledge calling on the U.S. to not comply with these illegitimate trade pact rulings.'"

According to the press release: "While the FSPTCA actually does contemplate extending the ban to menthol cigarettes, U.S. lawmakers advocated for a gradual approach to menthols, which are smoked (unlike other sweet cigarettes) primarily by adults. Policymakers had concerns that banning cigarettes primarily smoked by adults would have created dangerous black market activities and would not target teenage smoking. The WTO panel and Appellate Body gave little weight to these science-backed arguments and effectively concluded that imports have to be carved out from nations’ regulatory schemes."

The Rest of the Story

Unlike much of the great work from Public Citizen, this particular press release is seriously flawed. First, there are some serious factual errors. The release argues that unlike other "sweet" cigarettes, menthol cigarettes are smoked primarily by adults. There is no evidence upon which to base this claim. Almost no youths smoke "sweet" cigarettes (or smoked them prior to the ban). The primary brands smoked by youth are Marlboro, Camel, and Newport, not chocolate, strawberry, or banana-flavored cigarettes. However, menthol cigarettes are extremely popular among youth, making up about half of the cigarettes smoked by youth smokers.

Thus, it is false to state that unlike "sweet" cigarettes, menthol cigarettes are smoked primarily by adults, and that a ban on menthol cigarettes would therefore not target youth smoking. On the contrary, a menthol ban would specifically target youth because half of youths smoke menthol cigarettes. In addition, the press release ignores a large body of evidence showing that menthol serves to reduce the harsh sensation produced by tobacco smoke, thus making it easier to introduce youth to cigarettes.

There is no doubt, then, that a menthol ban would be a policy specifically designed to reduce youth smoking.

A second major flaw in the press release is that although it attacks the WTO for putting politics and economics ahead of public health protection, Public Citizen does exactly the same thing in arguing that a menthol ban should not be pursued because it would create a "dangerous black market activities." In making this argument, for which there is little evidence, Public Citizen is borrowing a page from the tobacco companies, adopting their argument against a menthol ban. Public Citizen sounds more like it is interested in protecting tobacco company profits than in substantially improving the public's health by reducing youth smoking.

Finally, the press release incorrectly interprets the options that the U.S. has to comply with the WTO ruling. Public Citizen argues that there are only two options: (1) water down the law by exempting clove cigarettes; or (2) get rid of the ban on cigarette flavors entirely.

But this ignores a third option: the U.S. could extend the cigarette flavoring ban to include all flavorings (i.e., menthol). This would not only put it in compliance with the WTO ruling but it would also make the flavoring ban provision a public health measure rather than purely a political measure. It would actually do something. As I have pointed out previously, the current flavoring ban got rid of exactly zero cigarettes made by Big Tobacco, and affected less than 0.01% of the market. In contrast, a menthol ban would affect about a quarter of the market and more importantly, 50% of the youth market.

The rest of the story is that in condemning the WTO for putting politics and economics ahead of public health, the press release does exactly the same thing by arguing against a menthol ban because it might lead to some contraband cigarettes. The truth is that the menthol exemption has no scientific basis, but was inserted solely to appease tobacco companies in order to retain the support of Philip Morris for the FDA tobacco legislation. It was a pure political compromise, not a scientific-based policy.

This in no way affects my deep admiration for Public Citizen and the great work that it does. However, on this particular issue, it appears that either the group didn't have the full background information or didn't completely think the issue through.

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