WTO Rejects U.S. Ban on Clove Cigarettes

A few years ago, I considered the argument that the Family Smoking Prevention and Tobacco Control Act, which gave the FDA regulatory authority over tobacco products, was racist because it banned all flavored cigarettes except the menthol variety, which is disproportionately popular among African Americans. To see that policy as racist, I noted, you have to accept the premise that letting smokers have what they want is a hostile act. Last week the World Trade Organization (WTO) agreed that the ban on flavored cigarettes is unacceptably discriminatory, but for a different reason: It cuts off imports of clove cigarettes made in Indonesia while allowing continued sale of domestically produced menthol cigarettes, even though these are "like products" from a public health perspective. Hence the law "is inconsistent with the national treatment obligation in Article 2.1 of the TBT [Technical Barriers to Trade] Agreement." To comply with its trade commitments, the WTO panel said, the U.S. government must either lift the ban on clove cigarettes or extend it to menthol cigarettes.

The panel noted that deterring underage consumption was the rationale for the ban, and it accepted the dubious notion that governments may legitimately prevent adults from buying adult products whose taste could appeal to minors. Still, it said, "both types of cigarettes are flavoured and appeal to youth." That way of putting it understates the blatantly protectionist nature of the tobacco law's flavoritism, since clove cigarettes attracted less than 1 percent of underage smokers, while menthol's share of this market was 43 percent. That's right: Menthol cigarettes were more than 43 times as popular among teenagers as clove cigarettes, but they were exempted from a ban supposedly aimed at protecting minors from excessively tasty smokes. (Using similar logic, of course, you could argue that regular cigarettes, the ones most teenagers favor, are the real threat to the nation's youth.) There was no public-health rationale for this disparate treatment, but it was necessary to retain support for the bill from Philip Morris, the leading American tobacco company, which sells a lot of menthol cigarettes. Indonesian kretek makers had considerably less influence on the legislation.

Clove cigarette aficionados, by the way, can still buy clove cigarillos (wrapped in tobacco leaf instead of paper) or make their own. 

In May I noted an FDA panel's conclusion that "removal of menthol cigarettes from the marketplace would benefit public health in the United States." More on the tobacco law's pro–Philip Morris bias here.

[via Michael Siegel, who predicted the WTO ruling last year]