International trade dispute threatens to undo clove cigarette ban
■ The World Trade Organization says the U.S. violated treaties by issuing the ban, prompting worry among public health groups that the prohibition might be lifted.
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In a major blow to anti-tobacco advocates, the World Trade Organization has ruled that the U.S. ban on clove cigarettes is discriminatory because menthol cigarettes, another type of flavored tobacco product, remain on the market.
The clove ban violates international trade agreements, the WTO said in an April 4 ruling that calls on the U.S. to comply with its trade obligations to Indonesia, the world’s leading manufacturer of clove cigarettes.
The WTO case marks the first time an American public health law has been challenged under an international trade treaty, said Susan Liss, executive director of the Campaign for Tobacco-Free Kids. The organization expressed disappointment at the WTO’s ruling and urged government leaders to keep enforcing the ban.
The ruling “threatens the very right of nations to protect public health that the WTO claimed to respect,” Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, said in a statement. “Congress acted legitimately to ban the sale of clove cigarettes based on substantial evidence that these cigarettes are smoked disproportionately by children and facilitate youth smoking initiation and addiction.”
At this article’s deadline, the WTO had not responded to messages seeking comment.
Indonesia had filed a complaint with the WTO in 2010 claiming that the U.S. was unfairly targeting clove-flavored products. Congress banned the production and sale of clove cigarettes in the U.S. under the 2009 Family Smoking Prevention Tobacco Control Act, which also banned other flavored cigarettes such as mint, cherry and cinnamon. However, menthol-flavored and regular cigarettes were not prohibited.
In 2011, a WTO panel found in favor of Indonesia, and the U.S. appealed. Health advocacy organizations, including the American Medical Association, the American Academy of Pediatrics and the American Cancer Society, filed a joint brief with the WTO in support of upholding the ban.
“Prohibiting flavored cigarettes, including clove-flavored cigarettes, was a regulatory action within the legitimate discretion of Congress,” the brief said. “Although flavored cigarettes presented a serious and increasing public health problem, flavored cigarettes were still a new, emerging product, and the number of users was not yet so large that removing such cigarettes from the market was likely to present significant unforeseen consequences. By contrast, potential removal of menthol cigarettes, to which 12 million Americans were already addicted, presented a more complex regulatory problem requiring the development of an appropriate regulatory policy by the FDA.”
In the latest decision, the appellate body of the WTO again ruled for Indonesia. The WTO said it was not stopping the U.S. from regulating tobacco products but that the actions must be consistent with international trade agreements.
“By exempting menthol cigarettes from the ban on flavored cigarettes, [the law] accords to clove cigarettes imported from Indonesia less favorable treatment than that accorded to domestic like products,” the WTO appeals panel said.
Law could become broader or narrower
The U.S. has several options for complying with the WTO ruling. Congress could change the Tobacco Control Act to exclude clove cigarettes; the U.S. could offer Indonesia new trade concessions; or regulators could change their positions regarding menthol cigarettes. Indonesia also could impose retaliatory duties on U.S. exports equal to the amount of trade it has lost under the clove cigarette ban, which some analysts have estimated at $16 million annually.
The most beneficial option would be to impose the same restrictions on menthol cigarettes so that the trade dispute would become moot, said Liss, with the Campaign for Tobacco-Free Kids. She noted that in 2011, the Food and Drug Administration’s Tobacco Products Scientific Advisory Committee concluded that removing menthol cigarettes from the U.S. marketplace would benefit public health. Some tobacco researchers are concerned that menthol flavoring causes smokers to inhale more of the harmful chemicals found in cigarette smoke.
“We’ve called on the FDA to implement the recommendations of the committee. It’s been more than a year” since the report, she said. “It’s time to act.”
The FDA declined to comment on the WTO’s ruling, referring questions to the U.S. trade representative. Messages left with the representative’s office had not been returned at this article’s deadline.
In reference to menthol cigarettes, the FDA continues to evaluate product studies and consider how best to address the issue, said Jenny Haliski, a spokeswoman for the FDA’s Center for Tobacco Products. Along with the scientific committee’s report, the FDA conducted its own analysis of menthol cigarettes, she said, adding that the agency is revising its report after receiving external feedback. She said the final report soon will be available and that public comment will be encouraged.
“The public comments received in response to the FDA’s final report may provide additional evidence or emerging data,” Haliski said. Based on the collective evidence, the FDA will consider “a full range of possible actions related to the public health impact of menthol cigarettes.” She did not specify what those actions could be.
Some congressional leaders, meanwhile, appeared determined to keep the clove cigarette ban in place, regardless of the WTO ruling.
“I am deeply disappointed in the WTO’s decision in the clove cigarette case, which has serious public health implications for U.S. efforts to reduce youth smoking,” said Rep. Henry Waxman (D, Calif). “I am committed to working with the administration to advance our shared goal of ending the tobacco epidemic among our young people and ensuring that the U.S. ban on clove and candied-flavored cigarettes remains in place.”