Foreign WTO Ruling Guts US Antismoking Program, But It's Our Fault

April 4, 2012 - PRLog -- In a ruling which health groups argue could "undermine U.S. health policy," a World Trade Organization [WTO] panel has ruled that the U.S. can't ban the use of clove flavoring - and. by implication, other flavors which make cigarettes more appealing to children - because federal law permits menthol flavoring, and menthol cigarettes and clove cigarettes are allegedly "like products."

Although menthol is a major flavor additive largely responsible for luring young black teens into taking up cigarettes for the first time, it was exempted from the 2009 Family Smoking Prevention and Tobacco Control Act's general prohibition on the use of flavoring agents in cigarettes.  This was reportedly done in the hope of preventing a threatened veto by Bush who was president when the loophole was first inserted, and to retain the support of Philip Morris - although the bill was frequently criticized by many antismoking activists as being too weak and with too many loopholes and exemptions.

Strangely the loophole for menthol remained in the bill by the time it was finally presented to an overwhelmingly-Democratic Congress, and a president - although a smoker - who was eager to sign it.  This is the fatal flaw which led to today's disastrous ruling, says "The Man Behind the Ban on Cigarette Commercials," and "The Law Professor Who Masterminded Litigation Against the Tobacco Industry."  If we had banned menthol along with clove and cherry, there would be no basis at all for today's ruling, he said.

"If only the drafters, and major health organizations which supported the bill, hadn't insisted on this major concession - which was opposed by many former HHS secretaries as well as many Black leaders - even when they no longer had to in order to insure political support," we would not be in this situation where foreign countries are dictating our health policy and overruling our laws," says public interest law professor John Banzhaf.

An equally serious failing by the U.S. government, and by the major health organizations, was to fail to raise an argument which was both obvious and telling: clove cigarettes and menthol cigarettes are not "like products" at the WTO ruled. While both flavorings have been shown to encourage young people to try their first cigarette - by making the smoke seem both milder and flavorful in ways that appeal to children - there is a very big and additional danger with the use of the flavoring clove which is not present with menthol, cherry, cinnamon, and other popular flavorings.previously used in U.S. cigarettes.

While both clove and menthol may induce kids to try smoking, and may make it easier for them to begin smoking, menthol doesn't directly and immediately kill or injure them. But, as was widely publicized more than a dozen years ago, the clove oil flavoring, when heated in cigarettes, gives off gases which can kill or put teens into a coma.  For example:

"In addition, switching tobacco for cloves isn't necessarily a good trade. Cloves may be perfectly fine in a cup of cider or a Christmas ham, but they produce dangerous chemicals when they burn, Banzhaf says. Inhaled clove oil may also raise the risk of pneumonia, bronchitis, and other lung infections. In a few susceptible individuals, clove cigarettes have even caused coma and life-threatening lung injury, including pulmonary edema, a condition in which the lungs fill up with fluid. According to Martha White, MD, research director of the Institute for Asthma and Allergy in Washington, D.C., some of the lung injuries occur because cloves contain an anesthetic, eugenol, that interferes with the gag reflex and allows fluids to be inhaled, or aspirated into the lungs." http://consumer.healthday.com/encyclopedia/article.asp?AI...

The one bright lining is that today's WTO ruling might force Congress to amend the smoking act to include menthol in the list of flavors banned in cigarettes.  If it fails to do so, it looks like we will not be able to ban the import of deadly clove cigarettes, says Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  https://twitter.com/#!/profbanzhaf

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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/] where he is best known for his work regarding smoking, obesity, discrimination, food and auto safety, political corruption, etc.