Where To Buy Clove Cigarettes After Ban

Where To Buy Clove Cigarettes After Ban

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Background: Following the passage of the Family Smoking Prevention and Tobacco Control Act in 2009, flavoured cigarettes, including clove cigarettes, were banned based on the rationale that such cigarettes appealed to youth. However, the ban on characterising flavours was not extended to cigars.

Methods: This study reviewed industry documents from Kretek International, the parent company behind Djarum clove cigars, to document the changes in their marketing and production strategies following the flavour ban on cigarettes. To assess sales trends following the ban, data for clove cigar sales in the USA from 2009 to 2012 were analysed using Nielsen's Convenience Track retail scanner database. Additionally, data on tobacco imports to the USA from Indonesia were obtained from the USDA Foreign Agricultural Service's Global Agricultural Trade System for the years 2008-2012.

Results: In anticipation of Food and Drug Administration's (FDA) flavour ban on cigarettes and recognising the regulatory advantages of cigars, Kretek International began developing Djarum clove cigars in 2007. Immediately following the flavour ban, sales of this product increased by more than 1400% between 2009 and 2012. During this same period, tobacco imports to the USA from Indonesia, a leader in clove tobacco production, shifted from cigarettes to almost exclusively cigars.

Conclusions: Kretek International, like other tobacco manufacturers, manipulated its products following the Family Smoking Prevention and Tobacco Control Act as a way to capitalise on regulatory loopholes and replace its now banned clove cigarettes. As a result, consumption of the company's Djarum clove cigars increased exponentially in recent years.

Jumali AAW, Satari MH, Dewi W. Antibacterial effect of clove (Eugenia aromaticum) oil extracted from clove cigarettes towards Streptococcus mutans. Padjadjaran J Dent. 2018;25(1). doi:10.24198/pjd.vol25no1.15428

Researchers at the University of Waterloo surveyed smokers to study the impact of a menthol cigarette ban in Canada. Smokers of both menthol and non-menthol cigarettes were surveyed before and after Canada's ban, and asked about their usual cigarette brand and the last one they bought.Advertisement

In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), which banned the sale of all flavored cigarettes, except menthol cigarettes, in Section 907(a)(1)(A). Indonesia, a major producer of clove cigarettes, challenged the Tobacco Control Act's ban on non-menthol flavored cigarettes before a World Trade Organization (WTO) panel, claiming, among other things, that it violated Articles 2.1 and 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement). Article 2.1 requires WTO members to ensure that domestic regulations setting forth product characteristics treat like imported products no less favorably than like domestic products. Article 2.2 requires that such regulations be no more trade restrictive than necessary to fulfill a legitimate objective. The panel hearing the dispute agreed with Indonesia on Article 2.1 but found for the United States on Article 2.2. The United States appealed the panel's finding on Article 2.1.

On April 4, 2012, the Appellate Body issued a decision. Although the Appellate Body disagreed with certain legal standards applied by the panel, it ultimately upheld the panel's conclusion that menthol cigarettes and clove cigarettes are like products and that the Tobacco Control Act's ban of non-menthol flavored cigarettes treats imported clove cigarettes less favorably than domestic menthol cigarettes. The Appellate Body stated that this case involved de facto discrimination and drew on jurisprudence developed under Article III:4 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), which is similar to Article 2.1 of the TBT Agreement, to hold that \"likeness in Article 2.1 [] is based on the competitive relationship between and among products.\" The Appellate Body accepted that domestic regulations may legitimately distinguish between products to serve a public health interest. However, it found that the differential treatment of menthol and clove cigarettes in the Tobacco Control Act did not stem from a legitimate regulatory distinction. The Appellate Body, therefore, found that Section 907(a)(1)(A) violated Article 2.1 of the TBT Agreement.

In response to the Appellate Body's decision, the United States has suggested that it will likely maintain the ban on clove cigarettes while fulfilling its obligations under the WTO Agreement. It appears the United States has not yet settled on how it will accomplish this. The United States and Indonesia agreed that the United States would comply with the Appellate Body decision by July 24, 2013.

In an effort to curb youth smoking, Section 907(a)(1)(A) of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) banned all flavorings in cigarettes except menthol.1 The ban took effect three months after the Tobacco Control Act became law. This ban was in response to the burgeoning market for cigarettes with flavors, like spice, fruit, and candy, that appealed to youth.2 Although menthol cigarettes also appeal to youth, they represent over a quarter of all the cigarettes smoked, meaning they have broad appeal among adults also.3 Rather than ban menthol cigarettes, therefore, Congress authorized the Food and Drug Administration (FDA) to \"ban or modify the use of menthol in cigarettes based on scientific evidence.\"4 The FDA is studying the matter and has taken no action to date with respect to banning menthol in cigarettes. Clove cigarettes, which are banned by the Tobacco Control Act as non-menthol flavored cigarettes, are primarily imported from Indonesia, while menthol cigarettes are primarily produced domestically.

Indonesia brought a claim before the WTO, arguing, among other things, that imported clove cigarettes are like domestically produced menthol cigarettes; that the Tobacco Control Act treats clove cigarettes less favorably than menthol cigarettes in violation of Article 2.1; and that the Tobacco Control Act is more trade restrictive than necessary under Article 2.2. Indonesia also claimed that the ban, in taking effect after three months, violates Article 2.12 of the TBT Agreement, which requires a \"reasonable interval\" between a law's publication and its taking effect. The panel hearing Indonesia's claim agreed with Indonesia as to Articles 2.1 and 2.12, but rejected its argument with respect to Article 2.2.8 The United States appealed the panel's finding with respect to Articles 2.1 and 2.12 to the Appellate Body. Indonesia did not appeal the panel's finding with respect to Article 2.2.

As mentioned above, Indonesia claimed that the Tobacco Control Act was more trade restrictive than necessary in violation of Article 2.2, but the panel found that Indonesia failed to make its case. Indonesia did not appeal that conclusion. In particular, the panel found that the ban's purpose, to reduce youth smoking, was a legitimate regulatory end;18 that Indonesia failed to demonstrate that the ban would make no \"material contribution\" to the goal of reducing youth smoking;19 and that Indonesia had failed to establish that there were less trade restrictive measures that the United States could take that would achieve a comparable reduction in youth smoking.20 Accordingly, the panel concluded that Indonesia had failed to establish that the ban on clove cigarettes was more trade restrictive than necessary.21 Because Indonesia did not appeal that part of the decision, the panel's conclusion stands.

In response to the Appellate Body's decision, the United States suggested that it will likely maintain the ban on clove cigarettes and stated that it will act in a way that respects its obligations under the WTO Agreement. However, it appears that the United States has not yet settled on a course of action.

Article 2.1 of the TBT Agreement requires Members to treat imported products that are like domestic products no less favorably than the domestic products with regard to technical regulations. The Appellate Body upheld the panel's conclusion that imported clove cigarettes are like domestically produced menthol cigarettes and that the Tobacco Control Act treats imported clove cigarettes less favorably than it treats domestic menthol cigarettes. This case presented one of the first opportunities for the Appellate Body to interpret what \"likeness\" and \"treatment no less favourable\" mean in Article 2.1.

There are four traditional likeness criteria in GATT 1994 jurisprudence: physical characteristics; end-uses; consumer tastes and habits; and tariff classification.44 The United States only appealed the panel's findings that clove and menthol cigarettes are like products with respect to end-uses and consumer tastes and habits.

The panel determined that menthol cigarettes and clove cigarettes shared the same end-use: \"to be smoked.\"45 The United States argued that there are two distinct end-uses: \"satisfying an addiction to nicotine\" and \"creating a pleasurable experience associated with the taste of the cigarette and the aroma of the smoke.\"46 The United States claimed menthol cigarettes are used primarily for satisfying an addiction, while clove cigarettes are used primarily for providing a pleasurable experience.47

Although the Appellate Body agreed with the United States that the panel should have considered the two specific end-uses proffered by the United States, it upheld the panel's finding of likeness with respect to end-uses because it concluded that both menthol and clove cigarettes could serve both end-uses of satisfying an addiction and creating a pleasurable experience.

The proportion of youth and adults smoking different types of cigarettes may vary, but clove, menthol, and regular cigarettes are smoked by both young and adult smokers. To evaluate the degree of substitutability