A couple months ago, I did a post about whether clove cigarettes encourage kids to try smoking, and said that this could be a key issue in the Clove Cigarettes WTO case. It looks like the Panel in that case is thinking about this issue as well. Here's a question they asked to the U.S.:
91. [To the] United States: As regards consumer tastes and habits, at paragraph 61 of its second written submission, the United States says that of adolescents who smoke clove cigarettes, “most do so occasionally, and not as their primary cigarette” (citing Exhibit US-53, at p. 10, and United States’ first writtensubmission, paras. 182-189). If most adolescents who smoke clove cigarettes do so only occasionally and “not as their primary cigarette”, i.e. they already smoke menthol or regular cigarettes most frequently, then how can clove cigarettes be considered “trainer” or “starter” cigarettes in respect of those smokers?
From the wording and tone, it may seem that the Panel is a little skeptical that clove cigarettes are having this impact, but that may be reading too much into it.
Here was the U.S. response:
36. As an initial matter, it is important to clarify the concept of a “trainer” or “starter” cigarette as it pertains to the “age window of initiation,” as Indonesia has presented certain misconceptions about this concept.
37. Clove cigarettes, and the other banned cigarettes are “trainer” cigarettes, and therefore pose a unique public health problem, because, when available, they are disproportionately used by young people within the age window of initiation. In other words, at the time when evidence show that most smokers transition from non- or occasional use to regular use – between the ages of 12 and 26 – clove and other banned flavors were used far more prevalently than they were used at later ages, when evidence shows that individuals largely have passed the vulnerable, “experimental” stage. Public health officials have concluded that cigarettes that are used far more prevalently during this stage than at any other time are functioning as a “trainer” cigarette, meaning that they appeal particularly to inexperienced smokers.
38. Indonesia contends that a “trainer” cigarette must be the precise “trigger” of addiction or the cigarette that most young people are smoking. Such assertions misunderstand the process by which inexperienced smokers become addicted. First, it is often impossible to determine precisely what product triggers a specific addiction. While individuals can become addicted after one use of a cigarette, it often takes more than one use, and for those who try different tobacco products it is not necessarily possible to determine precisely when addiction occurs. During the age window of initiation, individuals who become regular smokers tend to progress through phases from “trying” a cigarette to “experimenting” to eventually becoming a regular or established smoker. The relevant point is that individuals in the experimental demographic – ages 12 to 26 – were using clove cigarettes more than older individuals were using them. This use at the vulnerable stage means that such cigarettes were facilitating the advancement toward regular use. For example, a young person may first be exposed to a “regular” tobacco-flavored cigarette. The young person may take to it immediately, or might find the flavor and feel disagreeable. In the latter case, that individual may not be inclined to try another cigarette. However, that young person may at another time be exposed to a clove cigarette, known for its sweeter taste and flavorful smoke, and that appeal might induce the young person to try it despite the initial negative experience with a regular cigarette. If the experience of smoking a clove cigarette is positive, that person is then more likely to try another tobacco product. Eventually, as the taste and experience of tobacco becomes familiar, the young person may be inclined to smoke tobacco- or menthol-flavored cigarettes. Indeed, the statistics show that once young consumers made the transition to becoming regular smokers, they were using tobacco or menthol flavored cigarettes as their regular cigarette.
39. Second, the fact that more young people were smoking tobacco and menthol cigarettes does not contradict the fact that clove and other banned flavored cigarettes were “trainer” cigarettes that posed a particular public health risk. Rather, the fact merely reflects that, in absolute terms, almost every smoker in the United States is smoking tobacco- or menthol-flavored cigarettes. In absolute terms, more young people and more older people are smoking regular and menthol flavored cigarettes. The relevant point with respect to clove flavored cigarettes is that young people between the ages of 12 and 25 were smoking them at much higher rates than older people were. In terms of absolute numbers they were not as widely used as regular or menthol cigarettes; but based on how they did tend to be used – by young people during initiation – they posed a unique public health problem as “trainer” cigarettes. This is not the case with regular and menthol cigarettes; rates of use among young people and older adults are much more even.
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How will the Panel decide this issue? Evidence might be key here. Did Indonesia and the U.S. present enough evidence for the Panel to draw a conclusion? If not, will the Panel ask for some expert opinion on the issue, or will it just find that whichever party had the burden did (or did not) meet it?
