The 2009 Family Smoking Prevention and Tobacco Control Act banned the sale of all flavored cigarettes, except menthols, in the United States. Indonesia successfully challenged that part of the law at the World Trade Organization as disguised protectionism—the banned products were clove cigarettes from Indonesia and the exempted menthols are made in the United States. The U.S. government tried to claim that the distinction was justified because kids like smoking cloves more than menthols. They failed to convince the trade court, because that’s ridiculous. 

The time given the United States to bring its measure into compliance with WTO law has now elapsed. Instead of changing the law to allow cloves or to ban menthols, however, the United States has claimed that issuing a report and thinking about what to do about menthol cigarettes is enough to bring it into compliance. Indonesia understandably disagrees and is seeking permission to retaliate against U.S. imports.

To stave off retaliation, the U.S. government has now decided to defend the clove cigarette ban by arguing that it was completely ineffective. As reported by Inside U.S. Trade ($)(emphasis added):

The U.S. is … claiming that, even if it is found not to have complied with the ruling, Indonesia is not entitled to retaliation because the country’s exports have not been nullified or impaired by the U.S. ban on clove cigarettes….

Specifically, the U.S. points out that the Indonesian industry has repackaged clove cigarettes into clove cigars, which unlike their counterparts are not banned. Therefore, the U.S. maintains, Indonesia’s clove exports have not suffered as a result of the ban.

International trade rules probably won’t slow the steady creeping of progressive lifestyle paternalism, but I truly enjoy these kinds of embarrassing revelations. The pesky thing about people is that they keep trying to do things they want to do even when governments tell them not to—coercive “nudges” notwithstanding.

Last year, Sallie James and I wrote a paper warning against the increasing prevalence of regulatory protectionism in the United States. We noted that, unlike most product regulations, tobacco control doesn’t lend itself to market solutions:

For some regulations that have nonpro­tectionist goals, there is no free market an­swer, because the “legitimate” goal is an illib­eral imposition on consumer choice. Again, the clove cigarette ban provides an excellent example. For tobacco control advocates, the goal is not to have better quality products or to prevent negative environmental impact—the goal of a cigarette ban is to control peo­ple for their own purported good.

Any cigarette ban, like other forms of pro­hibition, is incompatible with the ideals of a free society. The dangers of smoking are well-known, and its popularity has waned considerably in recent decades, but smoking tobacco tastes and feels as good as it always has, and many find the risks acceptable.

While the global tobacco control movement is fiercely opposed to the proliferation of global trade rules, the anti-tobacco forces are probably wasting their energy. Even if tobacco measures are exempted from all trade rules, the paternalists are going to lose because their agenda is ultimately hopeless. They’re fighting a losing battle against the indelible human spirit that pursues happiness without permission.