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No cigar: Embargo on Cuba turns 50 

The world is much changed since the early days of 1962, but one thing has remained constant: The U.S. economic embargo on communist-run Cuba, a near-total trade ban that turned 50 on Tuesday. . . .

In the White House, the first sign of the looming embargo came when President John F. Kennedy told his press secretary to go buy him as many H. Upmann Cuban cigars as he could find. The aide came back with 1,200 stogies.

Kennedy announced the embargo on Feb. 3, 1962, citing “the subversive offensive of Sino-Soviet communism with which the government of Cuba is publicly aligned.”

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JFK ordered 1,200 Cuban cigars hours before authorising them as illegal  

John F Kennedy ordered an aide to buy him as many Cuban cigars as possible just hours before he authorised the U.S. trade embargo, which subsequently made them illegal, it has been revealed.

The 34th President of the United States asked his head of press and fellow cigar smoker Pierre Salinger to obtain "1,000 Petit Upmanns" on February 6, 1962, so he could have them in his hands before they were deemed contraband.

Merely seconds after he was told the next morning that 1,200 of Cuba's finest export had been bought for him, he signed the decree to ban all of the communist state's products from the U.S.

The re-surfacing of the story, initially recounted by Salinger to Cigar Aficionado magazine in 1992, comes with the passing of the 50th anniversary of the embargo on Tuesday.

According to him, JFK called him into his office and said he needed "some help" to find "a lot of cigars". He wanted "1,000 Petit Upmanns" and needed them by "tomorrow morning".

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• PHILIP MORRIS USA INC, Plaintiff, vs. ZHILIN JIANG, et a!., Defendants. (PDF) 

Defendants have not responded to Plaintiffs Application for Preliminary Injunction, nor made any filing in this case, nor have Defendants appeared in this matter either individually or through counsel. UPON CONSIDERATION of the Motion, the pertinent portions of the Record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND1

Plaintiff Philip Morris USA is the registered owner of numerous trademarks used in connection with the manufacture and distribution of cigarettes. Among these trademarks are trademarks associated with United States Patent and Trademark Office ("USPTO") No. 68,502, registered on April 14, 1908, and USPTO No. 938,510, registered on July 25, 1972 (collectively, "Philip Morris USA Marks"). Defendants are unknown individuals, residing in the People's Republic of China ("PRC") . . .

Recently Plaintiff became aware of the potential sale of counterfeit versions of Plaintiff's products by Defendants. This is alleged to have been accomplished by Defendants through the operation of commercial Internet websites operating under domain names such as marlborocigarette.biz, marlboro-gold.biz, and marlborowholesale.com.2 In response to Defendants' alleged trademark infringement, Plaintiff retained Investigative Consultants, a licensed private investigative firm, to investigate the sale of counterfeit versions of Plaintiff's products by Defendants. . . .

5. The domain name Registrars for the Subject Domain Names are directed, to the extent it is not already done, to transfer to Plaintiff's counsel, for deposit with this Court, domain name certificates for the Subject Domain Names;

6. The Registrars and the top-level domain (TLD) Registries for the Subject Domain Names, upon receipt of this Preliminary Injunction shall, to the extent it is not already done, cause to be changed or change the registrar of record for the Subject Domain Names . . .

Plaintiff may continue to enter the Subject Domain Names into Google's Webmaster Tools and cancel any redirection of the domains that have been entered there by Defendants which redirect traffic to the counterfeit operations to a new domain name and thereby evade the provisions of this Order; . . .

9. Upon receipt of notice of this Order, Western Union Financial Services, Inc. ("Western Union") shall divert and/or continue diverting all money transfers sent by United States consumers to: (1) Zhilin Jiang in Putian, China, with the date of birth and identification number provided by the recipient of MTCN 455-906-9491; (2) Haidong Huang in Putian, China, with the date of birth and identification number provided by the recipient of MTCN 853673-9729; and (3) Haidong Huang in Putian, China, with the date of birth and identification number provided by the recipient of MTCN 9464580813, and continue to hold such transfers until it receives further direction from the Court;4

10. In the event any money transfers are diverted in accordance with Paragraph 9 of this Order, Western Union shall be permitted to inform consumers who may contact Western Union about the transfers that the transfers are being held pursuant to a Court Order in Philip Morris USA Inc. v. Jiang

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• Indonesia responds on U.S. appeal against WTO clove-flavored cigarette ruling  

The Indonesian government has given an answer to the United States' appeal against a World Trade Organization (WTO) Panel ruling that requires Washington to stop discriminating against "kretek" (clove-flavored) cigarettes from Indonesia, an official was quoted by Antara news wire as saying on Tuesday.

Director General for International Trade Cooperation of Trade Ministry Gusmardi Bustomi said that the ministry sent the rejoinder to the U.S. appeal on Monday.

"In essence, we forwarded our opinion that the Panel's decision favoring Indonesia was already correct," Director General for International Trade Cooperation Gusmardi Bustomi said. The director also said that the Indonesian government had reaffirmed its stance that the U.S. Family Smoking Prevention and Tobacco Control Act had disadvantaged Indonesia.

The act among other things banned the production and sale of cigarettes containing additive materials such as Indonesia's kretek cigarettes.

The regulation excluded U.S.-made menthol cigarettes and was thus seen discriminating against Indonesia's kretek cigarettes.

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• Dead keen for a smoke: puffing on with lung and colorectal cancer 

About one in seven people diagnosed with lung cancer report that they keep smoking, as do one in 11 colorectal cancer patients, despite smoking reducing the effectiveness of their treatment and significantly increasing the chances that the cancer will kill them.

These are among the findings reported in ‘A Snapshot of Smokers After Lung and Colorectal Cancer Diagnosis’, published today in the journal Cancer.

The researchers led by Dr Else Park of the Harvard Medical School studied smoking rates at diagnosis and five months later in 5338 US lung and colorectal cancer patients, and tried to determine which smokers were most likely to quit. They found that at diagnosis, 39 percent of lung cancer patients and 14 per cent of colorectal cancer patients were smoking; five months later, 14 per cent of lung cancer patients and 9 per cent of colorectal cancer patients were still smoking.

Professor Michael Farrell, the Director of National Drug and Alcohol Research Centre at the University of New South Wales, said that “cognitive dissonance” and the unforgiving power of cigarette addiction were at play, given that it was no secret that half of all smokers will die of a smoking-related disease and, compared to the average, smokers lose 16 years of life.

Asked if smokers had a death wish, Professor Farrell said that they were “more likely to think that they’re not going to incur the negative consequences of their behaviour. That’s where cognitive dissonance comes in; you say, ‘It’ll happen to other people but it won’t happen to me.’”

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• US Appeals WTO Ruling On Clove Cigarette Ban ($$) 

The U.S. on Thursday appealed a World Trade Organization decision concluding that the country's ban on clove cigarettes violated some international trade rules by favoring mainly domestically produced menthol-flavored cigarettes over cloves imported largely from Indonesia.

In its appeals brief, the U.S. argued that the panel erred both in concluding that clove and menthol cigarettes were like products and in ruling that U.S. laws treated the imports less favorably than similar cigarettes made domestically.

In particular, the panel improperly concluded that it didn't have to consider the "tastes and habits" of current consumers in weighing whether the two items are "like" products under international trade agreements, the U.S. argued.

While the U.S. applauded the panel's conclusion that the regulation was not unnecessary because it was in the service of the legitimate goal of reducing youth smoking, it argued that the two findings were "difficult to reconcile." The problem, according to the U.S., is that it should be allowed to regulate menthol cigarettes, a product to which millions of adults are addicted, differently than it deals with clove cigarettes, which are "used almost exclusively by novice smokers."

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• MacKENZIE: Making Big Tobacco pay smokers' health bills: lessons from the United States 

Reports that Nicola Roxon plans to encourage state governments to consider legal action to recover around A$31 billion in smoking-related health-care costs from the tobacco industry highlight the incoming attorney-general’s commendable commitment to reducing the impact of smoking-related illness and mortality.

Such litigation is a potentially powerful way of countering the tobacco industry, but has been largely limited to the United States to date. As part of preliminary work on the proposal, Roxon has brought Matthew Myers, president of the leading US tobacco control organisation, Campaign for Tobacco-Free Kids, to Australia to discuss litigation with state officials.

Myers, as The Australian points out, advised US attorneys-general during litigation against the tobacco industry in the late 1990s, and played a key role in negotiations that resulted in the controversial 1998 Master Settlement Agreement (MSA).

While a spokeswoman for Roxon stated that Myers had been brought in to “share his extensive experience in tobacco-related litigation” and that the minister was “heartened by the support of such an esteemed anti-tobacco expert", the MSA has, in fact, had limited impact on the tobacco industry and effectively split the tobacco control community in the United States. . . .

Ostensible marketing restrictions in the agreement contained so many loopholes that spending on cigarette advertising and promotion has, in fact, increased dramatically in the United States since 1998. Not only has the MSA had virtually no impact on tobacco industry income or marketing practice, signatory states have realised little benefit from it.

And while it may appear impressive, the agreed multi-billion dollar payment was insufficient to cover the costs of treating smoking-related illnesses and, more significantly, there were no assurances included in the settlement that monies received by the states would be dedicated to health-care and tobacco control programs.

In many cases these funds have disappeared into general revenues . . .

Most importantly, the MSA demonstrates that litigation, once launched, will have to be pursued diligently and without recourse to negotiated settlements with the industry.

The experience of US states also underlines the importance of installing a regulatory mechanism that ensures any monies recovered from the industry are used to underwrite health costs related to tobacco use. Given his central role in the MSA negotiations, Myers' best advice to Australian policy makers may well be about what not to do in future litigation.

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• Former HEW, HHS Secretaries, Surgeons General and CDC Directors Urge Trade Representative to Accept Finding of WTO Panel and Encourage FDA to ban Menthol Flavoring in Cigarettes  

Former Secretaries of the U.S. Department of Health, Education, and Welfare and of Health and Human Services, U.S. Surgeons General, and Directors of the Centers for Disease Control and Prevention, back to the Johnson Administration, known as The Citizens' Commission to Protect the Truth, today urged the United States Trade Representative, Ambassador Ron Kirk, to accept the determination of a World Trade Organization (WTO) panel and ask the Food and Drug Administration (FDA) to ban menthol cigarettes in order to bring the United States into compliance with its international treaty obligations.

In a letter, signed by the Citizens' Commission's Chairman, Joseph A. Califano, Jr., U.S. Secretary of Health, Education, and Welfare under President Carter who began the nation's first anti-smoking campaign in 1978 and Vice Chairman Louis Sullivan, M.D., president emeritus of the Morehouse School of Medicine and Secretary of Health and Human Services under President George H.W. Bush, the Citizens' Commission cited the WTO panel decision which found that by banning cigarette flavorings except menthol, the Family Smoking Prevention and Tobacco Control Act (the Act) discriminates against Indonesian clove cigarettes in violation of the Agreement on Technical Barriers to Trade. The panel recommended that the WTO Dispute Settlement Body ask the United States to conform the Act with its obligations under the Technical Barriers to Trade (TBT) Agreement and accord menthol and Indonesian clove cigarettes like treatment in recognition of their being like products.

In concluding that menthol and clove flavored cigarettes are like products, the WTO panel's decision drew heavily on the FDA Tobacco Product Scientific Advisory Committee's March 11, 2011

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As Cold War thaws, might Cuban cigar market heat up?  

As the dictator synonymous with Cuban cigars, Fidel Castro, puffing one here in 1985, is at the heart of the U.S. economic embargo against the Caribbean island. With the new flights from Chicago to Havana, might the ban on Cuba cigars be the next Cold War restriction to fall? . . .

"If cigars from Cuba were made legal, (cigar store owners) would have a line around the block on Day One of people waiting to get them," says Hal Elmore, 55, owner of the Bull & Bear Tobacco Shop in downtown Naperville, envisioning throngs of people willing to pay $50, $75 or more for a single Cuban cigar. "And then, on the second day, there would be no one in line."

A half-century of being labeled as the forbidden fruit has given Cuban cigars a mythical status they don't deserve, argues Elmore, who talks about tobacco leafs and cigar wrappers with the passion White Sox fans use to describe the hustling Minoso.

"I've had more conversations with people coming in asking about Cubans," says Elmore.

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AUDIO: Tobacco Companies Challenge Efforts in US, Australia 

Tobacco companies are fighting efforts in the United States and Australia to make their products less appealing.

In Washington, a federal judge last week blocked the Food and Drug Administration from requiring new warning labels on cigarette packs. Judge Richard Leon ruled in a case brought by five tobacco companies.

The judge temporarily stopped a new federal rule to require large new warnings starting next September. These include color images such as a dead body or diseased lungs.

Simple text warnings now appear.

Congress called for color images showing the dangers of smoking, similar to what Canada does. But the tobacco companies say the new requirements violate their free speech rights guaranteed by the Constitution. . . .

In Australia, tobacco companies want to stop what would be the world's most restrictive laws on cigarette advertising. Cigarettes could be sold only in plain olive-green packages. Only the brand name and health warnings could appear.

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Serving Them Right  

If the Massachusetts attorney general was looking for an uncomplicated defendant to serve, this wasn't it. The cigarette company wasn't just flouting the state's tobacco laws, it was doing so from a location deep within the Philippine jungle.

But the AG's Consumer Protection and Antitrust Division, which handles tobacco compliance, wanted to go after this wayward company anyway. So the question fell to then-Assistant Attorney General Timothy E. Moran: How do you serve a company hidden in the Philippine jungle? The answer, he discovered, was with a machete.

Moran hired an international process server to find the company and develop a strategy to effect service of process. Moran's account of what happened next is anything but a typical day at the office. First, he says, the process server hacked her way through the jungle to get to the company's walled compound. She then launched a stakeout to get her paperwork past a legion of armed guards.

When finally she saw a board member driving out of the compound with an open car window, she leaped into action. The moment the car stopped, she stuck a set of papers under the windshield wipers and tossed a second set through the open window. The tossed papers touched the board member, and service was effected under both U.S. and Philippine law.

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Deathly cancer photo is woman's legacy  

For smokers, her portrait is a glimpse of a future perhaps too frightening to ponder. For American health officials, it was too powerful to foist on an unprepared public: an unsparing photograph of a person scarcely recognizable as a woman, her body wasted by cancer, her hair gone, her blue eyes fixed in a thousand-mile stare.

She was Barb Tarbox, and she died on May 18, 2003, of lung cancer at the age of 42. From October 2002, two months after she was diagnosed, to the moment of her death, the Edmonton, Canada, homemaker set about making her ordeal a lesson to others about the dangers of smoking.

In her final months, she maintained a punishing schedule of public speeches to schoolchildren and teen groups on the subject, and she allowed the local newspaper to chronicle her slide toward death.

The photograph, taken five days before Tarbox died, was one of 36 candidate warnings the Food and Drug Administration considered in the run-up to a recent unveiling of nine graphic messages that must be on the cover of every cigarette pack sold in the United States starting in the fall of 2012.

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UNITED STATES – MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE CIGARETTES (PDF) 

CONCLUSIONS AND RECOMMENDATIONS

8.1 As described in greater detail above, the Panel finds that:

(a) Section 907(a)(1)(A) is a "technical regulation" within the meaning of Annex 1.1 of the TBT Agreement;

(b) Section 907(a)(1)(A) is inconsistent with Article 2.1 of the TBT Agreement because it accords to imported clove cigarettes treatment less favourable than that it accords to like menthol cigarettes of national origin;

(c) by failing to demonstrate that the ban on clove cigarettes imposed by Section 907(a)(1)(A) is more trade-restrictive than necessary to fulfil the legitimate objective of reducing youth smoking, taking account of the risks non-fulfilment would create, Indonesia has failed to demonstrate that Section 907(a)(1)(A) is inconsistent with Article 2.2 of the TBT Agreement;

(d) by failing to request the United States to explain the justification for Section 907(a)(1)(A) "in terms of Articles 2.2 to 2.4 of the TBT Agreement" through its questions in document G/TBT/W/323, Indonesia has failed to demonstrate that the United States acted inconsistently with Article 2.5 of the TBT Agreement;

(e) by failing to demonstrate that it would be "appropriate" to formulate the technical regulation in Section 907(a)(1)(A) in terms of "performance", Indonesia has failed to demonstrate that Section 907(a)(1)(A) is inconsistent with Article 2.8 of the TBT Agreement;

(f) by failing to notify to WTO Members through the Secretariat the products to be covered by the proposed Section 907(a)(1)(A), together with a brief indication of its objective and rationale, at an early appropriate stage, i.e., when amendments and comments were still possible, the United States has acted inconsistently with Article 2.9.2 of the TBT Agreement;

(g) by failing to demonstrate that it had requested the United States to provide particulars or copies of Section 907(a)(1)(A) while it was still in draft form, Indonesia has failed to demonstrate that the United States acted inconsistently with Article 2.9.3 of the TBT Agreement;

(h) by not allowing an interval of no less than six months between the publication and the entry into force of Section 907(a)(1)(A), the United States has acted inconsistently with Article 2.12 of the TBT Agreement;

(i) by failing to demonstrate that the United States did not take account of the special development, financial and trade needs of Indonesia, in the preparation and application of Section 907(a)(1)(A), Indonesia has failed to demonstrate that the United States acted inconsistently with Article 12.3 of the TBT Agreement.

8.2 In the absence of any evidence or argument on the existence of urgent problems of health that arose or threatened to arise for the United States at the time of adopting Section 907(a)(1)(A), the Panel declines to rule on Indonesia's claim under Article 2.10 of the TBT Agreement.

8.3 Having found that Section 907(a)(1)(A) is inconsistent with Article 2.1 of the TBT Agreement, the Panel also declines to rule on Indonesia's claim under Article III:4 of the GATT 1994.

8.4 Having declined to rule on Indonesia's alternative claim under Article III:4 of the GATT 1994, the Panel further declines to rule on whether Section 907(a)(1)(A) is justified under Article XX(b) of the GATT 1994.

8.5 Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment of benefits under that agreement. Accordingly, we conclude that the United States has nullified or impaired benefits accruing to Indonesia under the TBT Agreement, to the extent that the United States has acted inconsistently with Articles 2.1, 2.9.2 and 2.12 of the TBT Agreement.

8.6 Pursuant to Article 19.1 of the DSU, having found that the United States has acted inconsistently with its obligations under Articles 2.1, 2.9.2 and 2.12 of the TBT Agreement, we recommend that the Dispute Settlement Body request the United States to bring Section 907(a)(1)(A) into conformity with its obligations under the TBT Agreement. 

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US Discriminates Against Indonesian Cigarettes, says WTO 

The World Trade Organization (WTO) said the Tobacco Act applied by the US government discriminates against clove-flavored cigarettes. With the new law, Indonesian cigarettes are banned from being sold in the US while menthol cigarettes produced in the US are sold without restraint.

"This means we can prove that the US is discriminative," the Trade Ministry's international trade cooperation director-general Gusmardi Bustami said last weekend.

He was responding to a report released by the WTO in Geneva on September 2, which deemed clove cigarette restriction was inconsistent with article 2.1 in the Technical Barriers to Trade (TBT) agreement.

The panel also found that clove and menthol cigarettes are similar products because both are flavored and can appeal to young people.

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Indonesia Loses Bulk of WTO Case on U.S. Clove-Cigarette Ban 

A U.S. ban on clove cigarettes that's designed to prevent teenagers from starting to smoke is discriminatory, though Indonesia failed to prove that it is unnecessary, World Trade Organization judges said.

Indonesia argued that U.S. tobacco legislation, signed by President Barack Obama in June 2009, breaks global trade rules because it outlaws cloves and not the mint used to make menthol cigarettes. Indonesia, the world's largest producer of clove cigarettes, or kreteks, made by companies such as PT Gudang Garam, has exports valued at $500 million a year, a fifth of which go to the U.S. . . .

"The panel's conclusion was based, in part, on its finding that there is extensive scientific evidence supporting the conclusion that banning clove and other flavored cigarettes could contribute to reducing youth smoking," the judges said on the trade arbiter's website.

When Indonesia lodged its complaint at the WTO in April 2010, the country's trade minister, Mari Pangestu, said there was "a discriminatory component" in the Obama administration's decision to exclude menthol from the cigarette-flavorings ban.

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