This may be a key issue in the U.S. - Clove Cigarettes case (DS406). (See this link for some past posts on the case). Briefly, the case is about whether the U.S. ban on clove cigarettes (produced mainly in Indonesia), but not menthol cigarettes (produced mainly in the U.S.), violates certain National Treatment and other obligations.
According to the first U.S. written submission:
Indonesia repeatedly claims that clove cigarettes are only smoked by adults and rarely, if ever smoked by youth. The survey data generated in the last decade refutes this claim, and strongly supports the United States’ view that clove cigarettes are disproportionately used by youth smokers and are properly considered a “trainer” smoking product, just as chocolate, cherry, and coconut flavored cigarettes are. This is in direct contrast to the use patterns of menthols, which are heavily used by both adults and youths alike.
(See para. 54) The point the U.S. is making is that its decision to ban clove cigarettes and other candy/fruit flavored cigarettes, but not to ban menthol cigarettes, was justified as a measure designed to prevent kids from picking up smoking. The idea is that these flavored cigarettes make it more likely that kids will try it.
As a factual matter, is the U.S. correct? The U.S. cites to some survey data in support. I tried to sort through it, but it was taking too long and I gave up. Here are some links if anyone wants to go further with it: survey of high school seniors (p. 253); survey of secondary school (p. 122); surveys of multiple age groups. The footnotes in this section of the U.S. submission provide more details on where to look for this data.
Generally speaking, it seems to me that this is a crucial factual point, one that will affect the conclusion on many of the key legal issues in the dispute, both the claims and defenses.
In (somewhat) related news, the WHO conference going on right now may not take any action in relation to flavored cigarettes:
But industry lobbying appears to have persuaded delegates to a global conference on tobacco regulation not to recommend tough new limits on adding aromas and flavors like licorice and chocolate to cigarettes to make them more palatable to first-time smokers.
The additives question will likely be sent back to a working group for more development, said Nick Guroff, a spokesman for the watchdog group Corporate Accountability International.
"Big Tobacco has been very overt in subverting public health policy until they can't get away with it anymore, at which time it exports all of the same tactics to countries that have less political will to combat the same tactics," Guroff complained.
He scoffed at the industry's key argument -- that small tobacco growers in developing countries would be devastated by a ban -- and expressed frustration at seeing industry lobbyists working the conference rooms in Uruguay's Punta del Este beach resort.
The conference ending Friday was sponsored by the World Health Organization and brought together 171 nations that have signed the Framework Convention on Tobacco Control treaty.
ADDED: This (more recent) Reuters article tells a different story about the flavoring issue:
World health officials recommended on Saturday limiting additives that make cigarettes more palatable, but they postponed until 2012 a number of other issues after five days of deliberations.
...
Delegates approved a proposal to limit the use of tobacco additives, which critics say improve the flavor of cigarettes, encouraging consumers to smoke more.
