As Australia considers introducing tougher controls on tobacco, it is timely to be reminded that there is much work yet to be done in other countries, as Lesley Russell observed during her recent travels. She writes:

“On a recent trip to New Mexico, I was astounded to see large  billboards advertising cheap cigarettes at smoke shops on American Indian land. It turns out that American Indian and Alaska Native lands are sovereign nations and are not subject to state taxes or laws prohibiting the sale and promotion of tobacco products to minors.

As a result, Native American youth have access to cheap tobacco products at  a young age, and current smoking rates for Native Americans are over 30%. Tobacco is also considered a sacred gift and it is used during religious ceremonies and as traditional medicine although generally this is not the Nicotiana tabacum used in commercial tobacco.

While tobacco sales between Native Americans are tax free, tribal  smoke shops are supposed to collect taxes from other sales, but this is a huge loophole.  This tax-free loophole is also exploited with  internet sales.

Last month the first moves to close this loophole were made when a New  York Federal Court judge ordered a group of smoke shops on the Poospatuck reservation on Long Island to  stop selling tax-free cigarettes to the general public.

This week most of the nation’s largest tobacco companies filed a far-reaching lawsuit in  Kentucky to try to stop the landmark Family Smoking Prevention and  Tobacco Control Act, which President Obama signed into law in June, from curtailing their  marketing or forcing them to print large-scale graphic warning on  cigarette packages.  The lawsuit was not enjoined by Altria, which had  supported the bill, but which has said it has its own free-speech concerns with some parts of the new law.

The premise of the case is that tobacco is a legal product for adults  and that the First Amendment protects the industry’s right to communicate information about its products.  It was deliberately filed  in the US District Court of Kentucky which is seen as having been supportive to commercial speech issues.  It should be noted that, according to the Centers for Disease Control and Prevention, Kentucky leads the nation in smoking rates (28.6% in 2008) and has the highest rates of lung cancer among men and women.

Anti-tobacco lawyers have publicly stated that it was always clear  there would be just such a constitutional challenge and that the federal legislation was carefully worded to withstand such a legal test.  However lawyers on all sides agree that this issue is likely to end up before the Supreme Court.

• Lesley Russell is the Menzies Foundation Fellow at the Menzies Centre for Health Policy, University of Sydney / Australian National University, and a Research Associate at the US Studies Centre, University of Sydney. She is currently working in Washington DC.

Meanwhile, together with colleague Angela Beaton, Lesley Russell has just published this analysis of the 2009-10 state and territory health budgets at Australian Policy Online.

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