Why it’s politically impossible to ban menthol cigarettes, even if they’re the most addictive.

Menthols accounted for a quarter of the roughly 370 billion cigarettes smoked domestically in 2006 and are more popular here than anywhere else in the world. So far, neither Waxman nor Sen. Ted Kennedy, who shepherded the Senate version through his Health, Education, Labor and Pensions Committee last week, has specifically defended the exclusion of a menthol ban. Waxman notes that after an FDA study, menthol could be banned as well but didn't explain why menthol merited a study period and chocolate cigarettes did not.

By the numbers, the menthol exemption practically paints a bull's-eye on the lungs of African-American smokers. So you might presume that African-American Congress members have an interest in exposing the bill's shortcomings. But of the 42 voting members in the Congressional Black Caucus, 20 are co-sponsors of the bill. Philip Morris' parent company has donated more than $1.5 million to the caucus since 2002 and thousands more to individual members, including James Clyburn, the House whip, and Edolphus Towns, chair of the House committee that favorably reported the smoking legislation. Towns has been dubbed the "Marlboro Man," thanks to his long-standing relationship with Philip Morris. And donations must have been easy for Philip Morris to file; a CBC advisory board member, Shuanise Washington, was treasurer of the organization while she was also Altria's (MO) vice president of government affairs. The tobacconist and the caucus even share a graphic designer.

Ten of the remaining, nonsponsoring CBC members hail from tobacco-producing states that oppose the bill primarily because it puts their home-state tobacco companies at a huge disadvantage to Philip Morris. That leaves 12 African-American Members of  Congress who withheld their names from the bill, despite menthol cigarettes' being linked to 14.6 percent of all African-American deaths in 2006. And there are, of course, 217 other co-sponsors, mostly white, ignoring the fact that despite menthol's cultural identification with 4 million African-Americans, double that number of white smokers also partake in the minty tobacco.

The next most popular flavored cigarette, clove, accounts for .09 percent of the market. Those cigarettes will be banned under the bill. Indonesia, which provides 99 percent of the clove cigarettes to the U.S. market, has complained to the U.S. trade representative about the disparity with menthol. If Indonesia brings a protectionist complaint to the World Trade Organization, it would compel our government to prove cloves were banned for health reasons. Namely, the United States would have to show that the flavor of cloves enhances cigarettes' addictive properties. If it can't, the ban could be considered a trade violation.

It's a lose-lose proposition. If the United States proves it banned clove cigarettes strictly for health reasons, it would be admitting that menthol cigarettes, manufactured domestically, are getting a free pass despite their clovelike increased health risks. Which puts the FDA, as the tobacco regulator, in the position of justifying a ban on cloves but not menthols. This is the type of case Siegel refers to when he told me the bill lets "the tobacco companies produce and market the cigarettes and the FDA approve them. The ramifications of this bill go far beyond tobacco control. The bill completely undercuts and undermines the entire system of federal public health regulation in this country."

In other words, the United States will have two choices in the above scenario, both hairy: protect the FDA's independence by admitting it banned cloves but not menthols only to protect Philip Morris' market share or let the FDA manufacture an explanation, contrary to recent studies, by which menthol cigarettes, which are used to lure children to smoke, are just as safe as unflavored cigarettes.