Many of Nebraskas 2,730 licensed retailers of tobacco would lose cigarette business in competition with stores in neighboring states, where cigarette prices would be comparatively lower totally because of lower state tax rates
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First, it concluded that because menthol and clove cigarettes contain characterizing flavors that mask the harshness of tobacco smoke, they are both "capable of performing a social/experimentation function and, thus, share the end-use of 'creating a pleasurable smoking experience associated with the taste of the cigarette and the aroma of the smoke.'" 52 Because both kinds of cigarettes contain nicotine, they are both capable of performing the function of "satisfying an addiction to nicotine." "The fact that more 'addicts' smoke menthol than clove cigarettes does not mean that clove cigarettes cannot be smoked to 'satisfy an addiction to nicotine. [W]hat matters in determining a product's end-use is that a product is capable of performing it, not that such end-use represents the principal or most common end-use of that product." 53 Although the Appellate Body agreed with the United States that the panel should have considered the two specific end-uses proffered by the United States, it upheld the panel's finding of likeness with respect to end-uses because it concluded that both menthol and clove cigarettes could serve both end-uses of satisfying an addiction and creating a pleasurable experience
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