In the 1990s, then-Food and Drug Administration (FDA)
commissioner David Kessler arbitrarily claimed his agency had the
authority to regulate cigarettes. The Supreme Court struck down
the move as an illegal power-grab in 2000.
Nine years later that failed bureaucratic power grab may finally
become a reality, with the newly-emboldened, regulation-friendly
Democrats controlling both chambers of Congress and the White
House. Backing the move is the number-one domestic manufacturer
of cigarettes, Philip Morris USA.
Earlier this month, the House Energy and Science Committee passed
the Family Smoking Prevention and Tobacco Control Act,
legislation that would give the FDA power to regulate not just
cigarettes but also all other tobacco products. Some readers
might wonder why Philip Morris would embrace big-government
meddling in the tobacco business.
The answer is surprisingly simple. It turns out the regulations
envisioned by the bill’s authors, Rep. Henry Waxman (D-Calif.)
and Sen. Edward Kennedy (D-Mass), would be much, much harder on
smaller cigarette companies than on larger ones.
For instance, the bill bans cigarettes containing any “artificial
or natural flavor,” listing several, such as “strawberry, grape,
orange… chocolate, cherry, or coffee,” among others. Many of
Phillip Morris’s competitors make cigarettes with those flavors.
But one flavor not listed is menthol, an existing product already
offered by Philip Morris.
Many experts think the “cool” desensitizing menthol can “trick”
the body into taking bigger, longer drags from cigarettes,
meaning more tar, carcinogens, and other unhealthy results. Yet
while flavors like strawberry or coffee are banned in the bill,
menthol is allowed under the proposed new regime. That makes no
sense from a health perspective.
Another provision that would help both of those large and
established companies would give the Secretary of Health and
Human Services (the FDA is a division of HHS) broad power to
restrict advertising of new tobacco products, making it harder
for smaller competitors to compete with entrenched market leaders
like… Philip Morris.
According to a summary House Report on the legislation, the law
would “specifically limit the sale, distribution, and promotion
of new or existing products for which the label, labeling, or
advertising states or implies that the product presents a reduced
risk of harm or of tobacco-related disease, or that there is
reduced exposure to a substance, or that uses the words ‘light,’
‘mild,’ or ‘low, or similar descriptors,” subjecting any new such
products to an extensive “premarket review” before they are
allowed on the market.
Perhaps most amazingly, the HHS Secretary’s decision whether or
not to ban the “modified risk” product from the marketplace is
not to be based on whether or not the product actually provides a
reduced risk or other benefit to the individual smoker.
Individual well-being is not important to the ninnying nannies on
Capitol Hill. The decision must be made to “benefit the health of
the population as a whole, taking into account the impact on both
users and nonusers of tobacco products.”
That means if a cigarette manufacturer develops a new blend that
leaves less tar in the lungs, or a filter that traps more
carcinogens, it doesn’t really matter. If the FDA decides the
product might be so popular that some nonsmokers become smokers,
it could then be banned to protect “the population as a whole,”
even though the product itself is healthier than existing
cigarettes on the market.
That decision could largely be based on the idea that “nicotine
addiction” is a “disease” on a par with, say, cancer, which must
be vanquished by the public health gurus. This
nicotine-addiction-as-disease gambit is one which FDA has used
before against established tobacco vendors. In 2002, the FDA
banned “nicotine water” — a product without the carcinogens or
other dangerous by-products of tobacco combustion.
And the FDA is at it again with news last month the agency will
seek to regulate or ban “electronic cigarettes.” These are
tobacco-free devices that allow for the inhalation of a nicotine
vapor.
In that same spirit, Waxman’s bill would also grant the FDA power
to mandate standards for “reducing nicotine yields” in
cigarettes. This too, is counterproductive. If each cigarette has
less nicotine than before, smokers would have to smoke more
cigarettes just to get the same amount of nicotine — the
presumed point of smoking in the first place. More cigarettes
means more tar and other unhealthy by-products of the combustion
of tobacco, paper, and additives.
It seems much of the impetus behind this and similar legislation
is not individual or public health per se, but rather a
postmodern puritanism that seeks to stamp out and shame the very
idea of smoking tobacco or using nicotine to concentrate or ease
anxiety. The “findings” section of Waxman-Kennedy admits,
however, that smoking among young people seems to have risen
recently despite the billions poured into anti-smoking propaganda
campaigns over the last decade.
Philip Morris’s cooperation in this is reminiscent of the classic
economic model of “Baptists and bootleggers” both seeking to ban
alcohol — the bootleggers seeking to make profits they couldn’t
in a free and legal market. Philip Morris isn’t exactly a
bootlegger, but like the bootleggers it correctly expects to make
a lot more under an overbearing regulatory regime.
The bill contains has yet another tobacco tax, this one a “user
fee” on manufacturers of tobacco products. This is yet another
barrier to entry — large costs that an established firm like
Philip Morris can afford but smaller companies are more likely to
find prohibitive. As those additional taxes are passed down to
the consumer, the demand for cheaper, gray-market cigarettes
lacking tax stamps will grow, as will the crime that goes with
it.
The Waxman-Kennedy legislation has some provisions, such as
increased monitoring and reporting of the chemical additives
found in most commercial cigarettes, which could arguably
increase the health of the smoking public. Yet the FDA regularly
bans alternative nicotine products that lack those additives.
Such contradictions will ultimately make this plan a big loser.
The “evil” Big Tobacco companies will just get bigger, and the
average tobacco consumer will be left with higher costs, less
information about and fewer choices for mitigating the harm that
tobacco smoke can do. That’s just not healthy.
