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.
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