Special Report

Smokeless Kennedy-DeWine

In a finale to the tobacco wars, a bipartisan coalition is pushing for FDA regulation of tobacco.

By 5.13.05

One of America's most persecuted minorities is smokers. Even as many people have tired of the expensive and futile Drug War against use of illicit substances, cities and states have imposed ever more draconian restrictions on lighting up a cigarette. Now a bipartisan coalition of paternalistic legislators on Capitol Hill is pushing for FDA regulation of tobacco.

Senators Ted Kennedy (D-Mass.) and Mike DeWine (R-Ohio) are leading this effort to expand the FDA's authority over cigarettes (and smokeless tobacco). Explained Sen. DeWine: "FDA regulation of tobacco is the most important public health bill to come up in quite a few years."

Their measure would impose more advertising restrictions, marketing controls, and health warnings, as well as limits on cigarette ingredients. The specific proposals run from the serious (restricting advertising) to the obnoxious (prohibiting athletic sponsorships) to the inconvenient (banning vending machines).

Although the legislation directly targets cigarette producers, its heaviest impact would fall on smokers and retailers. The FDA would have virtually untrammeled authority to micro-manage tobacco sales.

Not that doing so would be easy. Some 300,000 retailers currently sell tobacco. If the controls proved more than perfunctory, the FDA would have to create a regulatory army, ranging from investigators to administrative law judges. That wouldn't be cheap -- and undoubtedly would channel resources from the agency's more pressing mission of moving life-saving drugs to market.

Moreover, retailers would be held liable for other people's mistakes, such as violating the law's labeling rules. The burden of any regulatory regime would fall most heavily on smaller retail establishments. They, not minors who buy cigarettes illegally or store clerks who sell them, would be held liable.

Hiking the cost of face-to-face sales would put store-front retailers at a further disadvantage. Largely because they offer buyers the opportunity to avoid sales tax, Internet and mail-order services already account for more than ten percent of total sales.

Some of the bill's provisions treat everyone as children. For instance, the legislation would ban advertisements, including indoor signs visible from the street, within 1,000 feet of a playground or school. But ads seen by minors aren't the problem. Sales to minors are the problem.

No surprise that anti-smoking activists are pushing for a tough bill. Last year Vince Willmore, spokesman for the Campaign for Tobacco-Free Kids, complained about anything short of the most stringent controls. One compromise bill, he complained, "would severely restrict the authority of the FDA to require changes in tobacco product to make cigarettes less harmful and addictive."

THE KENNEDY-DEWINE BILL is not just flawed. It is unnecessary. States already regulate tobacco sales. Uncle Sam has way too much to do and doesn't do it very well. Perhaps Washington should put foreign cocaine cartels out of business before it tries to monitor cigarette advertising at thousands of gas stations across America.

At least not every regulation supporter wants to ban cigarettes. Not that individual liberty is their concern. For instance, Sen. Kennedy worries that such a move would "leave forty million people without a way to satisfy their drug dependency." In his mind every tobacco user is a helpless victim.

But under the right rules cigarettes would no longer be cigarettes. Sen. Kennedy wants to "reduce or remove hazardous ingredients from cigarettes." Heck, just ban -- or dramatically reduce -- nicotine and tobacco. That would fulfill his desire for the FDA "to reduce addiction to this lethal product." Why force Congress to take the difficult step of prohibiting smoking when it can authorize the FDA to do so indirectly?

The legislation has picked up one unusual endorsement: cigarette maker Philip Morris. The company cited the benefit of having clear rules under which to operate.

Critics noted that limiting advertising would help freeze industry market shares, protecting Philip Morris from competition. That was, in fact, one of the outrageous effects of the tobacco litigation settlement: it purported to bind even new firms, solidifying the lead of existing producers. Unsurprisingly, the Wall Street firm Goldman Sachs figured that the Kennedy-DeWine legislation would actually improve Philip Morris's bottom line.

THE LEGISLATION IS BAD for another reason -- it continues Congress's practice of providing almost unlimited and unreviewable regulatory authority to an unelected regulatory body. The bill simply says that the FDA "may by regulation require restrictions on the sale and the distribution of a tobacco product, including the advertising and promotion of the tobacco product." Is there anything the agency could not then do?

Actually, to protect a match producer with a friend in high places, the bill does prohibit any restriction on retailers giving away match books with cigarette purchases. Congress always keeps its priorities straight.

Last year the FDA legislation was appended to a multi- billion dollar bail-out of tobacco farmers. That effort narrowly failed. Now the anti-tobacco crusaders are back.

Smoking is bad for one's health. But people have a right to choose their poison.

The desire to reduce tobacco use is fair enough, but that's what any number of private educational efforts are all about. Government can legitimately bar sales to minors, but the states already do that. Indeed, 1992 federal legislation mandated that states more effectively enforce access laws, resulting in a two-thirds reduction in youth violations over the last decade.

Unfortunately, legislative proposals to allow FDA regulation over cigarettes are really yet another attempt to move to de facto tobacco prohibition.

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About the Author

Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).