FDA
Long legal precedent is against FDA regulation of cigarette sales
Any restraints have traditionally been in Congress' hands
By Richard Craver
JOURNAL REPORTER
Friday, February 16, 2007
The U.S. surgeon general first warned consumers about the risks of smoking cigarettes nearly 43 years ago.
Despite many health studies connecting tobacco with cancer and other diseases, and increasing opposition to smoking in public places, the industry remains free from federal regulation and subject only to congressional restrictions.
As the latest bill aimed at putting tobacco products under Food and Drug Administration oversight was introduced in Congress yesterday, some health-advocacy groups believe that the political climate is ripe for regulatory control this year.
FDA regulations would further restrict tobacco marketing as the industry already struggles with a declining smoking rate. Adding graphic health warnings similar to those in other countries could make selling tobacco products even tougher, while banning the sale of candy- and fruit-flavored cigarettes could hamper the industry's ability to attract young adult consumers.
Reynolds American Inc. has long opposed federal regulation of tobacco products because of concern that it would further restrict its ability to market to adults.
Federal regulation also could affect the 27,460 North Carolinians whose jobs depend on the tobacco industry, including 11,900 in manufacturing, according to the U.S. Bureau of Labor Statistics. Reynolds American, based in Winston-Salem, and its subsidiaries have 4,200 employees in the state.
Yet, analysts said that proponents of federal regulations face an uphill battle even in a Democratic-led Congress.
That's because:
• Congress has preferred to place restrictions on the tobacco industry, starting in 1965, over allowing a federal agency to have oversight.
The last significant push for FDA oversight came in 2004 when it was attached to a bill on the $10.1 billion tobacco-quota buyout. The provision was removed to ensure votes from tobacco-state senators.
A similar removal of legislation occurred in 1998 before 46 states and the major tobacco companies agreed to the $206 billion Master Settlement Agreement.
• Congress created the FDA to ensure that products are safe and effective in their intended use. A product documented as unsafe, such as cigarettes, would not be allowed, according to FDA rules.
"Congress, however, has foreclosed a ban on such products, choosing instead to create a distinct regulatory scheme focusing on the labeling and advertising of cigarettes and smokeless tobacco," according to the majority opinion of a 5-4 vote by the U.S. Supreme Court in March 2000.
In its failed bid to assert jurisdiction over tobacco, the FDA said it could regulate the marketing and sale of tobacco products because it considered nicotine as a drug and tobacco as a device for delivering the drug.
• Tobacco manufacturing still plays a crucial role in the economies of such politically pivotal states as North Carolina.
According to the U.S. Census Bureau, the tobacco industry's estimated economic impact on the country's gross national product is more than $64 billion. The industry's economic impact in North Carolina is estimated at more than $7 billion.
The majority opinion from the Supreme Court stated that Congress' reason for exempting tobacco from FDA regulation was "to protect commerce and the national economy while informing consumers about any adverse health effects. Thus, an FDA ban would plainly contradict congressional intent."
Sen. Elizabeth Dole, R-N.C., who opposes the new proposals, said this week that other federal agencies are "much better suited to administer any new regulations on the industry."
Health-advocacy groups said they hope that Congress will allow state and local governments to apply their own restrictions to tobacco marketing.
"We hope Congress keeps in mind the industry's sordid history when it comes to marketing its product," said Edward Sweda Jr., the senior attorney for the Tobacco Products Liability Project at Northeastern University's School of Law in Boston.
The groups cite the "Frank Statement to Cigarette Smokers" ad that appeared in 448 U.S. newspapers in 1954 and was paid for by the Tobacco Industry Research Committee. Included were the statements "we believe the products we make are not injurious to health" and "there is no proof that cigarette smoking is one of the causes" of lung cancer.
In 1994 seven chief executives of U.S. tobacco companies testified before Congress that nicotine was not addictive.
The health groups also point to Reynolds' Joe Camel ads that propelled the brand's popularity to new heights, but eventually were banned in the 1998 Master Settlement Agreement.
"The industry may say it doesn't target minors," Sweda said. "But putting smoking in a favorable light in its advertising is crucial in getting the next generation to try tobacco products."
Michael Walden, an economics professor at N.C. State University, said that Congress has to be careful not to overreach with any intent of federal regulation over tobacco products.
"Economic history shows if regulation is too severe, particularly in the availability of a product in strong demand, there's the risk the market for the product will go underground and be controlled by illegal suppliers," Walden said.
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U.S. Congress to renew FDA tobacco authority fight
Feb 2, 2007
Kevin Drawbaugh
WASHINGTON, Feb 2 (Reuters) - Democrats in the U.S. Congress plan to renew efforts, possibly as soon as next week, to give the Food and Drug Administration regulatory authority over cigarettes, three congressional aides said on Friday.
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Burr says he'll fight FDA-cigarette bill
January 14, 2007
Mary M. Shaffrey
Sen. Richard Burr, R-N.C., plans to try to block Senate passage of any bill that allows for Food and Drug Administration regulation of cigarettes.
"I would use every legislative tool at my disposal," Burr said last week, during a wide-ranging interview in his Senate office.
Burr acknowledged that he is unlikely to have the support of at least 40 other senators, which would allow the use of the filibuster - a procedural tool that has the effect of bringing the Senate to a standstill. But he said that there are other steps he could and would use to make sure that the bill would not become law.
"I could make it a long and painful process," he said.
Sen. Edward Kennedy, D-Mass., the new chairman of the Senate Health, Education, Labor and Pensions Committee, has made FDA regulation of tobacco products a top priority.
Kennedy, outlining his legislative agenda shortly after the November elections, said: "Empowering the Food and Drug Administration to regulate tobacco products is long overdue. Effective FDA regulation will help to deter young people from starting to smoke and to assist current smokers in quitting."
Many Democrats have long advocated FDA regulation, and Burr worked hard while a member of the House of Representatives to ensure that it was not included in the tobacco-quota buyout bill in 2004. Anti-smoking advocates, however, have already won a symbolic victory with Democrats in charge. Last week, Speaker of the House Nancy Pelosi barred smoking in the Speaker's Lobby behind the House chamber.
Burr has been in the majority party for his entire congressional career, and he said he is not overly concerned about the change in power on Capitol Hill.
"There is no majority-minority in the Senate, although everyone likes to focus on that," he said. The Senate now has 51 Democrats and 49 Republicans.
"With the exception of who you call chairman ... nothing happens unless 100 percent of the senators agree," he said.
"The rules demand bipartisanship," he said.
Andrew Taylor, a political-science professor at N.C. State University, agreed with Burr's assessment.
Unlike the House of Representatives, where a simple majority rules, the Senate must get 60 senators in agreement to block a filibuster or to invoke cloture, which places a time restriction on debate of a specific bill.
"The minority has tremendous power," Taylor said. "If a small group of senators disagrees vehemently (about proposed legislation) they have the power to stop it."
Burr said he thinks that Sen. John McCain and former New York Mayor Rudy Giuliani are the front-runners for the Republican nomination for president. But he said that former Massachusetts Gov. Mitt Romney could also be a strong candidate.
There has been speculation that Burr is on McCain's short list for vice president, but he said he is not interested in that position.
On the Democratic side, Burr holds Sen. Hillary Clinton, D-N.Y., in high regard, even if he himself would not vote for her.
"She is a darn good senator," he said, adding that if the main issue on the minds of voters in 2008 is security, she is a strong candidate. "She is disciplined, she is knowledgeable. From what I see from the outside, she meets the needs of her state. I am not sure any constituency could ask for anything more," he said.
He does not think as highly of Sen. Barack Obama, D-Ill., or of the man he himself replaced, former Sen. John Edwards, D-N.C. Although not discounting Edwards' popularity in early primary states, Burr said that the issues that Edwards is campaigning on - mainly poverty - are not likely to be high on the minds of voters next year.
"I don't see those issues raising to the level of top-tier" priorities, he said.
Kennedy to seek tighter reins on tobacco
Democratic majority may give bill a big lift
January 3, 2007
By Diedtra Henderson, Globe Staff
WASHINGTON -- Senator Edward M. Kennedy this month will revive a long-stalled bill giving the federal government broad regulatory authority over the sale, distribution, and advertising of tobacco products.
While the Food and Drug Administration can regulate nicotine-replacement therapies, it has no oversight over cigarettes and smokeless tobacco, nor can it prevent sales of those tobacco products to youths.
"Smoking is the number one preventable cause of death, yet over 4,000 children have their first cigarette every day," said Kennedy, Democrat of Massachusetts . "We cannot in good conscience allow the Food and Drug Administration -- the federal agency most responsible for protecting the public health -- to remain powerless to deal with the enormous risks of tobacco."
The legislation is part of a handful of sweeping bills that Kennedy and others will seek to pass as Democrats begin running Congress. Republicans like Tom DeLay , the former House majority leader who helped to thwart tobacco regulation, are no longer in office.
"We are confident that the legislation will be considered and passed in this Congress," said Bill Corr , executive director of the Campaign for Tobacco-Free Kids . "The new Democratic leaders are all supporters. And the old Republican leaders were all opponents."
Among the more highly anticipated changes, the bill would permit the FDA to police "false or misleading" advertising and marketing aimed at children that glamorizes smoking.
"The tobacco industry has a long, dishonorable history of providing misleading information about the health consequences of smoking," Kennedy said. "The largest disinformation campaign in the history of the corporate world must end."
Under Kennedy's proposal, manufacturers also must provide the FDA with lists of ingredients and additives in their products, including nicotine . A recent Massachusetts Department of Public Health study found that levels of nicotine in cigarettes rose, on average, by 10 percent from 1998 to 2004 .
"Tobacco is a product that is known to kill, yet consumers of the product are not informed about the ingredients," said Steven Weiss , a spokesman for the lobbying arm of the American Cancer Society . "There is more regulation of a package of macaroni and cheese than there is of a box of cigarettes or another tobacco product."
Paradoxically, Congress could draw support for the legislation from within the tobacco industry.
Philip Morris USA , which recorded $1.3 billion in income in the third quarter , is among those "strongly" supporting FDA regulation of tobacco products, even if it means paying user fees to cover the expenses.
FDA regulation would bring "uniformity" that could "potentially reduce the harm caused by smoking," said Lisa Gonzalez , a spokeswoman for Altria Group Inc. , Philip Morris's parent company.
But tobacco growers are wary of the legislation.
Government buy outs have roiled the industry, pushing some growers out of business and forcing those who remain to forge closer ties to tobacco-products firms. Many now have contracts with companies that have opposed proposed government oversight, such as R.J. Reynolds Tobacco Co. and the US Smokeless Tobacco Co.
"We certainly understood the rationale for FDA regulation, as it relates to minors smoking," said Don Anderson , 56 , a Virginia grower whose father and grandfather also traded in tobacco.
Growers no longer have the option of selling crops at auction to all comers. Instead, they must sign contracts that link their financial future to that of the buyer.
Smaller manufacturers and smokeless tobacco producers have opposed regulation seen to favor Philip Morris, which sells cigarette brands such as Marlboro and enjoys a 50.4 percent share of the US retail market.
"What caused such divisiveness among the manufacturers before was the fact it was going to essentially lock advertising right where it was," said Anderson, giving a "competitive advantage" to brands that already have name recognition.
Regardless of whether FDA regulation is on the way, even tobacco growers with Philip Morris contracts are anxious to find crops to replace tobacco.
In sun-splashed plots near the North Carolina state line, Mexican laborers in the spring will sink tobacco plants started in greenhouses into the reddish soil. Late in the growing season, they'll snap off magenta flowers that rob the tobacco plant of nutrients, and will pull leaves, from bottom to top, as the tobacco matures.
Tobacco grower Walter Bass said he's not sure how many acres of his sprawling farm will be devoted to the plants in 2007. Already, tobacco prices have stagnated, while fuel, fertilizer, and labor costs rise, said Bass, 63, of Gladys , Va.
Bass's two sons , sensing that the once-booming tobacco cycle is lurching toward bust, last fall doubled the acreage they planted with turf.
Their sod fields are deep green, like newly minted money, without the overhead of greenhouses and drying-barns that tobacco requires.
"This is the best thing we've seen since tobacco," Bass said of the turf. "We were looking for something that was a high dollar-per-acre crop. And I think the sod is probably what it is."
Former FDA Commissioner Pleads Guilty to Lying About Holding Stocks in Companies He Regulated
October 19, 2006
By Michael Siegel
According to an Associated Press article, former FDA Commissioner Lester Crawford pleaded guilty yesterday to charges of conflict of interest - holding stocks in companies that he [FDA] regulated - and lying about that conflict of interest.
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Campaign for Tobacco-Free Kids Continues to Deceive the American People on FDA Tobacco Legislation 10/4/06 By Michael Siegel
The suggestion that by supporting the proposed FDA legislation, Congressmembers are pledging their independence from Big Tobacco is clearly implying to the public that this legislation is uniformly opposed by Big Tobacco. There is no way that anyone reading this propaganda could understand from it that in fact, the largest element of Big Tobacco - Philip Morris - actually supports the legislation and is lobbying for its passage.
In Calling for FDA Legislation to Reduce Nicotine Addiction,: Anti-Smoking Organization is Full of It; And Devoid of Integrity. By Michael Siegel. What's far more important is that we restore some integrity to the movement. I should be able to wake up and feel proud to be a member of the tobacco control community, not ashamed.
Industry sponsored anti-smoking ads and adolescent reactance: test of a boomerang effect.
L Henriksen, AL Dauphinee, Y Wang, and SP Fortmann
Tob. Control, February 1, 2006; 15(1): 13-8.
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Hillary smokin' over candy cigarettes
BY GLENN THRUSH
NEWSDAY WASHINGTON BUREAU
July 20, 2006
Sen. Hillary Rodham Clinton has glimpsed into the future and sees a world where corporations implant microchips into children's brains to bombard the littlest consumers with intracranial commercials.
Clinton was decrying the evils of candy-flavored cigarettes and tobacco advertising at forum in Washington Thursday, when she took a slight detour into the political Twilight Zone.
"At the rate that technology is advancing, you know, people will be implanting chips in our children to advertise directly into their brains and tell them what kind of products to buy," Clinton told a bemused audience at the Kaiser Family Foundation, a non-profit which hosted a forum on media, advertising and children.
"I'm sure they'll justify it on the basis of saving time or some other such rationale," said the New York Democrat, who didn't seem to be joking.
Currently, implanted microchips are used almost exclusively for medical purposes as an ID tag for patients with special health problems. But scientists are tinkering with other commercial uses for the technology, including a cybernetics professor in England who has been experimenting implants that allow him to control lights and appliances.
The former first lady, a childrens advocate who helped implement the use of parent-controlled V-chips in TVs in the 1990s, has co-sponsored a bill with Sen. Joe Lieberman (D-Ct.) to study the impact of marketing and advertising on children.
"We are living in an advertising-saturated, media-intense environment," said Clinton. "I think it's fair to say that we are conducting an experiment on our children. I hope that through better research, better advocacy we can make some decisions together about how to ensure are not the victims of this massive experiment."
This isn't the first time Clinton has raised eyebrows with comments about kids. In May, she told a trade group in Washington that "a lot of kids don't know what work is. They think work is a four-letter word."
She later apologized to her daughter Chelsea, who thought the remark smeared her generation. But Clinton's principal target on Thursday was the tobacco industry, whihc she claims is targeting kids with an array of new products that mimic candy. She singled ou the R.J. Reynolds Tobacco Company for producing citrus, berry, mint and toffee-flavored cigarettes that skew to the Joe Camel demographic.
"Bravo Hillary," said Joel Spivak, spokesman for the Campaign for Tobacco-Free Kids, a Washington-based anti-tobacco group. "These candy-flavored cigarettes are blatantly aimed at kids there. Who do you think buys this stuff? Certainly not a regular smokers, it's a way to get kids interested."
An R.J. Reynolds spokesman didn't return a request for comment
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Industry can't control kids
Industry can't control kids
By Jacob Sullum
12-28-05
The controversy over so-called candy-flavored cigarettes, such as Camel Dark Mint and Kool Midnight Berry, is reminiscent of the controversy over "alcopops," such as Mike's Hard Lemonade and Bacardi Silver. In both cases, manufacturers are accused of designing and marketing adult products with minors in mind. And in both cases, they can plausibly respond that the products actually are aimed at young adults.
While it is certainly true that flavored cigarettes and sweet alcoholic drinks appeal to many people who are not legally permitted to consume these products, they also appeal to many people who are. If the government insists that manufacturers refrain from selling cigarettes and alcoholic beverages because of the danger that teenagers will be attracted to them, adult consumers will be deprived of many products they might otherwise enjoy.
Trying to ban kid-friendly cigarette varieties is an invitation to arbitrary meddling. A 2004 bill that would have allowed the Food and Drug Administration to regulate cigarettes, for example, instructed it to ban any tobacco product with "a characterizing flavor" other than tobacco or menthol, including "an herb or spice." Who knew that clove cigarettes were strictly for kids?
Presumably, it was just a happy coincidence that Philip Morris, one of the bill's main backers, does not manufacture cigarettes with any of the prohibited flavors — although it does make menthol cigarettes, which were specifically exempted from the ban.
Just as it is unreasonable to demand that cigarettes taste bad so as to repel underage consumers, it is unreasonable to expect cigarette companies to create ads that appeal to 20-year-olds but not to 17-year-olds.
If the government insists that minors be shielded from tobacco advertising because it cannot be targeted with laser-like precision, manufacturers will be prevented from effectively communicating with their adult customers.
Instead of reducing adults to the level of children by banning products and marketing techniques that might appeal to minors, the government should enforce existing bans on underage smoking.
Jacob Sullum, a senior editor at Reason magazine, is the author of For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health. R.J. Reynolds declined an opportunity to provide an opposing view.
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SMOKING FDA REGULATION
June 18, 2005
by Chuck Muth
In a recent edition of the Christian Science Monitor, an editorial called for Congress to pass bills giving the Food and Drug Administration more authority, more power, and more oversight over tobacco products. The editorial said such bills were "needed."
Needed? Why? Let's take a look at this from two standpoints.
First, it is suggested that what is "needed" is "FDA jurisdiction over the warning labels on cigarette packages and tobacco products." Again, why? Who in the United States does not already know the Surgeon General's warning already by heart? Will making it bigger, bolder or more colorful really result in higher awareness or lower cigarette use? Not a chance.
And how much more "explicit" could the various warnings possibly be? The one I just found on a discarded pack of Basic Light 100s reads, "Quitting Smoking Now Greatly Reduces Serious Risks to Your Health." I mean, if you can't understand a warning as simple as that, perhaps your premature death would be in the best interest of the human gene pool.
The busy-body camp of health nannies who want to increase government oversight of tobacco products also wants to give the FDA the authority to ban flavored cigarettes - all in the name of protecting "the children," of course). But again, this is absurd. Are kids really enticed more by the fact that a cigarette might be cherry-flavored than they are by peer pressure? Of course not. Banning fruit-flavored cigarettes is as ridiculous as banning the sale of strawberry- or chocolate-flavored ice cream under the excuse that ice cream is a dangerous cause of obesity and the flavors might "hook" kids at an early age. (Oops. Better not give anybody any ideas.)
And once the FDA gets the power to ban one type of cigarette, how long before "mission creep" leads it to banning all cigarettes? This is "camel's nose" legislation, and everybody knows it.
Second, there's the entire question of whether the federal government is vested with the constitutional authority to pass such "needed" legislation/regulation in the first place. As the late-Senator Barry Goldwater wrote decades ago in his book, Conscience of a Conservative, "I will not attempt to discover whether legislation is 'needed' before I have first determined whether it is constitutionally permissible."
While I recognize that passing unconstitutional legislation is standard operating procedure in Congress these days, I would hope advocates of such legislation and those in the "save kids from the world" movement would at least cite -- or maybe I'd even settle for attempting to find - the constitutional authority which grants the federal government the right to subject tobacco products to federal control. And please don't trot out that old "general welfare" clause. Everyone knows this is decidedly NOT what the Founders intended by the phrase "general welfare."
And if you do this to cigarettes, what's next? Flavored soft-drinks? Snickers? Big Macs? Extra Crispy? Once you start down this slippery slope, where does it end?
Advocates of increased government control (which, let's be honest, is what this really is - control), have even gone as far as to use for their "side" of the argument that Philip Morris, the largest manufacturer of cigarettes, supports FDA controls.
Well, I guess so. As the world's largest cigarette manufacturer, PM is in the best position economically to comply with FDA regulations. The folks who will be hit hardest are PM's smaller competitors. This is a financial windfall for PM which will allow it to continue its dominance of the market while everyone else struggles to jump through all the new government hoops and red tape.
In addition, as a new study by the University of California San Francisco School of Nursing shows, Philip Morris is cynically supporting FDA regulation to "enhance its image."
Study author Ruth Malone (a registered nurse, PhD, and associate professor) writes, "With image-shaping in mind, PM devoted enormous resources to achieving regulation -- but on its own terms." The company, says Malone, sought to separate itself from its competitors and "portray itself as a reasonable and responsible manufacturer of a risky product" in hopes of achieving favorable regulation from a Republican-dominated Congress. The fact that Philip Morris supports FDA regulation is actually an argument against FDA regulation.
The Founders' principle of a strictly limited federal government has been under assault for decades. It's time for citizens and responsible legislators to wake up and say enough is enough. Denying FDA regulation of tobacco products would be a good place to begin drawing a line.
Chuck Muth is president of Citizen Outreach, a non-profit public policy advocacy organization in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of Citizen Outreach. He may be reached at chuck@citizenoutreach.com.
Relax, breathe, leave the smokers alone
By DOUG BANDOW
WASHINGTON -- One of the most persecuted minorities in America, and increasingly in other countries, is smokers. U.S. cities and states have imposed ever more Draconian restrictions on lighting up a cigarette, and a bipartisan coalition of paternalistic legislators on Capitol Hill now is pushing for tobacco regulation by the Food and Drug Administration.
http://www.japantimes.co.jp/cgi-bin/geted.pl5?eo20050516db.htm
Smokeless Kennedy-DeWine
By Doug Bandow
5/13/2005
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.
Lighten up on smokers
May 6, 2005
By Doug Bandow
One of America's most persecuted minorities is smokers. Cities and states have imposed ever more draconian restrictions on lighting up a cigarette, and a bipartisan coalition of paternalistic legislators on Capitol Hill now is pushing for Food and Drug Administration regulation of tobacco.
Lighting up might be a stupid thing to do. But a free society must allow people to do stupid things.
Unfortunately, the anti-smoking movement has moved from accommodation to suppression. Smokers also have become the great deep pocket for legislators and lawyers.
The latest anti-smoking effort is legislation to deliver the industry to the tender mercies of the FDA. Sens. Ted Kennedy, Massachusetts Democrat, and Mike DeWine, Ohio Republican, are leading the effort to expand the FDA's authority over cigarettes (and smokeless tobacco). Explained Mr. 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 micromanage tobacco sales.
If the controls proved more than perfunctory, the FDA would have to create a regulatory army, ranging from investigators to administrative law judges, to monitor some 300,000 retailers. 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, sellers 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 establishments.
Hiking the cost of face-to-face sales would put storefront 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 10 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.
The Kennedy-DeWine bill is not just flawed. It is unnecessary. States already regulate tobacco sales.
In contrast, 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. But under the right rules cigarettes would no longer be cigarettes.
Mr. Kennedy wants to "reduce or remove hazardous ingredients from cigarettes." Heck, just ban -- or dramatically reduce -- nicotine and tobacco. 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' bottom line.
The legislation continues Congress' 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 matchbooks with cigarette purchases.
Last year the FDA legislation was appended to a multibilliondollar bailout of tobacco farmers. That effort narrowly failed. Now the anti-tobacco crusaders are back.
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.
Unfortunately, legislative proposals to allow FDA regulation over cigarettes are really yet another attempt to move to de facto tobacco prohibition -- even while solidifying the market share of entrenched operators like Philip Morris. Uncle Sam should leave smokers, and the rest of us, alone.
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Reagan.
http://www.washingtontimes.com/op-ed/20050505-095357-4843r.htm
Lawmakers push for FDA tobacco regulation
March 17, 2005
By HILARY ROXE
ASSOCIATED PRESS WRITER
WASHINGTON -- The Food and Drug Administration could regulate tobacco products under legislation revived by a bipartisan group of lawmakers Thursday. The proposal renews a push for tobacco oversight that was blocked last year in the House.
Under the bill, the FDA could regulate the sale, marketing and advertising of tobacco products, and could require companies to list all ingredients added to cigarettes and other forms of consumer tobacco.
The legislation was brought back in the Senate by last year's sponsors, Mike DeWine, R-Ohio, and Edward Kennedy, D-Mass., who reintroduced the bill on Thursday. The Senate approved it last year, but it died in the House.
"The detrimental effects of smoking are widely known," said DeWine. "But many consumers, including smokers, are surprised to learn that no federal agency has the authority to require tobacco companies to list the ingredients that are in their products."
The legislation would prevent the FDA from banning cigarettes; the agency also could reduce but not eliminate nicotine. The FDA would not regulate tobacco as a drug, but would create a new product category.
Last year's House sponsors, Reps. Tom Davis, R-Va., and Henry Waxman, D-Calif., were expected to introduce a similar bill.
In 2004, supporters tried to tie FDA regulation of tobacco leaf to a tobacco-buyout program within a corporate tax bill. The final tax bill included tobacco buyout provisions, but no FDA regulation, and many believed supporters had lost their best shot at oversight.
Strong resistance to the proposal has come "solely from the House leadership and a very small number of tobacco-state legislators," said Matt Myers, president of the Campaign for Tobacco-Free Kids.
The FDA asserted authority over cigarettes in 1996, but the Supreme Court later ruled that only Congress can give the FDA that power.
Philip Morris USA is the only leading tobacco company in favor of FDA regulation. The company says such oversight will give the public more confidence in the industry and help the company market new tobacco products.
The National Association of Tobacco Outlets is the professional trade association that is committed to fighting for tobacco stores and protecting the right to sell and purchase tobacco products.
http://www.natocentral.org/
