Despite the potential health benefits of convincing smokers to switch to smokeless products, the law prohibits the sale of “any tobacco product that is sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products,” unless and until the FDA determines that the product will “significantly reduce harm and the risk of tobacco-related disease to individual tobacco users” and “benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products.”
In their zeal to limit tobacco advertising and promotional activities, the bill’s sponsors also trampled the First Amendment. Commercial speech may receive less constitutional protection than political speech, but it is still constitutionally protected. Some of the bill’s specific restrictions on advertising, such as broad limitations on outdoor advertising, are virtually identical to restrictions struck down by the Supreme Court in 2001.
One fear of tobacco-control activists is that cigarette companies would trumpet FDA approval, giving consumers the impression that cigarettes and other tobacco products are safe — or at least “safer” — now that the FDA is involved. To address this concern, the bill prohibits “any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that the product is approved by the Food and Drug Administration,” or was somehow deemed “safe” by the federal government. So while the FDA will now have the final say over what tobacco products may be on the market, federal law will purport to prohibit companies from saying so, lest consumers be “misled” into believing FDA regulation of tobacco is for their benefit.
Limiting tobacco advertising and stalling the development of new tobacco products won’t help public health, but it will certainly benefit the nation’s largest cigarette manufacturer. Government regulation is the most tried-and-true way for incumbent firms to squelch smaller competitors, which helps explain why Philip Morris supports the bill and smaller tobacco companies oppose it. Harder to fathom is why public-health advocates who should know better celebrate the law as a major advance.
The Family Smoking Prevention and Tobacco Control Act is revealed as yet another Beltway deal for Big Government and Big Business. Those who proclaim it a victory for public health and the public good are blowing smoke.
– NRO Contributing Editor Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.