Last week, overwhelming majorities in both houses of Congress passed the Family Smoking Prevention and Tobacco Control Act, authorizing the Food and Drug Administration (FDA) to regulate cigarettes and other tobacco products. The New York Times proclaimed the bill an “enormous victory for public health.” President Obama, himself a sometime smoker who reportedly struggles with nicotine addiction, declared that the legislation “will protect our kids and improve our public health” and is expected to sign it later this week. The bill grants the FDA expansive new regulatory authority, but more regulation does not guarantee greater protection of public health — or the public good.
Anti-smoking groups, such as the Campaign for Tobacco-Free Kids, have long sought FDA regulation of tobacco products and called passage of the bill a “historic victory.” Sen. Edward Kennedy and Rep. Henry Waxman, the bill’s primary sponsors, have sought greater tobacco controls for years. Sen. Dick Durbin proclaimed that the legislation will “protect children and protect America” from the scourge of cigarettes and nicotine addiction. Interestingly enough, the bill also had support of the nation’s largest cigarette manufacturer, Philip Morris, and its parent company, Altria. That alone should clear away some of the euphoric haze surrounding its passage.
The legislation grants the FDA expansive regulatory authority over tobacco products, including their development and advertising. The law will be administered by a new division within the agency and funded by special taxes on tobacco manufacturers that are expected to raise a half-billion dollars per year. So tobacco users will face still higher prices and more restrictions on their favored products. Less clear is whether the new law, taken as a whole, will enhance public health. Some portions of the bill are almost certainly unconstitutional, and others could inhibit the marketing of less dangerous products.
The central provisions of the bill establish a new regulatory regime for tobacco. The bill sets specific limits on advertising and promotion, prohibiting sponsorship of sporting and entertainment events, free product giveaways, and advertising in publications with substantial teen readership. The federal government will also regulate vending machine placement, self-service displays, point-of-sale advertising, and over-the-counter sales at retailers. The FDA will have explicit authority to develop additional marketing limitations as it deems appropriate.
Manufacturers will be required to place expanded warning labels on their products and to provide the government with more detailed information about cigarette contents and smoking by-products. The law also bars flavored cigarettes — save for menthol. As the Wall Street Journal reported, “Menthol cigarettes are initially exempt from the ban because of demands from the Congressional Black Caucus. About 75 percent of African-American smokers buy menthol brands.” The leading maker of menthols is Philip Morris.
While supporters trumpet the legislation as a major advance for public health, any benefits will be quite modest. The Congressional Budget Office projects the bill will reduce adult smoking by 2 percent and youth smoking by 11 percent over the next ten years. These reductions will come at the cost of a new regulatory bureaucracy and a more intimate relationship between the federal government and Big Tobacco.
Some provisions could actually hamper the bill’s ostensible purpose of protecting smokers and others from tobacco. The bill grants the FDA the authority to limit nicotine in cigarettes, but not eliminate it altogether. Because nicotine is the reason many people smoke, reducing nicotine levels in cigarettes could have the perverse effect of increasing their risks from smoking: As Boston University’s Michael Siegel explains, “when nicotine levels in cigarettes are reduced, smokers inhale more deeply and smoke more cigarettes in order to maintain their daily nicotine dosage.”
The bill also creates burdensome regulatory requirements for new tobacco products that have the potential to reduce the risk of smoking. Smokeless tobacco products, such as chewing tobacco and “snus,” are hardly risk-free — as their labels will have to disclose under the new law — but such smokeless products are far less hazardous to smokers and non-smokers alike. The risk of lung cancer and heart and respiratory disease from smokeless tobacco is far less than from cigarettes (although the risk of mouth cancer is somewhat greater). There’s also no secondhand smoke from smokeless tobacco. Other products, such as electronic cigarettes that deliver nicotine through water vapor instead of smoke, have further potential to satisfy smokers’ nicotine cravings at lower risk to themselves and others.
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.