The Obama Administration continues to insist, all Congressional evidence to the contrary notwithstanding, that Uncle Sam has no interest in running the U.S. auto industry. About the tobacco industry there is no such Washington scruple on either end of Pennsylvania Avenue.
President Obama is poised to sign a bill passed by Congress this week that authorizes the Food and Drug Administration to regulate tobacco products for the first time. The legislation would allow the FDA to reduce tar and menthol in cigarettes, ban certain flavors and ingredients, and prohibit the use of words such as “mild” or “light” to advertise a brand.
Amid much self-congratulation, proponents are calling it a victory for public health. But, well, where to begin?
The legislation happens to make it more difficult for tobacco companies to market smokeless alternatives to cigarettes that are far less lethal because they contain fewer carcinogens than cigarettes and don’t enter the lungs. And while reducing the tar or nicotine content of an individual cigarette might make it “safer,” it will also induce some people to smoke more to achieve the same fix — the same way people often compensate for lower-calorie foods by eating larger servings.
Then there’s the bill’s exemption for menthol from the ban on flavored tobacco products. Menthol happens to be the most popular cigarette flavor, and the Journal reports that the Congressional Black Caucus pressed for the carve-out. Menthol brands account for less than 30% of the U.S. market but are favored by 75% of black smokers. Black public health officials understandably have opposed the exemptions. But black lawmakers apparently believe that banning an unhealthy product used by a disproportionate number of black voters is the greater evil.
What’s also clear is that prohibiting menthol would especially hurt Lorillard, the top menthol cigarette maker, and Philip Morris, whose Marlboro Menthol is the second-leading menthol brand after Newport.
Which brings us to the real cynical beauty of this bill: It lets the politicians claim to be punishing Big Tobacco while further cementing their financial partnership. It’s no coincidence that Philip Morris, the market leader, is squarely behind a bill that allows the FDA to curb advertisements. The Altria Group subsidiary is hoping to solidify its market share, and any regulation that impedes the ability of smaller rivals to advertise and lure away Philip Morris customers can only benefit the Marlboro Man and his shareholders.
The government has also become increasingly dependent on tax revenue from Big Tobacco, which is why the FDA will have the authority to regulate tobacco products but not to ban them. Cigarette taxes were recently increased to finance Schip, the children’s health insurance program that was expanded in February, and another increase has been mooted to finance ObamaCare.
Congress was also careful to protect its trial bar financiers. “No provision of this chapter,” reads the bill, “shall be construed to modify or otherwise affect . . . the liability of any person under the product liability law of any state.” Which is to say that the legislation offers no protection from tort liability to tobacco companies that fully comply with the FDA content and labeling rules. Democrats can use the industry as a cash cow twice: for tax revenue, and then in campaign contributions passed through the tort bar.
In 2000, the Supreme Court said the FDA lacked authority to regulate tobacco under current law. The Bush Administration resisted efforts to give the agency such authority by arguing, among other things, that the FDA was barely competent to regulate the products already on its plate. The FDA’s role is to protect consumers from risks that they don’t want to assume. People who smoke know it’s dangerous and voluntarily assume the risks.
There’s also more than a little doubt that the bill’s advertising bans can survive a First Amendment challenge. In a 2001 ruling, Lorillard Tobacco Co. vs. Reilly, the Supreme Court struck down regulations that restricted the outdoor advertising of tobacco products in Massachusetts. “[S]o long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information,” wrote Justice Sandra Day O’Connor for the 5-4 majority. But had Congress dropped the ad bans, it might have lost Philip Morris’s support.
To sum up, this bill is largely an exercise in political and financial self-interest masquerading as public virtue. Another day at the Washington office.
- Tobacco cos: Menthol cigs don’t pose greater risk
- Tobacco Firms Argue Against Possible Menthol Cigarette Ban
- Why we need a ban on menthol cigarettes
- Altria plans expansion of Marlboro snus
- Deep Look: Author’s book delves into ‘unholy alliance’ between Philip Morris, FDA