Last week the House Energy and Commerce Committee overwhelmingly approved legislation that would authorize the Food and Drug Administration (FDA) to regulate tobacco products. Since the FDA is usually portrayed as a benevolent (if occasionally sleepy) watchdog, you might assume the bill is all about consumer protection. But it’s actually aimed at consumer prevention, which is not quite the same thing.
A consumer protection bill that reduced competition, raised prices, restricted choice, blocked information and made products more hazardous could not really be counted as a success. Yet the Family Smoking Prevention and Tobacco Control Act, which has broad support in both houses of Congress, promises to do all these things in an effort to discourage consumption.
The act imposes new regulatory burdens and advertising restrictions that will help industry leader Philip Morris, which supports the bill, maintain its market-share advantage over smaller cigarette manufacturers, which oppose the bill. The compliance costs and reduced competition are likely to raise prices. This counts as an advantage if your goal is "smoking prevention" but a disadvantage if your goal is to buy a pack of cheap smokes.
Likewise, the bill restricts variety, which consumers like but public-health paternalists do not. Under the act, smokers will be allowed to choose any cigarette flavor they like, as long as it’s menthol (which happens to be the one flavor Philip Morris uses). Although people above the age of 18 have been known to enjoy the occasional clove cigarette, Camel Crema or Kool Caribbean Chill, these flavored varieties have been deemed too kid friendly and therefore inconsistent with the goal of smoking prevention.
While added flavors (except for menthol) are unambiguously evil, toxins and carcinogens may have a positive role to play if they discourage people from smoking by raising the specter of cancer, heart disease and emphysema. Hence the bill instructs the FDA to approve a "modified risk tobacco product" only if it would "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."
To make that judgment, the FDA is supposed to consider "the increased or decreased likelihood that persons who do not use tobacco products will start using the tobacco product that is the subject of the application" as well as "the increased or decreased likelihood that existing users of tobacco products who would otherwise stop using such products will switch to the tobacco product that is the subject of the application." In other words, the FDA could decide to keep a demonstrably safer cigarette off the market because it might attract new smokers or dissuade current smokers from quitting.
Worse, an existing product can be deemed a "modified risk tobacco product" subject to FDA approval if its manufacturer indicates on the package, in advertising, or in any other form that it’s less hazardous than cigarettes. If an executive at a smokeless tobacco company mentioned in a TV interview or an op-ed piece that his products were much safer than cigarettes, which is indisputably true, those products could suddenly be considered illegal.
Here the concern is not fraud but accurate information that consumers might "misuse" (by, for example, switching from cigarettes to oral snuff instead of giving up tobacco altogether). As far as this bill’s authors are concerned, you can’t handle the truth.
The bill not only authorizes the prohibition of safer tobacco products and the censorship of potentially lifesaving information about relative risks, it gives the FDA permission to make cigarettes more dangerous by ordering reductions in nicotine content. Such a mandate, aimed at making cigarettes less attractive to new smokers, would force current smokers to absorb higher levels of toxins and carcinogens to obtain their usual doses of nicotine.
According to its supporters, this bill, backed by the biggest tobacco company, will enable the FDA to protect smokers from Big Tobacco. Who will protect smokers from the FDA?