As Of Yet Untitled

On June 11, 2009, Congress passed HR 1256, or the Family Smoking Prevention and Tobacco Control Act. A milestone in the fight against tobacco-related health issues, this legislation brings manufactures of tobacco products under the broad regulatory supervision of the Food and Drug Administration. In a press release addressing the bill, the President had this to say: “My administration is committed to protecting our children and reforming our health care system – and moving forward with common-sense tobacco control measures is an integral part of that process.”[1]<!–[endif]–> The legislation’s full text can be found here, on the Library of Congress webpage.

Of recent legislation passed on Obama’s watch, this bill was by far one of the easiest to pass. Introduced in early March, the bill was passed a little over three months later, with 79 members of the Senate and 307 members of the House in its favor. The bill faced very little opposition, and enjoyed widespread bipartisan support—it seems that very few individuals would deny the negative characteristics associated with tobacco use.

I did, however, find one outspoken voice in opposition to the bill (one not employed by Big Tobacco, I mean). I’m speaking, of course, about my hero, Texas Congressman Ron Paul. The good doctor stubbornly bashed the bill, as objectionable, pervasive, and unconstitutional. In one of his weekly updates, Congressman Paul said: “Last week, another bill was passed and signed into law that takes more of our freedoms and violates the Constitution of the United States. It was, of course, done for the sake of the children, and in the name of the health of the citizenry. It’s always the case that when your liberty is seized, it is seized for your own good. Such is the condescension of Washington.”<!–[if !supportFootnotes]–>[2]<!–[endif]–> As a smoker—for better or worse—I decided that I should look into this matter myself, rather than take the word of a Congressman or the President. So let us consider some of the main points regarding this freshly printed legislation.

For one, the bill does not empower the FDA to regulate the production of tobacco, that is, the growing of tobacco. Rather, it specifically deals with the process of manufacturing the product for the purposes of commercial retail and consumption. Minimally, it stipulates limitations on the level of pesticides that can be present in or on a tobacco product if it is to be manufactured for retail purposes. But for the most part, FDA regulation of the product will take place at the level of the manufacturer, not the farmer.

This, for me, is an important point. There are two kinds of tobacco farmers in the United States: small plot farmers, who tend to relatively small tobacco farms, and corporate industrial farmers, who tend thousands of acres of generic tobacco plants for mass consumption. The former farmers do not generally manufacture their own tobacco products, but sell their produce in-the-raw at market. Any draconian attempt to regulate these farmers further than they already are would be insidious and outrageous; doing so would likely drive them out of business, violating their rights—and at no benefit to the American people at large. However, by regulating at the manufacturing level, corporate-industrial tobacco farms would be regulated, as these are owned and operated by tobacco manufacturers (Philip-Morris, R. J. Reynolds, etc.).

The primary purposes of the bill are two-fold: to reduce the health risks associated with smoking tobacco by assessing and regulating the legal content of all marketed tobacco products and to undermine Big Tobacco’s ability to sell their products to children. As such, the FDA is empowered in two major ways. First, they will regulate what tobacco manufacturers can and cannot add to tobacco products. Hopefully, this will translate into substantially lower foreign chemical content in cigarettes and other tobacco products. Many of these additive chemicals are used for asthetic or flavor characteristics, but significantly contribute to the cancerous and degenerative effects of smoking. Second, the ability of tobacco manufacturers to advertise will be significantly reduced, with the FDA advising how and when tobacco advertisements are appropriate.

These two broad goals result in some interesting consequences. For one, any flavor additive to a cigarette other than tobacco or menthol will soon be made illegal, including fruit-flavored and clove cigarettes. The writers of the legislation apparently consider these products a means of getting kids hooked early by appealing to their fruitier natures. I can’t say I disagree with them—such flavorings help to associate cigarettes with candy. Also interesting is a section of the legislation where the FDA is made to investigate further “the impact of the use of menthol in cigarettes on the public health, including such use among children, African Americans, Hispanics, and other racial and ethnic minorities”. Apparently, the writers are well aware that the majority of menthol smokers seem to be, for some reason, minorities. Why is that anyway? Well, maybe the FDA will figure it out…. Further, descriptors such as “light”, “mild” and “low-tar” are to be banned on cigarette packs, as false advertising. It will be interesting to see how manufacturers respond to this little piece of regulation.

Some restrictions upon these powers do apply. For instance, the FDA will not be allowed to stop the sale of tobacco all together. Nor will it be allowed to limit sale to certain kinds of retailers, making it OK for some stores to sell it, but not others. Nor will the FDA be allowed to reduce the legal nicotine content of a cigarette to zero (although reductions in nicotine content are stipulated). Finally, small cigarette manufacturers will not be required to conform to the requirements of the new legislation for the next four years, allowing for a gradual turnover that will minimize negative effects of the legislation upon small-timers.

Congressman Paul objects to the bill for several reasons. For one, he finds government regulation of anything to be nefarious, as an invasion of personal liberty and freedom. Specifically here, he considers tobacco use to be a bad habit and a health issue, one which should be treated with education and information. “Other than ensuring that tobacco companies do not engage in force or fraud to market their products, the federal government needs to stay out of the health habits of free people. Regulations for children should be at the state level. Unfortunately, government is using its already overly intrusive financial and regulatory roles in health care to establish a justifiable interest in intervening in your personal lifestyle choices as well. We all need to anticipate the level of health freedom that will remain once government manages all health care in this country”. Congressman Paul states further that “Now tobacco will have more layers of bureaucracy and interference piled on top of it. In this economy it is extremely upsetting to see this additional squeeze put on an entire industry. One has to wonder how many smaller farmers will be forced out of business because of this bill.” <!–[if !supportFootnotes]–>[3]<!–[endif]–>

Unfortunately, I cannot help but disagree with Congressman Paul on this issue. For one, I do not believe that this specific bill goes so far as to challenge the personal freedoms of the American people. Rather, it challenges the freedoms of large, sometimes multinational corporations, entities (or rather non-entities) which are not entitled to the American ideals of natural rights. In fact, I feel that every step should be taken to confront large corporations, as a means of putting the people on a level with and capable of opposing if necessary the consolidated power of a small group hiding behind a corporate self. Corporations like Philip Morris are not individuals, and do not have individual natural rights, and so should be treated accordingly.

Further, I do not object to what some might deem the paternalistic elements of this bill. First, the fact is that it does largely seek to avert the ability of cigarette companies to appeal to the legally immature minds of children; we need only check the bill’s content to see that. But also, cigarette companies have until now had the ability to put whatever they want in their cigarettes, without reporting to the consumers on what it was exactly that they were consuming. Under the new legislation, the FDA will be required to make public on an annual basis the specific contents of each brand and class of cigarettes sold in the US. Such progress, it seems to me, is clearly in the interest of the consumer.

Further, I see no reason to suspect that a black market in tobacco will follow from the contents of this bill; nor do I see it as harmful to small farmers—in fact, I suspect that the legislation, which primarily seeks to hinder Big Tobacco, will have a positive economic effect on small tobacco, by enabling fairer competition between the two.

If there is anything I do not appreciate in this legislation, it is the wrongful regulation of nicotine. Nicotine is a relatively benign chemical substance; it has been found to have a mild stimulant effect on the brain, sometimes compared to caffeine. However, most experts agree that while consumption of nicotine might not have many negative health effects in most individuals—mostly it’s the act of smoking which produces these—it does have an addicting effect. This, of course, is the standpoint of the writers of H.R. 1256. Because addiction can lead to abuse of the product, the legislation justifies regulating this specific chemical. Personally, I find the regulation of a chemical which has been found to produce no negative health effects unwarranted. Clearly, I do not consider addiction itself to be a negative health.

This, I believe, speaks to the broader issue with this legislation: that it gives full right to the FDA to regulate which chemicals we may or may not consume. I feel a more pragmatic, justifiable solution would be to only allow for the regulation of those substances which have been proven to produce negative health effects in humans—and further to provide against the full banning of these products, excepting extremely lethal substances. The guiding light of this legislation is consumer protection; let us hope that it does not cross the fine line of the revocation of freedom. But to avoid such circumstances, there is a solution: grow your own tobacco! If the government won’t let someone sell you a product, at least they can’t stop you from producing it for your own consumption. It’s not all that hard, and you can accomplish it in your own home or backyard, if it means enough to you. For more info on that topic, take a look at this nice new blog: http://www.growtobacco.net/.