Last week, I had the pleasure to debate Bill Godshall of Smokefree Pennsylvania on the merits of the new Family Smoking Prevention and Tobacco Control Act, or HR 1256, which has recently reorganized the way tobacco is manufactured and sold in America. The debate was hosted by publicsquare.net, a political blog focusing on “uncommon debate”. Indeed, it is uncommon that I, a libertarian at heart, would disagree with Rep. Ron Paul and argue in support of a regulatory bill, while Mr. Godshall, a staunch anti-smoking advocate, argues for the opposition. Thanks to Norah Shipman, an editor at Public Square, for putting the whole thing together. Below, you will find the complete transcription of that debate. I encourage you all to comment on it as you see fit. Enjoy!

—Alex Giannattasio

Introduction to the Debate

President Obama signed into legislation the Family Smoking Prevention and Tobacco Control Act on June 22^nd. This new law, which aims to keep children from starting to smoke, gives control of tobacco to the FDA and allows it to regulate the content, marketing, and sale of cigarettes and other tobacco products. The law also forbids advertising toward children, lowers the amount of nicotine in tobacco products, bans sweetened cigarettes, and prohibits labels such as “light” and “low tar,” according to The New York Times.

The new legislation brings up many questions, such as:
Is it a good idea to give the FDA so much control?
Should the sale and marketing of tobacco be so heavily regulated in the first place?
Will the legislation help keep children from smoking?
Is the law too easy on the tobacco companies?
What else can be done to keep youth from smoking?

Guest bloggers Bill Godshall of Smokefree Pennsylvania and Alex Giannattasio of The Johnsonville Press will address some of these questions as they debate the effectiveness of the new tobacco legislation and whether or not they support it this week on Bloggerheads. Bill Godshall will take the side of not supporting the legislation, and Alex Giannattasio will argue why he does support it. Check back late today to see the opening arguments for each side.

Norah Shipman
Editorial Assistant

In Favor of HR 1256

The American legislative process, I believe, can be better understood as a positive force than a negative one. By that I mean, when we judge a piece of legislation as citizens, we should be as or more concerned with what that bill actually does to change our society than with what it fails to do. With this in mind, I propose to focus on the positive (productive) changes established by HR 1256, or the Family Smoking Prevention and Tobacco Control Act, of which there are several.

To begin, the Act deals explicitly with the rights of manufacturers of tobacco products, as opposed to tobacco producers, or farmers, thereby bringing all major cigarette corporations in America under the federal regulation of the FDA. It is important that the regulations only apply to manufacturers; revocation of the freedom to farm a crop, particularly one which has so drastically contributed to the growth of this country, would be an appalling abuse of power by the federal government, thoroughly un-American, and a slap in the face to the 45 million Americans who freely choose to smoke. Prohibition, as we should all know by now, is not the answer—and luckily, this Act does not seek to prohibit tobacco.

The Act’s main goal is to dramatically limit the ability of such manufacturers to add harmful foreign substances to their tobacco products—substances other than tobacco, nicotine and tar, all of which will be found in an organic tobacco product. According to this BBC article, any of at least 600 foreign substances and chemicals may be present in various commercial cigarette brands. The offshoot is that by regulating and prohibiting non-additive-free tobacco products, many of the negative health effects associated with smoking can be avoided altogether. In fact, I would wager, without having any supporting evidence on hand, that the majority of tobacco-related ailments in the non-senior population are caused by foreign additives in manufactured tobacco products. Smoking tobacco has been around for centuries and I guarantee that it provides no real threat to the fabric of society. But the nefarious practice of adding foreign chemicals to tobacco, without so much as labeling the product, is less than a century old. THIS practice does pose a serious threat to society’s health, as the health repercussions of such chemically treated smoking sticks are far worse, far more serious. The chemical additives present in cigarettes are to my mind the main culprit.

As an added bonus, the legislation actively denies tobacco companies old and new the use of misleading marketing tactics directly aimed at the recruitment of young (adolescent) smokers. If used to its maximum potential, HR 1256 will dramatically improve the health of stubborn cigarette smokers, saving billions in healthcare costs in the process, simply by substantially limiting the tobacco industry’s right to lie. That the bill fails to out-rightly prohibit tobacco production, manufacture and use is no failing point; rather, it is a victory for both American freedom and bipartisan compromise. As you can see, I generally support the measures taken in HR 1256…

Opposed to HR 1256

Ever since the “Family Smoking Prevention and Tobacco Control Act” was negotiated and agreed to by Altria and the Campaign for Tobacco Free Kids, and introduced by Senator Kennedy and Representative Waxman in 2004, Smokefree Pennsylvania has opposed the legislation (and has advocated amendments to improve public health), because it:

- does very little to reduce adult smoking, while duping the public to believe otherwise,
- does very little to prevent youth smoking, while duping the public to believe otherwise,
- prohibits the FDA from issuing truly effective tobacco regulations to reduce smoking,
- protects cigarettes from market competition by less harmful smokefree tobacco products,
- perpetuates the widely believed myth/fraud that smokefree tobacco products are as hazardous as cigarettes,
- perpetuates the widely believed myth/fraud that some cigarettes are less harmful than others,
- includes provisions (perhaps many) that violate the 1st Amendment, which almost certainly will be struck down by the courts, and
- reduces cigarette manufacturer risks in ongoing and future litigation.

New law does very little to reduce smoking

While supporters of new FDA tobacco law have claimed the new law will significantly reduce smoking and save millions of lives, the Congressional Budget Office has estimated that the new law will reduce youth smoking by only 11% during the next decade, and by just 2% among adults.   In comparison, youth smoking declined by 50% to 70% (depending upon age group) during the past decade, while per capita adult cigarette consumption decline by 30%.

Most reductions in youth and adult smoking during the past decade were due to state/local smokefree workplace laws, state/local cigarette tax increases, the 1998 Master Settlement Agreement between States and tobacco companies, and state/local tobacco marketing restrictions to protect youth.  There is no evidence that any of the provisions in the newly enacted FDA tobacco law (except for Senator Mike Enzi’s amendment to require color graphic picture warnings on 50% of cigarette packages, which was advocated by me and was opposed by supporters of the new law) will reduce smoking.

The recently enacted SCHIP legislation (that increased the federal cigarette tax $1/pack will do far more to reduce smoking among adults and youth than the new tobacco law.

Smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes

Fair and effective regulations adequately inform consumers of relative and comparable product risks, encourage the development of and transition to lower risk products, and gradually phase out the most hazardous products.  In sharp contrast, the new FDA tobacco law protects the most hazardous tobacco product (cigarettes), the largest cigarette company (Philip Morris) and the largest cigarette brand (Marlboro) from market competition from far less hazardous smokefree tobacco products by misleading consumers to incorrectly believe that smokeless tobacco products are just as hazardous as cigarettes, and by prohibiting smokefree tobacco product manufacturers from truthfully informing cigarette smokers that smokefree products are far less hazardous alternatives to cigarettes.

Cigarettes kill 50 percent of addicted smokers (about 400,000 Americans annually), and up to 63,000 nonsmokers from secondhand smoke.  In contrast, smokefree tobacco products are attributable for no more than several hundred oral cancer deaths each year, and pose no harm to nonusers.  The tobacco smoke (or more accurately, the repeated inhalation of tobacco smoke), not the nicotine or tobacco, is the leading cause of disease, disability and death in America.

Smokefree tobacco products also pose significantly fewer risks for oral cancer than cigarettes.  Although cigarettes and smokefree tobacco products are similarly addictive, cigarettes are 100 times deadlier than smokefree tobacco products.  Swedish smokefree tobacco products (snus) and other new low nitrosamine smokefree tobacco products pose even fewer health risks, as do electronic cigarettes and nicotine gums, lozenges and skin patches.

Smokers who switch to smokefree tobacco/nicotine products reduce their disease, disability and death risks nearly as much as occurs by quitting all tobacco/nicotine use.  Millions of smokers in American and Sweden have already switched to smokefree tobacco/nicotine products, and the percentage of nicotine obtained from smokefree tobacco/nicotine products in the US has increased from 10% to 20% in the past decade, with smokeless tobacco products accounting for the vast majority of this change.  Unfortunately, 85% of smokers inaccurately believe that smokefree tobacco products are just as hazardous as cigarettes.  I coauthored a report delineating these issues “Tobacco harm reduction: an alternative cessation strategy for inveterate smokers” at http://www.harmreductionjournal.com/content/3/1/37

But the new FDA tobacco law protects cigarettes at the expense of public health and far less hazardous smokefree tobacco products by requiring even larger misleading warning labels on smokefree tobacco products that state “This product is not a safe alternative to cigarettes,” and “This product may cause mouth cancer.”  The new law also fails to inform smokers that smokefree tobacco products are less hazardous alternatives to cigarettes, and specifically prohibits any tobacco company from truthfully informing smokers that smokefree tobacco products are less hazardous alternatives.
Although Section 911 of the new tobacco law includes provisions for FDA to approve the marketing claims for “modified risk tobacco products”, it is highly unlikely that any application (under this provision) would be approved by the FDA (even for far less hazardous smokefree tobacco products) because the manufacturer also would need to demonstrate that the product wouldn’t discourage smokers from quitting tobacco use and wouldn’t result in use by non tobacco users.

New law perpetuates the safer cigarette myth/fraud

Section 911 of the new FDA tobacco law also requires the FDA to promulgate regulations for tobacco companies to apply for making “reduced exposure” claims for cigarettes, which would perpetuate (under FDA oversight) the 60 year old myth/fraud that reducing exposure to a some of the many thousand constituents in tobacco smoke (including more than 40 carcinogens) can make cigarettes less hazardous.  During the 1950’s and 60’s filters were added to cigarettes to make smokers believe that they were less hazardous, and since the 1970’s cigarette companies have similarly marketed low-tar, light and ultralight cigarettes.  Surveys consistently find that about 85% of smokers inaccurately believe that light and ultra light cigarettes are less hazardous than other cigarettes, which explains why light and ultralight cigarette brands account for most of the US cigarette market share.

The new FDA tobacco law also authorizes and encourages the FDA to establish cigarette emission standards for various smoke constituents, which are based upon similarly inaccurate and unreliable smoking machine tests that were relied upon to fool the public into believing that low-tar, light and ultralight cigarette brands were less hazardous than other cigarettes.

While the new FDA law wisely bans the use of low-tar, light, ultralight and mild cigarette brand descriptors, the new law fails to inform smokers or the public that these brands (which will remain on the market) are just as hazardous as other cigarettes, and requires the FDA to perpetuate the myth/fraud that less hazardous cigarettes can and will be made under FDA regulatory oversight.
The new law also authorizes the FDA to reduce nicotine levels in cigarettes (and other tobacco products), and proponents of the new law have touted this as an effective way to reduce the addictiveness of cigarettes.  Yet, there is broad scientific consensus that smokers of cigarettes with lower nicotine yields puff more intensely, take more puffs and/or smoke more cigarettes in order to obtain a similar level of nicotine that they are accustomed to receiving, which is known as “nicotine compensation”.  As such, any FDA regulation to reduce nicotine amounts in cigarettes almost certainly will make cigarette more hazardous, not less.

New law contains unconstitutional provisions

Another problem with the new FDA tobacco law is that some (and perhaps many) of its advertising/marketing restrictions are virtually certain to be struck down by the Supreme Court for violating a manufacturer’s First Amendment right to communicate with its adult customers.  In 2001 the Supreme Court (in Lorillard Tobacco Co. v. Reilly) struck down a Massachusetts regulation because it prohibited outdoor tobacco advertisements within 1,000 feet of a school or playground.  And yet, that same 1,000 feet outdoor advertising restriction is contained in the new FDA tobacco law.

The new FDA tobacco law also bans other forms of tobacco advertising (e.g. large outdoor tobacco billboards, sports events, magazines with few youth readers) that could similarly be struck down by the Supreme Court for violating the 1st Amendment.  While the 1998 Master Settlement Agreement, agreed to by 46 State Attorneys General and the large tobacco companies, prohibits these types of tobacco advertisements, a Supreme Court ruling striking down these provisions as unconstitutional could even result in some (or all) tobacco companies withdrawing from that settlement (in order to resume those types of advertisements that are seen by many youth, and in order to avoid annual payments to states that totally about $8 billion).

Other provisions in the new FDA tobacco law that could be ruled in violation of the 1st amendment of tobacco companies include prohibiting them from truthfully claiming that their products are regulated by the FDA, and from truthfully claiming that smokefree tobacco products are less hazardous than cigarettes.

Since 2004, Altria (the world’s largest cigarette company, which spent many millions of dollars lobbying to enact the FDA law) has claimed that it too believes the court will strike down some provisions of the law for violating the 1st Amendment.

New law denies FDA authority to effectively regulate tobacco products

Effective product regulations also allow regulatory agencies unfettered authority to issue regulations that reduce use of and access to the most hazardous products.  But the new tobacco law explicitly prohibits the FDA from issuing many of the most effective regulations to prevent and reduce cigarette smoking, including:
- eliminating cigarette sales in retail stores frequented by youth,
- increasing the minimum age for cigarette sales above 18 years,
- requiring prescriptions to buy cigarettes (as FDA requires for other harmful drugs), and
- eventually removing cigarettes from the market.

Although supporters of the new FDA tobacco law claim that it protects youth from tobacco and from marketing by tobacco companies, the law prohibits the FDA from banning the sale of cigarettes (and thus, their advertising as well) in hundreds of thousands of retail stores that are frequented by youth because it specifically prohibits the FDA from banning tobacco sales in any of the many different categories of retail outlets.  While cigarette consumption has declined by 50% since 1982 in the US (from 32 billion packs to 16 billion packs), the number of cigarette retailers has remained about the same.  The new law ensures that virtually all youths will continue to be exposed to tobacco advertising and marketing.

By prohibiting the FDA from increasing the minimum age of tobacco sales above 18 years, the new law allows tobacco companies to legally market their products to virtually all 12th grade high school students, which ensures easy access to tobacco products by most other high school students.  Just as raising the legal minimum age for alcohol sales to 21 years significantly reduced youth drinking and automobile injuries, increasing the minimum age for cigarette sales to 19, 20, or 21 could significantly reduce youth consumption.  Can anyone imaging Congress passing a law purported to protect youth from alcohol that allows alcohol to be sold to 12th grade high school students?
More manageable liability risks for cigarette companies

While the new FDA tobacco law doesn’t give tobacco companies any specific protections from lawsuits, the impact of the new law is likely to indirectly do so by reducing the likelihood that judges and juries will impose punitive damages on losing cigarette company defendants (as punitive damage awards are intended to punish losing defendants for their egregious behavior), or require any product changes (e.g. the verdict in the DOJ case against cigarette companies banned light, ultralight and mild cigarette claims).  The new law is also likely to result in fewer lawyers and lawfirms being willing to file expensive and risky lawsuits against cigarette companies in the future.

Summary

Although the new FDA tobacco law contains several sound public health policy provisions (e.g. requiring color graphic warnings covering 50% of cigarette packs, and banning of light, ultralight cigarette descriptors), there are many other provisions in the new law that protect cigarette markets at the expense of public health and less hazardous smokefree tobacco/nicotine products.

But perhaps the biggest problem with the new law is that Congress and the public have been duped into believing that the new law has resolved and will sharply reduce the nation’s leading cause of disease, disability and death.   This will make it far more difficult during the next several decades to successfully advocate public policies that truly reduce smoking, which is a big win for Altria and cigarettes.

Smokefree Pennsylvania is a nonprofit organization founded in 1990 which has worked to protect people from the involuntary exposure to tobacco smoke pollution, reduce tobacco marketing to youth, increase cigarette prices, preserve civil justice remedies for injured tobacco victims, increase tobacco prevention and cessation services, and inform smokers that smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes.

Bill Godshall

Executive Director, Smokefree Pennsylvania

First Response to Mr. Godshall

I want to thank my esteemed opponent for his comprehensive analysis of the Family Smoking Prevention and Tobacco Control Act. As I sat reading his opening remarks (coincidentally, as I enjoyed an additive-free cigarette) I found myself perhaps surprisingly in agreement with many of the claims Mr. Godshall promotes. Broadly speaking, cigarette smoking is the leading cause of disability and death in America; children should be protected from the coercive sales tactics of cigarette companies; and smokefree tobacco products seem to provide a healthier alternative for nicotine users than cigarettes and other smoke-producing tobacco products. Further, we can agree that cigarette smoke and advertising should be banned from indoor public places, especially in proximity to children; that over-taxation is the most effective means of reducing tobacco use; and that this legislation protects the industrial production of tobacco. However, I do not believe that any of these claims provide a basis for the rejection of the Family Smoking Prevention and Tobacco Control Act. On the contrary, the legislation, in conjunction with other measures both past and future, not only provides for the right balance of federal regulation and personal freedom–the very balance that has allowed our country to flourish in the past–but largely stands on constitutionally solid ground.

Tobacco use, as I have said, is an old practice. People have been using and enjoying tobacco for centuries; and why not? For those of us who choose to smoke, even in light of the associated health risks, smoking is a highly enjoyable practice, one for which we are willing to pay exorbitant prices to engage in. And provided we hurt no one else in the process, why should we be prevented from doing so?

Of course, it has been argued that secondhand smoke kills. I am willing to accept this claim, and the resultant conclusion: that our freedom to smoke should be curtailed when it begets harm to non-smokers, who have actively and freely chosen to avoid the practice, in other words, that smoking should be prohibited in indoor public areas, for the benefit and safety of non-smokers. However, smoking out of doors, which has a negligible if any effect on others, does not fall into the bounds of this claim. Even less does smoking in the privacy of one’s own home, where the individual, not the population, not society, is king.

It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume, as individuals. Such practices are paternalistic and reprehensible. However, the Family Smoking Prevention and Tobacco Control Act does not, as Mr. Godshall agrees, do this. Rather, it specifically gives the FDA authority to regulate additive products and chemicals used by tobacco companies to increase the addictive nature and aesthetic quality of their smokes. THESE additives, not the tobacco itself, are the most serious culprits of tobacco-related ailments, and further, they bring little to no benefit to the smoker. It is my feeling that, if asked whether they would object to the illegalization of, for instance, rat poison in cigarettes, few smokers would object. Additive-free tobacco will be exponentially healthier than current cigarettes, albeit still a generally unhealthy practice. To reiterate: SMOKING IN GENERAL IS UNHEALTHY. SMOKING ADDITIVE FREE TOBACCO IS HISTORICALLY MORE HEALTHY THAN SMOKING INDUSTRIAL CHEMICALS. As a smoker, I commit my personal experience to this fact.

I see no reason to believe that smokefree tobacco products would be as harmful as smoke producing products. In fact, it seems only common sense to assume that they would be infinitely healthier. If 85% of the population, as Mr. Godshall claims, are under the mistaken impression that smokefree products are as unhealthy as cigarettes, I would be tempted to point the finger of blame at overly-zealous antismoking advocates, who prefer sweeping statements of condemnation for all smoking (and smokers) to reasonable scientific analysis. Let me add that I do not place Mr. Godshall as among these. But in fact, I do doubt very much that Mr. Godshall is correct in this statistic, and would like to see his source.

Further, Mr. Godshall claims that the FSPTCA commits the sin of condemning smokefree tobacco while protecting cigarettes. We can, I believe, agree that the slogan “This product is not a safe alternative to cigarettes” is mistaken when applied to smokefree cigarettes. But I can think of some very good reason why such new products need to be thoroughly regulated by the FDA. For one, they provide an extremely efficient drug delivery system to the public, prescription free.  In the foreseeable future, such devises could be modified to include other chemical elements beyond nicotine. If this was done, the chemical regulation problem addressed by the FSPTCA could potentially be circumnavigated by manufacturers. As I have stated, it is my belief that it is the additive chemical constituents in cigarettes that serves to make them so lethal, and if steps are not taken to avert the open consumption of poisonous, toxic chemicals (of which organically produced and manufactured tobacco is not one) health in America will potentially be dramatically damaged, as it has been in the past 70 or so years by inorganically manufactured tobacco.

Further, I will add that I do not see in smokefree tobacco products the end-all solution to the “smoking epidemic” that Mr. Godshall sees. In fact, as a smoker, as a consumer, I can say that such products are widely inferior to the actual experience of smoking. In all likelihood, many Americans will inevitably prefer to consumer a tobacco cigarette than a vaporized hit of nicotine. I would also suggest that it is the smoke itself, and the act of smoking, which is more the source of addiction than nicotine itself, which has been compared to caffeine. As such, consumers are unlikely to make a sweeping switch to smokeless tobacco. In addition, smokefree tobacco products, being less pleasurable for consumption, will more likely act as a gateway into cigarette smoking than an exit from it. If the act of smoking itself is as addictive as the chemicals, then getting an individual used to the process of smoking is likely to open the door to other tobacco products. I feel only a non-smoker could see salvation from cigarettes in these nicotine inhalers. Personally, I find the mechanism too effeminate for my tastes. But that’s just me…

Another mistake Mr. Godshall makes is his comment on the age limit applied to smoking. He seems to believe that cigarettes, like alcohol, should not be sold to 18 year olds, but only to 19, 20 or 21 year olds. The reason he sites is the availability of cigarettes provided to high schoolers of all ages through the senior connection. This claim is completely unsound. To begin with a common and well known argument, American citizens old enough to fight and die in war should be allowed the right of control over their own personal consumption–in this country, what is control over their own lives.Further, alcohol and cigarettes are incomparable substances; how many car accidents are caused by smoking and driving? Drunk driving deaths are the legitimate reason for the alcohol age increase, but the same can not be said of cigarettes, which are far less damaging in the short run. But even further, the policies Mr. Godshall seeks to impose are exceedingly paternalistic. Perhaps it’s the fact that I am closer to that age group (I’m 21) than Mr. Godshall, but I can say definitively that regarding younger people, prohibition only serves to tantalize. The best proven way to avoid teen smoking is not through the legislative process, but rather by truthful, honest education. Adolescents need less protection than we tend to give them credit for; all they really need are the tools to make the right decisions, and often they will. In this case, the tool is truthful information. Legislation above and beyond what is now in place will not serve to prevent teen smoking. However, the FSPCTA does address serious concerns about big tobacco’s ability to advertise to our youth, which is akin to undermining honest educational programs, and appeal to children with candy flavored smokes, which is a reprehensible practice.

Mr. Godshall appears to promote these forms of regulation, which I quote from his article:

- eliminating cigarette sales in retail stores frequented by youth,
- increasing the minimum age for cigarette sales above 18 years,
- requiring prescriptions to buy cigarettes (as FDA requires for other harmful drugs), and
- eventually removing cigarettes from the market.

Such regulations are completely contrary to the American way of government. Tobacco is a recreational and relatively benign drug, in that it takes scores of years to produce serious health impacts on most users. Further, tobacco provides few medical benefits to users, and so prescriptions are simply a ridiculous concept for cigarettes. Further, the removal of cigarettes from shelves in certain stores is discriminatory, and restricts freedom in unacceptable ways. Further, removing cigarettes from the shelves is extremely illegal and unconstitutional, in that it restricts our freedom to grow and consume a naturally occurring plant, as is currently the case with marijuana. These unfortunate, fear mongering prohibitions serve to undermine the American spirit, and would be completely unacceptable to the approximately 50 million smokers in this country. I would remind Mr. Godshall that the purpose of American Democracy is to protect the rights of the minority, rather than to impose the will of the majority. For that reason, it is unacceptable for the federal government to impose paternalistic standards of lifestyle upon any members of its population, be it in the restriction of fatty foods, car use, or cigarettes, all of which, when used in moderation, can have negligible health effects. What we need is more communication, more discussion, more education, more freedom, less prohibition.

In contrast to the sort of sweeping federal regulations Mr. Godshall seems to support, I would suggest that the legislative process at the state, or even local levels, are the fairest places for the legislation of tobacco use. If a specific town or state finds it suitable to prohibit tobacco sale in their area, it is no skin off of my nose. Nearly all regulation should take place at the state and local levels, and I applaud lawmakers for enacting a law which does not overstep its constitutional bounds. In fact, it will be local governments, in tandem with local organizations, such as the one to which Mr. Godshall belongs, which are the most acceptable regulators and educators about tobacco use, not the broad and cold network that is the federal government. If Mr. Godshall’s policies were accepted, I, and many other smokers would take serious issue with our sudden inability to disagree with him.

In conclusion, I would remind Mr. Godshall that death is an inevitable part of life. We are all going to die some day. Some of us will die in car and plane crashes, some of us will die from diabetes. Some of us will die young, and some of us will die old. Some of us will die from smoking, and some of us won’t. But the choice of how we live should be our own. I had dinner with my grandfather the other day, a man of 83 years of age, and a smoker of 30. Clearly, the choices he has made in living have led him this far. What right do you have to say he made the wrong choices?

Alex Giannattasio

The Johnsonville Press

Reply to Alex Giannattasio

In this posting, I’ll address arguments presented in Alex Giannattasio’s posting and his rebuttal to my posting.

While the new FDA tobacco law’s greatest impact will be on manufacturers, it will also affect growers, leaf processors, wholesalers, distributors, retailers and advertisers.

The three largest cigarette manufacturers (Altria, Reynolds, Lorillard), which collectively have about 88% of the US market share, will be able to comply with the new FDA regulatory requirements at a cost of about $.02/pack. But compliance with the new law will costs hundreds of small tobacco manufacturers more than $.50/pack (with comparable compliance cost differences for small cigar, smokeless and smoking tobacco manufacturers), which almost certainly will result in most of the smaller manufacturers going out of business, with just several large manufacturers ones remaining.

As applied to cigarette manufacturers, the new FDA tobacco law would be more appropriately called the Altria Monopoly Act, as Altria’s 52% cigarette market share is likely to continue expanding at the expense of hundreds of small cigarette companies.

I strongly disagree with Mr. Giannattasio’s statement “The Act’s main goal is to dramatically limit the ability of such manufacturers to add harmful foreign substances to their tobacco products,” as there is no evidence that cigarettes made from organically grown tobacco pose fewer health risks than other cigarettes. But this myth has become increasingly popular among cigarette smokers who are vegetarians, eat organic foods and/or espouse “green” political views. The smoke emitted from the combustion of any tobacco product (or any other type of organic matter) is similarly harmful to health when inhaled.

Somewhat similar claims (made by proponents of the new FDA tobacco law) that cigarette companies put additives (especially candy flavored additives) in cigarettes to make them more addictive are also unsubstantiated by the evidence. And in fact, the additives banned by the new FDA tobacco law affects fewer than 1% of cigarettes in the US market share, with clove cigarettes from Indonesia most affected. In sharp contrast, menthol, which was exempted from the FDA laws’ cigarette additive ban, accounts for 28% of the US market share. The claim that the new FDA tobacco law would eliminate cigarette additives was yet another gross misrepresentation of fact made by proponents of the legislation to demonize cigarette manufacturers in order to gain votes of naïve members of Congress.

I also take issue with Mr. Giannattasio’s statement “It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume,” as that is the primary role of the FDA in regulating food, drugs and other products, and that is what Congress has just authorized the FDA to do with tobacco products. While the new law doesn’t allow the FDA to ban cigarettes, it authorizes the FDA to establish standards for specific constituents of cigarettes and cigarette smoke emissions (the latter of which would be based on inaccurate and unreliable machine tests), despite the fact that there is no evidence that increasing, decreasing or eliminating various constituents in cigarettes or cigarette smoke can make cigarettes less hazardous to health.

I partly agree with Mr. Giannattasio’s statement “If 85% of the population, as Mr. Godshall claims, are under the mistaken impression that smokefree products are as unhealthy as cigarettes, I would be tempted to point the finger of blame at overly-zealous antismoking advocates.” But “anti-tobacco”, “anti-nicotine” and “abstinence-only” are far more accurate terms than “antismoking” to describe the extremists (including the Campaign for Tobacco Free Kids, American Cancer Society, American Heart Association, American Lung Association, American Dental Association) that have demonized and grossly exaggerated the health risks of smokefree tobacco products.

These organizations adamantly oppose tobacco harm reduction (i.e. cigarette smokers switching to far less hazardous smokefree tobacco/nicotine alternatives), and instead prefer smokers to either quit all tobacco/nicotine use or continue smoking and die. The old anti-smoking movement of the past four decades has split into two distinct factions: pragmatic public health advocates whose goal is to reduce cigarette smoking, and abstinence-only anti-tobacco/nicotine extremists whose ideological goal is to eliminate all tobacco/nicotine use.

This latter group of extremists also are opportunistic prohibitionists, as CTFK, ACS, AHA, ALA joined forces with GlaxoSmithKline in 2002 to unsuccessfully petition the FDA to ban Star’s Ariva and Stonewall low nitrosamine smokeless tobacco lozenges

(that are nearly identical to GSK’s Commit nicotine lozenge, that is marketed as a smoking cessation aid). Several months ago, CTFK, ACS, AHA, ALA urged the FDA to ban recently introduced smokefree nicotine inhalers called “electronic cigarettes”, claiming that these products have not been proven to be safe or effective (as smoking cessation aids). And yet, e-cigarettes don’t emit any smoke, and are at least 99.9% less hazardous than cigarettes. Similarly, CTFK, ACS, AHA, ALA insisted that the new FDA tobacco law ban all new smokefree tobacco products (while leaving cigarettes on the market) until/unless the FDA approves the new product (which those groups almost certainly will oppose).

Mr. Giannattasio’s support for strict regulation of smokefree tobacco products (while simultaneously espousing the pleasures of cigarette smoking) indicate a selfish bias (for his tobacco product of choice) instead of product regulations based upon scientific evidence or concern for public health.

Sweden now has the lowest cigarette smoking rate (and correspondingly lowest lung cancer, COPD and heart disease death rate) in the developed world. The primary reason for Sweden’s dramatic decline in smoking (and smoking morbidity/mortality) is that a huge majority of cigarette smokers (especially males) switched to a smokefree tobacco product called snus during the past several decades. Snus now comprises 50% of all nicotine consumed in Sweden (with cigarettes now accounting for just 50%).

As I pointed out in my previous posting, smokefree tobacco/nicotine products now account for 20% of nicotine consumed in the US, up from 10% a decade ago (with cigarettes declining from 90% to 80%). A critically important public health goal (and one advocated by Smokefree Pennsylvania) should be to increase that percentage to 50% (as is the case in Sweden) in the next five or ten years, as achieving that goal also would sharply reduce cigarette consumption, diseases and deaths in the US.

Unfortunately for public health, a stated goal of CTFK, ACS, AHA, ALA, as well as the Centers for Disease Control, is to reduce the use of smokefree tobacco products, which would ensure that the overwhelming majority of nicotine consumed in the US would continue being obtained from cigarettes, and that cigarettes would remain the leading cause of disease, disability and death in the US.

Smokers have a human right to be truthfully informed that smokefree tobacco products are far less hazardous alternatives to cigarettes, and smokers have a right to legally access less hazardous alternatives to cigarettes. Unfortunately, the new FDA tobacco law tramples on those rights.

While tobacco harm reduction has the potential of sharply reducing cigarette consumption in the future, other policy changes also can/will further reduce smoking (especially cigarette tax increases and further restrictions on indoor smoking).

The examples I cited (on my previous post) of regulations that the FDA is prohibited from promulgating don’t necessarily indicate my support for those regulations (although I’ve long advocated raising the minimum age for cigarette sales above 18 years to prevent youth addiction), but rather exposed additional inaccurate and hypocritical claims made about the new law by its proponents.

In sum, the greatest potential for additional declines in cigarette consumption during the next decade won’t come from the new FDA tobacco law, but rather from other policy changes (that the new FDA tobacco law will make more difficult to achieve).

Bill Godshall

Smokefree Pennsylvania

Second Response to Mr. Godshall

This constitutes my second response to Mr. Godshall.

I. Consequences of the FSPTCA for Small Businesses

In his last statement, Mr. Godshall purported that the Family Smoking Prevention and Tobacco Control Act would, “almost certainly will result in most of the smaller manufacturers going out of business, with just several large ones remaining”. This, he supposes, would result from the relatively high cost-per-pack to small tobacco manufacturers for abiding by new FDA regulations. He claims the cost to small manufacturers would run about .50 a pack, as opposed to .02 per pack for the big three (Altria, Reynolds, Lorillard).

I take issue with this claim for three reasons:

1. First, Mr. Godshall should provide citations alongside such strong statistics as these if we are to believe them. Would it really cost small companies 2500% more than large ones? Considering that the primary actions of the Act are the regulation of additive materials to manufactured cigarettes, and the addition of more warning signs to some of the packaging, this seems a suspiciously high cost estimate.

2. But even accepting these widely disparate costs, I see no reason to assume that they would result in “most smaller manufacturers going out of business”. If anything, wildly increasing taxation has jeopardized such companies to an exponentially greater degree (cigarettes in New Jersey now cost upwards of $8.00 a pack). What is more, considering that consumers are still willing to purchase cigarettes from such small manufacturers after nearly two decades of steadily increasing taxations, I wonder at Mr. Godshall’s confidence that a mere .50 cost increase would spell their doom.

3. Further, the bill has made provisions to deal with such a possibility:

The Act “requires the Secretary to: (1) provide a reasonable period for manufacturers to conform to good manufacturing practices; and (2) not require any small tobacco product manufacturer to comply with such regulations for at least four years. Allows the Secretary to grant exemptions and variances from such regulations under certain circumstances.”

Small tobacco is defined by the bill as a manufacturer of 350 employees or less. I contest that the act provides fairly for these businesses by granting them the time they need to adjust to the new standards. In other words, I suspect that this bill will not be devastating to small tobacco companies, as Mr. Godshall contests.

Mr. Godshall also states that the Act will “will also affect growers, leaf processors, wholesalers, distributors, retailers and advertisers”. Surely it will, as markets will have to adjust to new standards. But in all likelihood, that effect will be negligible, compared to the effects of steadily declining sales—the result of twenty years of moral war waged against tobacco companies. If this bill affects the aforementioned industries, it will only be as a result of even fewer sales (to children) which this bill will hopefully produce. We can at least rest assured that the United States government is not moving to take action against the freedom of these business to operate as they do today, as in the case of growers here:

Sec. 4 (b) Agricultural Activities- The provisions of this division (or an amendment made by this division) which authorize the Secretary to take certain actions with regard to tobacco and tobacco products shall not be construed to affect any authority of the Secretary of Agriculture under existing law regarding the growing, cultivation, or curing of raw tobacco.

And in the case of advertisers here:

Sec. 2 (32) The regulations described in paragraph (30) impose no more extensive restrictions on communication by tobacco manufacturers and sellers than are necessary to reduce the number of children and adolescents who use cigarettes and smokeless tobacco and to prevent the life-threatening health consequences associated with tobacco use. Such regulations are narrowly tailored to restrict those advertising and promotional practices which are most likely to be seen or heard by youth and most likely to entice them into tobacco use, while affording tobacco manufacturers and sellers ample opportunity to convey information about their products to adult consumers.

For these reasons, I believe Mr. Godshall’s claims are vastly overblown when he states that, “As applied to cigarette manufacturers, the new FDA tobacco law would be more appropriately called the Altria Monopoly Act, as Altria’s 52% cigarette market share is likely to continue expanding at the expense of hundreds of small cigarette companies.” The bill provides for small business adequately; and besides…what is it to Mr. Godshall which companies succeed, if some teens are prevented from smoking; what does Altria’s market share matter, if the overall market base is drastically reduced; most of all, what does this matter to an individual or organization that would prefer to see cigarettes banned? Perhaps my last question is overstated?

II. Additives and Regulation

Mr. Godshall goes on to decry my hypothesis that added chemicals to cigarette tobacco increase the incidence of disease in smokers, claiming there is no evidence to support the idea. I must admit, I have a hard time not believing it; not because I’m a smoker somehow deluding himself into thinking that additive free tobacco is going to allow me to bypass the health hazards of smoking, but because, as an experienced smoker, I can taste and feel the difference between chemically treated tobacco and additive free tobacco. I base my claims on pure experience of the physical and chemical effects of the two. But if further evidence need be provided, I have already cited this article, which granted is ten years old, but which I believe relates the common sense point that smoking chemicals is necessarily going to devastate the body to a greater degree than simple tobacco: http://news.bbc.co.uk/2/hi/health/background_briefings/smoking/281167.stm. I admit that the act of smoking itself is a health hazard and risky business; but I must say, and you should admit, that if one is to smoke, one should smoke additive free tobacco over chemically treated. I don’t believe I could be convinced otherwise…

Regarding my previous statement that “It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume,” I must hold to it. In fact, this is NOT the primary role of the FDA to regulate CONSUMPTION, but rather only the MANUFACTURE AND PRODUCTION of foods, drugs and cosmetics, which is not the same thing. An outright ban on the production or manufacture of cigarettes is unjustifiable, as this is tantamount to regulating what individuals may and may not consume. But regulation of manufactures means that corporations can’t lie about their products, or sell someone something they don’t know they’re buying, as was the case with cigarettes prior to this bill.

Regarding Mr. Godshall’s claim that:

“And in fact, the additives banned by the new FDA tobacco law affects fewer than 1% of cigarettes in the US market share, with clove cigarettes from Indonesia most affected. In sharp contrast, menthol, which was exempted from the FDA laws’ cigarette additive ban, accounts for 28% of the US market share. The claim that the new FDA tobacco law would eliminate cigarette additives was yet another gross misrepresentation of fact made by proponents of the legislation to demonize cigarette manufacturers in order to gain votes of naïve members of Congress.”

The Act grants the FDA the authority to regulate ANY AND ALL ADDITIVES, excepting tobacco itself, and menthol. This stipulation is broad enough, I believe, to empower the FDA to regulate any and all additive components as it decides to. As my cited article states, that list of potential legal additives might be 600 or more components long. Further, the Act requires the FDA to put out, on a yearly and bi-yearly basis, information outlining all additive components of cigarettes of each and every kind and brand; to conduct studies of its own concerning the negative or negligible effects of each ingredient; and to make all of this information available to the public. One might consider the Act a “Tobacco Manufacturer Transparency Act”. With regards to Menthol, I suppose simply too many people smoke it to ban out right. And there are explicit stipulations in the bill for the FDA to immediately begin studying the effects of menthol in cigarettes (even down to the effects it has on minorities and the underprivileged). It’s not such a bad compromise really. The cigarette companies are allowed to stay in business, on the condition that they not hide information from the public, and that they operate in complete transparency. Clearly, this speaks doom for tobacco use in this country, for all but the hard-core smokers, and additionally provides anti-smoking activists with honest information about smoking for the use of educating the public.

I also want to add that Mr. Godshall would do well to remember that the binding stipulations in this Act are aimed at producing a lasting long-term change. Over the course of the years, more and more will become known about tobacco, and more and more changes in the way it is consumed will be implemented. FDA regulation moves us a huge step along that path. And we should also keep in mind that this bill has been ten years in the works. All things considered, it comes as little surprise that it took so long to be passed through, but that is how the legislative process works (sometimes), and if that’s what it takes to implement the right changes and controls, so be it. Given time, this legislation will prove immensely effective. If it is slightly behind the cutting-edge of the anti-smoking movement, upon which Mr. Godshall sits, it is no less beneficial for that.

III. Mr. Godshall’s Alternative Plan

In truth, Mr. Godshall’s alternative to the Act, as advanced and advocated for by Smokefree Pennsylvania (cited below), is an admirable one: it seeks to make perfectly clear the true and widely accepted science behind tobacco use; we can at least agree that smokefree tobacco products are in fact less dangerous than cigarette smoke. Mr. Godshall advocates for a more pragmatic approach to legislation; tobacco products would be classified according to type, and then addressed individually on the basis of danger to human health. Some alternative nicotine or tobacco delivery methods which can be shown as an effective aid in quitting the most deadly habit of smoking cigarettes would be encouraged, so as to wean the American public onto a lesser of two evils. One can’t help but be reminded of methadone treatment for heroin addicts…though they say quitting cigarettes is harder than heroin.

Although Mr. Godshall’s plan does, I believe, come from a good, more compassionate and pragmatic place, I would suggest that there are two sides to the story. Many antismoking advocates purport a view which holds smoke-free tobacco to be a gateway to the further use of other tobacco products, including cigarettes. It’s a form of the “gateway” theory: much as marijuana is sometimes taken to provide a gateway to other, harder drugs, so smokeless tobacco could acclimate an individual, especially a young individual, to be comfortable with tobacco use, and addicted to nicotine. This behavior, quite obviously could lead to cigarette use. This is the position that the Act takes, and to which Mr. Godshall objects, when it states that smokeless tobacco is not a safer alternative to smoking cigarettes. The provision is NOT inserted as a compromise with Altria and Big Tobacco; rather, it’s a pragmatic attempt at avoiding further teen smoking. At the very least I should make clear that in my last response, while I did proclaim my “selfish bias (for [my] tobacco product of choice)”, my main point regarding smoke-free tobacco was that the issue is two sided, and if we are willing to accept that smoke-free products can and do lead to cigarette smoking or other, more harmful behavior, there is reason to accept strong regulation of it.

As I’ve said, I DO believe Mr. Godshall’s plan is a good one, aimed as it is at educating the public with truth and honest. But at the same time, I do not find the action taken in the Act to be unjust or nefarious. I would suggest that Mr. Godshall’s plan would complement the FSPTCA quite well, so long as he would not completely ban tobacco products outright, nor tax them to an unreasonable degree. But for the most part, it deals with a different realm of concern, one of public education, and so does necessarily overlap with this one, which is regulatory in content and spirit. In other words, there is no reason Mr. Godshall’s ideas about educating the public should interfere with the philosophy behind the smoke-free tobacco stipulations in the FSPTCA (perhaps better, more explicit and mutually acceptable phrases should be applied to such products).

In sum, I maintain that the Family Smoking Prevention and Tobacco Control Act, while not perfect, will produce far more beneficial consequences than negative ones; that it does seek to accomplish admirable goals; that in conjunction with other legislation and the work of nonprofit advocates like Mr. Godshall, it will accomplish these goals; that it is not an unholy, unjustifiable concession to cigarette companies, but a pragmatic and unabashedly forceful compromise. I do believe that Mr. Godshall’s “alternative” ideas are worth considering, but I do not think them a real alternative to this legislation, nor one in conflict with or contrast to it. Mr. Godshall’s solutions are perfect for short-term activity and results—we can agree that his view is superior to the extremist viewpoint he speaks of. But, mark my words, this Act will prove invaluable to organizations like Smokefree Pennsylvania 10 years down the road. I applaud his enthusiasm for the cause, and wish him all the luck in the world in the future. Just don’t take away my smokes!

[1] http://thomas.loc.gov/cgi-bin/bdquery/D?d111:1:./temp/~bdIhj2:@@@D&summ2=m&|/bss/111search.html|

[2] http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111YCYlXQ:e1365:

[3] Ibid