Blowing smoke with legislation

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Michael Siegel is a professor in the social and behavioral sciences department at Boston University School of Public Health, where he specializes in tobacco policy analysis.

This week, the U.S. Senate is considering legislation that would, for the first time, give the Food and Drug Administration regulatory authority over tobacco products. Numerous anti-smoking and health groups support the legislation. So does this mean Congress is finally on the verge of stepping up to take on Big Tobacco?

Hardly. The bill in question was crafted, in part, by the nation’s leading cigarette company, Philip Morris, as part of a deal worked out between the tobacco giant and an anti-smoking group -- the Campaign for Tobacco-Free Kids. The health groups supporting the legislation have been seduced by the few concessions that Philip Morris dangled before them and have lost sight of the long-term damage that this bill will do to the public’s health.

The legislation would do a few good things, including requiring stronger warning labels on cigarette packages and limiting cigarette advertising directed at youths. But the bill’s fine print contains numerous loopholes inserted to appease Philip Morris. In the end, it ensures that federal regulation of tobacco products will remain more about politics than about science.


Take the bill’s handling of nicotine. The FDA would be allowed to mandate lower nicotine levels in cigarettes but not to mandate that nicotine be eliminated from cigarettes. This political compromise accomplishes little. It has been well documented that when nicotine levels in cigarettes are reduced, smokers inhale more deeply and smoke more cigarettes in order to maintain their daily nicotine dosage. This is a phenomenon known as compensation. The catch is that because of compensation, low-nicotine cigarettes end up delivering a greater dose of tar. This leads to an increase, not a decrease, in the risk of cancer and lung disease.

In fact, the bill’s entire approach to tobacco products flies in the face of what we currently know about the dangers of smoking. The FDA will be charged with regulating the safety of tobacco products, but it will only be allowed to require the reduction or elimination of some of the more than 4,000 toxins and 60 carcinogens in tobacco smoke. There is no evidence that reducing or eliminating certain constituents in tobacco smoke will reduce the health risks of smoking. In fact, several studies have shown that when you remove one harmful component, the levels of others may increase. Attempting to regulate the levels of certain constituents of tobacco smoke is an absurd approach to the tobacco problem.

Even worse, by giving a federal agency the appearance of regulatory authority over cigarettes without the real ability to regulate, the legislation would seemingly create an FDA seal of approval for cigarettes, giving the public a false sense of security about the increased safety of the product.

In fact, the bill’s crafters are apparently so worried about the harmful effects of such a public perception that they have written a clause into the bill that prohibits the cigarette companies from even informing the public that cigarettes are regulated by the FDA or that the companies are in compliance with FDA regulations. This is clearly an unconstitutional provision, as it violates the free speech rights of the tobacco companies; nevertheless, it suggests that even the supporters of the legislation are aware that the bill creates a false perception of the increased safety of cigarette smoking.

The bill’s basic problem is that it creates the appearance of regulation without allowing actual regulation. Take the issue of cigarette flavorings. Under the bill, most flavorings -- including chocolate, cherry, strawberry, banana and pineapple -- would be banned. But not menthol. Yet of all the cigarette flavorings, only menthol is actually being used by cigarette companies, and evidence suggests that it helps entice and addict young people, especially African Americans.

Perhaps most absurd is the bill’s treatment of new and potentially safer products, such as electronic cigarettes. The evidence is still out on whether electronic cigarettes, which deliver nicotine with water vapor rather than smoke, would actually help wean people from tobacco cigarettes. But why would Congress want to ban potentially safer products and continue to allow the deadliest nicotine product (conventional cigarettes) to remain on the market?


During the previous administration, the FDA was accused of making decisions based on politics, not health. If the Senate passes the FDA tobacco legislation, it will be institutionalizing, rather than ending, the triumph of politics over science in federal policymaking. This is not the way to restore science to its rightful place.