It looks like the Trump administration has finally found a business it doesn’t like.
Amid a far-ranging push to deregulate American companies — from payday lenders to internet service providers — Trump has singled out Big Tobacco as the one industry he intends to crack down on.
Last week, the Food and Drug Administration announced it will push ahead with a plan to reduce nicotine in cigarettes. This week, the FDA said it also wants to take a closer look at menthol and other flavors that entice young people to try smoking.
The question is why.
Not why would a federal agency charged with keeping Americans safe go after cigarettes — under normal circumstances, the answer to that would be obvious.
Rather, why would this most regulation-hating of Republican administrations seek to impose new rules on an industry that is one of the Republican Party’s most generous donors?
According to the Center for Responsive Politics, Big Tobacco contributed more than $5 million to politicians during the 2016 election cycle. Of that total, 84% went to Republicans.
I spoke with a number of experts who track the doings of the tobacco industry, and they too are scratching their heads. But one theory making the rounds is that our businessman in chief may be pulling a fast one.
By that thinking, Trump is publicly signaling a willingness to go after tobacco companies.
But in private, his relationship with the industry is very much nudge-nudge, wink-wink, with an understanding that tobacco firms will enjoy a free hand on what matters most to them: developing a lucrative market for electronic cigarettes as consumption of traditional cigarettes declines.
“That's a very real scenario, but not the only scenario,” said Matt Myers, president of the Campaign for Tobacco-Free Kids and an influential figure in the cigarette arena since his days with the Federal Trade Commission in the early 1980s. “There is every reason to be skeptical, but there are also strong indications the FDA is sincere and serious.”
FDA Commissioner Scott Gottlieb last week unveiled an “advance notice of proposed rulemaking” that is the first of numerous steps in a regulatory process that could last years. The goal, he said, is to “explore a product standard to lower nicotine in cigarettes to minimally or non-addictive levels.”
This week he said that “we must give serious consideration to the ways in which we might further address flavors in combustible tobacco products like menthol in cigarettes and the fruit- and candy-flavored little cigars and cigarillos.”
Those are impressive objectives considering they’re direct assaults on the $130-billion U.S. tobacco industry, which, along with all that money showered on Republican lawmakers, donated $1.5 million to Trump’s inauguration festivities.
“The strong statements from Commissioner Gottlieb are a very encouraging sign, but such a strong regulatory move would go against the overall anti-regulatory tone of the Trump administration,” said Micah Berman, a professor of law and public health at Ohio State University.
“The FDA seems committed to this approach,” he told me, “but the tobacco industry will heavily lobby to shut it down.”
One hint as to how all this could play out might be gleaned from the order of the FDA’s announcements. First nicotine. Then flavorings, which in the eyes of the public now could be seen as an equally important health hazard.
They’re not. According to the Centers for Disease Control and Prevention, only about a quarter of cigarettes sold in this country are mentholated.
The FDA is right to target tobacco flavorings as a gateway for young people to take up the habit. But, pardon the expression, it may be just a smokescreen.
Nicotine is the whole ballgame. Tobacco companies have known since at least the 1960s that nicotine addiction is central to their business.
When former President Obama signed the Family Smoking Prevention and Tobacco Control Act into law in 2009 — empowering the FDA to regulate cigarettes — he noted that 1 in 5 teenagers leaves high school as a smoker.
“I know because I was one of those teenagers,” he said. “I know how hard it can be to break this habit when it has been with you for a long time.”
Ask agency officials why it took so long to get the rule-making process up and running, and they’ll tell you it’s taken years for the science to catch up with conventional wisdom. They’ll say sufficient data finally exist to proceed with potential limits on nicotine.
An FDA spokesman steered me to Gottlieb’s official statement, in which he noted that tobacco kills more than 480,000 Americans every year and costs nearly $300 billion annually in healthcare expenses and lost productivity.
“In fact,” he said, “cigarettes are the only legal consumer product that, when used as intended, will kill half of all long-term users.”
That’s not exactly a news flash. Nor will it surprise anyone that the tobacco industry, despite its legacy of death, has fought aggressively against regulation of its products.
Are things different now? I put that question to Altria Group, parent of Philip Morris USA.
Murray Garnick, the company’s executive vice president and general counsel, said in a statement that “any proposed nicotine standard would need to be part of a comprehensive package which also includes steps to encourage the innovation of less harmful products.”
James Figlar, executive vice president of research and development for R.J. Reynolds Tobacco, said the company looks forward to “establishing a regulatory framework that is based on tobacco harm reduction and recognizes the continuum of risk.”
Not one expert I spoke with said they think Big Tobacco will roll over and accept a reduction of nicotine in cigarettes by as much as 99%, which is the maximum allowed under the 2009 law.
“The tobacco industry is saying that they want to play along, but decades of past experience show that they say one thing and act in a completely different way,” said Lucy Popova, an assistant professor of public health at Georgia State University.
“It is guaranteed that they will be fighting this regulation, using a whole arsenal of tricks to stall it,” she said.
Why weren’t these recent FDA announcements greeted with immediate threats of lawsuits? Here’s where the nudge-nudge theory reemerges.
Last summer, the FDA announced it would delay regulation of e-cigarettes until 2022 at the earliest. This was a huge win for tobacco companies, which view e-cigs and vaping as major moneymakers.
The global market for e-cigarettes was worth $11.4 billion in 2016, according to BIS Research. By 2025, the company forecast in a study this month, global e-cigarette sales will reach $86.4 billion.
The tit for tat, then, would be the tobacco industry’s forestalling litigation on nicotine limits as long as the FDA keeps its distance from vaping.
And after a few years of bureaucratic paper shuffling, Big Tobacco would reluctantly agree to some new restrictions on menthol and candy coatings in return for no government tampering with nicotine limits or vaping.
Maybe that’s what Altria was referring to when it talked about “innovation of less harmful products,” which is how the industry wants people to see vaping (even though recent studies say it can, in fact, lead to more smoking).
Or it’s what Reynolds meant with that cryptic comment about recognizing “the continuum of risk,” which seems to suggest that nicotine won’t go away, so let’s get behind vaping as a “less harmful” delivery method.
Oh, have I mentioned that Gottlieb, the FDA commissioner, used to sit on the board of Kure, a North Carolina vaping company?
“We don’t know what’s motivating the White House,” said Myers at the Campaign for Tobacco-Free Kids. “It’s possible the White House is letting Gottlieb talk about reducing nicotine because they know it won’t go anywhere.”
He and others hope that’s not the case. They hope that after millions of tobacco-related deaths, we’re at last on the verge of meaningful steps toward weaning Americans from nicotine addiction.