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Commentary

FDA’s Tobacco Campaign—A Red Herring


     
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The Nanny State never sleeps. With President Clinton’s blessing, the Food and Drug Administration is proceeding with its plan to regulate the advertising, promotion, and distribution of cigarettes and smokeless tobacco. The FDA claims that nicotine is a drug and tobacco products are “drug delivery devices” and therefore the agency has legal authority to regulate those products. The only aim is to combat a “pediatric disease.”

The proposed regulations allegedly would reduce the access of children to the products and “decrease the amount of positive imagery that makes these products so appealing” to kids. The FDA would impose sweeping restrictions on the location and format of advertisements, ban vending machine sales and several types of promotions, require new warning labels and make the tobacco companies pay for a $150 million annual effort to discourage teen smoking.

Violators would be subject to severe penalties including product seizures, fines up to $1 million per proceeding, and even prosecution as felons. Murderers and rapists, move over—make room for people who distribute free cigarette samples or sell cigarettes in packages containing fewer than 20 cigarettes. Contemplating these harsh penalties, one observer was reminded of similar efforts of the Bureau Against the Dangers of Alcohol and Tobacco in Nazi Germany.

Given that tobacco products and their advertising are already subject to extraordinary regulation and taxation at every level of government, one cannot help wondering. Why are the president and the FDA making these proposals? And given that the targeted activities have been going on for decades while the alleged regulatory authority has never been asserted, why are the regulations being proposed now?

The answers are obvious. Both the president and the FDA hope to divert public attention away from issues that call into question their competence and their policies. In short, the tobacco crusade is a classic red herring.

By going after youth smoking, Clinton hopes to present the image of a vigorous leader taking unprecedented steps to stop something that nearly everyone agrees ought to be stopped. After all, even the tobacco companies oppose youth smoking, as attested by their “It’s the Law” programs, which seek to increase retailers’ compliance with existing state laws prohibiting the sale of cigarettes to people under 18. For Clinton, it’s a political no-brainer—nobody supports youth smoking.

FDA bureaucrats have similar motives, which one can understand by considering the agency’s recent history.

After David Kessler became Commissioner of Food and Drugs in 1990, he went on a regulatory rampage. He instructed his troops to come down harder on medical-device companies. In response, inspectors doubled the number of regulatory noncompliance citations and reviewers cut in half the number of new devices approved annually. Kessler authorized dozens of commando-style raids on dietary supplement dealers and alternative medical practitioners. He banned silicone gel-filled breast implants, even though thousands of women wanted them and the allegations against them by legal plaintiffs had no scientific basis.

In response to Kessler’s draconic enforcement campaign, medical device companies began moving to Europe. Doctors complained that FDA delays in drug and device approvals precluded giving patients state-of-the-art treatments. FDA victims, like those representing kidney cancer and Alzheimer’s patients, put public pressure on the agency to expedite approval of remedies already available abroad.

When the Republicans took control of Congress, it looked as if the FDA would be reined in. Speaker Newt Gingrich called Kessler “a thug and a bully” and the agency “Stalinistic.” Committees of the House and Senate held a number of hearings to air the public’s complaints and demand explanations from FDA officials. Reform legislation seemed imminent.

Now all bets are off. By initiating the tobacco crusade, the FDA has demonstrated that its best defense is a good offense. No matter that the legal basis for the jihad against tobacco is shaky at best. No matter that the proposed advertising restraints would violate First Amendment rights. No matter that the entire program is a sham—does anyone really believe that kids’ smoking will be significantly affected by the proposed regulations? Notwithstanding all those sad realities, the FDA’s move has refurbished its image as a public protector and fortified its political position in fending off congressional reforms.

Whatever the public may think, a stronger FDA would be a disaster. As many studies, including the Independent Institute’s just published report Hazardous To Our Health? have established, FDA policies have caused hundreds of thousands of premature deaths and unimaginable suffering.

If the agency succeeds in using the tobacco issue to divert Congress from real reforms, many people stand to lose their lives as a consequence. That is a high price to pay for gratifying the political vanities of Bill Clinton, David Kessler, and FDA bureaucrats who already wield far too much power over choices people have every moral right to make for themselves.


Robert Higgs is Senior Fellow in Political Economy at The Independent Institute and Editor at Large of the Institute’s quarterly journal The Independent Review. He received his Ph.D. in economics from Johns Hopkins University, and he has taught at the University of Washington, Lafayette College, Seattle University, and the University of Economics, Prague. He has been a visiting scholar at Oxford University and Stanford University, and a fellow for the Hoover Institution and the National Science Foundation. He is the author of many books, including Depression, War, and Cold War.

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