Tobacco and the F.D.A.

The FDA doesn’t need to regulatory authority over tobacco products.

Rep. Henry WaxmanâÄôs, D-Calif., legislation âÄî which passed the U.S. House last week by a wide margin âÄî giving the Food and Drug Administration regulatory power over the tobacco industry will face more scrutiny in the Senate this week. And for good reason: The bill represents a rash attempt to reduce smoking rates in the United States. The billâÄôs proponents argue that giving the FDA authority to regulate tobacco ingredients and marketing will accomplish that end. The Congressional Budget Office even estimated that the legislation would eventually draw a net revenue for the federal budget through a reduction in the number of smokers and because the tobacco companies would incur regulation costs. But the CBOâÄôs estimates are rosy. And more broadly, the legislation ignores the fact the smoking rates in the United States are already sharply declining. From 1995 to 2005, smoking rates among adults fell four percent while smoking rates among 17-year-olds fell 9 percent. In that respect, giving the FDA regulatory authority over tobacco marketing contravenes the reason why the Supreme Court protects tobacco advertising âÄî and truthful commercial speech âÄî in general: confidence in a marketplace of ideas. As long as tobacco companies are truthful in their advertising of tobacco products âÄî which the Federal Trade Commission already ensures âÄî the marketing of those products should be protected speech. The legislation would also give the FDA authority to approve or block new tobacco products, giving consumers fewer choices. ThatâÄôs why Phillip Morris, the giant of big tobacco, supports the legislation. It will consolidate their market share and could threaten smaller companies who sell products with fewer additives, like American Spirits. The ends of this legislation are administrable, but its means do not necessarily constitute a proper remedy.