FDA regulation of tobacco legislation

This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

On February 15, 2007 Sen. Edward M. Kennedy and Rep. Henry Waxman introduced legislation to permit the U.S. Food and Drug Administration (FDA) a measure of regulation over cigarettes and tobacco products. The House version of the bill is HR 1108. The bill title is "The Family Smoking and Tobacco Control Act."

Lobbyists for the Altria Group, the parent company of cigarette maker Philip Morris, circulated summaries of the bill to Congressmembers prior to the bill's actual introduction, indicating the company had knowledge of the actual text of the bill before it was publicly introduced.

The bill was ulimtately signed into law by President Barack Obama on June 22, 2009.

Full text of the bill

Full text of the final bill

2/15/2007 Referred to House Committee on Energy and Commerce.

Senate Version: S 625 Latest Action: Feb 27, 2007: Committee on Health, Education, Labor, and Pensions. Hearings held. Committees: Senate Health, Education, Labor, and Pensions Amendments: This bill has no amendments.

Philip Morris' 180-degree change on FDA regulation of tobacco

A 23-page, 1998 "privileged and confidential" Philip Morris (PM) discussion piece outlines the thinking behind Philip Morris' 180-degree turn from stringently opposing U.S. Food and Drug Administration (FDA) of cigarettes to in fact seeking such regulation, the company's logic in proceeding down this path and what the company hopes for and fears in FDA regulation. It was written in by Mark Berlind, Assistant General Counsel of Philip Morris Worldwide Regulatory Affairs in 1998.

Berlind first recaps the history of PM's opposition to FDA regulation and recommends instead that PM USA advocate for regulation as a way to maintain the status quo, or "perpetuate the existing framework's philosophy that adults continue to be permitted to assume" the inherent risks of cigarette smoking:

"...enactment of a new regulatory regime that would (a) permit the federal government to assure itself that the industry's design and manufacturing processes do not exacerbate the inherent risks of cigarette smoking and (b) perpetuate the existing framework's philosophy that adults should continue to be permitted to assume -- without governmental interference -- those risks so long as they have been adequately informed of them. In addition, [this paper] will recommend that the company continue to support federal measures legitimately aimed at reducing youth access to cigarettes, and oppose proposals that would infringe on its First Amendment rights without its consent."

Berlind compares potential regulatory regimes for cigarettes to consumer safety regimes that have been applied to other risky products, such as high fat foods, guns, alcohol and gambling. Among these Berlind finds "no instance in which the government has established a regime that would permit unelected agencies to either ban the product or mandate significant design changes intended to reduce consumer risk." Berlind concludes that rather than banning products, the FDA's role instead has been "on labeling and ensuring that consumers are not misled." He points out that the gun industry is "largely unregulated," and that the few restrictions placed upon guns were created by legislative action and not regulatory action. He states with respect to guns that "current law largely leaves it to consumers to discern the riskiness of the products by themselves..."

Berlind also observes that gambling laws "are not directed nearly as much at trying to discourage gambling as they are at ensuring that only state-sanctioned (or sponsored) gambling occurs, and that the revenues are directed through the proper channels. The view that gambling is addictive and socially destructive does not, however, seem to have dampened official enthusiasm for perpetuating the practice."

With regard to alcohol, Berlind states that while many laws exist regulating misleading brand names, posting of health warnings, prohibitions on false statements, etc. "...there are no regulations whatsoever on product design or manufacture of alcoholic beverages either at the state or federal level. No agency is charged with the responsibility of attempting to reduce alcohol consumption by adults...The prevailing philosophy appears to be that...even though the product allegedly can impair health and has been characterized as addictive, the consumer should be left along to decide to consume alcohol or not, in accordance with his or her individual preferences."

After these comparisons, Berlind says the FDA's "safe and effective" requirement for regulated products would be "troubling," saying that FDA is required to ban any drug or medical device not found to be safe and effective. "Unless the law is amended, FDA jurisdiction over tobacco products could ultimately lead to a new Prohibition."

Berlind concludes that "sensible regulation would continue to permit adults to assume the inherent risks of smoking, while allocating to the government the twin tasks of ensuring that manufacturers don't create additional risk though their design and manufacturing processes, on the one hand, and continuing to conduct appropriate research about the nature of the inherent risks and keeping consumers informed of them, on the other." These limited parameters for regulation appear to be the broad goals PM seeks in FDA regulation: that such regulation will generally preserve the status quo of "adult choice" about smoking, assure cigarette manufacturers don't create any more risks than their products currently pose, to place FDA in charge of informing citizens about the risks of smoking, to prevent FDA from getting any authority to reduce or eliminate any naturally-occurring harmful constituents in cigarettes (to relegate this only to Congress).

Sourcewatch resources

• Philip Morris' Pursuit of FDA Regulation of Tobacco
• Philip Morris' Regulatory Strategy Project

External resources

• Stanton Glantz, Richard Barnes, Sharon Eubanks Compromise or Capitulation? US Food and Drug Administration Jurisdiction Over Tobacco Products Public Library of Science Medicine. PLoS Med 6(7): e1000118. doi:10.1371/journal.pmed.1000118. July, 2009 issue