Mark Berlind

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

Mark Berlind worked for Philip Morris Worldwide Regulatory Affairs (part of Philip Morris Management Corporation, or PMMC), as Assistant General Counsel, starting circa 1988.

By February, 1997, Berlind was Assistant General Counsel for PMMC. By 2000, he was Senior Assistant General Counsel for PMMC. In 2005, he was Executive Vice President of Global Corporate Affairs for Philip Morris' subsidiary, Kraft Foods, Inc.

Philip Morris documents

Berlind appears to have been the mastermind behind PM's Regulatory Strategy Project, a plan to enact the 2009 bill to have the FDA regulate tobacco.

In 1998, Berlind (then Assistant General Counsel of Philip Morris Worldwide Regulatory Affairs) authored a 23-page "privileged and confidential" discussion piece that outlined the thinking behind Philip Morris' 180-degree turn from stringently opposing U.S. Food and Drug Administration (FDA) regulation of cigarettes to in fact seeking such regulation. It establishes the company's logic in proceeding down this path and outlined what the company hoped for and feared in FDA regulation.

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.

In the document, 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 found "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 observed 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 sought in the FDA regulation approved in 2009: that such regulation would generally preserve the status quo of "adult choice" about smoking, assure cigarette manufacturers don't create 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).

Biography

Berlind authored internal Philip Morris publications titled, Report of Recent ETS [environmental tobacco smoke] and IAQ [Indoor Air Quality] Developments, a compilation aimed at keeping PM executives informed on workers compensation, lawsuits and other cases involving secondhand smoke injuries and deaths.

Berlind commissioned the drafting of sample FDA bills based on Philip Morris' "core priciples" from Arnold and Porter, Feb. 2000 (2081522996)

Berlind drew Matt Myers of The Campaign for Tobacco-Free Kids into secret meetings to negotiate the terms of FDA regulation of tobacco. PM successfully passed an FDA tobacco bill in May of 2009.

Sourcewatch resources

• Regulatory Strategy Project

External resources

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References

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