The Long Wait for FDA-Approved Cancer Sticks

Jacob Sullum from the December 2009 issue

In 1997, when America’s major cigarette manufacturers agreed to settle state lawsuits against them, some anti-smoking activists celebrated the deal as the end of a long fight. But in retrospect, it was just the beginning.

In “Let’s Make a Deal” (October 1997), I noted that the agreement required congressional approval and said “it seems likely that some sort of legislation will emerge that gives the industry a measure of security and predictability in exchange for anti-smoking policies and programs that tobacco’s opponents could not otherwise hope to see anytime soon.” Something like that did happen, but it took another 12 years, and the main beneficiary was not “the industry” so much as its leading player, Philip Morris.

The proposed legislation that emerged from the 1997 deal was so onerous that the cigarette manufacturers and their congressional allies turned against it. Instead, the states and the tobacco companies reached a less ambitious arrangement in 1998 that they claimed did not require federal legislation. The new settlement delivered less money to the states ($200 billion vs. $368 billion) and did not include regulation of tobacco products by the Food and Drug Administration (FDA).

Meanwhile, the FDA tried to regulate tobacco products without statutory authority, an effort the U.S. Supreme Court rejected in 2000. Repeated attempts to authorize FDA regulation followed. They finally succeeded in June, when President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act. The new law had the avid support of Philip Morris but not its competitors, which complained that it would help the market leader solidify its position.

Among other things, the law implements the advertising and promotion restrictions that the FDA tried to impose unilaterally in the 1990s, including bans on tobacco-brand sponsorship of sporting or entertainment events, on outdoor advertising within 1,000 feet of a school or playground, and on the use of color or pictures in outdoor ads, indoor ads (except in adult-only businesses), and print ads carried by publications with significant underage readerships. In August, R.J. Reynolds and several other tobacco companies, not including Philip Morris, challenged these rules in federal court on First Amendment grounds.

The divisions among the tobacco companies are paralleled by divisions among anti-smoking activists. Some worry that FDA regulation will falsely reassure consumers about the safety of cigarettes while impeding competition from less hazardous alternatives.

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