Public Health

Keeping FDA Regulation of Cigarettes a Secret

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Yesterday, as expected, the House of Representatives approved a bill that would authorize the Food and Drug Administration to regulate tobacco products. One of the concerns raised by the bill's critics  is that FDA regulation of cigarettes will be interpreted as an official stamp of approval, signaling that cigarettes are safe to consume, or at least safer than they used to be. In response to this complaint, tobacco policy blogger Michael Siegel notes, the bill's authors added a provision that prohibits manufacturers from making "any statement directed to consumers through the media or through the label, labeling, or advertising that would reasonably be expected to result in consumers believing that the product is regulated, inspected or approved by the Food and Drug Administration, or that the product complies with the requirements of the Food and Drug Administration, including a statement or implication in the label, labeling, or advertising of such product, and that could result in consumers believing that the product is endorsed for use by the Food and Drug Administration or in consumers being misled about the harmfulness of the product because of such regulation, inspection, or compliance."

So the FDA will be regulating cigarettes, but manufacturers won't be allowed to say the FDA is regulating cigarettes, because (as the bill says elsewhere) "consumers are likely to be confused and misled" if they know the FDA is regulating cigarettes. Good thing that consumers don't read newspapers, watch TV, or look at Google News. Speaking of which, note that the gag order applies not just to labels and ads but to "any statement directed to consumers through the media." If an R.J. Reynolds executive mentioned FDA regulation during an appearance on CNBC, would he thereby commit a "prohibited act" under the Food, Drug, and Cosmetic Act, an offense punishable by up to a year in jail?

As Siegel notes, it's hard to see how such censorship of completely truthful speech could survive First Amendment scrutiny. As Siegel also notes, supporters of this bill were driven to such blatantly unconstitutional lengths precisely because they know that FDA regulation will be seen as a sign that cigarettes are safer but will not actually make them safer. In fact, if the FDA uses its authority to order a reduction in nicotine content, regulation will increase exposure to toxins and carcinogens for smokers accustomed to a particular dose, thereby making cigarettes more dangerous. As I discussed yesterday, it also could stifle the market for safer products that compete with cigarettes.

The tobacco regulation bill is here (PDF). The part dealing with statements about FDA regulation (Section 103, Paragraph tt) is on page 155.  

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  1. If an R.J. Reynolds executive mentioned FDA regulation during an appearance on CNBC, would he thereby commit a “prohibited act”[?]

    Yes, but when was the last time you saw any representative of R.J. Reynolds on the tube?
    I see porn producers and cannibals more often.

  2. As Siegel notes, it’s hard to see how such censorship of completely truthful speech could survive First Amendment scrutiny.

    Interesting. What is this First Amendment of which you speak?

    [googles]

    A fascinating historical artifact of a bygone age, I see, currently reduced to vestigial usage to protect pornography, but not speech on issues that used to be the very core of this nation, namely, commerce and politics.

  3. Good thing that consumers don’t read newspapers, watch TV, or look at Google News

    Or visit Hit & Run, for that matter. But I doubt you’ll see much about this in your local paper (if you still have one) or on The TV. First Amendment issues? Bah. We’re having a financial crisis! The media cannot be bothered with such trivial matters as freedom of speech.

  4. I left this coment, but since it was regulated by the fda i can not say what the comment was.. just like a tobacco company.

  5. [channeling MNG]
    Matt Welch Jacob Sullum is ignoring Gaza on purpose! Under orders from Matt Welch.

    Does anybody know how much cigarettes cost in Gaza?

    Where would you rather live? Gaza or France?
    [/channeling MNG]

  6. Obama will veto this because he is a constitutional scholar and not another retarded monkey in a suit.

  7. So the FDA will be regulating cigarettes, but manufacturers won’t be allowed to say the FDA is regulating cigarettes, because (as the bill says elsewhere) “consumers are likely to be confused and misled” if they know the FDA is regulating cigarettes.

    So the State is saying that people will be mislead by the fact that the State is doing its job . . .

    Should that logic apply to Geithner?

  8. Yes, but when was the last time you saw any representative of R.J. Reynolds on the tube?

    This is because years of intense smoking have given them mutant powers. Understandably, the government is trying to suppress this information.

  9. This is kind of similar to the regulation that says something like ‘this food product is hormone / antibiotic free’ because all products are required to be like that.

    Not saying it’s right, just that it’s not new.

  10. President Obama also strongly supports the legislation, the Office of Management and Budget said Wednesday, in the new administration’s first official statement on the issue.

    Just read TFA. Now I feel really stupid. Let me be clear: Obama, unlike chimphitler, really is a constitutional skolar. As such, there must be a compelling reason for him to support what to lesser educated folk might appear to be unconstitutional legislation.

  11. This is similar to the existing provision applying at least to medical devices, that says their purveyors are not allowed to represent them (albeit truthfully) as licensed by FDA or as meeting any test requirement imposed by FDA. I’ve always understood that to be an indirect liability escape, an alternative to invoking sovereign immunity.

  12. “but manufacturers won’t be allowed to say the FDA is regulating cigarettes, because (as the bill says elsewhere) “consumers are likely to be confused and misled” if they know the FDA is regulating cigarettes. Good thing that consumers don’t read newspapers, watch TV, or look at Google News. Speaking of which, note that the gag order applies not just to labels and ads but to “any statement directed to consumers through the media.” If an R.J. Reynolds executive mentioned FDA regulation during an appearance on CNBC, would he thereby commit a “prohibited act” under the Food, Drug, and Cosmetic Act, an offense punishable by up to a year in jail?”

    So, if I roll my own (manufacture) a smoke, does that mean I can’t say smokes in general are regulated, even if it’s to myself (the consumer)? Hmmmm…what a strange contridiction.

    But hey, ANYTHING is ok when it comes to regulating tobbacco, alcohol or drugs. After all, it’s for the children.

  13. The FDA will have the authority to regulate tar and nicotine content, but nobody will be allowed to refer to light cigarettes as “light” cigarettes. It will be entertaining to hear the Agency’s explanation as to why they mandated these lighter cigarettes, given the prohibitionist stance that there is no such thing as a “safe” cigarette, however “light.” But as an official bureaucracy, they will get to have their cake and eat it, too.

  14. Just the same, brokers aren’t allowed to advertise the fact that they’re SIPC insured even though its required.

  15. It’s one thing to be actively advertising “The FDA has now approved Marlboro Lights!” but it’s another to have the words “FDA Approved” on the package. Without more, those two words are completely truthful and should be permitted.

    But I don’t believe the First Amendment should apply to “commercial speech” at all. The SCOTUS says that commercial speech is protected, but less so than, say, political speech. I think that today’s marketing is nearly always based on implicit fraud, even if it’s simply showing beautiful women in a cologne ad. The implicitation is that you’ll get laid if you buy the product (that one brand of bodyspray comes right out and says that, with the expectation that consumers will feel the truth lies somewhere in the middle – which is still fraud).

    Purely true statements in an advertising context can still be misleading, and as such the first amendment should not apply when the speech is intended to sell something for profit.

    After having represented some people in the “financial services industry” I think it should be a federal crime to recommend the purchase or sale of any security for profit. No selling of “financial advice” with respect to buying/selling securities. It’s fundamentally fraudulent and unethical and impossible to do honestly without conflicts of interest. Brokers shouldn’t exist, let alone be able to say they’re regulated by this or that. In recent years they’ve been coming up with their own little groups so they can stick all these letters after their names, like “SFE” – “Senior Financial Expert” – to trick old people. Many states have banned this crap, but as long as brokers are operating, people are being ripped off and having their money stolen.

  16. You have to live on the moon and be deaf and blind to not have been saturated in anti-cigarette propaganda for the last three decades.

    I’m sure the FDA regulating cigs will have no effect on whether or not people decide to start up.

  17. Inasmuch as I am not a cigarette manufacturer, what a lovely phrase to be able to toss at the Mrs. Grundy who glares when I light up.

    “But it’s FDA approved!”

  18. The FDA is a big joke….. they can’t even “regulate” a safe food supply or prescription drugs, etc. etc. so why not tobacco too? The payoffs they get are all they’re interested in.

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