Trudy Lieberman: The government tries yet again to regulate tobacco products

The Food and Drug Administration just announced it would once again try to regulate tobacco products.

This time, the target of the agency’s regulatory hand is what it believes is the growing menace of flavored e-cigarettes and other tobacco products used by young people who’ve turned to vaping and smoking. The FDA said about 3.6 million kids under age 18 now admit they use e-cigarettes.

That’s an alarming number and is worrisome because FDA commissioner Dr. Scott Gottlieb has noted that almost all current smokers started when they were kids. At their core, the FDA’s proposals are aimed at keeping kids from smoking today so they don’t become smokers tomorrow.

The FDA has taken two actions to curtail young customers’ appetites for the market’s new tobacco products. It did not issue an outright ban on e-cigarettes that had been widely expected and that some anti-tobacco advocates hoped for. Instead, the agency said stores could continue to sell e-cigarettes but only from closed-off areas that would not be accessible to teenagers. Whether this will keep teens from getting their hands on the e-cigarettes is anyone’s guess.

Can a store, for instance, comply with the new rule if it simply hides its e-cigarettes under the counter, out of sight of the teens wanting to buy them? The answer is not clear. Gottlieb says such a strategy would not be sufficient. He told The New York Times, “What we are envisioning is a separate room or a walled-off area. It needs to be a separate structure. A curtain won’t cut it.”

The FDA also proposed a ban on menthol cigarettes and flavored cigars, two traditional products that, according to the Times, disproportionately harm African-Americans. Black leaders have accused the industry of targeting African-Americans with their marketing campaigns.

While these are laudable goals from a public health standpoint, it’s a long, tough fight to make them a reality if past efforts to curb smoking are any guide.

Industry lawyers quickly weighed in on both proposals, challenging the FDA’s authority to impose restrictions on where e-cigarettes could be sold and to ban menthol cigarettes and flavored cigars. A lawyer representing the National Association of Convenience Stores, a trade group, told the Times the agency can’t discriminate against one specific type of retail outlet, “and that’s what they’re trying to do here.”

Murray Garnick, the general counsel for Altria Group, which sells vaping products, said there would be a lengthy debate over the proposed prohibition on menthol cigarettes.

“We continue to believe that a total ban on menthol cigarettes or flavored cigars would be an extreme measure not supported by the science and evidence,” he told the Times.

With menthol cigarettes accounting for about one-third of cigarette sales in the U.S., you can be sure the debate will be drawn out and full of misrepresentations if the past public debates on tobacco regulation are any guide.

It’s instructive to look back a couple of decades at another well-publicized effort to curb smoking. The FDA commissioner at the time, Dr. David Kessler, said that taking on the tobacco industry was the most challenging part of his job.

In the 1990s, Kessler and a team of FDA investigators worked with informants who revealed that tobacco companies had purposely manipulated the nicotine levels in their cigarettes.

Kessler said at the time, “We asked the question of whether nicotine is a drug. So it’s a question of intent: What did the tobacco companies know? No one had ever gone to ask that question.”

Kessler and the FDA had a few victories: the big settlement state attorneys general won that has funded many public health projects in the states and eliminating Joe Camel from billboards. But they did not win the ultimate battle. The Supreme Court, by one vote, ruled that the FDA could not regulate tobacco as a drug.

Kessler said years later, “I underestimated the power of this industry. They have their tentacles in government, in media, and the scientific and medical communities. They had a former FDA commissioner on retainer. They got the Congress to hold hearings to investigate us.”

It’s unlikely the power of the tobacco industry has diminished since Kessler left office in 1997. And therein lies a cautionary tale for current FDA regulators who are tiptoeing ever so carefully through the regulatory mine field surrounding big tobacco.

How do you think tobacco should be regulated? Write to Trudy at trudy.lieberman@gmail.com.