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CEI Comments to the Department of Health and Human Services on a Framework Convention on Tobacco Control

Regulatory Comments and Testimony

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CEI Comments to the Department of Health and Human Services on a Framework Convention on Tobacco Control

The Competitive Enterprise Institute (CEI) submits these comments on the Framework Convention on Tobacco Control (FCTC).  The FCTC is, in this agency’s words, “a proposed international legal instrument intended to address the global problem of tobacco use.”  66 FR 7765. 

 

CEI is a nonprofit organization dedicated to advancing market solutions to regulatory issues.  CEI has been involved in the issue of domestic tobacco regulation for a nearly a decade.  In our view, regulating adult use of tobacco products can only be premised on consumer ignorance of the risks of smoking.  In the case of children, on the other hand, prohibitions on access are justified, but these prohibitions must be carefully targeted. As experience in the United States demonstrates, regulatory campaigns initiated in the name of protecting children all too often turn into campaigns to restrict the rights of adults.

 

Smoking is a risky activity.  In the United States, mandatory warnings on cigarette packages and in cigarette advertising suffice to put any adult smoker on notice of these risks.  Some may claim that these warnings do not convey adequate information about all the risks of smoking, or that their message is overwhelmed by tobacco advertising’s portrayal of youthful, healthy smokers.  These criticisms, however, have no stopping point.  Any warning, no matter how detailed, is open to the claim that it could have been even more detailed.  The important point is that, in the United States,  people are well aware of the risks of smoking.  They know that smoking is dangerous, and they know that, once it becomes a habit, it is hard to stop.[1]

 

Many regulatory advocates claim that the fact that people smoke is itself evidence that cigarette warnings are inadequate or that people are ignorant of the risks of smoking.  What this fact demonstrates, however, is not a lack of knowledge on the part of smokers, but rather that people derive pleasure from smoking.

 

While awareness of smoking’s risks is commonplace in the United States, it is not clear that such awareness is present in all countries.  For this reason, the focus of any international tobacco framework should be on remedying this lack of knowledge in countries where it is not present.  However, because the FCTC, as currently written, begins with the premise that smoking is nothing but a public health problem, it leaves no room for the possibility of respecting the individual choices of adults on this issue.

 

Children present a different issue. CEI does not dispute the need for legal restrictions on their access to tobacco, nor do we dispute the need for those restrictions to be adequately enforced.  Our experience in the United States, however, has been that regulatory campaigns to protect children from tobacco often serve as a cover for attempts to restrict the rights of adults.  Proposals to increase cigarette taxes, for example, have often been justified as discouraging purchases by minors when their real purpose was to raise revenue from adults.[2]  Similarly, advertising restrictions proposed in the name of protecting children would in fact seriously weaken free speech rights for all Americans.  Our children are far less threatened by Joe Camel than they are by a weakened First Amendment.[3]

 

Many countries may not attach as much importance as the United States does to the right of free speech, or they may not recognize that right at all.  CEI submits, however, that it is a basic human right, and the FCTC should not have the effect of further undermining it anywhere in the world.

 

The FCTC should also recognize that many government agencies may themselves have an interest in promoting tobacco tax revenues—an interest that may well run counter to the public’s interest in information about tobacco risks and in access to competing tobacco products.  The FCTC’s approach, however, holds the danger of perpetuating such government self-interest.  The end result may well be that competition in developing new, potentially safer cigarettes will be stymied, while government monopolies and government-industry cartels are strengthened. 

 

For these reasons, this agency should reject the current FCTC, with the exception of those provisions aimed at reasonably informing the public and protecting children.  Instead, it should insist on an approach that respects the right of informed adults to make their own choices on this issue.

 

 

                                                                                                Sam Kazman

                                                                                                General Counsel

                                                                                                Competitive Enterprise Institute

                                                                                                1001 Conn. Ave. NW

                                                      Washington DC 20036 

 

March 15, 2001          

 

ATTACHMENT

 

Limits threaten freedom

Sam Kazman

USA Today, April 30, 1997

 

 

            Back-to-back federal court decisions have given advocates of tobacco

            regulation a lot to cheer about. But while the ultimate judicial

            outcome is still in doubt, let's not fool ourselves about what's at

            stake. Government control of tobacco and tobacco advertising may

            give us a ``safer'' society, but it, and the precedents it sets,

            will create a poorer world for us and our children.

 

 

            The FDA wants to eliminate the ``pediatric'' disease of underage

            smoking. The end result will go far beyond that commendable goal. It

            will almost certainly restrict adult access through such means as

            nicotine limits and higher taxes. Advocates claim this is necessary

            to protect children. In fact, they are unwilling to respect even an

            adult's decision to smoke. They argue that people are misled by

            tobacco industry cover- ups and clever ads. Polls show, though, that

            both smokers and nonsmokers accurately understand the risks of

            smoking. Making such choices is precisely what being a grown-up is

            all about, and having these choices respected is the essence of a

            free society.

 

 

            The claim that nonsmokers pay smokers' health costs is based on

            lopsided accounting. Smokers clearly pay their own way when you

            factor in the reduced life expectancy of smokers, and the savings

            this produces for Social Security and pensions.

 

 

            The most serious danger lies in the FDA tobacco advertising

            restrictions. They would, for example, bar cigarette ads containing

            images or color in any magazine whose under-18 readership was higher

            than a mere 15%. But weakening the First Amendment poses a far

            greater threat to my kids' future than a smoke-filled room.

 

 

            Advertising is imaginative and colorful. It pays for such essentials

            of life as Seinfeld. The absence of bright advertising in a Post

            Office or motor vehicle bureau practically defines the institutional

            feel of these places. Growing up in New York, I thought the giant,

            smoke- emitting cigarette billboard in Times Square made it a more

            exciting place. I haven't changed my mind a bit.

 

 

            The Bible says that a child shall lead us. Nowadays, we're led by

            politicians claiming to protect that child. We forget that

            government is itself a threat, and that the Constitution's limits on

            government are there not only for us to enjoy, but for us to protect

            and pass on to our children.

 

 

            And that's why, if the choice is between Joe Camel and a hollowed-

            out First Amendment, I'll take Joe Camel any day.

 

 

 

 

            Copyright 1997, USA TODAY, a division of Gannett Co., Inc.

            Sam Kazman, Limits threaten freedom. , USA Today, 04-30-1997, pp

            10A.

 

 

 

            Copyright © 2000 USA Today, a division of Gannet Co. Inc.

[1] See, e.g., W.K. Viscusi, Smoking—Making The Risky Decision at 61-86 (1992). 

[2]   See, e.g., CEI Press Release, “Opposing Groups Offer Sincerity Test On Tobacco Tax”, (May 26, 1998) (http://www.cei.org/PRReader.asp?ID=62), suggesting that if Congress were serious in portraying a proposed tobacco tax increase as aimed at dissuading under-age purchasers, then it would give tax rebates to adult smokers.

[3] See Sam Kazman, “Limits Threaten Freedom”, USA Today, April 30, 1997 (attached).