Senate Passes Bill to Give FDA Tobacco Regulation

The Senate has just passed the FDA tobacco regulation bill by a 79-to-17 vote. The bill now goes to President Obama, who has said he will sign it. The bill has odd and counterproductive provisions. Curiously, the bill would deny companies’ protection against “tort liability — even if they rigorously follow every FDA rule.”

As I noted earlier, FDA regulation may actually undermine public health by making it harder to market to smokers other tobacco products, like snus, that are not as lethal as cigarettes. As Jacob Sullum notes, the law will require snus “to carry a warning that it ‘is not a safe alternative to cigarettes,’” even though “there’s no question that snus is far less hazardous than cigarettes.” And to even “introduce a ‘modified risk product,’ a manufacturer has to convince the FDA not only that the product will ’significantly reduce harm and the risk of tobacco-related disease to individual tobacco users’ but also that it will ‘benefit the health of the population as a whole, taking into account both users of tobacco products and persons who do not currently use tobacco products.’”

In the Washington Examiner, Tim Carney wrote earlier about how the bill would reduce competition in the tobacco industry and enrich the biggest cigarette company — Philip Morris — at the expense of consumers and competitors alike. Although the bill is supported by leading anti-smoking groups (which indirectly receive money from Big Tobacco through the $246 billion Master Settlement Agreement), the bill’s “most important ally” is “Philip Morris, the largest cigarette maker in the world”:

“Philip Morris stands to benefit from this regulation in many ways. First, all regulation adds to overhead, and thus falls more heavily on smaller firms. Second, restrictions on advertising help Philip Morris’ Marlboro, a brand everyone already knows, by keeping lesser-known brands in the shadows. (Existing restrictions on advertising have already helped Philip Morris in this regard, with an added benefit spelled out in Altria’s annual report: ‘Marketing and selling expenses were lower, reflecting regulatory restrictions on advertising and promotion activities. … ‘) Finally, if the bill passes and the FDA gets added control over the industry, Philip Morris, more than any of its competitors, will have access to those bureaucrats and agency heads making the decisions.”

Federal regulation often backfires. A classic example is the 2007 child-safety law, the CPSIA, which was based on junk science. It shut down countless thrift stores and entire industries, resulting in children’s books being thrown out and pulled from library shelves by the thousands. It harmed poor people and special-needs kids. It rendered many ordinary bicycles illegal and made motorcycles more dangerous to children.

But it is now being used by Congress as a blueprint for a misguided law, the Food Safety Modernization Act of 2009, that would put small food producers and farmers’ markets out of business in the name of food safety.

The Supreme Court earlier rejected the FDA’s unilateral attempt to regulate tobacco, making clear that such regulation must receive Congressional approval, in FDA v. Brown & Williamson Tobacco Corp. (2000).