Tobacco Documents Online

TOBACCO PRODUCTS AND • THE MYTH OF "UNDERREGULATION" A favorite claim of the antitobacco lobby is that tobacco products are virtually unregulated and accordingly should be subject to stringent new regulatory controls. This claim is untenable. At every level of government -- federal, state and local -- there is extensive regulation of tobacco products. Perhaps no other product is regulated in so many ways, or by so many agencies, as tobacco products. From seed-bed to sales-counter, from how the product is produced to where and when it may be used, tobacco products are among the most highly regulated products in the nation. Beyond these more direct forms of regulation, of course, tobacco is subject to exceptionally heavy regulation by taxation. The true aim of the antitobacco lobby is not to ensure that tobacco products are adequately regulated but to put the tobacco industry out of business and eliminate a product that fifty million American adults use and enjoy. Any system of regulation that fails to guarantee these results will be decried by the antitobacco lobby as underregulation. No additional regulation is warranted. Indeed, Secretary of Health and Human Services Louis W. Sullivan himself told Congress in 1990 that legislation giving HHS additional regulatory authority would not add measurably to the agency's current or planned efforts and was therefore "unnecessary." FEDERAL REGULATION 1. Production. Federal regulation of tobacco begins with the setting of production quotas and price levels for tobacco leaf by the Agricultural Stabilization and Conservation Service and the Commodity Credit Corporation of the United States Department of Agriculture. In addition, USDA's Agricultural Marketing Service employs graders who determine the categorization of individual lots of tobacco for auction purposes in accordance with federal regulations. All pesticides used on tobacco are registered by the Environmental Protection Agency. USDA also inspects tobacco imported into the United States and regulates the use of pesticides on tobacco in cooperation with the EPA. 0

-2- 2. LabelinQ and AdvertisinQ The Federal Cigarette Labeling • and Advertising Act bans cigarette advertising on television and radio, requires cigarette packages and advertising to carry specified health warnings and directs the Federal Trade Commission to submit annually to Congress a report concerning cigarette advertising and promotion, along with any agency recommendations for legislation. The FTC has authority as well to address unfair or deceptive cigarette advertising under the Federal Trade Commission Act, and the agency has exercised that authority. 3. Product ReQulation Ingredients. Cigarette manufacturers have been required since 1986 to submit annually to HHS a complete list of all ingredients added to tobacco in the manufacture of cigarettes, and they have sub mitted additional ingredient information to HHS at the agency s request at a,i11. HHS is required, in turn, to submit to Congress reports advising of any information pertaining to any such ingredient which in the judgment of the Secretary poses a health risk to cigarette smokers.' Dr. Louis W. Sullivan told Congress tobacco ingredients are a"peripheral" concern. . Constituents. Cigarette manufacturers are responsible for reporting the tar, nicotine and carbon monoxide levels of their cigarettes to the FTC, and the FTC publishes these ratings annually. The FTC has told Congress that it is satisfied that the current arrangements enable it to ensure the accuracy of the "tar," nicotine and carbon monoxide figures. pursuant to a 1970 agreement between the FTC and the manufacturers, "tar" and nicotine ratings are included in all cigarette advertising. Food and Drug Administration. Notwithstanding assertions by some antismoking advocates that cigarettes are "exempt" from regulation under the Federal Food, Drug, Drug, and Cosmetic Act, the Food and Drug Administration in fact has asserted jurisdiction over cigarettes as a"drug" when health claims have been made by vendors or manufacturers, and the courts have sustained the agency's assertions of jurisdiction. Cigarettes are treated no differently from other products in this regard. Fire Safety. Congress has twice passed legislation directing research into the technological and commercial feasibility of developing a cigarette with a"reduced ignition propensity." Most • recently, in August 1993, the Consumer Product Safety Commission submitted to Congress a report summarizing the results of research

conducted under the Fire Safe Cigarette Act of 1990. Among other ~ things, the report concluded that it may be possible to develop a reduced ignition propensity cigarette but questioned whether it would affect the number of careless smoking fires. The report made no recommendation that Congress enact further legislation. 4. When and Where the Product Can Be Used. Following several years of study, EPA in February 1993 issued a report classifying environmental tobacco smoke ("ETS") as a Group A (known human) carcinogen. EPA intended its report to have a substantial regulatory impact resulting in sweeping restriction on smoking in places of employment and public settings. In addition, the Occupational Safety and Health Administration has published a Request for Information on indoor air quality, including information regarding ETS. OSHA Administrator Joseph Dear has stated that OSHA will address the issue of indoor air quality and ETS this spring. Congress, of course, has banned smoking on domestic flights. This ban is enforced by the Department of Transportation. Congress also has required W IC programs to ban smoking as a condition of receiving continued federal funding. Meanwhile, smoking in most federal buildings is severely restricted under regulations issued by • the General Services Administration. The Department of Defense, as well as other federal agencies, have established additional controls. The Postal Service has banned smoking in its facilities and Amtrak has severely limited smoking on its trains. The House of Representatives recently adopted rules restricting smoking in its building. 5. Research and Public Education. HHS is required by statute to conduct and support research and to inform the public concerning any relationship between tobacco products and health. In addition, HHS must submit an annual report to Congress on tobacco and health issues, including any recommendations for legislation or administrative action. In the Comprehensive Smoking Education Act of 1984, Congress took the further step of establishing an Interagency Committee on Smoking and Health, whose primary functions are to review on an ongoing basis both public and private sector initiatives with respect to smoking and to recommend to Congress any policy initiatives that are thought to be appropriate. In 1990, HHS launched a seven-year, $165 million antismoking program known as "ASSIST" to fund antismoking campaigns in 17 states.

-4- STATE AND LOCAL REGULATION ' State and local governments have enacted numerous laws restricting or even banning smoking in places of employment and various public settings. All states prohibit the sale or distribution of tobacco products to persons under the age of 18. Legislation passed by Congress in 1992 requires the states, as a condition of receiving federal substance abuse prevention and treatment block grant funding, to enforce these prohibitions conscientiously. In addition, a number of state and local governments prohibit retail displays of tobacco products that permit customer access without the assistance of a clerk. OTHER FEDERAL STATUTES Antitobacco advocates sometimes complain that cigarettes are not subject to regulation under the Federal Hazardous Substances Act, the Toxic Substances Control Act or the Controlled Substances Act. Cigarettes in fact do not fit within the classes of products and substances addressed by these statutes and the agencies responsible for administering them lack the expertise and resource to regulate cigarettes. As the preceding discussion demonstrates, cigarettes are ~ subject to extensive regulation under other federal, state and local laws, and no additional regulation is warranted. ~ ~ ~ c?~ ~ 00 Ct7