Tobacco Documents Online

I ~ LegalBackgrounder 00 ~SHIN C;TO\ .GAI- FOL'tiDATION 2009 M:;55A USTr'TI'S AVENUE. V~V • WASHINGTON, D.C. 20036 • (202) Clt USTr ' TI' S ~88-Q3U_ Vol. 9 No. 6 February 25, 1994 REGULATE TO ELIMINATE: THE REAL GOAL OF THE NEO-PROHIBITIONLST MOVEMENT by James T. Bennett Once upon a time, the United States undertook a social experiment called Prohibition. After about 15 years, the country recognized that this experiment had been a terrible mistake. Prohibition was repealed. Today, however, there is a~o-prohibitionist trend afoot that is intent on bringing back in greatly expanded form the "good old days" of Prohibition. One principle guides the activities of these "neo-probes": If it's enjoyable, it must be bad. See generally, Rose, "If It Feels Good, It Must Be Bad," FoRTUNE, October 21, 1991 at 91 (strengthening force in Washington is a neo-prohibitionist impulse that militates against anything perceived as harmful). Their methods are simple: ban activities outright if possible; but if that fails, regulate and tax the activity so heavily that it is forced out of existence. Examples of such neo-prohibitionist tactics have begun to multiply at a remarkable rate. In California, for example, the Environmental Health Network has begun a campaign to have the wearing of perfume, aftershave lotion, and cologne banned in restaurants and other public places. Also in California, water coolers are required to carry a label warning that "[t]his water cooler may leach a chemical known to the State of California to cause cancer, birth defects or other reproductive harm. " In 1990, animal rights activists in Colorado sought to ban wool clothing, claiming that sheep are injured during shearing. Table salt and candle wax also have been identified as hazards. Regulations promulgated by the U.S. Occupational Safety and Health Administration require that laboratory bottles containing sodium chloride - ordinary table salt - proclaim in large letters, , "WARNING: CAUSES IRRITATION. Avoid contact with eyes, skin or clothing. Avoid breathing dust. Wash thoroughly after ha~ling." The data sheet accompanying sodium chloride warns the worker to "[w]ear [a] respirator, chemical safety goggles, rubber boots and heavy rubber gloves" in the event of a spill! Simiiarly, under OSHA regulations, paraffin - candle wax - must bear the following warning: "After contact with skin, wash immediately with plenty of soap and water. * * * Special Firefighting Procedures: Wear self-contained breathing apparatus and protective clothing to prevent contact with skin or eyes. * * * Waste Disposal Method: Dissolve or mix the material with a combustible solvent and -burn in a chemical incinerator equipped with an afterburner and scrubber. " James T. Bennett is Professor of Economics at George Mason University. K'LF publieations are available on the Mead Data Centnal L~s/N~s0 online injonnation service. The Washington Legat Foundatron ("WZF"J is a 50 f(CJ()) tax exempt organ¢anon and is Amenca's largest pro-free enterpnse 1 0 • r-ir • TFtr- 1 ~~/ °- ^ltnm ~^ , 1^ nr+ nf a.•r-q nf nnr -I naneKC wrmen esoectaitv for and oublsshed

In pursuit of these agendas, the neo-probe acts with puritanical zeal. Typical is the reaction of the neo-probes to news of a West Coast physician who also makes and sells wine. Learning of this, a member of a Washington D.C. physician's advocacy group declared: "Profiting from alcohol consumption is antithetical to the mission we have as doctors, which is to promote health. " Neo-prohibitionist forces have laid siege to the tobacco industry with particular zeal. The neo-probes regularly claim that tobacco is underregulared. Former U.S. Surgeon General Antonia Novello, in fact, has gone even further, contending that tobacco is "the least regulated consumer product" in any country. This claim is absurd. 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 neo-probes is not to ensure that tobacco products are adequately regulated but to put the tobacco industry, which employs thousands of Americans and adds substantially to our domestic and export economies, 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 anti-tobacco lobby as "underregulation. " No additional regulation is warranted. Indeed, U.S. 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." Tobacco Product Education and Health Protection Act of 1990: Hearing on S. 1883 before the Senate Comm. on Labor and Human Resources, 101st Cong. 2d Sess. 23 (1990). Federal Regulation 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 to categorize 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. Labeling and Advertising. 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. Product Regulation 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 submitted additional ingredient information to HHS at the agency's request as well. HHS is required, in turn, to submit to Congress reports advising of any information pertaining to any such Copyrigiu ° 1994 Washington Lcgal Fouadatioa 2 ISSN 1056 3059

ingredient "which in the judgement 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 advocates that cigarettes are "exempt" from regulation under the Federal Food, 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. When and Where the Product Can Be Used. Following several years of study, the Environmental Protection Agency in January 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 restrictions 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 U.S. Department of Transportation. Congress also has required WIC 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 U.S. Department of Defense, as well as other federal agencies, have established additional controls. The U.S. Postal Service has banned smoking in its facilities and Amtrak has severely limited smoking on its trains. The U.S. House of Representatives recently adopted rules restricting smoking in its buildings. 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 anti-smoking program known as Copyright 0 1994 Washington Legal Foundation 3 ISSN 1056 3059

I "ASSIST" purportedly to fund anti-smoking campaigns in 17 states. See Emord, Project "ASSIST": Federal Fwrds For Speech And Behavioraal Control, Washington Legal Foundation LEGAt. BAcgGltovNDIIt, Vol. 7 No. 19 (July 10, 1992). 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 1990 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 have adopted restrictions on the sale of cigarettes through vending machines and have limited the distribution of tobacco product samples. Some local governments even prohibit retail displays of tobacco products that permit customer access without the assistance of a clerk. Other Federal Statutes Proponents of heavier regulation 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 adminaM~+.ng them lack the expertise and resources 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. Conclusion As with many of the neo-prohibitionist claims, the assertion that tobacco products are underregulated and thus require more stringent government control does not withstand scrutiny or common sense analysis. This product is only one of many that neo-probes and their policy ma.ki.ng allies are targeting in their attempt to micromanage consumer choice by restricting speech and imposing expensive and burdensome government regulations. Similar claims of underregulation will be made of products that are already subject to substantial government regulation. Such neo- prohibitionist attempts to regulate products out of existence must be placed under similar scrutiny and the public must be educated on the real goals of these demands for more regulation. n WLF'S LEGAL STUDIES DIVISION The Legal Studies Division of the Washington Legal Foundation (WLF) is dedicated to expanding the pro-free enterprise legal idea base. It does this by conducting original research and writing; delivering a diverse array of publications to businessmen, academics, and government officials; briefing the media; organizing key policy sessions; and sponsoring occasional legal policy conferences and forums. What makes WLF's Legal Studies Division unique is its production of a variety of readable and challenging commentaries with a distinctly common sense viewpoint rarely reflected in academic law reviews or specialized legal trade journals. The formats include the provocative CouNSEL's ADVISORY, timely LEGAL OPINION LETTERS, concise LEGAL BACKGROUNDERS on emerging issues, in-depth WoRxuvG PAPERs, useful and practical CoN'rE1ApoRUtY LEGAL No'rFS, law review-length MONOGRAPHS, and occasional books. copyright 0 1994 waahingCoa i.egai Foundacioa 4 ISSN 1056 3059 Tn r~er e infnrm-nnn ah-jr nrPvin„~ Wathirritnn Legal Foundation publications contact Alan M. Slobodin, President, Legal