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Regulatory Approaches to Ending Cigarette-Caused Death and Disease in the United States

Published online by Cambridge University Press:  06 January 2021

Richard Daynard
Richard Daynard*
Affiliation:
Northeastern University School of Law
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Extract

Cigarettes result in over 400,000 preventable American deaths each year. In 2011, fewer than twenty percent of adults smoked. Since the publication of the first U.S. Surgeon General's Report on Smoking and Health nearly fifty years ago, when smoking prevalence was around forty percent, policies such as smoke-free laws, large tax increases, and litigation have collectively contributed to cut smoking prevalence in half. Unfortunately, no one expects the mix of policies currently proposed, which includes further tax increases, spatial smoking restrictions, somewhat higher minimum age restrictions, adverse publicity, and quitting assistance, to reduce U.S. smoking prevalence below fifteen percent in the foreseeable future.

The rule adopted by the U.S. Food and Drug Administration (FDA) to require hard-hitting graphic warnings on cigarette packages, as is currently done in dozens of other countries, has thus far been rejected by federal judges who have found that warnings designed to arouse negative emotions violate cigarette manufacturers’ First Amendment rights.

Type
Article
Information
American Journal of Law & Medicine , Volume 39 , Issue 2-3 , June 2013 , pp. 290 - 297
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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References

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5 See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 201, 123 Stat. 1776, 1842 (2009) (to be codified at 15 U.S.C. § 1333).

6 See, e.g., R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1221-22 (D.C. Cir. 2012).

7 See Family Smoking Prevention and Tobacco Control Act § 907(e), 21 U.S.C.A. § 387g(e) (West 2012).

8 Not surprisingly, even the FDA's use of a Congressionally-authorized scientific panel to make recommendations regarding the fate of mentholated cigarettes has drawn a legal challenge which is moving forward. See Lorillard, Inc. v. United States FDA, No. 11-440 (RJL), 2012 WL 3542228 (D.D.C. July 30, 2012).

9 ZOGBY INT’L, A FEDERAL BAN ON CIGARETTES? NATIONWIDE SURVEY OF 1,200 REGISTERED VOTERS 2 (2006), available at http://www.drugpolicy.org/docUploads/DPAZogbyTobaccoPoll2006.pdf.

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11 See, e.g., Daynard, Richard A., How Smoking Became History: Looking Back to 2012, 21 TOBACCO CONTROL, 289, 289-90 (2012)Google Scholar.

12 See, e.g., Richard Daynard, Endgame Ideas: Dangerously Radical, Visionary Leadership or Both?, Presentation at World Conference on Tobacco or Health (Mar. 23, 2012) (on file with author); see also Mark Gottlieb and Richard Daynard, Non-Addictive Cigarettes: A Regulatory Pathway to a Smoke-Free Society, NAT’L CONFERENCE ON TOBACCO OR HEALTH (Aug. 15, 2012), available at https://nctoh.confex.com/nctoh/2012/webprogram/Paper2585.html.

13 With the notable exception of Bhutan, which banned the sale of tobacco products in 2004. Bhutan Forbids All Tobacco Sales, BRITISH BROAD. CO. NEWS (Dec. 17, 2004, 9:21 AM), http://news.bbc.co.uk/2/hi/south_asia/4012639.stm.

14 See, e.g., Gary Auxier, Anti-Smoking Zealot's ‘Research’ Defies Common Sense, METRO. NEWS-ENTERPRISE, Feb. 10, 1998, at 7; Russell Baker, The Danger Stage, N.Y. TIMES, May 31, 1994, at A17.

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16 One variant of this approach urges that control over the industry should be given to not-for-profit corporations with a mandate to reduce smoking rates. See Callard, C., Thompson, D. & Collishaw, N., Transforming the Tobacco Market: Why the Supply of Cigarettes Should Be Transferred from For-Profit Corporations to Non-Profit Enterprises with a Public Health Mandate, 14 TOBACCO CONTROL 278 (2005)Google Scholar.

17 S. 1834, 110th Cong. (2007).

18 Id. at § 3001.

19 See, e.g., Clean Air Act of 1990, Pub. L. No. 101-549, §§ 401-16, 104 Stat. 2400, 2584-2634 (1990) (codified at 42 U.S.C.A §§ 7651-7651o (West 2012)) (acid rain cap-and-trade program statute).

20 S. 1834, 110th Cong. § 3005 (2007).

21 See 21 CONG. REC. S9622-23 (daily ed. July 19, 2007).

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23 Id.

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25 Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009).

26 Id. at § 907 (to be codified at 21 U.S.C. § 387g).

27 Id. at § 907(a)(4)(A)(i) (to be codified at 21 U.S.C. § 387g(a)(4)(A)(i)).

28 Id. at § 907(d)(3)(B) (to be codified at 21 U.S.C. § 387g(d)(3)(B)).

29 Id. at § 907(a)(3)(B) (to be codified at 21 U.S.C. § 387g(a)(3)(B)).

30 See CDC, Quitting Smoking Among Adults—United States, 2001-2010, 60 MORBIDITY & MORTALITY (WKLY. REP.) 1513, 1513 (2011).

31 See Family Smoking Prevention and Tobacco Control Act § 907(b) (to be codified at 21 U.S.C. § 387g(b)).

32 See Kessler, David A. et al., The Food and Drug Administration's Regulation of Tobacco Products, 335 NEW. ENG. J. MED. 988, 989 (1996) (providing two examples of tobacco products marketed that contained no nicotine.).Google Scholar

33 See Project 1, Study 1: Evaluating New Nicotine Standards for Cigarettes, CLINICALTRIALS.GOV, http://clinicaltrials.gov/ct2/show/NCT01681875 (last visited Feb. 19, 2013) (aiming to “evaluate the relationship between nicotine yield in very low nicotine content cigarettes and smoking behavior, discomfort/dysfunction, dependence, biomarkers of exposure, and compensatory smoking”).

34 Family Smoking Prevention and Tobacco Control Act § 907(b)(2) (to be codified at 21 U.S.C. § 387g(b)(2)).

35 See CDC, supra note 30, at 1513.

36 See Family Smoking Prevention and Tobacco Control Act § 907(a)(4)(A)(i) (to be codified at 21 U.S.C. § 387g(a)(4)(A)(i)) (permitting tobacco standards for nicotine yields of the product when appropriate for the protection of the public health).

37 Benowitz, Neal L. & Henningfield, Jack E., Establishing a Nicotine Threshold for Addiction: The Implications for Tobacco Regulation, 331 NEW ENG. J. MED. 123, 124-25 (1994)Google Scholar.

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39 See, e.g., Milton J. Valencia, ‘Cigarette Man’ Cited as Tobacco Trial Begins: Woman Says He Gave Children Samples, BOSTON GLOBE, Nov. 13, 2010, at B1.

40 Family Smoking Prevention and Tobacco Control Act § 916 (to be codified at 21 U.S.C. § 387p).

41 Id. at § 916(a)(1) (to be codified at 21 U.S.C. § 387p(a)(1)).

42 Khoo, Deborah et al., Phasing-Out Tobacco: Proposal to Deny Access to Tobacco for Those Born from 2000, 19 TOBACCO CONTROL 355, 355-56 (2010)Google Scholar; see also Palash R. Ghosh, Tasmania Seeks to Create Tobacco-Free Generation by Banning Cigarette Sales to Anyone Born After 2000, INT’L BUS. TIMES (Aug. 22, 2012), http://www.ibtimes.com/tasmania-seeks-create-tobacco-free-generation-banning-cigarette-sales-anyone-born-after-2000-752901.

43 Khoo et al., supra note 42, at 356.

44 See MATTHEW C. FARRELLY ET AL., STATE CIGARETTE EXCISE TAXES: IMPLICATIONS FOR REVENUE AND TAX EVASION 6-8 (2003), available at http://www.rti.org/pubs/8742_excise_taxes_fr_5-03.pdf (finding total revenue increased as excise taxes increased despite decrease in smoking prevalence and smuggling in response to these tax increases).

45 See Smoking and Tobacco Use: Youth and Tobacco Use, CDC (Nov. 15, 2012), http://www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/tobacco_use/index.htm#estimates.

46 See Austin v. Tennessee, 179 U.S. 343, 361-63 (1900).

47 CDC, supra note 1, at 1226.