OpEd: The FDA Pits Itself Against Big Tobacco

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Written by Samuel Guzman

In a watershed moment for the fight for tobacco control, the head of the United States Food and Drug Administration (FDA) has proposed sweeping new rules to clamp down on flavored nicotine products and hopefully keep them out of children’s hands.

While some public health campaigners have argued that even this crackdown does not go far enough, it’s nevertheless an important step in the right direction. Big Tobacco has reacted with adamant resistance. The FDA will face a huge uphill battle to get its proposals past a stubborn tobacco industry, which has opposed regulation of their products at every turn.

Better Late Than Never

The new rules, announced by FDA head Scott Gottlieb earlier this month, would ban all menthol and flavored cigarettes in the U.S., as well as severely restrict the availability of flavored e-cigarettes. Gottlieb’s proposals came after FDA statistics revealed that there had been a 48% increase in middle schoolers and a stunning 78% surge in high schoolers who smoked in 2017. One in five American high school students now regularly smoke, a statistic which Gottlieb says “shocks his conscience”.

Surveys have indicated that teen smokers are first attracted by flavored tobacco products, which is why Gottlieb is hoping that by sidelining flavored tobacco, he will eliminate a key gateway to the deadly nicotine habit. The current raft of proposals signals that the FDA intends to be more proactive in regulating the industry—the agency did not even have the authority to regulate tobacco until 2009, and has been slow to react to the exponential proliferation of e-cigarettes, even allowing e-cigarette manufacturers until 2022 to demonstrate that their products are “safe alternatives” to conventional cigarettes.

The Inevitable Pushback

The FDA’s crackdown has been endorsed by public health bodies and the National Association for the Advancement of Colored People (NAACP)—since four out of five African American smokers consume menthol cigarettes, they will be particularly affected by the FDA’s clampdown—but the regulator has a long road ahead to enforce the new restrictions. The FDA is undoubtedly bracing for a full-frontal assault from Big Tobacco, which has employed an extensive and imaginative playbook of tactics to circumvent previous attempts to regulate the industry in the U.S. and abroad.

Before the FDA took action, San Francisco had already instituted its own ban on flavored products, despite tobacco company R.J. Reynolds spending $12 million on an unsuccessful bid to fight it. However, the tobacco titans don’t just rely on legal battles: new research has shed light on the industry’s less above-board ways to oppose unfavorable regulation.

Major industry players have repeatedly worked to water down the effects of taxation hikes, either by initially absorbing the costs themselves and passing them on to the consumer incrementally, or by reducing the number of cigarettes in a packet to disguise the price difference. The industry has also favored price-marked packaging, which forestalls shop owners’ efforts to sell them at a higher price.

Big Tobacco’s tricks have been particularly aggressive in the developing world, which the industry sees as a uniquely promising opportunity for growth and expansion. Tobacco companies have tried to combat legislation there by sending threatening letters to at least eight African governments and positioning themselves as key drivers of economic growth. In South America, Philip Morris International (PMI) brought a $25 million claim for damages against Uruguay regarding graphic warnings Montevideo had placed on cigarette packages. Though Uruguay eventually prevailed, it was left with millions in legal fees, and a coalition of health campaigners warned that the case could have had a chilling effect on similar graphic warning initiatives in Paraguay and Costa Rica.

Stubbing Out the Opposition

With a seemingly unlimited budget and a vested interest in fending off legislation aimed at curbing its activities, it’s clear that Big Tobacco intends to use every trick in the book to keep consumers hooked on nicotine. The tobacco industry has proven itself a venerable foe, making bold moves like the FDA’s recent crackdown all the more crucial.

The path forward promises to be a particularly rocky one. But Gottlieb has taken an important first step in championing public health over business interests. Given that he finds himself in an administration that appears to be pulling in the complete opposite direction, his proposals are all the more laudable. Hopefully, he and the FDA will be able to weather the inevitable backlash from his own party and the tobacco industry alike, and introduce crucial reforms in improving the health of Americans.

About the author: Samuel Guzman is a policy analyst based in Washington, DC. He has extensive experience in South America, following a 15-year tour of the continent in various research and consulting positions.