Markets not in everything

My article today at The Atlantic looks at the anti-competitive effects of the FDA’s regulation of tobacco:

David Sley wants to sell cigarettes. This, by his own admission, does not make him the most sympathetic person to feature in an article about excessive government regulation. Yet Sley, an aspiring entrepreneur who has spent more than two years trying to navigate the Food and Drug Administration’s new tobacco regulations, has legitimate cause to complain. The entire cigarette industry has been brought to a standstill by the FDA, forbidden from introducing any new products since March 2011. Tobacco companies contend that the agency’s actions rest on uncertain scientific and legal grounds — and, for once, they may be right.

In the article I document Sley’s attempt to launch a new cigarette brand, a process which has dragged on for more than two years without resolution. As you may remember, the Tobacco Control Act was backed and negotiated by Philip Morris, who just might have anticipated such a result.

The extremely slow approval process also bodes poorly for the premium cigar market, which is even more dynamic than that for cigarettes. Cigar lovers should pay close attention when the FDA issues its proposed rules for cigars later this year.

Read the whole thing.

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Menthol acquitted

The FDA has completed its investigation into menthol cigarettes and found that they are no more hazardous than normal cigarettes. Michael Siegel summarizes:

In its draft of Chapter 6 of the report, TPSAC reviews the evidence on whether menthol cigarettes are more hazardous than non-menthol cigarettes, including smoking typology, biomarker, toxicology, and epidemiologic studies. The Committee concludes that:

1. “The evidence is insufficient to conclude that it is more likely than not that menthol cigarette smokers inhale more smoke than non‐menthol cigarette smokers.”

2. “The evidence is insufficient to conclude that it is more likely than not that menthol cigarette smokers are exposed to higher levels of nicotine and other tobacco smoke toxins, at least in regular daily smokers of more than 5 or 10 cigarettes per day. There are insufficient data to know if among smokers of relatively few cigarettes per day menthol cigarettes result in greater smoke intake and more exposure to tobacco smoke toxins.”

3. “The evidence is insufficient to conclude that smokers of menthol cigarettes face a different risk of tobacco‐caused diseases than smokers of non‐menthol cigarettes.”

The panel did find that menthol can enhance the smoking experience, making it less likely for smokers to quit. But this is obvious: If people didn’t like flavored cigarettes, no one would make them. Siegel again:

It is not clear what the criterion should be for the FDA to decide whether to ban menthol. If the FDA applies the criterion that was used to ban the other cigarette flavorings (i.e., whether the flavorings might enhance the taste of the product), then it would be forced to ban menthol cigarettes. In fact, the FDA would also be forced to ban all cigarette flavorings and additives, since all of them are added to enhance the ultimate bottom line: the quality and appeal of the smoking experience. If the product’s appeal were not enhanced by an additive, then that additive would not be added. This is a tautological issue, not a legitimate scientific question.

If the FDA applies the criterion suggested by Lorillard – that to be banned, menthol cigarettes must be more hazardous than non-menthol cigarettes – then the FDA would have no grounds to ban menthol cigarettes.

Siegel is right that this is not a question of science it all. It’s a question of what the FDA, Congress, and the president can get away with politically. From my Examiner column last year:

Because many consumers prefer mentholated cigarettes, one can claim that menthols are harder to quit or encourage more people to take up smoking. However this is not the same as showing that they are more “addictive.” By that standard, anything companies add to their products to increase their appeal to consumers would make them addictive. Menthol “masks” the harsh taste of tobacco in the same that milk and sugar mask the bitter taste of Starbucks coffee or barrel aging masks the bite of white dog whiskey. If menthol cigarettes are more dangerous than regular cigarettes, it’s simply because people like smoking them more. […]

Throughout the FDA’s hearings the most important question gets almost no attention: If a consenting adult wants to smoke a menthol (or clove, or banana…) cigarette, why shouldn’t he or she be allowed to? The agency claims to be concerned for children, but in seeking to ban flavored cigarettes it treats all adults like careless youths. The preferences of consumers are deemed irrelevant; smokers assumed to be dupes or addicts incapable of making their own decisions.

This hearing is, in essence, a debate about whether the FDA should ban a product simply because it is unhealthy and people enjoy it. Once that precedent is set it is a much shorter step to prohibiting cigarette sales entirely.

If anything, this new report just confirms that there was never any scientific justification for the initial ban on all other cigarette flavorings.

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FDA bans product for tasting good

No, the headline is not an April Fool’s joke. This week the FDA began its inquiry into whether it ought to ban the sale of menthol cigarettes:

A scientific advisory panel that will advise the Food and Drug Administration on regulating tobacco opened a two-day meeting Tuesday and began reviewing hundreds of published studies on menthol cigarettes. The panel, largely made up of scientists, physicians and public health experts, has a year to make a recommendation to the FDA on menthol cigarettes, which are used by about 26 percent of smokers and make up almost one-third of the $70 billion U.S. cigarette market.

Throughout this process there will be allegations from anti-tobacco groups that menthol cigarettes are more addictive, more dangerous, and more likely to hook teenagers than unflavored cigarettes. These scare tactics neglect to mention that menthol itself is harmless. It’s not habit-forming like nicotine. It’s not dangerous and is used widely in medicinal, dental, and food products. Tobacco companies don’t put it in cigarettes as part of a dark conspiracy to addict people. They use it because it tastes good, is soothing, and consumers want it.

Because of these effects it’s possible that some of the charges against menthol cigarettes are true, statistically speaking. The FDA’s going to spend a lot of time and money sorting this out, but there’s no mystery as to why this is: When a product is pleasant, people consume more of it. They’ll smoke more of them or smoke each cigarette more intensively. They’ll have less reason to quit. Some teenagers will prefer them to unflavored cigarettes, just as about one third of legal adult consumers do. This doesn’t mean that menthols are especially toxic, it just means that people like them.

If this is accepted as a legitimate reason to ban menthol cigarettes there’s no limit to what the government could do next. It could ban other forms of flavored tobacco in cigars, pipes, chew, and hookahs — in fact, New York City has already passed a low doing almost exactly that. It could force cigarette producers to make their products so bland and heavily filtered that no one wants to buy them. It could kill premium pipe and cigar companies entirely, an industry whose purpose is to make tobacco that tastes good and is pleasant to smoke.

And that’s just tobacco. If menthol and other flavors can be banned for “masking” the harsh taste of cigarettes, why not ban flavors that “mask” the harshness of cheap vodka? Or the barrel aging that turns hot white dog into mellow whiskey? Or hops in beer, condiments in fast food, milk and sugar in a venti Frappuccino? As individual health increasingly becomes the public’s business, there’s no end to the unhealthy things we can reduce the consumption of by simply making them unpalatable.

If you read the press coverage of this debate in The Post for example, you’ll see quotes from anti-tobacco activists explaining why menthol needs to be banned. You’ll even see quotes charging that not doing so would be racially discriminatory on the grounds that menthols are relatively more popular among blacks than whites. What you won’t see are quotes from any of the millions of consumers who currently smoke menthols and may soon have that choice taken away from them. The opinions of smokers do not matter; they are assumed to be dupes or addicts incapable of making their own decisions. By portraying them as victims of the tobacco companies anti-smoking activists dodge the consumer rights aspect of this issue. They avoid answering the hardest question asked in opposition to their plan: If a consenting adult wants to purchase a flavored cigarette, why shouldn’t he be allowed to do so?

This is a dangerous road. It’s one thing to forbid sales to minors, to tax tobacco, to require warning labels, and to restrict the sorts of places where one can light up. It’s quite another to take a product off the market simply because many people prefer it. That is pure paternalism; take individual agency out of the picture and it’s a much smaller step to banning tobacco entirely.

This issue is going to drag on for a long time. I’m sure I’ll be writing more about it here, but be sure to also follow the excellent coverage of Brooke Oberwetter starting with her most recent blog post.

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Racism has a flavor?

Michael Siegel links to this excellent article in Slate by Paul Smalera (in which he is extensively quoted). Smalera does a great job explaining the flaws and inconsistencies in the FDA tobacco bill. However he does slip into a pernicious way of thinking about the menthol cigarette exemption and race that needs to be challenged and avoided.

Smalera pushes the idea that this bill is “racist” because it bans the cigarette flavors that virtually no one smokes and exempts the one that many people do smoke, especially if they happen to be black. (Though, as he notes, the total number of white menthol smokers is approximately twice that of black menthol smokers.) In any other context, the racist move would be to ban the product that’s strongly preferred by African-American consumers; here it’s considered racist not to ban it. This idea portrays blacks in particular as helpless victims of tobacco companies who must be treated like children by a protective government.

In contrast, here is what non-racist tobacco policy would look like: Educate people about the dangers of cigarettes, tax them at a reasonable level, work aggressively to keep them out of the hands of minors, and then let all consumers — yes, even blacks! — make their own decisions about what, if anything, they choose to smoke.

The real reason the FDA bill exempts menthol has nothing to do with race: Menthol cigarettes make money and thus have lobbying power behind them. Clove, grape, and chocolate cigarettes don’t make much money and thus don’t have lobbying power behind them. End of story.

Unfortunately, the FDA bill is almost certain to pass and we will all be stuck with a law that, for all the reasons Smalera elucidates, will be good for virtually no one except Philip Morris. There are plenty of reasons to oppose it, not the least of which is the question of whether the government has any business at all forbidding adults from buying flavored cigarettes. The constant introduction of race into the debate distracts from these more important issues.

Update: Paul Smalera responds in the comments.

Previously:
Blunt racism
Cigars for me, but not for thee
Freshly minted bias

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The Post gets duped by Big Tobacco

The Washington Post editorial board, which has never seen an anti-tobacco regulation it doesn’t like, pushed again on Friday for giving regulatory authority over tobacco to the FDA. Their editorial includes this line:

These sensible restrictions are why more than 1,000 organizations — even tobacco giant Altria, the parent company of Richmond-based Philip Morris — support the legislation.

How incredibly naive does one have to be for Philip Morris’ support of a tobacco bill not to raise a few red flags? The proposed regulations sound reasonable as The Post describes them, but their unintended consequences would be deadly:

If this becomes law, makers of alternative tobacco products, such as smokeless tobacco, will be explicitly forbidden from mentioning in advertising or any other forum that their product is safer than cigarettes, even though this is true. The development and marketing of safer cigarettes could be blocked and “low tar” labels eliminated. The FDA could mandate lower nicotine levels, causing current smokers to inhale more cigarettes to ingest the same dose. Smokers who prefer flavored cigarettes are completely screwed, as every flavor except for menthol will be banned. This is all to the good of Philip Morris, maker of the popular Marlboro menthol brand; new restrictions on advertising and the costs of complying with new regulations will prevent smaller companies from eating into its market share, while denying consumers valuable information about the relative safety of other forms of tobacco will keep other competition at bay.

The Post misleadingly describes this as a consumer safety bill, comparing unregulated cigarettes to recent peanut contamination. But the perverse effect of FDA oversight would be that consumers would be even less informed than they are now, and demonstrably safer cigarettes could be kept off the market if regulators believe they would induce consumers to smoke more frequently. In short, the bill empowers the FDA to decide that it’s better for current smokers to die than for new smokers to enjoy a safer alternative. Call that what you like, but it isn’t consumer protection.

Previously:
Freshly minted bias

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We were never at war with Eurasia

A new survey conducted for the British government claims that England’s smoking ban has failed to get people to quit smoking as backers hoped it would. The Daily Mail reports:

The ban on smoking in public has failed to increase the number of people quitting, a report revealed yesterday.

The proportion of men who smoke has actually risen since the ban in July last year while there was no change at all among women.

The figures, coming after years of declining smoking rates, are a massive blow to Labour’s public heath policy.

A survey of almost 7,000 across all age groups found on average there was no change in the number of cigarettes that smokers said they had.

But in men aged 16 to 34, the number rose, by one and a half cigarettes a day.

It had been hoped the ban would help reduce smoking rates among the poor in particular, but instead the number of cigarettes smoked by working class men has gone up.

The Health Survey for England, carried out by the NHS for ministers, has raised fears that smokers are simply lighting up at home rather than in pubs and restaurants – potentially putting children at risk.

The Department of Health’s response:

A spokesman for the Department of Health said: ‘Smokefree laws were introduced to protect employees and the public from the harmful effects of secondhand smoke.

‘The legislation was never intended to be a measure to reduce smoking prevalence.’

Fair enough, if it were true. From the same article, here’s then Health Secretary Patricia Hewitt right before the ban took effect:

‘This is an enormous step forward for public health. It is going to make it easier for people who want to give up smoking to do so. Over time it will save thousands of lives.’

And a BBC article from the same time:

The government predicts about 600,000 people will give up smoking as a result of the law change.

And Guardian coverage:

The Department of Health estimates that around 700,000 of England’s 10 million smokers will quit as a result of the ban – an average of 1,300 people in each MP’s constituency.

Here’s the Daily Mail again, reporting on a study from earlier this year when it looked like the ban truly was causing people quit:

Another study, by the Department of Health, will also highlight tomorrow the success of the smoking ban in encouraging people to quit the habit.

The report will show that a total of 234,060 people have stopped smoking with the help of the NHS Quit Smoking Service since the ban was brought in on July 1, 2007.

That is 22 per cent more people than in the previous 12 months.

And for good measure, here’s one of the four reasons for implementing the ban listed on the Department of Health’s own website:

Smokefree law… helps people trying to give up smoking by providing supportive smokefree environments

The DoH is right to say that the main justification for smoking bans (to the extent that there is one) is to protect non-smokers; it’s a line spokesmen have used in the past as well. Yet from the beginning the department has consistently stressed that the ban would spur people to quit smoking and gladly took credit when it appeared that it did. If the new survey is accurate, DoH should own up to the failure.*

The interesting question is why smoking rates haven’t decreased and why they’re increasing among young men. I’m a bit skeptical of the finding, actually. At least in the first months following the ban, sales of cigarettes in England declined significantly. Even so, the survey appears reputable. It suggests that many people are choosing to just stay home and smoke. I have another theory.

In bars where smoking is allowed, I never smoke cigarettes. I don’t like them. My friends can smoke though, and we can still hang out together. Smoking bans change the dynamic. Now my friends have to step outside and I often find that the people I most want to talk to (i.e. the cool kids) are no longer in the bar. Or perhaps I’ll be chatting with a woman who suggests we step outside for a cigarette. Am I going to say no? Of course not, I go with her. And since it would be awkward to stand outside in the cold not smoking, the other person constantly aware that her habit is all that’s keeping me from warmth and drink, I’m going to light up as well.

For me this still adds up to less than 10 cigarettes a year and, at the risk of sounding Clintonian, I don’t inhale. But I can see how people who like cigarettes could end up smoking much more. As any smoker knows, smoking invites sociality, and bans have shifted the liveliest social space from a shared area inside the bar to an exclusive smokers’ club outside it. If young men really are smoking more than they were before, I suspect that this is one of the ban’s unintended consequences.

*A very trivial way out of this would be for DoH to claim that hundreds of thousands of smokers really did quit but that they’ve been unexpectedly replaced by a cohort of brand new smokers. I don’t think they’ll make that argument.

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Is the tobacco bill racist?

That’s the question Jacob Sullum asks in his new article at Reason. Read it here.

Last week I sent the following letter to The New York Times:

Thursday’s article about legislation to ban all cigarette flavorings except menthol quotes former federal health secretaries arguing that the bill “discriminates against African-Americans.” If any proposal could be said to discriminate against African-Americans, it is perhaps the idea that we should prohibit the menthol cigarettes that three-quarters of black smokers prefer. To deny them their choice is to imply that they cannot be trusted to make their own decisions and that they are helpless victims of marketing; in short, to treat them like the children the bill is intended to protect.

There are many reasons to oppose the Philip Morris-backed legislation to give the FDA regulatory authority over tobacco, including manipulation by the industry, loss of variety, and potential bans on safer alternatives to existing cigarettes. Introducing race into the debate is a distraction from these important considerations.

They printed this one from the president of Lorillard Tobacco instead.

Previously:
Freshly minted bias
Cigars for me, but not for thee

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Freshly minted bias

The New York Times ran another article by Stephanie Saul today about the menthol exemption to the proposed ban on flavored cigarettes. Since black smokers are the largest buyers of menthol cigarettes, the issue is becoming entangled in racial politics. For example:

The bill’s treatment of menthol “caves to the financial interests of tobacco companies and discriminates against African-Americans — the segment of our population at greatest risk for the killing and crippling smoking-related diseases,” the letter from the former [federal health] secretaries said. “It sends a message that African American youngsters are valued less than white youngsters.”

Or this, from Saul’s previous article:

Menthol is particularly controversial because public health authorities have worried about its health effects on African-Americans. Nearly 75 percent of black smokers use menthol brands, compared with only about one in four white smokers.

That is why one former public health official says the legislation’s menthol exemption is a “cave-in to the industry,” an opinion shared by some other public health advocates.

“I think we can say definitively that menthol induces smoking in the African-American community and subsequently serves as a direct link to African-American death and disease,” said the former official, Robert G. Robinson, who retired two years ago as an associate director in the office of smoking and health at the Centers for Disease Control and Prevention.

She’s right about the financial interest: the menthol exemption is clearly a sop to Phillip Morris, the only tobacco company backing the bill. And she’s right that there’s no logical reason for allowing only menthol as a flavoring, except for the fact that it’s the flavor most consumers of flavored tobacco actually want. It’s dubious, however, to say that this discriminates against blacks. Whatever the current market shares may be, there’s no reason to think that if other flavorings are banned consumers of all races won’t switch to menthol.

In fact, it’s perverse to say that not banning a product that’s enjoyed by many African-American adults is a form of racial discrimination. To do so implies that blacks are victims of marketing, cannot responsibly make their own decisions, and need to be coercively protected from flavored tobacco products; basically, that they should be treated like children. The alternative view — that however regrettable heavy menthol cigarette use among African-Americans may be, the choice should be theirs to make — doesn’t even merit a mention within the The Times‘ reporting pages.

I don’t believe that either side in this debate is truly motivated by racism. However, if reporters are going to print allegations of discrimination in their coverage of it, they should consider that public health activists are no more immune to racial bias than anyone else.

See also Jacob’s Sullum’s coverage of the issue for Reason:
The Times Discovers the Tobacco Bill’s Flavoritism
FDA-Approved Cancer Sticks

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The future of smoking

This is depressing: Foreign Policy rounds up a list of the next countries likely to implement national smoking bans. Costa Rica, the Netherlands, the Czech Republic, Switzerland, and China are all on the list. It does note that Germany, at least, is backing away from its ban, so the trend isn’t entirely in one direction.

Regardless of your personal preferences, where do you see the future of smoking regulation in the US? Have we reached a tipping point that will inevitably make smoking socially unacceptable? Or will the increasingly untenable and bizarre claims made by anti-smoking groups propel the movement over the shark, allowing smokers and property rights defenders to push back?

I’m going to go out on a limb and predict that, regardless of legal changes, old-fashioned pipe smoking will see a resurgence.

Leave your thoughts in the comments section.

[Via TMN.]

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