My newest Examiner post covers the FDA’s draft rules for calorie labeling, which may extend not just to restaurants, but also to convenience stores, movie theaters, and supermarket salad bars — all without much evidence that they’ll do any good.
On a related note, last summer I wrote about how technological change will make these laws superfluous:
Improvements in information technology are another reason to doubt the merits of forcing restaurants to post calories directly on menus. Websites like Calorie Lab already provide databases of the nutritional information from more than 500 restaurants. As far as I know they don’t have a phone app yet, but they could easily make one (one competitor already has). As smart phones proliferate it will be easier than ever for consumers to access calorie counts in addition to much more thorough nutritional information about the foods they eat. Yet these archaic laws will still be on the books forcing unneeded clutter on printed menus.
Even better than smart phones, this week Eater takes a look at how iPads are replacing printed menus in a few restaurants. The devices are durable, interactive, can hold a lot more information than a printed menu, and can work with a restaurant’s point of sale system. If desired, an electronic menu could offer extensive nutritional information at the push of a button. They’re cost-prohibitive right now for most restaurants, but in the future we can expect the price to go down and electronic menus to become more common.
It will be interesting to see how the law is adapted for electronic menus. Will calorie counts have to be displayed prominently like they are now, or will it be enough to have them easily available on the device for interested consumers? If the former, that will be another sign this law is intended more to nag people than to provide them with desired information.
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OK, one quick post from Tales with a couple links. I’m at the Washington Examiner today with a post about why the FDA’s menthol hearings are asking the wrong questions. Then at the Portland Examiner, Hoke Harden has a great (and way too flattering!) write-up of the Brewing Up Cocktails event. If you’re curious about the drinks we served, go check it out.
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The Institute of Medicine has released its report on salt in the American diet and, as expected, it recommends that the FDA mandate reduced sodium content in packaged foods and chain restaurants. Here’s a short summary from The Washington Post of how this would work:
In a complicated undertaking, the FDA would analyze the salt in spaghetti sauces, breads and thousands of other products that make up the $600 billion food and beverage market, sources said. Working with food manufacturers, the government would set limits for salt in these categories, designed to gradually ratchet down sodium consumption. The changes would be calibrated so that consumers barely notice the modification.
As Jeff Ely notes, the idea is that this is a coordination problem. We might all be better off if we reduced our salt intake, but in order to calibrate our tastes to a lower level we have to gradually reduce the salt in all foods at the same time. (For what it’s worth, the FDA has stated it’s not currently planning salt regulations.)
There’s some disagreement about the benefits of reducing salt consumption across the entire population and about whether our “bliss point” for salt content is really that malleable; John Tierney writes on this topic here and here. But for now let’s grant the plausibility of both of those claims. It’s one thing to say we should all reduce our salt consumption. It’s quite another to say that a government agency is capable of gradually and imperceptibly reducing the amount of sodium in the nation’s food supply over the course of a decade and stopping at the “correct” level. The IOM report’s introduction hints at the scale of this endeavor:
… if strategies to reduce sodium intake in the United States are to be successful, they must embrace an approach that emphasizes the entire food system and emphasizes sodium intake as a national concern. This report recommends the use of regulatory tools in an innovative and unprecedented fashion to gradually reduce a widespread ingredient in foods through a well-researched, coordinated, deliberative, and monitored process. [...] the approach must be supported by a strong federal government commitment to sodium reduction and leadership from the Department of Health and Human Services (HHS) in cooperation with other agencies and groups to ensure coordination with all stakeholders including the food industry and consumers.
Monitoring! Deliberation! Coordination! This is bureaucracy porn for technocrats. It’s a safe bet that the people at the IOM aren’t reading Hayek on their lunch breaks, because if you have read Hayek the success of this enterprise starts to sound very far-fetched. You begin to wonder how the people making these decisions could possibly have all the information they need to pull this off. How gradual is gradual? What percentage of salt should be taken out of each product each year? Is it the same for bread, pretzels, spaghetti sauce, pickles?
This knowledge problem is exacerbated by the fact that salt’s impact on taste is complex. It doesn’t just make things taste salty. It can make food seem like it has greater body and reduces the perception of bitter elements (recall the way a tiny bit of salt can reduce the bitterness of bad coffee). As food companies compensate for reduced salt in their foods, they may have to make them richer in other ways or use more sweeteners. Similarly, as Tierney points out, if anti-salt advocates are wrong and consumers do have an inflexible satiation point for salt, they may eat more food just to keep their salt intake constant. To some extent we may end up trading salt for calories, hardly an unequivocal good given our current excess.
It’s doubtful whether a government agency could accurately gauge consumer preferences. The FDA is not in the food-selling business and so has little incentive to care about taste. The IOM report repeatedly stresses keeping food “acceptable” to consumers. But what if you don’t want acceptable, you want delicious? Don’t expect the FDA to care. As demonstrated by its actions against unpasteurized dairy and its threat to ban menthol cigarettes, the agency places little value on consumers’ choices when they conflict with regulators’ own assessments of acceptable risk. There’s no reason to believe the interests of regulators and consumers will be aligned on salt levels either.
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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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Yesterday’s Wall Street Journal featured a good article about the FDA’s renewed crackdown on raw milk sales. In it we get confirmation that the agency may indeed tighten its rule allowing sale of raw milk cheeses after 60 days of aging. It also includes a few quotes from John Sheehan, the media-shy director of dairy food safety:
“Raw milk is inherently dangerous and should not be consumed by anyone, at any time, for any reason,” says John Sheehan, director of the FDA’s division of plant- and dairy-food safety.
This is a completely unscientific statement. What does “inherently dangerous” mean? Pasteurization has been widespread for only about a century. Was the unpasteurized milk that humans drank for thousands of years before that “inherently dangerous” or simply less dangerous than modern pasteurized milk? Should it not even be consumed so a person can discover for himself if the benefits outweigh the costs? Sheehan’s conclusion has no scientific basis and ignores diversity of tastes and risk tolerances.
There’s a lot of hype about the health benefits and safety of raw milk put out by its advocates, much of it not very scientific. The FDA could play a constructive role by informing consumers of the risks involved. But to do so it needs to stop alienating them by driving them into underground markets of true believers. Potential raw milk consumers might be more trusting of the agency if it wasn’t denying them their freedom and seeking to have their suppliers thrown into jail.
[Via ColdMud.]
Update: In the comments, Barzelay says it much better than I did:
This binary way of looking at food as either risky or not risky is never going to work because everything carries a risk, it’s just that risks are greater, or at least different, for different things. Moreover, it’s not as simple as pasteurizing food, because other risk factors can come into play: your pasteurized milk, if stored at improper temperatures, can have a much higher risk than raw milk. We need to embrace a more complex view of food-borne illness risks that puts more of the onus on the consumer. People need to be aware of the risks of what they’re eating.
Instead the FDA wants to be able to proclaim that all the food in the US is safe, or at least all the food available from typical big-business retailers. They should be doing the opposite! All food is risky! Now tell people how to manage those risks.
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In much of Europe, fresh, raw milk cheeses are available and loved by cheese connoisseurs. In the US the FDA requires raw milk cheeses to be aged for at least 60 days prior to sale, which limits our options but is better than nothing. David Gumpert reports that now even that option may be taken away from us:
According to a report in an industry publication, Cheese Reporter, a top dairy official at the FDA, Stephen Sundlof, director of its Center for Food Safety and Applied Nutrition (CFSAN) believes that the 60-day aging period “is not effective in reducing pathogens in raw milk cheeses.” There needs to be “some other risk management steps” that could be applied. Sundlof said at a dairy conference last month. What makes him think that the 60-day period isn’t effective in reducing pathogens? A little birdie must have told him so.
A change in the aging period regulation could put a crimp on production of a number of raw milk soft cheeses like brie and camembert, among others. Some producers already struggle with the 60-day aging requirement, since certain cheeses are best sold sooner than that, and letting them age for 60 days simply reduces their viable shelf lives.
Moreover, the FDA isn’t proposing to extend the aging period, but rather to require processing of the milk, including pasteurization of milk for certain cheeses.
Unfortunately the Cheese Reporter story is no longer at the link so I have few details, but this looks like another overreaction from the FDA.
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Forget raw milk. The big new conflict is over raw oysters:
In an effort to reduce cases of a rare, but potentially fatal, bacterial illness contracted from raw oysters, the FDA announced new rules this month that will require any oyster served from April through October to undergo a sterilization process before it can be sold in restaurants or on the market.
The rule will essentially eliminate raw oysters — at least as Louisianans know them — from restaurant menus for seven months of the year. Even oysters that will eventually be cooked during those months would have to go through the same cleansing process before being added to any dish, a move some say would undermine the culinary integrity of some of New Orleans’ most famous delicacies.
The illness in question is serious but rare, and primarily affects only those with weakened immune systems:
The vibrio vulnificus disease, the target of the FDA initiative, affects about 30 individuals per year nationwide who eat raw oysters from Gulf Coast. About half of those who get the disease, which invades the bloodstream and can cause a severe fever and skin lesions, eventually die.
But those most at risk from vibrio are people who already have immune system disorders, such as AIDS, cancer, kidney disease, diabetes or alcohol abuse.
As is typical of the FDA, the agency is choosing coercion over education and ignoring the right of adults to take a calculated risk in pursuit of culinary delicacies. The new rules will also favor large oyster operations and hurt small businesses, due to the large capital investments required to sterilize the oysters. It will surely lead to a robust black market in unsterilized oysters too.
The rule won’t take effect until 2011, so there’s still some chance to save raw oysters from the FDA’s overreach.
[Via Ryan Young's excellent Regulation of the Day feature.]
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The AP reports on a troubling new trend:
The nation’s top distributor of clove cigarettes is offering fans a new way to get their fix after the spice-flavored cigarettes are banned at the end of this month—cigars.
The new filtered cigars—close to the size of a cigarette and flavored with clove, vanilla and cherry—allow Kretek International Inc., which imports Djarum-brand tobacco products from Indonesia, to avoid new federal laws banning flavored cigarettes other than menthol.
The ban on flavored cigarettes, which critics say appeal to teenagers, doesn’t include cigars.
The difference? Cigarettes are wrapped in thin paper, cigars in tobacco leaves. While the cigars also are made with a different kind of tobacco, the taste is similar. The cigars come 12 to a pack, rather than 20 for cigarettes, but cost nearly half as much.
Why is this troubling? Not because people will continue smoking killer cloves. Not even because cigar shops may now be filled with their powerful aroma. No, it’s troubling because it will attract the government’s attention to cigars:
Whether the cigars are truly different or just an attempt to circumvent the ban by making superficial changes is in the hands of the FDA, said Matthew Myers, president of the Campaign for Tobacco-Free Kids.
“The key is the legislation gives the FDA the authority to respond to these types of frankly totally irresponsible actions,” Mr. Myers said.
Mr. Myers joined executives from the American Cancer Society, American Heart Association, American Lung Association and the Amercian Legacy Foundation late last month urging the FDA to take a closer look at the issue.
Regulation of cigars is currently fairly light, allowing for the development of new brands and competition among them. And as an essentially pure agricultural product — they’re just rolls of cured leaves — that’s the way things ought to be. If the FDA or Congress starts turning its attention to cigars there’s no telling what harm they could to the industry.
I wrote about the pseudoscientific absurdity of banning flavored tobacco here.
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The New York Times editorial page leads today with a screed against tobacco companies for their lawsuit challenging advertising restrictions in the new FDA law. The board alleges that the companies are challenging the law so that they can surreptitiously market to minors. Leaving aside the authors’ cavalier dismissal of First Amendment rights, this is yet another example of how the board completely misunderstands the current state of tobacco regulation.
It’s easy to test whether the Times‘ charge has merit since there are basically just two reasons that firms pay for advertising. One is to introduce new consumers to a product they don’t currently use, which is what the Times believes Big Tobacco wants to do with young people and cigarettes. The other is to lure existing consumers of a product away from competing producers. This lets us make different predictions based on which motive we think is dominant.
If the Times is right and it’s the former, all tobacco companies would benefit from overturning the advertising restrictions and would present a united opposition to the law. If it’s the latter, only the smaller tobacco companies would challenge it; the largest firm would favor the law as a means of restricting competition.
Is the Times right? Bloomberg provides the answer:
Reynolds, the second-largest U.S. cigarette maker, and third-biggest Lorillard Tobacco Co. sued after opposing the legislation that gives the U.S. Food and Drug Administration oversight over tobacco products. [...] Altria Group Inc.’s Philip Morris USA, which makes half of the cigarettes sold in the U.S., supported FDA regulation and endorsed the law.
This doesn’t mean that the smaller companies don’t want to target youth too or that Philip Morris won’t eventually join in, but Philip-Morris’ ambivalence is telling. The anti-competitive effects of the law were clearly one of the main factors at work in its passage.
Reading the Times’ editorial you would never know that the nation’s single largest producer of cigarettes isn’t part of the current lawsuit. This is the same error of omission they made with their opposition to Senator Kirstin Gillibrand, discussed at length here. Time and again the board’s anti-tobacco zealotry has caused them to misunderstand how tobacco regulation has changed after the Master Settlement Agreement. Big tobacco companies, and Philip Morris especially, now view the government as a partner they can use to protect their market share. By consistently misconstruing the effects of new regulations and neglecting to mention the industry’s hand in writing them, The New York Times has become the best mouthpiece Philip Morris could ever hope for.
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The FDA already forbids the interstate sale of unpasteurized milk. A section tucked into the Food Safety Enhancement Act of 2009 threatens to give the agency new powers over intrastate commerce, overriding the rights of consumers and state laws allowing its sale. The Farm-to-Consumer Legal Defense Fund explains:
HR 2749 requires the HHS Secretary to issue “science-based performance standards . . . applicable to foods or food classes.” The Secretary is to “identify the most significant foodborne contaminants and the most significant resulting hazards . . . and to minimize to an acceptable level, prevent or eliminate the occurrence of such hazards.” [8a] FDA would have the power to make pasteurization of all raw milk a performance standard. Based on both its public statements and its record of taking enforcement actions against farmers, FDA is vehemently opposed to the consumption of raw milk and would like to ban its distribution.
Even if FDA does not issue a performance standard requiring pasteurization, the likelihood is that if HR 2749 passes into law, the agency will be increasing its enforcement actions against raw milk producers whose products cross state lines. FDA has indicated that raw milk is a priority item with the agency; with the passage of HR 2749, it would have much greater resources to go after raw milk than it did before. FDA could take enforcement action directly or through state agencies funded by FDA.
The bill doesn’t explicitly mention pasteurization, but if that’s an accurate reading of the law it could effectively end legal raw milk sales in the US. My case for removing government barriers to buying raw milk was published at Reason last year.
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Ben points me to William Saletan’s article on the FDA bill and asks what I think of it. Obviously Saletan’s far more of a paternalist than I am and thinks he knows best what people should and should not consume. The only reason he wouldn’t ban tobacco is because a black market would develop. The fact that some people want to enjoy it doesn’t even enter into his calculations.
But that aside, his take on the bill is better than most, but still too optimistic. If all we wanted was safer tobacco products we would allow the FDA to approve them based on a straightforward comparison to existing products. Instead the law requires the agency to take the much more paternalist approach of trying to predict whether the gains from safer products would be offset by more people taking up tobacco or fewer people quitting. It’s too early to tell just how this will play out, but it’s a potentially huge hurdle to the creation and marketing of safer cigarettes and alternatives.
I’m also skeptical that the FDA can optimally regulate nicotine yields. Mandating lower yields, as the FDA is now empowered to do, would cause current smokers to light up more frequently or inhale more intensely. They’d be taking in more tar and carcinogens to get the same hit of nicotine, a substance that in itself is basically harmless. The hope would be that lower yields cause fewer new smokers to become dependent and ween some smokers off the drug; I’m not comfortable with the idea of sacrificing smokers’ lives to potentially prevent others from taking up the habit.
Saletan thinks that FDA tobacco regulation will be “rational.” I disagree, and the recent uproar over e-cigarettes is an example of how regulations are more likely to play out. Michael Siegel highlighted the absurdity a couple weeks ago:
The Campaign for Tobacco-Free Kids, American Cancer Society, American Heart Association, and American Lung Association have supported the legislation, about to be enacted, which asks the FDA to make cigarettes safer by removing certain of the more than 4,000 known constituents in the tobacco smoke.
At the same time, these groups have asked the FDA to ban a product (electronic cigarettes) which has already been developed and which already has eliminated all of the 4,000 known constituents in tobacco smoke, other than the nicotine.
I can’t help it, but this is the ultimate in insanity.
Why would you put your heart and soul into a a piece of legislation that, at very best, will allow the FDA to remove a few of the constituents from cigarette smoke but at the same time, demand that a product which has succeeded in removing all (but nicotine) of these constituents be immediately taken off the market?
E-cigarettes resemble smoking in appearance, threaten the market for patches and gums produced by major drug companies, and give health activist groups a new evil to rail against, but there’s no evidence whatsoever that they are harmful — certainly not more harmful than real cigarettes. In a rational regulatory environment they would not be threatened. What we have instead is a highly politicized regulatory environment, one in which the lobbying arms of drug companies, Big Tobacco, and public health groups will wield the greatest influence. Expecting good regulations to emerge from this process is, well, irrational.
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Tyler Cowen asks of the new tobacco bill:
For purposes of argument, let’s say you buy into paternalism and the government’s ability to do a good job with it (no need to reargue those points in the comments, they are only simplifying assumptions for the purpose of focusing on another question).
My question is: why impose quality restrictions when higher taxes would appear to be more efficient in limiting consumption and raising revenue at the same time? Revenue is especially scarce right now and making cigarettes less appealing lowers the revenue that can be raised by taxing them.
He’s right, of course, that higher taxes would be a more sensible policy. But raising taxes is a win-lose proposition: It’s a win for health activists and politicians, a loss for the cigarette companies. It’s hard to push the tax hike through the political process. Regulating quality is potentially a win-win: A win for health activists and politicians and a win for Big Tobacco companies who get to protect their market share via the menthol exemption, restrictions on advertising, and new hurdles to the creation and marketing of safer tobacco products. Taxes create opposition between the two groups, regulation can bring them together.
This legislation is obviously illogical from a public health point of view. It makes sense only as bootleggers and Baptists style cooperation, as one more significant step toward the cartelization of the tobacco industry.
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Loved your article about the FDA tobacco bill in The New York Times today. Omitting the fact that Philip Morris produces the second largest menthol brand in the country was a nice touch. I also like the way you neglected to quote any critics of the bill or mention its likely unintended consequences. That’s exactly the kind of reporting we need to keep the bad legislation coming. Good work!
Sincerely,
Jacob Grier
Update: In fairness, the quote from the Association of National Advertisers buried at the end of the article is technically critical. But still, that’s as far removed from the core issues of the legislation as one could possibly get and doesn’t even touch on the health aspects.
Previously:
More lazy tobacco reporting
Lazy reporting and the Pueblo ban study
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The Los Angeles Times editorial board writes today in favor of the bill giving the FDA authority over tobacco because, uh, regulation is good and stuff. They urge the agency to work quickly once the law goes into effect to ban menthol cigarettes, since menthol masks the harsh taste of tobacco and causes people to smoke more.
I agree! But I don’t think we should stop there. Alcohol and obesity also kill thousands of Americans every year, and with a few simple changes to American food and drink products we can save countless lives:
No more aging whiskies — Did you know that aging whiskey in a barrel for several years masks the harsh flavor of spirits coming straight from the still? It’s true! If we ban aging and force distillers to sell only white dog, we can cut whiskey consumption in no time.
No more hops in beer — People would drink much less beer if we stopped balancing out malts with those pesky, flavorful cones.
No more toppings and condiments — Nefarious fast-food companies trick consumers into eating their hamburgers by masking the taste of beef with tasty things like ketchup, mustard, and mayo. Forcing them to sell plain meat on a bun would do wonders for the national waistline.
No more milk chocolate — Dark chocolate is good for you, milk chocolate not so much. Bye bye, Mars bars!
No more vanilla lattes — Coffee is naturally bitter. For too long Starbucks has been addicting its customers to caffeine by masking that bitterness with sugary syrups. A venti caramel Frappuccino with whipped cream? 500 calories. A single espresso? 5 calories. The way forward is clear.
See, saving lives is easy when all you have to do is make the products people like taste bad. If only the FDA had control over all our consumption decisions, how healthy we all could be!
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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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An interesting article in yesterday’s Wall Street Journal about the nomination of William Corr to the Department of Health and Human Services:
The nomination of William Corr — former executive director of the Campaign for Tobacco-Free Kids, where he was a registered lobbyist until September — highlights the murkiness of Mr. Obama’s antilobbyist policy.
Mr. Obama requires employees to sign a pledge stating they will not “participate in any particular matter on which I lobbied within the two years before the date of my appointment.” Those rules prohibit Mr. Corr from working on tobacco issues, the White House says.
But Mr. Corr’s nomination raises another question: In an era when industries often make financial donations to public-interest groups that support policies that help those industries, when are public-interest advocates conflicted by the funding that supports the causes they advocate?
The Campaign for Tobacco-Free Kids has received millions of dollars from pharmaceutical companies that would benefit from the organization’s work to reduce smoking because they sell products that help people quit, such as Nicorette gum and NicoDerm patches.
If confirmed, Mr. Corr would help run a department that not only regulates the drug industry through its Food and Drug Administration arm but also is its biggest payer through federal insurance programs such as Medicare and Medicaid.
Sheila Krumholz, executive director of the nonpartisan Center for Responsive Politics, said the drug-industry funding of the Campaign for Tobacco-Free Kids creates “a win-win: They get to support the public interest at the same time they are supporting their bottom lines.”
Krumholz’s attitude will likely carry the day. After all, who could object to accepting money from drug companies for promoting anti-smoking measures?
There is, however, a real conflict of interest here. As discussed previously on this blog, the FDA will likely soon take a very active role in tobacco regulation and is in the process of banning electronic cigarettes. There is no evidence whatsoever that the latter are harmful to anyone — anyone except pharmaceutical companies, that is. They have become an increasingly popular alternative to patches and gums for people looking to quit smoking. It’s legitimate to ask if Corr should be involved in their regulation given his ties to the Campaign for Tobacco-Free Kids, which receives funding from pharmaceutical companies and has publicly supported the e-cigarette ban.
I have no reason to doubt that Corr will be a perfectly sincere regulator; if anything, I am worried that he will be an excessively zealous one. But he should be held to the same standard as other nominees, not given a free pass because he happened to be a lobbyist for a politically correct cause. Kudos to reporters Jane Zhang and Brody Mullins for bringing these issues to light.
[Thanks to Jan for the link!]
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Today’s New York Times devotes a long editorial to questioning the ethics of new senator Kirsten Gillibrand. The main thrust of the editors’ argument is that Gillibrand represented Philip Morris when she worked as an attorney and, inexcusably, advocated fiercely on behalf of her client. In short, she was a good lawyer.
Even so, it’s reasonable to bring up that relationship when evaluating a new senator, especially with major tobacco bills currently working their way through Congress. What’s not reasonable is failing to mention that the bill giving regulatory power to the FDA that is headed to the Senate right now is backed enthusiastically by Philip Morris. The editors strive to give the opposite impression:
She was privy to unsuccessful efforts to dissuade a smaller tobacco company, the Liggett Group, from breaking ranks and cooperating with prosecutors — a move, it was feared, that could result in the release of incriminating internal documents and a strengthening of Food and Drug Administration efforts to regulate the marketing and sale of cigarettes, including to children.
That was prior to the Master Settlement Agreement. As anyone with even the slightest knowledge of the industry knows, the MSA marked a sea change in big tobacco companies’ strategy for dealing with the government, especially with regard to Philip Morris/Altria. Pre-MSA they generally opposed unrelentingly every regulatory encroachment. Post-MSA their strategy has been to partner with regulators to preserve the Big Tobacco oligopoly. The FDA bill is an especially egregious attempt to secure Philip Morris’ market share and eliminate competitors.
The Times’ understanding of contemporary tobacco policy strikes me as superficial at best and deliberately misleading at worst. They support the FDA bill because it represents “real power to regulate tobacco products,” but I’m not convinced they’ve really thought through its unintended consequences. They believe Philip Morris is a villain but refuse to acknowledge that the villain and the government have been teaming up for years now. They do their readers a disservice by ignoring this changed regulatory landscape.
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Jacob Grier is a freelance writer, barista, mixologist, and magician in Portland, OR. He writes, eats, and drinks a lot. His articles have appeared in The Washington Post, Reason Online, The Oregonian, and other publications.
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