Congress might regulate tobacco

WASHINGTON – In what appears to be the best chance since public health groups started pushing for it in the 1970s, Congress is poised to regulate tobacco, a product linked to 1,200 deaths each day but sold largely unfettered for centuries.

Legislation that will be taken up today by the House Commerce and Energy Committee would place tobacco under the control of the Food and Drug Administration. Among other things, the bill would restrict the ways tobacco companies market cigarettes, require them to disclose the ingredients in their products and place larger warning labels on packages, and give the FDA the authority to require removal of harmful chemicals and additives from cigarettes.

The legislation also seeks to crack down on techniques tobacco companies have used to attract children and teenagers, making it illegal to produce cigarettes infused with strawberry, grape, cloves and other sweet flavors. And it would prohibit tobacco makers from using the terms “low tar” and “light” when describing their products, suggesting a health benefit that scientists say does not exist.

Still, some critics say the bill, largely the product of years of negotiation between cigarette giant Philip Morris and the advocacy group Campaign for Smoke Free Kids, does not go far enough.

“This is a big gift to Philip Morris and a big scam,” said Joel Nitzkin, chairman of the tobacco control task force of the American Association of Public Health Physicians. “Our initial impression was gee, this would be great. But when we read through the entire 160 pages, we were horrified by what we saw.”

Nitzkin said, for instance, that the bill has a grandfather clause that protects products currently on the market but creates hurdles for new products such as low-nicotine lozenges that deliver a nicotine dose but are not smoked and therefore pose no risk of lung disease and a much reduced chance of heart disease.

Tobacco is linked to the death of more than 400,000 Americans each year and costs the nation $96 billion in health care annually, according to the Campaign for Smoke Free Kids. Every day, more than 1,000 children and teens become regular smokers.

“It’s crazy – here’s this product that kills half of its longtime users, and there are very few restrictions on how it’s made and marketed,” said Patricia McDaniel, a sociologist at the University of California at San Francisco who has studied the history behind the bill.

“There’s a lot of opportunity for the FDA to do some pretty remarkable things – adding more visible warning labels, banning misleading descriptors, some authority over ingredients and allowing the FDA to prohibit certain types of marketing,” McDaniel said. “But there are a lot of unknowns. And there are questions about whether the FDA is the agency to regulate tobacco, especially now with the trouble it’s having regulating food and drugs.”

What’s more, consumers may get the impression that tobacco is safe if it is regulated by the government, McDaniel said.

Diana Zuckerman, president of the National Research Center for Women and Families, acknowledged the contradiction.

“Cigarettes and cigars are drug delivery systems, delivering an addictive drug – nicotine – in a product that kills when used as directed,” said Zuckerman, whose group supports the bill. “How can the FDA justify regulating, rather than banning, those products? On the other hand, if the FDA regulates tobacco products, it can stop misleading advertising and help prevent the sale of tobacco products to children. That will save lives.”

The legislation goes beyond current restrictions on tobacco marketing, which stem from a 1998 legal settlement between the attorneys general of 46 states and the tobacco industry.

The bill would also require regulators to review new tobacco products before they can be sold.

“Right now there is no regulation of a deadly and dangerous product,” said Nancy Brown, chief executive officer of the American Heart Association, one of more than 600 public health groups backing the bill. “Without FDA regulation, the tobacco industry is left to its own devices, and that’s not in the best interest of the public health.”

The bill, championed by Rep. Henry Waxman, D-Calif., and Sen. Edward Kennedy, D-Mass., has bipartisan support in both houses and backing from President Obama, himself a smoker who has struggled to quit.

“The prospects are really good,” said Dick Woodruff, director for federal affairs at the American Cancer Society’s lobbying group. “This is the year.”

Philip Morris USA, the nation’s biggest tobacco company and the maker of the best-selling Marlboro brand, supports the legislation, saying it will set uniform standards of quality, improve information for consumers and allow development of lower-risk tobacco products.

R.J. Reynolds Tobacco Co. and other competitors oppose the bill, saying new restrictions on marketing and product development are likely to freeze market share, giving an unfair advantage to Philip Morris.

Sen. Richard Burr, R-N.C., whose state is home to R.J. Reynolds, has threatened to filibuster the legislation when it reaches the Senate. A spokesman said Burr will offer a competing bill in the coming weeks.

The FDA has tried in the past to regulate tobacco, most recently in 1996 when it asserted that cigarettes were medical devices and nicotine was a drug. Philip Morris and other tobacco companies sued and the case was decided in 2000 by the Supreme Court, which found that Congress had given the FDA no authority over tobacco.