Support for the proposed FDA tobacco legislation continues to crumble, as several more anti-smoking groups have announced their public opposition to the legislation.
Action on Smoking and Health (ASH) issued a statement in which it opposed the legislation unless it is amended to remove the menthol exemption. This is a provision in the legislation, included as a compromise to Philip Morris (whose Marlboro Menthol brand is the 2nd leading menthol brand in the country), exempts menthol from the list of cigarette flavorings that are banned by the legislation.
ASH wrote: "While the bill would ban the use of virtually all substances (e.g., clove, peppermint) used to flavor cigarettes, and to mask the harsh taste most young children experience when they first try smoking, the bill exempts menthol. But menthol is used overwhelmingly be African Americans, and makes it much harder for users to quit smoking once they get hooked. That's why this lethal "racist" loophole is being condemned by the Congressional Black Caucus, the National African American Tobacco Prevention Network, many former HHS Secretaries, and now by ASH."
ASH argues that the menthol exemption is racist, or at least racially insensitive, because it creates a systematic discrepancy in health protection that disproportionately affects African Americans: "the argument that the exception of menthol from the bill does not discriminate against African Americans seems inconsistent with clearly established American law which recognizes that actions or laws which have the “effect or consequence” of having a discriminatory impact on Blacks may violate civil rights laws prohibiting such discrimination." ...
"Thus the inescapable conclusion is that, at the very least, the menthol loophole would have a racially discriminatory impact, and debating the bill in its current form could well raise serious racial issue just prior to critical elections in which race is already playing a major factor. The fact that this lethal menthol loophole was apparently negotiated without a single representative from an African American organization [like the National African American Tobacco Prevention Network, which said 'our constituents across the country are just livid' at being excluded from any representation in negotiations on the menthol loophole”], or even of African Americans prominent in the antismoking and public health movements, only adds to that impression."
In a press release, ASH argued that by agreeing to this compromise, the Campaign for Tobacco-Free Kids has sold out the health of African Americans in order to appease the financial concerns of Philip Morris: "sacrificing African American children to mollify the largest killer of Blacks in the U.S. is nothing short of grotesque and obscene, and may well be counterproductive and totally unnecessary. . . . passing the bill with the menthol loophole is racist (or at least racially insensitive)."
ASH also condemned the Campaign for Tobacco-Free Kids for negotiating this bill with Philip Morris, for doing so in secret, and for failing to open the process up to any other tobacco control groups, especially those representing communities of color: "ASH also objected that such an exemption was apparently negotiated in secret with a tobacco company to gain its support, and with virtually no input from individuals and organizations with both a special interest and a unique perspective on African Americans, public health, and cigarettes."
Maryland GASP has also come out against the legislation. A column in the Maryland Gazette by its president - John O'Hara - condemns the legislation for its numerous loopholes which O'Hara says give the tobacco industry virtual control over the FDA. He also points out that the legislation sells out the health of African Americans to protect tobacco industry profits. The column argues that this legislation should be abandoned and that groups need to go back to the drawing board and develop a true piece of tobacco control legislation for the next Congressional session.
The Daily Voice, described as "Black America's Daily News Source," featured an article about the menthol exemption in the legislation. The piece argues that: "It is believed that Philip Morris actively lobbied Congress to include the menthol exemption, which is financially critical to the American tobacco industry's profit margin." The article goes on to assert that this compromise in the legislation is inappropriate because it an institutional example of how the "tobacco industry continues, after nearly a century, to enslave our community in many creative ways."
The Rest of the Story
There are two important implications of this story.
First, from a practical perspective, I believe that the FDA tobacco legislation is dead for this legislative session. I don't see any way that the bill can overcome the dual devastating blows of the widespread media coverage of the menthol exemption and its being framed as a sell-out to Philip Morris, as well as the crumbling of the coalition of support and internal misgivings of groups about being on board with the tainted process that led to the legislation in the first place.
If nothing else, the menthol guffaw gives bill opponents a perfect way to defeat the bill on the Senate floor: simply introduce an amendment to remove the menthol exemption. Doing so will tie the hands of bill supporters. If they vote against the amendment, they are exposing themselves as tobacco industry protectionists who are willing to sell out the health of African Americans to protect cigarette company sales. If they vote for the amendment, they are unlikely to be able to garner enough votes to break any filibuster and move the legislation forward.
Most likely, the effect of the menthol guffaw will be to convince Senate leaders not to bring the bill to the floor in the first place. They will probably want to avoid the embarrassment of a showdown over the menthol issue.
From a political standpoint, bringing the bill to the floor under these conditions will take the focus off the public health aspects of the bill and displace it over to the menthol exemption and to the appeasement of tobacco industry interests. The potential political gains to be garnered from support for the legislation have been greatly obscured.
The second important aspect of this story is that it shows the power of the truth. As the truth is gradually (albeit slowly) revealed and digested by the tobacco control community, groups are beginning to line up in droves against the legislation. The coalition of support is crumbling because no one wants to be seen as standing up for the financial profits of Big Tobacco, which is what the Campaign for Tobacco-Free Kids is doing by negotiating this deal with Philip Morris, supporting it in Congress, and opposing any amendments to strengthen the bill.
People are willing to stay on a sinking ship only so long. Once they can actually see the water pouring into the ship, they head for the lifeboats.
It's time for the tobacco control movement to abandon this sinking FDA legislation ship before it capsizes. We need to regroup on shore and build, together, in an open and inclusive process, a new ship. Hopefully, the ship we build in the next legislative session won't be called - like its predecessor - the S.S. Philip Morris.