In signing on to a deal with Philip Morris that compromised the health of smokers by precluding the possibility of introducing safer cigarettes and that compromised the health of African Americans by exempting menthol from the cigarette flavoring ban, and in doing so without the representation of either of these groups, the Campaign for Tobacco-Free Kids has acted unethically, in my opinion.
This is not the first time the Campaign for Tobacco-Free Kids has acted unethically by trading away the rights of certain groups without consulting them and obtaining their approval. In the 1997 debate over a "global tobacco settlement," the Campaign traded away the legal rights of American citizens (smokers) in order to fashion a compromise that would facilitate passage of that legislation. But the legal rights of other people is not something which the Campaign possesses. Thus, it has no business selling away these legal rights and using them as a bargaining chip to secure passage of legislation that it favors.
Now, a decade later, the Campaign for Tobacco-Free Kids is doing the same thing in trading away the rights and interests of both smokers and African Americans in order to fashion a compromise that would appease the interests of the nation's largest cigarette company. But even worse, the Campaign failed to include groups representing the interests of smokers or the African American community in the process of developing the legislation.
The Rest of the Story
The first major compromise in the legislation - which sells out the health of smokers - is section 911(g)(1), which essentially makes it impossible for any new, truly safer tobacco products to successfully enter the market. This section states that: "the Secretary shall, with respect to an application submitted under this section, issue an order that a modified risk product may be commercially marketed only if the Secretary determines that the applicant has demonstrated that such product, as it is actually used by consumers, will--(A) significantly reduce harm and the risk of tobacco-related disease to individual tobacco users; and (B) benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products."
This clause means that in order to introduce what could be a truly safer cigarette, companies would have to first demonstrate that the product, as actually used by consumers, reduces the population-based risk of disease. The only way to demonstrate this is for a company to market the product and conduct long-term epidemiologic studies to determine the health risks of the product. However, the product cannot be marketed until the company has demonstrated a health risk reduction. Thus, it is truly a catch-22: you can't market the product until you demonstrate that it is safer; but you can't demonstrate it is safer until you first market the product!
This is clearly a compromise that was made to appease the interests of Philip Morris, which has a vested interest in ensuring that other companies cannot introduce potentially reduced risk products which could threaten Philip Morris' market dominance. It is a dream come true clause for Philip Morris, because it essentially freezes the existing market.
This compromise sells out the health of smokers, because it essentially ends the search for a safer cigarette and precludes the possibility that such a product will be developed. Tobacco control groups - including the Campaign for Tobacco-Free Kids - have criticized the tobacco companies for failing to continue their search for safer cigarettes. Now, the Campaign is essentially telling the companies that they cannot pursue safer cigarettes.
Clause 911(g)(1) trades away the interests of smokers -- who would certainly benefit from the development of safer cigarettes -- in order to secure the support of Philip Morris for this legislation. But it does so without the inclusion of anyone representing the interests of smokers. Who gave the Campaign for Tobacco-Free Kids the authority to use the interests of smokers as a bargaining chip to entice Philip Morris to support limited regulation of tobacco products?
The second major compromise in the legislation - which sells out the health of the African American community - is section 907(a)(1)(A), which exempts menthol from the ban on the use of flavorings. This section states: "a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke."
Tellingly, menthol is the only flavoring in the above list which is actually used by tobacco companies to any substantial degree to entice and addict smokers. Banning strawberry, grape, orange, and cinnamon-flavored cigarettes will have no practical effect. But banning menthol most certainly would save lives. In fact, banning menthol is probably one of the few things that the legislation could do which would actually save lives. It is one of the few actions that would represent substance and not just rhetoric.
In the Campaign's opinion, the sacrifice of the interests of smokers and of the African American community is apparently justified by the potential gains from the other elements of the legislation (a judgment with which I vigorously disagree). But what the Campaign seems to fail to understand is that it has no authority to make this judgment for other groups. The Campaign is entitled to its own opinion on the matter, but it is unethical for this one group to trade away the rights and interests of other groups of people at a negotiating table without their representation and inclusion in the discussion.
So here is the key point: there is room in the tobacco control community for a difference of opinion on whether it is worth trading away the interests of certain population subgroups in order to secure a deal that would provide some public health benefits. However, there is not room in the movement for one particular group to make a decision and impose that decision on all other groups by single-handedly (and secretly) negotiating a deal and then refusing to budge from that deal, even when these groups whose interests have been sold out have made it very clear that the deal is unacceptable to them.
That the Campaign for Tobacco-Free Kids acts as if it owns the rights and interests of other groups is disturbing to me. This is simply not an appropriate way to practice public health.
If I found myself in the position of crafting federal legislation to address the tobacco issue, I would not do so unilaterally. I would make sure that all relevant groups -- including smokers -- had a place at the table and that their opinions were included in the process. It is not just representation (a.k.a., diversity) that is important. It is actual and meaningful inclusion in the process.
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