The fine print in the FDA legislation which I revealed yesterday is important not only because it demonstrates that the bill is unconstitutional, but because it exposes that the supporters of this regulatory approach realize that it will not actually protect the public's health. Thus, the FDA tobacco legislation is a huge scam, in which the Campaign for Tobacco-Free Kids and other groups are deceiving their constituents and the public into believing that the bill will result in safer cigarettes when the legislation itself acknowledges that this is not the case.
Remember that the fine print in question here is the following:
(1) The following statement of purpose of the legislation [section 2(46)]:
"If manufacturers state or imply in communications directed to consumers through the media or through a label, labeling, or advertising, that a tobacco product is approved or inspected by the Food and Drug Administration or complies with Food and Drug Administration standards, consumers are likely to be confused and misled. Depending upon the particular language used and its context, such a statement could result in consumers being misled into believing that the product is endorsed by the Food and Drug Administration for use or in consumers being misled about the harmfulness of the product because of such regulation, inspection, approval, or compliance."
(2) The bill's preclusion of tobacco companies from stating or implying that the FDA regulates cigarettes [section 103(tt)]:
[Cigarette companies may not make] "any statement directed to consumers through the media or through the label, labeling, or advertising that would reasonably be expected to result in consumers believing that the product is regulated, inspected or approved by the Food and Drug Administration, or that the product complies with the requirements of the Food and Drug Administration, including a statement or implication in the label, labeling, or advertising of such product, and that could result in consumers believing that the product is endorsed for use by the Food and Drug Administration or in consumers being misled about the harmfulness of the product because of such regulation, inspection, or compliance."
The Rest of the Story
The fine print reveals that the crafters of the legislation do not themselves believe that the regulation of cigarettes will translate into a safer product. After all, they are admittedly worried that the public's belief that cigarettes will be a safer product by virtue of FDA regulation is false. In fact, they are so worried about this that they have taken the extreme step of interfering with the tobacco companies' free speech rights to preclude the companies from even telling the public merely that cigarettes are regulated by the FDA.
Readers need to appreciate the intrusiveness of this provision on the free speech of cigarette companies. If a company, for example, merely states the following in a press release, it will be in violation of the FDA legislation:
"Philip Morris admits that cigarettes are harmful to health. We are willing to comply with any regulations that the FDA promulgates to decrease the harmfulness of the product."
Can you imagine taking Philip Morris to court for that?
The legislation is so intrusive (unconstituionally so) because apparently its supporters acknowledge that the public may think that cigarettes are safer because of FDA regulation. There is apparently, therefore, no bona fide belief that FDA regulation will actually make cigarettes safer.
Yet the Campaign for Tobacco-Free Kids has claimed that the legislation is going to save "countless lives" by identifying and removing or eliminating toxic constituents from cigarette smoke and toxic ingredients and additives from the cigarette.
This whole thing is a big scam. The Campaign for Tobacco-Free Kids and other groups supporting the legislation actually have no idea whether cigarettes can be made safer merely by regulating particular ingredients, nor do they have any idea what constituents, in what combination, and at what levels, cause the various diseases associated with tobacco use. They have not offered a shred of evidence to support their contention that the bill will save even one life, much less "countless lives" by regulating the safety of the product and its ingredients.
There is no evidence base to support the primary approach being taken in this legislation. If anything, the approach runs counter to the existing science.
And apparently, the bill's supporters are aware of this, because they have taken great pains to make sure that the public does not even think that cigarettes might be made safer by virtue of FDA regulation.
The ultimate irony here is that the Campaign for Tobacco-Free Kids and other groups want to prevent the cigarette companies from telling the public exactly what these groups are telling them. The Campaign has done more to deceive the public into believing that cigarettes are going to be safer than anything that the tobacco companies have done regarding this legislation.
Hopefully, Senator Burr will be able to pull off a near-miracle and defeat this legislation in the Senate. I hope the Senators who oppose this bill succeed in exposing it for the scam that it is.
The public deserves a lot better than this con job.