The Implications of the Price Decision - POST I: The Complicity of the Federal Government

The Illinois Supreme Court decision in the Price case highlights, I think, the degree to which the federal government bears some responsibility in the deception of smokers about the safety of using low-tar and light cigarettes. Because it reveals the extent to which the Federal Trade Commission, which has assumed jurisdiction over the tar and nicotine content of cigarettes and the advertising of cigarettes with regard to this content, has failed in its regulatory efforts.

The fault, we found out yesterday, is not just in the hands of the cigarette companies. It is also in the hands of the federal government, for assuming jurisdiction over, but failing miserably to address the advertising of tar and nicotine levels to smokers.

The Price decision is reminding us, I think, that it is simply not enough to blame everything on the cigarette companies. It is a poignant reminder that the federal government has had a role to play in the tobacco epidemic in this country.

And interestingly, the federal government's complicity in this epidemic stems not so much from its failure to assert jurisdiction over tobacco products, but from its having asserted jurisdiction over aspects of tobacco in a weak and ineffective way, but in a way that ended up preempting meaningful state and local regulation as well as providing a large measure of immunity to the tobacco companies.

We would be far better off, I believe, if the government had simply stayed out of the regulation of tobacco completely.

Arguably, the 1970 Federal Cigarette Labeling and Advertising Act (FCLAA) was one of the worst public health disasters of our time (perhaps closely rivaled by the 1998 Master Settlement Agreement). That law did almost nothing to protect the public's health, as the warning labels on cigarettes and cigarette ads are clearly ineffective and smokers hardly pay attention to them at all. Moreover, while the ban on tobacco advertising on television and radio was probably a good thing, what the FCLAA did was eliminate the Fairness Doctrine's product of required anti-smoking advertising on television, which has been documented to reduce cigarette smoking significantly.

Most importantly, FCLAA has provided the tobacco companies with a large degree of immunity from legal claims by smokers that are in any way related to the companies' failure to adequately warn consumers of the dangers of their products. You simply cannot argue in a court of law that the cigarette companies should be held liable for failure to adequately warn their consumers of the dangers of their products after 1969 without being stopped in your tracks by an objection on the grounds of preemption by FCLAA.

And yesterday, we found out that even federal actions that do not represent outright preemption of local regulation may have a preemptive effect because they may be construed by the courts as implying federal approval of cigarette company conduct.

In essence, the word "regulate" means to "permit," albeit to permit with certain restrictions. But the fact of that permission is critical. When the FTC in 1971 entered into a consent decree with American Brands over the conditions under which the company could use the term "low-tar" in its advertising, it was, in fact, making a decision to "permit" the use of the term "low-tar" in advertising. And that decision was construed by the court yesterday as providing specific authorization to the tobacco companies to use the term "low-tar." For the justices writing the majority decision in the case, that was the deciding factor, and that was as far as the consideration of the legal issues in the case needed to go.

Four of the six justices participating in the decision indicated that through its actions over the years, the FTC did in fact provide specific authorization for cigarette companies to use terms like "low-tar." Thus, it was the fact that FTC had been given jurisdiction over this aspect of tobacco product advertising that derailed this case.

Yet the FTC's actions in this area have arguably done nothing to protect the public's health, as there is little if any evidence that knowledge of the tar and nicotine content of cigarettes has led to any improvement in the public's health. If anything, it has simply helped contribute to a national scam in which smokers have been misled into thinking that they were getting some health benefit from a product that offered nothing of the sort.

I'm not arguing here that the cigarette companies don't bear the burden of responsibility for their actions; I'm simply pointing out that to me, one of the major lessons of the Price decision is to remind us that the federal government has had a role to play in the tobacco problem, and for the most part, that role has not been a positive one.

There is no question in my mind that the public's health as well as the potential for justice for harmed smokers would be in a far better position today had the federal government not asserted jurisdiction over cigarette labeling and advertising in the first place.

And this lesson has a critical implication for the current debate over FDA regulation of tobacco products. That implication will be discussed in my next post.