On the Similarities Between Health Care Reform Legislation and the FDA Tobacco Bill: Compromising with Special Interests and Selling Out Principles

Selling Health Protection for Votes in Both Cases Leads to Bill that Does More Harm than Good

As the Senate prepares to pass a health care reform bill, the similarities between the process that led to this legislation and the analogous process that led to the passage of the Family Smoking Prevention and Tobacco Control Act have become striking. In both cases, policy makers and health groups have put their principles up for sale. In order to secure the votes perceived to be needed to pass the legislation, these politicians and health organizations have sold out the protection of the public's health for votes. They have caved in to special interest groups, making compromises that have rendered the resulting legislation more harmful than beneficial. And in both cases, beginning the process of crafting legislation by negotiating with Big Industry led to the demise of the legislation in the first place.

Here is a brief overview of some of the most important similarities between these two pieces of legislation and the process by which they were crafted:

1. Using Negotiation with Big Industry as a Starting Point

The FDA tobacco legislation was crafted through a negotiation between the Campaign for Tobacco-Free Kids and Philip Morris. The starting point for the process of drafting the legislation was inviting Philip Morris to the negotiating table. An a priori decision was made that the support of Philip Morris was necessary in order to ensure the legislation's passage. Thus, compromises had to be made to appease the nation's leading tobacco company. But by the very necessity to appease Philip Morris, the Campaign for Tobacco-Free Kids and its supporting politicians ensured that the resulting legislation would protect Big Tobacco profits, not the public's health.

The health care reform legislation was crafted through a negotiation between the leading policy makers and the hospital, insurance, and pharmaceutical industries, mediated or directed by the Obama administration. The starting point for the process of drafting the legislation was inviting the hospital, insurance, and pharmaceutical industries to the negotiating table. An a priori decision was made that the support of these industries was necessary in order to ensure the legislation's passage. Thus, compromises had to be made to appease the nation's leading opponents to the idea of controlling health care costs. But by the very necessity to appease these groups, President Obama and his Congressional leaders ensured that the resulting legislation would protect Big Pharma and Big Insurance profits, not the public's health.

2. Caving In to Special Interests in Order to Secure or Buy Votes

The Campaign for Tobacco-Free Kids, taking it upon itself to represent the entire public health community, caved in to Big Tobacco (a.k.a., Philip Morris) demands in order to secure Congressional votes. These compromises included:

• not allowing the FDA to prohibit any class of tobacco products;
• not allowing the FDA to eliminate nicotine from tobacco products;
• not allowing the FDA to raise the age of sale for tobacco products;
• not allowing the FDA to regulate the places where tobacco is sold;
• not allowing the FDA to institute a prescription-only access system for tobacco products;
• exempting menthol from the cigarette flavoring ban;
• giving Congress veto power over any significant FDA regulations;
• placing tobacco industry representatives on the FDA's "scientific" advisory panel; and
• allowing reduced exposure products to be marketed without sufficient evidence of reduced risk.
  

The Obama administration and Congressional leaders, taking it upon themselves to represent the entire public health community, caved in to Big Hospital, Big Pharma, Big Insurance, and Big Uterus Control demands in order to secure Congressional votes. These compromises included:

• limiting the amount of hospital industry concessions that would be considered and thus paralyzing efforts to reduce health care costs;
• limiting the amount of pharmaceutical industry concessions that would be considered and thus paralyzing efforts to reduce health care costs;
• limiting the amount of insurance industry concessions that would be considered and thus paralyzing efforts to reduce health care costs;
• protecting makers of bio-tech drugs from generic competition for 12 years - such competition would have driven down health care costs;
• prohibiting importation of cheaper drugs from Canada, which could have driven down health care costs;
• prohibiting the government from negotiating drug prices for Medicare patients, which could have driven down health care costs;
• allowing states to prohibit insurance companies from covering abortion if they participate in the insurance exchange program; and
• requiring consumers to pay separately for abortion coverage and other medical coverage if they receive federal subsidies for medical insurance.

In addition to these compromises, crafters of the health care reform legislation literally bought the votes of many Congressmembers by offering them sweetheart deals, none of which were in the best interest of citizens throughout the nation.

3. Putting Principles Up for Sale; Compromising Public Health and Human Rights for Political Gain

The Campaign for Tobacco-Free Kids compromised basic public health principles in order to promote and secure passage of the FDA tobacco legislation. To start, the Campaign engaged in a widespread campaign of deception to mislead its constituents into thinking that Big Tobacco was uniformly opposed to the legislation and that all Big Tobacco lobbyists were working hard to defeat the legislation. The Campaign also compromised the principle of transparency by secretly negotiating with Philip Morris behind closed doors. Furthermore, the Campaign sold out the interests of the African American community by using the menthol exemption as a bargaining chip to secure the bill's passage, even though it failed to seek input from the African American community and failed to alter its support for the menthol exemption even after African American tobacco control groups and members of Congress expressed their outrage.

The Campaign showed a disregard for any public health principles throughout the process. It was simply about getting some legislation passed, no matter what was actually in the legislation. The Campaign stated that Big Tobacco has no business using flavorings to entice kids. Yet the Campaign insisted that Big Tobacco be allowed to continue enticing kids by using menthol in its cigarettes. While the Campaign's legislation eliminated a total of ZERO flavored Big Tobacco products from the market, it exempted the single most important type of flavored product that is addicting our nation's children: menthol cigarettes, which are smoked by nearly half of youth smokers.

The Campaign also violated the rights of youths by misusing them to promote the FDA legislation, without informing them that the bill was crafted by and supported by the nation's leading cigarette company.

With the health care reform bill, politicians have compromised women's rights for their personal political gain. Legislators have essentially overturned a Supreme Court decision (Roe v. Wade) by allowing states to prohibit insurance companies from covering abortion. This is clearly unconstitutional (or will be as soon as a state follows through), as there is no valid public interest in proscribing the types of medical coverage that can be offered by a private insurance company.

This goes way beyond the restriction of the use of federal funds for abortion. This is allowing states to proscribe the services that cannot be covered by private insurers.

Legislators have literally put their principles up for sale, compromising even their stated principles for political gain. Right here in my home state of Massachusetts, U.S. Senate candidate Martha Coakley compromised her stated principles in order to jump on the health care reform bandwagon. During the Democratic primary race, she castigated Rep. Michael Capuano for voting for the health care reform bill even though it restricted medical coverage for abortion. She stated that on principle, she would not vote for any bill that interfered with a woman's right to abortion.

However, now that she has won the Democratic primary and is facing a conservative opponent, she has reversed course, and now states that she would vote for the very bill that provides unprecedented restriction of a woman's right to an abortion, so much so that it clearly violates the Supreme Court's decision in Roe v. Wade.

Most ironically, while supporters of health care reform vehemently defended their legislation against complaints that it represented Big Government control of medicine, by compromising with special interests from Big Uterus Control, they have now turned this legislation into the most aggressive and intrusive example of Big Government intrusion into private medical decisions ever enacted in the history of our federal government.

The Rest of the Story

In both the case of the FDA tobacco legislation enacted by Congress earlier this year and the health care reform bill which is about to be passed by the Senate, policy makers and health groups have put their principles up for sale. In order to secure the votes perceived to be needed to pass the legislation, these politicians and health organizations have sold out the protection of the public's health for votes. They have caved in to special interest groups, making compromises that have rendered the resulting legislation more harmful than beneficial. And in both cases, beginning the process of crafting legislation by negotiating with Big Industry led to the demise of the legislation in the first place.

The lessons from tobacco control should have helped to inform the health care reform debate. Instead, the mistakes that were made in tobacco control were repeated in health care reform, and as a result, we now have legislation that violates public health principles and human rights, has elements that are or will result in unconstitutionality, and that will do more harm than good.

In both cases, the overall goal appears to be the achievement of political gain by being able to say that politicians and health groups have done something. The something doesn't seem to matter. All that matters is that something got passed.

In both cases, the protection of the public's health, the protection of human rights, basic ethical principles, and the willingness to stand up for principles were all compromised for little more than political gain. In the end, the American people will suffer while the real problems - tobacco use and health care costs - have not been addressed. But at least our politicians can walk away and say that they did something.