Anti-Smoking Researchers Attack Tobacco Companies for Complying with the Law

In a strange and ironic twist, in an article published in the journal Tobacco Control and a blog commentary on the article, a set of anti-smoking researchers are attacking the cigarette industry for complying with the law.

The article and commentary criticize tobacco companies for changing their labeling of "light" and "ultra-light" cigarette brands by removing these terms and instead, giving the brands different colors to differentiate them.

The results of the study were as follows: "Manufacturers substituted “Gold” for “Light” and “Silver” for “Ultra-light” in the names of Marlboro sub-brands, and “Blue”, “Gold”, and “Silver” for banned descriptors in sub-brand names."

The study concludes that the tobacco companies circumvented the law and argues that these brands should be labeled by the FDA as "adulterated" and pulled from the market.

The Rest of the Story

The truth is that Bill Godshall and I predicted, years ago, that the anti-smoking groups' were full of baloney in promising that the FDA legislation would protect children and adults. Bill and I predicted that exactly this scenario would unfold: the cigarette flavoring ban would have no effect because no cigarettes were actually affected by the ban (menthol cigarettes are exempt) and the "lights" ban would have no effect because cigarette companies would start using coloring to convey the differences between "lights" and other brands.

Instead of whining about the tobacco companies evading the FDA tobacco law by using colors to denote the brands formerly known as "lights" or "milds," the Campaign for Tobacco-Free Kids and the other major anti-smoking groups should be apologizing to its constituents and to the public for knowingly crafting legislation that would not accomplish its declared purpose.

The Campaign for Tobacco-Free Kids, along with the American Heart Association, American Lung Association, and American Cancer Society pulled one over on the American people by declaring that the legislation that the Campaign crafted in negotiations with Philip Morris would put an end to descriptors relating to "light" or "mild" cigarettes.

These groups agreed to and supported legislation would specifically did not remove these brands from the market. Instead, the legislation simply mandated that these descriptor terms not be used after June 21, 2010.

As the tobacco companies are no longer using these descriptor terms, they are in compliance with the federal law. They cannot possibly be found in violation of the law for using alternative names for their products when the law specifically allowed those products to remain on the market.

If it was the anti-smoking groups' intention to remove these products from the market, then they should have made sure that the legislation removed these products from the market. But given that they did not do that, these groups cannot stand up today and pretend that the problem is the tobacco companies circumventing the law. The problem is the law itself, and the fact that it expressly permits the companies to rename and repackage the products formerly known as "lights" or "milds." Thus, these anti-smoking groups have no one to blame but themselves.

It is not that the tobacco companies are evading the law; it is that the law is so weak that it allowed these products to remain on the market, as long as they simply changed their names to terms that do not directly convey the same meaning.

The Campaign for Tobacco-Free Kids argued that the tobacco companies and retailers not be allowed to tell consumers that the renamed products are the same as the former products. But this would have been an unconstitutional restriction of free speech. Unless the renamed product is banned, or the descriptor used is in violation of the law because it directly infers that the cigarette is safer, then I'm afraid that the companies are in compliance with the law and the anti-smoking groups are going to have to respect that.

You see, the problem is that the anti-smoking groups were willing to talk the talk, but not willing to walk the walk. They wanted to pass legislation in order to say that they had done something. They wanted to be able to tell their constituents that they accomplished something. You see, that's good for donations.

But when it really came down to it, these groups weren't willing to actually put any meat in the legislation. That's why they merely banned the descriptors, rather than banning the products. That's why they banned the flavorings that are never used, rather than the menthol which is used by millions. That's why they gave the FDA authority to lower the nicotine in cigarettes, but not remove it. That's why they gave the FDA authority to regulate tobacco sales to minors, but not to increase the legal age of purchase or outlaw the sale of tobacco in any particular type of retail establishment. And that's why they are pushing the FDA to outlaw electronic cigarettes and dissolvable tobacco products, but not touch the real ones.

I'm sorry, but the words "gold," "silver," "orange," "red," "green" and other colors do not imply levels of harm. In fact, there are existing cigarettes on the market with the names "gold" or "silver" and these products are not accused of implying different levels of health risk. The only reason why these color names imply different risk level is that people know they are the replacement names for the former "light" or "mild" cigarettes.

The Campaign for Tobacco-Free Kids, and the FDA, cannot simply rewrite the law because it was crafted improperly. They have to live within the statute, and within the constitution. And unfortunately, the anti-smoking groups screwed up (albeit intentionally). In other words, the tobacco companies are not evading the law. They are following the law.

You see, no matter what term a tobacco company uses to rename its product, it is going to be known that the name is the new name for whatever the product's old name was. No matter how bland and non-descriptive the new name is, it is still going to infer the same attributes as the old name.

Thus, if it had been the intent of Congress to eliminate this problem, Congress would have chosen to simply mandate the removal of these "light" products from the market. But Congress did not do that.

The rest of the story is that the anti-smoking groups are whining loudly because they need to: they need to cover up their own indiscretion -- negotiating and supporting a bill with no teeth, while misleading the public about the strength of the bill and its effects. In other words, unless the anti-smoking groups shift the blame over to the tobacco companies, then the fact that these groups lied to the American people is going to become clear.