Will new smoke regs stoke sales?

Amidst the general disappointment with Congress as it went into summer recess was a bill that passed with a large majority in the House called the Family Smoking Prevention and Tobacco Control Act.

If passed by the Senate and signed into law by the president, the bill would charge the Food and Drug Administration with the task of regulating tobacco. Lobbyists from Phillip Morris USA were able to push through a watered-down bill that eliminated a ban on menthol cigarettes favored by—among others who were denied access to the negotiations—the National African American Tobacco Prevention Network. Under the legislation passed in by House, the FDA would have a year to study the effects of menthol.

Former Health and Human Services Secretary Dr. Louis W. Sullivan, in support of the stronger legislation pointed out that, “Nearly 75 percent of African-American smokers use menthol cigarettes. A recent survey found that among teen smokers, 81 percent of African Americans smoke menthol cigarettes compared to only 32 percent of whites and 45 percent of Hispanics. We also know that 90 percent of adult smokers are hooked as teens.”

Sullivan and other critics, including Joseph A. Califano, Jr. (also a former Health and Human Services secretary), oppose FDA oversight, due to the fact that the FDA is chronically understaffed and outgunned by Big Tobacco’s legal expertise.

Despite exhaustive studies of the disparity in the quality of health care administered to African Americans, little has changed under the Bush administration. Large scale smoking cessation would most likely have a greater positive impact than any legislation that has been undertaken to improve the health of African Americans.

However, a whole scale ban on menthols might have unintended consequences. The prohibition of liquor created a huge black market. Would menthols still be available on Native American casinos and reservations?

According to the Health and Human Services Web site, “Under the Food, Drug and Cosmetic Act, the FDA has the same authority on a reservation as it does anywhere else, to inspect, to take official samples, and to initiate regulatory actions.”

This doesn’t include tobacco regulation—yet. But what if the chronically understaffed FDA can’t afford to regulate the smoke shops? It will undoubtedly face legal opposition. And what if menthols are still legal in Canada?

New York State is currently in the midst of one of the most severe budget crises in years and yet we haven’t seen an outcry to collect taxes on Indian cigarettes sales. That’s because the alliance of Big Tobacco and casino gambling has produced what might be thought of as an ingenious Native American tax avoidance system. If you’re a smoker or a gambler, you probably support it.

A half-baked ban on menthols might only strengthen this network; with urban outposts in cities like Detroit, Niagara Falls, and now Buffalo, the casinos and smoke shops might enjoy windfall profits.

As the federal government attempts to do the right thing from a public health perspective, many states such as New York will continue to lose revenues to these internal tax-free islands.

In any event, the Family Smoking Prevention and Control Act still hasn’t been signed into law, and George the Decider may veto it on principle. So as they say, “Smoke ’em if you got ’em.”

—john mcmahon