To Regulate or Not: A No-Brainer

If not the FDA, then who? When the issue was sent back to Congress, this body “chose to create a distinct regulatory scheme focusing on the labeling and advertising of tobacco products.” (Supreme Court… 2000,2) Instead of making the manufactured tobacco products safer for the consumer, they ostensibly protected commerce and the national economy while informing consumers about the possible negative health effects of tobacco use (McNamara 2000, 1-2). This appears to be misguided since the “care, cure, and skill replacement” of sick and dying smokers in economic terms alone is staggering (Fritschler 1975, 21, 33). One state, Alabama, claims to spend more money taking care of sick smokers then it generates through its enormous cigarette taxes. So it seems to be in the best interest of Congress and in the nation at large to regulate tobacco products. Add to economic and commercial concerns the primary function of any government, to protect the safety and health of its citizens, and it seems obvious that Congress has many compelling reasons to mandate the complete regulation of tobacco products. Opponents have tried to argue that the first amendment precludes any attempt by the government to limit the tobacco industry’s right to sell the product. However, the Constitution allows for limitations of freedom of speech. The Supreme Court has ruled that the first amendment can restrict commercial speech, such as advertising, to advance a compelling government interest. A four-part test in use since the Supreme Court’s Central Hudson decision allows such restrictions if the speech is misleading, which tobacco ads generally are, as seen by the glorification of smoking without showing the harmful consequences such as the sick and dying, if the government has a substantial interest in regulating the speech, which medical and social problems associated with smoking create, if the constraint advances the governments interests (good public health), and if the constraint is no more extensive than necessary to advance the government’s interest. Marketing restrictions like those attempted by the FDA in 1996 easily pass each of these four hurdles (Restrictions on Tobacco… 2000, 1-2). There are several benefits of regulating tobacco products. If ninety percent of UK cigarettes have no additives, then the necessity of adding them must be questioned. If the FDA were able to regulate tobacco products, it could forbid additives, thus making cigarettes less carcinogenic, since known carcinogens have been added. Another benefit of tobacco regulation could be additive labeling on cigarette packages. Massachusetts fought for and won the right to force tobacco industries to identify all additives added to cigarettes sold in that state. The tobacco industry fought it, which doesn’t make sense if these additives are innocuous (Health Cigarettes ‘Engineered’… 1999, 2). The FDA could force the cigarette manufacturers to place additive labels on cigarette packs, just as food pa

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