In this posting, I’ll address arguments presented in Alex Giannattasio’s posting and his rebuttal to my posting.

While the new FDA tobacco law’s greatest impact will be on manufacturers, it will also affect growers, leaf processors, wholesalers, distributors, retailers and advertisers.

The three largest cigarette manufacturers (Altria, Reynolds, Lorillard), which collectively have about 88% of the US market share, will be able to comply with the new FDA regulatory requirements at a cost of about $.02/pack. But compliance with the new law will costs hundreds of small tobacco manufacturers more than $.50/pack (with comparable compliance cost differences for small cigar, smokeless and smoking tobacco manufacturers), which almost certainly will result in most of the smaller manufacturers going out of business, with just several large manufacturers ones remaining.

As applied to cigarette manufacturers, the new FDA tobacco law would be more appropriately called the Altria Monopoly Act, as Altria’s 52% cigarette market share is likely to continue expanding at the expense of hundreds of small cigarette companies.

I strongly disagree with Mr. Giannattasio’s statement “The Act’s main goal is to dramatically limit the ability of such manufacturers to add harmful foreign substances to their tobacco products,” as there is no evidence that cigarettes made from organically grown tobacco pose fewer health risks than other cigarettes. But this myth has become increasingly popular among cigarette smokers who are vegetarians, eat organic foods and/or espouse “green” political views. The smoke emitted from the combustion of any tobacco product (or any other type of organic matter) is similarly harmful to health when inhaled.

Somewhat similar claims (made by proponents of the new FDA tobacco law) that cigarette companies put additives (especially candy flavored additives) in cigarettes to make them more addictive are also unsubstantiated by the evidence. And in fact, the additives banned by the new FDA tobacco law affects fewer than 1% of cigarettes in the US market share, with clove cigarettes from Indonesia most affected. In sharp contrast, menthol, which was exempted from the FDA laws’ cigarette additive ban, accounts for 28% of the US market share. The claim that the new FDA tobacco law would eliminate cigarette additives was yet another gross misrepresentation of fact made by proponents of the legislation to demonize cigarette manufacturers in order to gain votes of naïve members of Congress.

I also take issue with Mr. Giannattasio’s statement “It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume,” as that is the primary role of the FDA in regulating food, drugs and other products, and that is what Congress has just authorized the FDA to do with tobacco products. While the new law doesn’t allow the FDA to ban cigarettes, it authorizes the FDA to establish standards for specific constituents of cigarettes and cigarette smoke emissions (the latter of which would be based on inaccurate and unreliable machine tests), despite the fact that there is no evidence that increasing, decreasing or eliminating various constituents in cigarettes or cigarette smoke can make cigarettes less hazardous to health.

I partly agree with Mr. Giannattasio’s statement “If 85% of the population, as Mr. Godshall claims, are under the mistaken impression that smokefree products are as unhealthy as cigarettes, I would be tempted to point the finger of blame at overly-zealous antismoking advocates.” But “anti-tobacco”, “anti-nicotine” and “abstinence-only” are far more accurate terms than “antismoking” to describe the extremists (including the Campaign for Tobacco Free Kids, American Cancer Society, American Heart Association, American Lung Association, American Dental Association) that have demonized and grossly exaggerated the health risks of smokefree tobacco products.

These organizations adamantly oppose tobacco harm reduction (i.e. cigarette smokers switching to far less hazardous smokefree tobacco/nicotine alternatives), and instead prefer smokers to either quit all tobacco/nicotine use or continue smoking and die. The old anti-smoking movement of the past four decades has split into two distinct factions: pragmatic public health advocates whose goal is to reduce cigarette smoking, and abstinence-only anti-tobacco/nicotine extremists whose ideological goal is to eliminate all tobacco/nicotine use.

This latter group of extremists also are opportunistic prohibitionists, as CTFK, ACS, AHA, ALA joined forces with GlaxoSmithKline in 2002 to unsuccessfully petition the FDA to ban Star’s Ariva and Stonewall low nitrosamine smokeless tobacco lozenges

(that are nearly identical to GSK’s Commit nicotine lozenge, that is marketed as a smoking cessation aid). Several months ago, CTFK, ACS, AHA, ALA urged the FDA to ban recently introduced smokefree nicotine inhalers called “electronic cigarettes”, claiming that these products have not been proven to be safe or effective (as smoking cessation aids). And yet, e-cigarettes don’t emit any smoke, and are at least 99.9% less hazardous than cigarettes. Similarly, CTFK, ACS, AHA, ALA insisted that the new FDA tobacco law ban all new smokefree tobacco products (while leaving cigarettes on the market) until/unless the FDA approves the new product (which those groups almost certainly will oppose).

Mr. Giannattasio’s support for strict regulation of smokefree tobacco products (while simultaneously espousing the pleasures of cigarette smoking) indicate a selfish bias (for his tobacco product of choice) instead of product regulations based upon scientific evidence or concern for public health.

Sweden now has the lowest cigarette smoking rate (and correspondingly lowest lung cancer, COPD and heart disease death rate) in the developed world. The primary reason for Sweden’s dramatic decline in smoking (and smoking morbidity/mortality) is that a huge majority of cigarette smokers (especially males) switched to a smokefree tobacco product called snus during the past several decades. Snus now comprises 50% of all nicotine consumed in Sweden (with cigarettes now accounting for just 50%).

As I pointed out in my previous posting, smokefree tobacco/nicotine products now account for 20% of nicotine consumed in the US, up from 10% a decade ago (with cigarettes declining from 90% to 80%). A critically important public health goal (and one advocated by Smokefree Pennsylvania) should be to increase that percentage to 50% (as is the case in Sweden) in the next five or ten years, as achieving that goal also would sharply reduce cigarette consumption, diseases and deaths in the US.

Unfortunately for public health, a stated goal of CTFK, ACS, AHA, ALA, as well as the Centers for Disease Control, is to reduce the use of smokefree tobacco products, which would ensure that the overwhelming majority of nicotine consumed in the US would continue being obtained from cigarettes, and that cigarettes would remain the leading cause of disease, disability and death in the US.

Smokers have a human right to be truthfully informed that smokefree tobacco products are far less hazardous alternatives to cigarettes, and smokers have a right to legally access less hazardous alternatives to cigarettes. Unfortunately, the new FDA tobacco law tramples on those rights.

While tobacco harm reduction has the potential of sharply reducing cigarette consumption in the future, other policy changes also can/will further reduce smoking (especially cigarette tax increases and further restrictions on indoor smoking).

The examples I cited (on my previous post) of regulations that the FDA is prohibited from promulgating don’t necessarily indicate my support for those regulations (although I’ve long advocated raising the minimum age for cigarette sales above 18 years to prevent youth addiction), but rather exposed additional inaccurate and hypocritical claims made about the new law by its proponents.

In sum, the greatest potential for additional declines in cigarette consumption during the next decade won’t come from the new FDA tobacco law, but rather from other policy changes (that the new FDA tobacco law will make more difficult to achieve).

Bill Godshall

Smokefree Pennsylvania

Alex Giannattasio is the Managing Editor of the Johnsonville Press. His original article on this legislation can be read here at www.johnsonvillepress.com

I want to thank my esteemed opponent for his comprehensive analysis of the Family Smoking Prevention and Tobacco Control Act. As I sat reading his opening remarks (coincidentally, as I enjoyed an additive-free cigarette) I found myself perhaps surprisingly in agreement with many of the claims Mr. Godshall promotes. Broadly speaking, cigarette smoking is the leading cause of disability and death in America; children should be protected from the coercive sales tactics of cigarette companies; and smokefree tobacco products seem to provide a healthier alternative for nicotine users than cigarettes and other smoke-producing tobacco products. Further, we can agree that cigarette smoke and advertising should be banned from indoor public places, especially in proximity to children; that over-taxation is the most effective means of reducing tobacco use; and that this legislation protects the industrial production of tobacco. However, I do not believe that any of these claims provide a basis for the rejection of the Family Smoking Prevention and Tobacco Control Act. On the contrary, the legislation, in conjunction with other measures both past and future, not only provides for the right balance of federal regulation and personal freedom–the very balance that has allowed our country to flourish in the past–but largely stands on constitutionally solid ground.

Tobacco use, as I have said, is an old practice. People have been using and enjoying tobacco for centuries; and why not? For those of us who choose to smoke, even in light of the associated health risks, smoking is a highly enjoyable practice, one for which we are willing to pay exorbitant prices to engage in. And provided we hurt no one else in the process, why should we be prevented from doing so?

Of course, it has been argued that secondhand smoke kills. I am willing to accept this claim, and the resultant conclusion: that our freedom to smoke should be curtailed when it begets harm to non-smokers, who have actively and freely chosen to avoid the practice, in other words, that smoking should be prohibited in indoor public areas, for the benefit and safety of non-smokers. However, smoking out of doors, which has a negligible if any effect on others, does not fall into the bounds of this claim. Even less does smoking in the privacy of one’s own home, where the individual, not the population, not society, is king.

It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume, as individuals. Such practices are paternalistic and reprehensible. However, the Family Smoking Prevention and Tobacco Control Act does not, as Mr. Godshall agrees, do this. Rather, it specifically gives the FDA authority to regulate additive products and chemicals used by tobacco companies to increase the addictive nature and aesthetic quality of their smokes. THESE additives, not the tobacco itself, are the most serious culprits of tobacco-related ailments, and further, they bring little to no benefit to the smoker. It is my feeling that, if asked whether they would object to the illegalization of, for instance, rat poison in cigarettes, few smokers would object. Additive-free tobacco will be exponentially healthier than current cigarettes, albeit still a generally unhealthy practice. To reiterate: SMOKING IN GENERAL IS UNHEALTHY. SMOKING ADDITIVE FREE TOBACCO IS HISTORICALLY MORE HEALTHY THAN SMOKING INDUSTRIAL CHEMICALS. As a smoker, I commit my personal experience to this fact.

I see no reason to believe that smokefree tobacco products would be as harmful as smoke producing products. In fact, it seems only common sense to assume that they would be infinitely healthier. If 85% of the population, as Mr. Godshall claims, are under the mistaken impression that smokefree products are as unhealthy as cigarettes, I would be tempted to point the finger of blame at overly-zealous antismoking advocates, who prefer sweeping statements of condemnation for all smoking (and smokers) to reasonable scientific analysis. Let me add that I do not place Mr. Godshall as among these. But in fact, I do doubt very much that Mr. Godshall is correct in this statistic, and would like to see his source.

Further, Mr. Godshall claims that the FSPTCA commits the sin of condemning smokefree tobacco while protecting cigarettes. We can, I believe, agree that the slogan “This product is not a safe alternative to cigarettes” is mistaken when applied to smokefree cigarettes. But I can think of some very good reason why such new products need to be thoroughly regulated by the FDA. For one, they provide an extremely efficient drug delivery system to the public, prescription free.  In the foreseeable future, such devises could be modified to include other chemical elements beyond nicotine. If this was done, the chemical regulation problem addressed by the FSPTCA could potentially be circumnavigated by manufacturers. As I have stated, it is my belief that it is the additive chemical constituents in cigarettes that serves to make them so lethal, and if steps are not taken to avert the open consumption of poisonous, toxic chemicals (of which organically produced and manufactured tobacco is not one) health in America will potentially be dramatically damaged, as it has been in the past 70 or so years by inorganically manufactured tobacco.

Further, I will add that I do not see in smokefree tobacco products the end-all solution to the “smoking epidemic” that Mr. Godshall sees. In fact, as a smoker, as a consumer, I can say that such products are widely inferior to the actual experience of smoking. In all likelihood, many Americans will inevitably prefer to consumer a tobacco cigarette than a vaporized hit of nicotine. I would also suggest that it is the smoke itself, and the act of smoking, which is more the source of addiction than nicotine itself, which has been compared to caffeine. As such, consumers are unlikely to make a sweeping switch to smokeless tobacco. In addition, smokefree tobacco products, being less pleasurable for consumption, will more likely act as a gateway into cigarette smoking than an exit from it. If the act of smoking itself is as addictive as the chemicals, then getting an individual used to the process of smoking is likely to open the door to other tobacco products. I feel only a non-smoker could see salvation from cigarettes in these nicotine inhalers. Personally, I find the mechanism too effeminate for my tastes. But that’s just me…

Another mistake Mr. Godshall makes is his comment on the age limit applied to smoking. He seems to believe that cigarettes, like alcohol, should not be sold to 18 year olds, but only to 19, 20 or 21 year olds. The reason he sites is the availability of cigarettes provided to high schoolers of all ages through the senior connection. This claim is completely unsound. To begin with a common and well known argument, American citizens old enough to fight and die in war should be allowed the right of control over their own personal consumption–in this country, what is control over their own lives.Further, alcohol and cigarettes are incomparable substances; how many car accidents are caused by smoking and driving? Drunk driving deaths are the legitimate reason for the alcohol age increase, but the same can not be said of cigarettes, which are far less damaging in the short run. But even further, the policies Mr. Godshall seeks to impose are exceedingly paternalistic. Perhaps it’s the fact that I am closer to that age group (I’m 21) than Mr. Godshall, but I can say definitively that regarding younger people, prohibition only serves to tantalize. The best proven way to avoid teen smoking is not through the legislative process, but rather by truthful, honest education. Adolescents need less protection than we tend to give them credit for; all they really need are the tools to make the right decisions, and often they will. In this case, the tool is truthful information. Legislation above and beyond what is now in place will not serve to prevent teen smoking. However, the FSPCTA does address serious concerns about big tobacco’s ability to advertise to our youth, which is akin to undermining honest educational programs, and appeal to children with candy flavored smokes, which is a reprehensible practice.

Mr. Godshall appears to promote these forms of regulation, which I quote from his article:

- eliminating cigarette sales in retail stores frequented by youth,
- increasing the minimum age for cigarette sales above 18 years,
- requiring prescriptions to buy cigarettes (as FDA requires for other harmful drugs), and
- eventually removing cigarettes from the market.

Such regulations are completely contrary to the American way of government. Tobacco is a recreational and relatively benign drug, in that it takes scores of years to produce serious health impacts on most users. Further, tobacco provides few medical benefits to users, and so prescriptions are simply a ridiculous concept for cigarettes. Further, the removal of cigarettes from shelves in certain stores is discriminatory, and restricts freedom in unacceptable ways. Further, removing cigarettes from the shelves is extremely illegal and unconstitutional, in that it restricts our freedom to grow and consume a naturally occurring plant, as is currently the case with marijuana. These unfortunate, fear mongering prohibitions serve to undermine the American spirit, and would be completely unacceptable to the approximately 50 million smokers in this country. I would remind Mr. Godshall that the purpose of American Democracy is to protect the rights of the minority, rather than to impose the will of the majority. For that reason, it is unacceptable for the federal government to impose paternalistic standards of lifestyle upon any members of its population, be it in the restriction of fatty foods, car use, or cigarettes, all of which, when used in moderation, can have negligible health effects. What we need is more communication, more discussion, more education, more freedom, less prohibition.

In contrast to the sort of sweeping federal regulations Mr. Godshall seems to support, I would suggest that the legislative process at the state, or even local levels, are the fairest places for the legislation of tobacco use. If a specific town or state finds it suitable to prohibit tobacco sale in their area, it is no skin off of my nose. Nearly all regulation should take place at the state and local levels, and I applaud lawmakers for enacting a law which does not overstep its constitutional bounds. In fact, it will be local governments, in tandem with local organizations, such as the one to which Mr. Godshall belongs, which are the most acceptable regulators and educators about tobacco use, not the broad and cold network that is the federal government. If Mr. Godshall’s policies were accepted, I, and many other smokers would take serious issue with our sudden inability to disagree with him.

In conclusion, I would remind Mr. Godshall that death is an inevitable part of life. We are all going to die some day. Some of us will die in car and plane crashes, some of us will die from diabetes. Some of us will die young, and some of us will die old. Some of us will die from smoking, and some of us won’t. But the choice of how we live should be our own. I had dinner with my grandfather the other day, a man of 83 years of age, and a smoker of 30. Clearly, the choices he has made in living have led him this far. What right do you have to say he made the wrong choices?

Alex Giannattasio

The Johnsonville Press

Managing Editior

www.johnsonvillepress.com

Alex’s original article on this legislation can be found here, on the Johnsonville Press: http://johnsonvillepress.com/2009/06/smokin-barrels-congress-aims-shots-at-tobacco-manufacturers-alex-giannattasio/

Ever since the “Family Smoking Prevention and Tobacco Control Act” was negotiated and agreed to by Altria and the Campaign for Tobacco Free Kids, and introduced by Senator Kennedy and Representative Waxman in 2004, Smokefree Pennsylvania has opposed the legislation (and has advocated amendments to improve public health), because it:

- does very little to reduce adult smoking, while duping the public to believe otherwise,
- does very little to prevent youth smoking, while duping the public to believe otherwise,
- prohibits the FDA from issuing truly effective tobacco regulations to reduce smoking,
- protects cigarettes from market competition by less harmful smokefree tobacco products,
- perpetuates the widely believed myth/fraud that smokefree tobacco products are as hazardous as cigarettes,
- perpetuates the widely believed myth/fraud that some cigarettes are less harmful than others,
- includes provisions (perhaps many) that violate the 1st Amendment, which almost certainly will be struck down by the courts, and
- reduces cigarette manufacturer risks in ongoing and future litigation.

New law does very little to reduce smoking

While supporters of new FDA tobacco law have claimed the new law will significantly reduce smoking and save millions of lives, the Congressional Budget Office has estimated that the new law will reduce youth smoking by only 11% during the next decade, and by just 2% among adults.   In comparison, youth smoking declined by 50% to 70% (depending upon age group) during the past decade, while per capita adult cigarette consumption decline by 30%.

Most reductions in youth and adult smoking during the past decade were due to state/local smokefree workplace laws, state/local cigarette tax increases, the 1998 Master Settlement Agreement between States and tobacco companies, and state/local tobacco marketing restrictions to protect youth.  There is no evidence that any of the provisions in the newly enacted FDA tobacco law (except for Senator Mike Enzi’s amendment to require color graphic picture warnings on 50% of cigarette packages, which was advocated by me and was opposed by supporters of the new law) will reduce smoking.

The recently enacted SCHIP legislation (that increased the federal cigarette tax $1/pack will do far more to reduce smoking among adults and youth than the new tobacco law.

Smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes

Fair and effective regulations adequately inform consumers of relative and comparable product risks, encourage the development of and transition to lower risk products, and gradually phase out the most hazardous products.  In sharp contrast, the new FDA tobacco law protects the most hazardous tobacco product (cigarettes), the largest cigarette company (Philip Morris) and the largest cigarette brand (Marlboro) from market competition from far less hazardous smokefree tobacco products by misleading consumers to incorrectly believe that smokeless tobacco products are just as hazardous as cigarettes, and by prohibiting smokefree tobacco product manufacturers from truthfully informing cigarette smokers that smokefree products are far less hazardous alternatives to cigarettes.

Cigarettes kill 50 percent of addicted smokers (about 400,000 Americans annually), and up to 63,000 nonsmokers from secondhand smoke.  In contrast, smokefree tobacco products are attributable for no more than several hundred oral cancer deaths each year, and pose no harm to nonusers.  The tobacco smoke (or more accurately, the repeated inhalation of tobacco smoke), not the nicotine or tobacco, is the leading cause of disease, disability and death in America.

Smokefree tobacco products also pose significantly fewer risks for oral cancer than cigarettes.  Although cigarettes and smokefree tobacco products are similarly addictive, cigarettes are 100 times deadlier than smokefree tobacco products.  Swedish smokefree tobacco products (snus) and other new low nitrosamine smokefree tobacco products pose even fewer health risks, as do electronic cigarettes and nicotine gums, lozenges and skin patches.

Smokers who switch to smokefree tobacco/nicotine products reduce their disease, disability and death risks nearly as much as occurs by quitting all tobacco/nicotine use.  Millions of smokers in American and Sweden have already switched to smokefree tobacco/nicotine products, and the percentage of nicotine obtained from smokefree tobacco/nicotine products in the US has increased from 10% to 20% in the past decade, with smokeless tobacco products accounting for the vast majority of this change.  Unfortunately, 85% of smokers inaccurately believe that smokefree tobacco products are just as hazardous as cigarettes.  I coauthored a report delineating these issues “Tobacco harm reduction: an alternative cessation strategy for inveterate smokers” at http://www.harmreductionjournal.com/content/3/1/37

But the new FDA tobacco law protects cigarettes at the expense of public health and far less hazardous smokefree tobacco products by requiring even larger misleading warning labels on smokefree tobacco products that state “This product is not a safe alternative to cigarettes,” and “This product may cause mouth cancer.”  The new law also fails to inform smokers that smokefree tobacco products are less hazardous alternatives to cigarettes, and specifically prohibits any tobacco company from truthfully informing smokers that smokefree tobacco products are less hazardous alternatives.
Although Section 911 of the new tobacco law includes provisions for FDA to approve the marketing claims for “modified risk tobacco products”, it is highly unlikely that any application (under this provision) would be approved by the FDA (even for far less hazardous smokefree tobacco products) because the manufacturer also would need to demonstrate that the product wouldn’t discourage smokers from quitting tobacco use and wouldn’t result in use by non tobacco users.

New law perpetuates the safer cigarette myth/fraud

Section 911 of the new FDA tobacco law also requires the FDA to promulgate regulations for tobacco companies to apply for making “reduced exposure” claims for cigarettes, which would perpetuate (under FDA oversight) the 60 year old myth/fraud that reducing exposure to a some of the many thousand constituents in tobacco smoke (including more than 40 carcinogens) can make cigarettes less hazardous.  During the 1950’s and 60’s filters were added to cigarettes to make smokers believe that they were less hazardous, and since the 1970’s cigarette companies have similarly marketed low-tar, light and ultralight cigarettes.  Surveys consistently find that about 85% of smokers inaccurately believe that light and ultra light cigarettes are less hazardous than other cigarettes, which explains why light and ultralight cigarette brands account for most of the US cigarette market share.

The new FDA tobacco law also authorizes and encourages the FDA to establish cigarette emission standards for various smoke constituents, which are based upon similarly inaccurate and unreliable smoking machine tests that were relied upon to fool the public into believing that low-tar, light and ultralight cigarette brands were less hazardous than other cigarettes.

While the new FDA law wisely bans the use of low-tar, light, ultralight and mild cigarette brand descriptors, the new law fails to inform smokers or the public that these brands (which will remain on the market) are just as hazardous as other cigarettes, and requires the FDA to perpetuate the myth/fraud that less hazardous cigarettes can and will be made under FDA regulatory oversight.
The new law also authorizes the FDA to reduce nicotine levels in cigarettes (and other tobacco products), and proponents of the new law have touted this as an effective way to reduce the addictiveness of cigarettes.  Yet, there is broad scientific consensus that smokers of cigarettes with lower nicotine yields puff more intensely, take more puffs and/or smoke more cigarettes in order to obtain a similar level of nicotine that they are accustomed to receiving, which is known as “nicotine compensation”.  As such, any FDA regulation to reduce nicotine amounts in cigarettes almost certainly will make cigarette more hazardous, not less.

New law contains unconstitutional provisions

Another problem with the new FDA tobacco law is that some (and perhaps many) of its advertising/marketing restrictions are virtually certain to be struck down by the Supreme Court for violating a manufacturer’s First Amendment right to communicate with its adult customers.  In 2001 the Supreme Court (in Lorillard Tobacco Co. v. Reilly) struck down a Massachusetts regulation because it prohibited outdoor tobacco advertisements within 1,000 feet of a school or playground.  And yet, that same 1,000 feet outdoor advertising restriction is contained in the new FDA tobacco law.

The new FDA tobacco law also bans other forms of tobacco advertising (e.g. large outdoor tobacco billboards, sports events, magazines with few youth readers) that could similarly be struck down by the Supreme Court for violating the 1st Amendment.  While the 1998 Master Settlement Agreement, agreed to by 46 State Attorneys General and the large tobacco companies, prohibits these types of tobacco advertisements, a Supreme Court ruling striking down these provisions as unconstitutional could even result in some (or all) tobacco companies withdrawing from that settlement (in order to resume those types of advertisements that are seen by many youth, and in order to avoid annual payments to states that totally about $8 billion).

Other provisions in the new FDA tobacco law that could be ruled in violation of the 1st amendment of tobacco companies include prohibiting them from truthfully claiming that their products are regulated by the FDA, and from truthfully claiming that smokefree tobacco products are less hazardous than cigarettes.

Since 2004, Altria (the world’s largest cigarette company, which spent many millions of dollars lobbying to enact the FDA law) has claimed that it too believes the court will strike down some provisions of the law for violating the 1st Amendment.

New law denies FDA authority to effectively regulate tobacco products

Effective product regulations also allow regulatory agencies unfettered authority to issue regulations that reduce use of and access to the most hazardous products.  But the new tobacco law explicitly prohibits the FDA from issuing many of the most effective regulations to prevent and reduce cigarette smoking, including:
- eliminating cigarette sales in retail stores frequented by youth,
- increasing the minimum age for cigarette sales above 18 years,
- requiring prescriptions to buy cigarettes (as FDA requires for other harmful drugs), and
- eventually removing cigarettes from the market.

Although supporters of the new FDA tobacco law claim that it protects youth from tobacco and from marketing by tobacco companies, the law prohibits the FDA from banning the sale of cigarettes (and thus, their advertising as well) in hundreds of thousands of retail stores that are frequented by youth because it specifically prohibits the FDA from banning tobacco sales in any of the many different categories of retail outlets.  While cigarette consumption has declined by 50% since 1982 in the US (from 32 billion packs to 16 billion packs), the number of cigarette retailers has remained about the same.  The new law ensures that virtually all youths will continue to be exposed to tobacco advertising and marketing.

By prohibiting the FDA from increasing the minimum age of tobacco sales above 18 years, the new law allows tobacco companies to legally market their products to virtually all 12th grade high school students, which ensures easy access to tobacco products by most other high school students.  Just as raising the legal minimum age for alcohol sales to 21 years significantly reduced youth drinking and automobile injuries, increasing the minimum age for cigarette sales to 19, 20, or 21 could significantly reduce youth consumption.  Can anyone imaging Congress passing a law purported to protect youth from alcohol that allows alcohol to be sold to 12th grade high school students?
More manageable liability risks for cigarette companies

While the new FDA tobacco law doesn’t give tobacco companies any specific protections from lawsuits, the impact of the new law is likely to indirectly do so by reducing the likelihood that judges and juries will impose punitive damages on losing cigarette company defendants (as punitive damage awards are intended to punish losing defendants for their egregious behavior), or require any product changes (e.g. the verdict in the DOJ case against cigarette companies banned light, ultralight and mild cigarette claims).  The new law is also likely to result in fewer lawyers and lawfirms being willing to file expensive and risky lawsuits against cigarette companies in the future.

Summary

Although the new FDA tobacco law contains several sound public health policy provisions (e.g. requiring color graphic warnings covering 50% of cigarette packs, and banning of light, ultralight cigarette descriptors), there are many other provisions in the new law that protect cigarette markets at the expense of public health and less hazardous smokefree tobacco/nicotine products.

But perhaps the biggest problem with the new law is that Congress and the public have been duped into believing that the new law has resolved and will sharply reduce the nation’s leading cause of disease, disability and death.   This will make it far more difficult during the next several decades to successfully advocate public policies that truly reduce smoking, which is a big win for Altria and cigarettes.

Smokefree Pennsylvania is a nonprofit organization founded in 1990 which has worked to protect people from the involuntary exposure to tobacco smoke pollution, reduce tobacco marketing to youth, increase cigarette prices, preserve civil justice remedies for injured tobacco victims, increase tobacco prevention and cessation services, and inform smokers that smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes.

Bill Godshall

Executive Director, Smokefree Pennsylvania

The American legislative process, I believe, can be better understood as a positive force than a negative one. By that I mean, when we judge a piece of legislation as citizens, we should be as or more concerned with what that bill actually does to change our society than with what it fails to do. With this in mind, I propose to focus on the positive (productive) changes established by HR 1256, or the Family Smoking Prevention and Tobacco Control Act, of which there are several.

To begin, the Act deals explicitly with the rights of manufacturers of tobacco products, as opposed to tobacco producers, or farmers, thereby bringing all major cigarette corporations in America under the federal regulation of the FDA. It is important that the regulations only apply to manufacturers; revocation of the freedom to farm a crop, particularly one which has so drastically contributed to the growth of this country, would be an appalling abuse of power by the federal government, thoroughly un-American, and a slap in the face to the 45 million Americans who freely choose to smoke. Prohibition, as we should all know by now, is not the answer—and luckily, this Act does not seek to prohibit tobacco.

The Act’s main goal is to dramatically limit the ability of such manufacturers to add harmful foreign substances to their tobacco products—substances other than tobacco, nicotine and tar, all of which will be found in an organic tobacco product. According to this BBC article, any of at least 600 foreign substances and chemicals may be present in various commercial cigarette brands. The offshoot is that by regulating and prohibiting non-additive-free tobacco products, many of the negative health effects associated with smoking can be avoided altogether. In fact, I would wager, without having any supporting evidence on hand, that the majority of tobacco-related ailments in the non-senior population are caused by foreign additives in manufactured tobacco products. Smoking tobacco has been around for centuries and I guarantee that it provides no real threat to the fabric of society. But the nefarious practice of adding foreign chemicals to tobacco, without so much as labeling the product, is less than a century old. THIS practice does pose a serious threat to society’s health, as the health repercussions of such chemically treated smoking sticks are far worse, far more serious. The chemical additives present in cigarettes are to my mind the main culprit.

As an added bonus, the legislation actively denies tobacco companies old and new the use of misleading marketing tactics directly aimed at the recruitment of young (adolescent) smokers. If used to its maximum potential, HR 1256 will dramatically improve the health of stubborn cigarette smokers, saving billions in healthcare costs in the process, simply by substantially limiting the tobacco industry’s right to lie. That the bill fails to out-rightly prohibit tobacco production, manufacture and use is no failing point; rather, it is a victory for both American freedom and bipartisan compromise. As you can see, I generally support the measures taken in HR 1256…

President Obama signed into legislation the Family Smoking Prevention and Tobacco Control Act on June 22^nd. This new law, which aims to keep children from starting to smoke, gives control of tobacco to the FDA and allows it to regulate the content, marketing, and sale of cigarettes and other tobacco products. The law also forbids advertising toward children, lowers the amount of nicotine in tobacco products, bans sweetened cigarettes, and prohibits labels such as “light” and “low tar,” according to The New York Times.

The new legislation brings up many questions, such as:
Is it a good idea to give the FDA so much control?
Should the sale and marketing of tobacco be so heavily regulated in the first place?
Will the legislation help keep children from smoking?
Is the law too easy on the tobacco companies?
What else can be done to keep youth from smoking?

Guest bloggers Bill Godshall of Smokefree Pennsylvania and Alex Giannattasio of The Johnsonville Press will address some of these questions as they debate the effectiveness of the new tobacco legislation and whether or not they support it this week on Bloggerheads. Bill Godshall will take the side of not supporting the legislation, and Alex Giannattasio will argue why he does support it. Check back late today to see the opening arguments for each side.

Norah Shipman
Editorial Assistant

When we think about ethical problems, we use our imaginations: “What if I….”  So in Professor Perlman’s post: “What if I was in jail for a crime I did not commit?”  That imaginative engagement is crucial to allow us to feel empathy, and to structure our decisions so that the interests that matter get taken into account.

But if we are going to use our imaginations to empathize, we cannot stop at the innocent accused in jail.  Imagine you are a young man growing up in inner city poverty, gradually embroiled from age 14 in gang life and gang violence.  At 16, high on crystal meth, you assault another young man on the street, beating him senseless.  After you fumble your way home, you decide to straighten up your life.  But the beating is in the news, and you’re scared.  You drop by a local law clinic and tell the lawyer you want his advice.  But the lawyer tells you, “I want to help you, but remember that if you tell me anything about a crime you might have committed, and someone else gets charged with the crime, I may go to the authorities.”  Or suppose the lawyer doesn’t tell you that, but after you speak to him, someone else is charged and he takes your secrets and gives them to the police.

In the first case you will likely not seek advice at all, and in the second case you will feel betrayed, and will know better than to seek legal advice another time.
(more…)

I’m delighted to be here on a brief visit from my usual blogging home at www.legalethicsforum.com. I write and blog about issues facing lawyers and the legal profession, and I want to take this opportunity to discuss a narrow issue that raises larger questions about the role of attorneys in an adversarial system.

To frame the issue, imagine that you are a criminal defendant and sentenced to life in prison for a crime that you did not commit. Now assume that the lawyer for the real culprit knows that you are innocent and can prove it by disclosing her client’s confidential information. That attorney’s client, fearing a lengthy jail sentence, instructs the lawyer not to disclose the truth. Should the lawyer nevertheless be allowed to disclose the information to save you from an underserved lifetime in prison? Or must the lawyer follow her client’s instructions and conceal the truth?

This scenario arises only rarely, but it raises a fundamental question about the nature of the attorney’s role. When (if ever) should a lawyer be permitted to sacrifice a client’s legal interests in order to help a third person? Keep in mind that, in this fact pattern, the lawyer is not breaking any law by concealing the information. The only question is whether the lawyer should be permitted to disclose the information as a matter of professional ethics.

Currently, only two states (Alaska and Massachusetts) permit disclosure under these circumstances. They permit, but do not require, a lawyer to disclose confidential information “to prevent the wrongful execution or incarceration” of another person.

In my view, all lawyers should have the same discretion as lawyers have in Alaska and Massachusetts. It goes without saying that an attorney should have a duty to protect a client’s legal interests, but in extreme cases, the rules should take into account the interests of third parties. For this reason, the relevant ABA Model Rule of Professional Conduct already permits lawyers to disclose confidential information to prevent reasonably certain death or substantial bodily harm and to prevent serious financial harms to third parties.

These exceptions correctly recognize that lawyers should have the discretion (but not the obligation) to disclose confidential information to prevent serious injuries to other people. These exceptions are narrowly tailored, and appropriately so, but they correctly balance a lawyer’s client-centered duties with the legitimate interests of third parties. And they also do part of the work of the Alaska and Massachusetts rules; by giving lawyers the discretion to disclose confidential information to prevent death, the Model Rule seemingly permits an attorney to disclose confidential information to prevent a wrongful execution. The Model Rule, however, is of no use to you, the prisoner with the lifelong prison sentence.

Given that lawyers are already permitted to disclose confidential information to prevent serious bodily harm or death, the rules should explicitly permit lawyers to prevent the equally troubling fate of a wrongful incarceration. Again, the rules should give substantial weight to a lawyer’s duties to a client, but in the unusual case where a lawyer knows of a wrongful incarceration, other interests can sometimes trump that duty. Such a scenario will not arise often, but when it does, the rules of professional conduct should recognize that a lawyer’s obligations do not and should not run exclusively to the client.

I agree with what you say.  As a woman of color who was in an interracial marriage, I was shocked to find that until the mid 60’s, my marriage was against the law until the 1967 Supreme Court case of Loving vs. Virginia.

Here is a summary of the case and its outcome:

1
Loving v Virginia 388 U.S. 1 (1967)
1) Reference Details
Jurisdiction: United States of America, Supreme Court
Date of decision: June 12 1967
Case Status: Concluded
Link to full text:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1
2) Facts
In June 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a
white man, were married in the District of Columbia. Shortly afterwards they returned to
Virginia and were charged with violating Virginia’s ban on interracial marriages. The
Lovings were victims of direct de jure racial discrimination inherent in the Virginia code,
which prohibited marriage between whites and non-whites.
At the time of the case, Virginia was one of 16 states to prohibit and punish interracial
marriages. They pleaded guilty and were sentenced to one year in jail; however, the judge
suspended the sentence for 25 years on the condition that the couple should not return to
Virginia together during that time.
In his dicta the judge expressed the opinion:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on
separate continents. And but for the inference with his arrangement there would be no cause
for such marriages. The fact that he separated the races shows that he did not intend for the
races to mix.”
Following conviction, the Lovings settled in the District of Columbia. In November 1963 the
couple filed a motion in the state trial court to set aside the judgment on the grounds that
the statutes they had violated were unconstitutional and “repugnant to the Fourteenth
Amendment.”
The motion failed. Further appeals followed to the US District Court for the Eastern District
of Virginia, which also rejected the motion, and later to the Supreme Court of Appeals of
Virginia.
In February 1965 the Supreme Court of Appeals upheld the constitutionality of the
miscegenation statutes and affirmed the convictions. The court made reference to its
decision in Naim v Naim (1955) 197 Va. 80, 87 S.E. 2d 749, in which it had held the
miscegenation laws to be legitimate for such purposes as “to preserve the racial integrity of
its citizens,” and to prevent “corruption of blood,” “a mongrel breed of citizens,” and “the
obliteration of racial pride.”
The Lovings appealed again to the US Supreme Court. The court addressed the issue of the
constitutionality of the miscegenation statutes in the light of the Fourteenth Amendment,
which forbids “all invidious racial discrimination.”
2
3) Law
State legislation
• 20-59 Virginia Code, which forbade marriage between whites and non-whites.
• 20-58 Virginia Code, which extended this prohibition to couples who left the state in
order to marry and subsequently returned in cohabitation.
National legislation
Fourteenth Amendment of the United States Constitution, s. 1 (“Equal Protection Clause”)
forbids discrimination between US citizens and affords all citizens the equal protection of
the laws.
4) Legal Arguments
The State of Virginia
The State of Virginia argued that the Equal Protection Clause should require state penal
laws with an interracial element to apply equally to whites and non-whites, so that
respective violations should be punished to the same degree. Therefore, and in reliance on
this, the question of constitutionality became whether any rational basis existed for
different treatment of interracial marriages and other marriages. Given that the “scientific
evidence is substantially in doubt”, the court should defer to the state’s legislative policy.
Finally, Virginia relied on statements present in the Thirty-ninth Congress at the
introduction of the Fourteenth Amendment which indicated that the Framers did not intend
the Amendment to make unconstitutional state miscegenation laws.
5) Decision
Mr Chief Justice Warren delivering the unanimous opinion of the court, stated:
“The clear and central purpose of the Fourteenth Amendment was to eliminate all official state
sources of invidious racial discrimination in the States.”
Subsequently, the “equal application” argument put forward by Virginia was rejected. It did
not exempt the Virginia Code from the prohibition of racial discrimination contained within
the Fourteenth Amendment. In the courts opinion the statutes should not be upheld merely
because of the existence of a rational purpose behind them. Analogous cases involving
discrimination on grounds other than those of race provided no useful guidance in the
present case.
The court declared racial classifications should be subject to the “most rigid scrutiny” and
must be shown to “be necessary to the accomplishment of some permissible state objective.”
On the facts there was “patently no legitimate overriding purpose independent of invidious
racial discrimination which justifie[d] this classification.”
In regards to the statements made in the Thirty-ninth Congress put forward by the State of
Virginia, the court considered that the statements relied on related to specific statutes and
3
not to the broader purpose of the Amendment. Such historical statements were inconclusive
and did not corroborate the state’s “equal application” argument.

It is neither prudent, nor appropriate to treat people differently based on their religion, ethnicity, disability, skin color sexual orientation or any other protected class.

These hundreds and thousands of men and women who wear the uniforms of the respective branches of service, who go to war on behalf of their country, who sacrific their lives in conflict deserve to be treated better than the United States Government presently treats them.

The Supreme Court on Monday turned down a challenge to “Don’t Ask, Don’t Tell” in a case that came to the Court from the First Circuit.  Of course, much of the opinion being spread about it is just plain false.  Legally speaking, even practically speaking, this wasn’t the case people are making it out to be.

So, what is it?

Not much.

The Supreme Court has a docket that is pretty much completely of its own choosing, a process known as certiorari, or cert for short. If the court grants cert, it accepts the case, will receive a full briefing on the issues in the case and decide the merits of the legal issues between the parties.  The action taken today was denial of certiorari, which ultimately means that there were not at least four justices willing to accept the case.

So, Monday’s action was not a decision on the merits of the case; the Supreme Court did not rule on the constitutionality of Don’t Ask, Don’t Tell.

What’s more, the decision, particularly coming right now, likely tells us little about what the members of the Court actually think about the constitutionality of the policy.  Why?  Because a justice, say Justice Ginsburg, might believe the policy is unconstitutional but could vote against cert because she was uncertain of the Court’s other members’ views and did not want to risk losing the argument.  Additionally, with the Court is in the midst of a personnel change, I’d think we’re unlikely to see many high-profile, likely 5-4 outcome case, cert grants before a new justice takes the bench.

Finally, and perhaps most importantly, this case came to the Court with a very odd background posture.  As detailed here, the Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy.  The organization, however, was no longer representing James Pietrangelo when he sought certiorari.  SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case.  The lawyers representing the 11 wrote:

Petitioner and the eleven Cook respondents originally filed a single complaint challenging the constitutionality of DADT, on its face and as applied to them.  The district court dismissed the complaint for failure to state a claim, without allowing any opportunity for discovery or the compilation of a factual record.  Petitioner seeks review of the First Circuit’s decision affirming that decision.

The Cook respondents agree that the court of appeals erred; that DADT is not only bad policy but violates, on its face and as applied, the constitutional rights of gay, lesbian, and bisexual Americans; and that the issues at the heart of this case may at some point require resolution by this Court.  If the Court grants review in this case, the Cook respondents will support reversal of the judgment below.  Unlike petitioner, however, the Cook respondents believe the Court would be better advised to defer review at this time.

So, this was not even a case that the legal organization dedicated to helping to overturn this policy — with support from lawyers at WilmerHale — thought should be heard by the Supreme Court.

Then, in an even more odd turn, Pietrangelo filed a brief with the Supreme Court seeking to strike, or toss out, the SLDN brief.  He argued that this should be done because the group had earlier been representing Pietrangelo as well.  SLDN then filed a brief withdrawing from representation of the other 11 individuals, noting that it was doing so “in order to avoid any possibility that this dispute between petitioner and counsel might prejudice either the Cook respondents [the other 11 individuals] or petitioner in this proceeding.”  Substitute counsel replaced SLDN and the WilmerHale lawyers representing the “Cook respondents.”

In short, I don’t think that this is a case that anyone should want to be the Supreme Court challenge to Don’t Ask, Don’t Tell.  The Court is experiencing change in its membership, the factual record is not well-developed (which we definitely want since the factual records in so many of these cases are very compelling, as with the case of Lt. Dan Choi), the 12 individual being kicked out of the military in the case disagree on whether the case should be heard, and the organization existing solely to fight Don’t Ask, Don’t Tell is no longer involved in the case.

Many of us want the repeal of Don’t Ask, Don’t Tell, and we want it now.  But fighting for a bad case to go up to the Supreme Court is neither strategic nor likely to end in success.

Don’t ask, don’t tell – Op-Ed: A Gay Soldier’s Husband

I just watched this video clip on the NY Times and was moved to tears. Why can’t we repeal “Don’t ask, don’t tell.” We had Brown vs. Board of Education and desegregated schools, we gave women the right to vote, we had Loving vs. Virginia and had the supreme court outlaw mysogeny (interracial marriage), so why can’t we outlaw discrimination against gays?

I was having this conversation with a family member recently who is opposed to gay marriage – many years ago, a gay friend quoted me something she had seen on a t-shirt which basically stated that gays won’t marry straights if they are allowed to marry each other.

For 15 years, I was in a marriage where I was unfulfilled, miserable and desperately lonely. The only things my former husband and I had in common were our deep and abiding faith in the Mormon Church and our four remarkable boys.

The pain and anguish that I felt when he finally came out still cause me to tear up on occasion to this day – I remember telling him – I didn’t care that he was gay, but I did care that he lied to me – he was supposed to be my best friend. Those feelings hold true today – we are friends – no longer as close as we were, there has been way too much pain and betrayal, but we maintain a friendship for the sake of our children.

Unless people have been on my side of the equation, they should stop speaking out against gay marriage.

The couple who were so beautifully portrayed in this video are a regular couple (the individual in the military is in Iraq and was not able to be videotaped) – they live in a beautiful home, but when they write letters to each other, they have to censor them and be so careful about what they write, lest someone should find out their secret.

It is time to repeal Don’t ask, don’t tell – it is not working, it is unamerican and unconstitutional.