The saga of Everybody Draw Muhammad Day will not be a banner day in First Amendment history. Rather it will stand as an example of how fun gets distorted into harm, how ego trumps logic and fairness, and how the Internet can make bullies and boors out of formerly civil people.

In ethics, the most useful question is  often “What’s going on here?”

What’s going on here?

1. A world religion followed by millions of people is in a strained relationship with the West, as communication technology has made the cultural differences apparent, corrosive, and unavoidable.

2.  One culture, as a matter of doctrine, is intolerant; the other, as a matter of principle, is open (or is supposed to be) to all forms of expression.  Comics and satirists in the West often break cultural taboos to achieve shock humor. Sometimes the targets of their humor react with anger, and try to hurt or stop the humorist. This happened to Don Imus; it happened to Doug Tracht. Even though these attempts at humor are protected speech, the end result of the shunning of the comics involved inhibited further jokes that crossed the cultural taboos involved.

3. Most Americans seem to accept interest group suppression of free speech, but  an attempt to suppress free speech that has a foreign origin is regarded as more offensive. (Actually, it is less offensive, since those coming from cultures that do not embrace free speech can be excused for their attitudes, while American interest groups who try to suppress speech are violating basic American principles.

4. A satirical show used the specific intolerance for depictions of Muhammad as the basis of its humor. It was clever: Muhammad was represented as man in a teddy bear suit, and it was ultimately shown that the Prophet wasn’t in the suit after all. This technicality didn’t dissuade a Muslim group from threatening the show’s creators with death. The proper response would have been to ignore the threat, let law enforcement address the group, and go forward with the show as written. Comedy Central, the company that had to stand its ground, didn’t.

5. A cartoonist poked fun at the absurdity of the controversy. If a bear could represent Muhammad, then anything could represent Muhammad. She created a poster in which cartoon characters  based on common objects announced that they were Muhammad, and announced a fictional “Everybody Draw Muhammad Day,” meaning everyone draw anything, and call it Muhammad. Point made. Objecting to the South Park episode was intolerance taken to a ridiculous degree, at least to U.S. sensibilities.

6. But a large number of people didn’t really get the cartoonist’s joke, and decided to make her day a real day, in which people would not just draw paper clips and call them Muhammad, a satirical gesture of support to South Park, but actually draw cartoons of the figure, many of the obscene. Now the purpose wasn’t satire, but intentional defiance in the “defense of the First Amendment.”

7. It was hypocritical, facile and cowardly. The defiance had no measure of courage, because it was all on-line, and the rebels were cloaked in anonymity and a web mob. It was misdirected, since the exercise would insult all Muslims, including those, the vast majority, who either did not protest the bear show or did not find it offensive. It was hypocritical because the Muslims were chosen as an easy target: far away, for the most part, already the object of dislike, fear and bias because of terrorist attacks and U.S. wars and controversy in Muslim countries. The same, equally offensive, far more risky protest could have been used to support, for example, Don Imus, or Trent Lott, or any number of Americans punished for exercising their First Amendment rights. It was facile because duplicating gratuitously offensive speech is not in any way the equivalent of what the satirical show was attempting to do: make people laugh, using the religion as a component of a joke. EDMD, in contrast, just was an effort to offend, for the purpose of giving offense. Using among the crudest forms of protected speech to assert the First amendment is the kind of demonstration that makes some people wonder why Freedom of Speech is so important. Allowing boors to insult innocents is the least of its values.

8. Meanwhile, the creators of this event were thoroughly conflicted, and like Baron, not able to suddenly change course even as it should have been obvious that what they were doing was wrong.  Like Vietnam and the Charge of the Light Brigade, they employed rationalizations to convince themselves, if not others, that EDMD was a noble deed. “Being offended was the Muslims’ choice”—although those raised in a culture that believe certain things really don’t have the ability to reject core values. “I wouldn’t mind if someone made fun of my religion”—Well,  you are probably not very religious, and you definitely aren’t Muslim. You cannot project your sensibilities on others. Sexual harassment: “Hey, I’d love to be hit on by a boss as good looking as me!” No.

9. Then we had a snowball effect, with Facebook pages opposing and supporting the event, and endless bloggers and pundits weighing in as to whether the event was just  mean-spirited, or made a valid statement in favor of free speech. At that point, the organizers couldn’t say, “never mind, you’re right; this is a dumb idea. It will make the relations between our cultures worse, cause bitterness, not make the Comedy Centrals  any more likely to do their civic duty, waste a lot of time, and do nada for the Bill of Rights, other than to show, once again, that it protects  jerks and patriots alike.”

10. End of day. Minimal positive results, lots of negative ones.  Angry Muslims everywhere. Proud, unrepentant bloggers rejoicing, certain that EDMD will be a triumphant chapter in their web-memoirs.

The episode, beginning with the “South Park” episode,  was a classic ethics train wreck, a situation where one questionable decision triggers an unethical decision, which triggers another and another, until everyone is confused, little is learned, and people are hurt. Like all such calamities, it could and should have been stopped at many points, but wasn’t.

Thank Allah it’s over.

In my latest post on legal education, I diagnosed the supposed problem with legal education in fairly simplistic terms as follows: law schools should teach more skills. Recognizing that the call for more teaching of skills inevitably entails less teaching of substantive law (including the skill of legal analysis), I suggested that “this sacrifice is largely unnecessary and probably counterproductive.” In this post, I follow up on that assertion and add a few thoughts about more promising avenues for teaching skills.

Michael Woronoff, who is a practicing lawyer in Los Angeles and an adjunct professor at UCLA, has offered some helpful nuance on the skills debate in his recent remarks at the AALS Mid-year Meeting in Long Beach. (You can download his remarks here.) Michael asserts that legal training consists of the transmission of three categories of information: substantive knowledge, practical skills, and expertise.

Michael and I agree on the importance of substantive knowledge, and we both cite the Carnegie Report in support of the notion that law schools do a pretty good job of transmitting such knowledge. Michael also makes some interesting points about the shortcomings of law schools in teaching substantive law to students who want to be transactional lawyers, but I will save that issue for another post. The more general point is that training in substantive law is valuable, and if you propose to cut back on that training, I believe you have a pretty heavy burden of proof.

Which brings us to the issue of skills training. Again, I rely on Michael to provide the framework for our discussion. He observes that most people who talk about the need for more “skills training” in law schools seem to be talking about a combination of practical skills and expertise. The trick to thinking about skills teaching is to “distinguish between the types of skills that law schools can teach and those they cannot.”

Exactly right.

Michael’s view is that law schools cannot reasonably be expected to teach expertise. Most law professors are not expert practitioners, and even if we were, students wouldn’t have the time in three years to develop expertise after learning the fundamental principles of substantive law. Moreover, “almost any attempt by law school to replicate real practice will necessarily be much too artificial.”

All of this leads Michael to conclude that law schools should focus on what he calls “practical skills.” This term comprises both “the ability to perform tasks necessary for the practice,” such as drafting and negotiating for a transactional lawyer, and “an understanding of the context of the practice,” such as “the ability to understand the language and structure of transactions and the rationale behind these structures.”

Excellent. I agree that law schools can — and should — teach such skills. But if you have been paying attention, you see that we have come upon a bit of a quandry: how can we add such skills training without diminishing the quality of our teaching of substantive law?

Michael chides me for my plan to include at least one case study in every chapter of my Business Associations casebook:

In my own defense, I did not suggest that adopters of the casebook teach every case study. I have never done that for the reasons Michael suggests, even though I am not certain he is correct in his objection. (See more on that below.) The point, rather, is simply that we would make case studies more available.

In any event, Michael does not find attempts to integrate skills training with substantive courses particularly attractive. He has a different idea about teaching practical skills: “we should add new courses, which allow students to see how to practically apply substantive law they have already learned.” Michael points to Rob Illig’s M&A course, which Rob described here on The Glom, as a model for such a course. Michael also likes the idea of “adding a first year “Introduction to Business” course, in which students can learn basic business, accounting, finance and economic concepts early in law school to provide better context for future substantive courses.” (By the way, I have taught such a course to second-year students, and it can be very useful.)

The problem with this part of Michael’s analysis is that bit about adding new courses. Earlier in his remarks, discussing the importance of substantive knowledge, Michael complained that law schools didn’t devote sufficient hours to basic courses and that students don’t take enough of the right elective courses to enable them to “become true experts in their future field of practice.” I am sympathetic to these concerns, which is why I am less excited about adding new skills courses than I am about exploring new methods of teaching the traditional, substantive courses.

Which brings me to the issue of “teaching naked.” (Thanks to my colleague Lynn Wardle for directing me to this article.) That’s the way José A. Bowen, dean of the Meadows School of the Arts at Southern Methodist University describes teaching without technology:

If you are a longtime reader of this blog, this line of reasoning may sound familiar to you. Last year, I wrote about moving my PowerPoint slides in Business Associations outside of the classroom … and the mini-existential crisis created by the move. While I am not at all in favor of a heavy-handed dean removing computers from the classroom, Bowen is right about the potential effects of PowerPoint on student engagement. Nevertheless, in my experience, PowerPoint can be useful in the classroom in two circumstances:

• Explaining concepts that are difficult for students to grasp from the reading materials. Last semester, I taught Corporate Finance out of Bill Bratton’s casebook, which is very challenging for most students. We used class time to work through the most difficult concepts.
• Generating class discussion. When reading law, I tend to map relationships. Lot’s of boxes and arrows to show how people or concepts are connected. PowerPoint is very helpful in setting up a class discussion, and the diagrams are a useful point of reference throughout the discussion.

Unless these things are happening, however, I am all in favor of moving PowerPoint slides outside of the classroom. Class time is usually too valuable for lectures.

I am also moving away from Socratic method in upper-level classes. This post is already too long, so I won’t dwell on this point, but the main observation here is that Socratic method is not a very effective means of transmitting substantive law, even if it is useful in teaching legal analysis.

In my view, students can usually get a pretty good handle on the substantive rules by reading the casebook and relevant regulations or statute, then listening to a 10-15 minute lecture online. The best students still have questions, but I am striving to make the class period a time during which students can apply the substantive law using problems, cases studies, simulations, etc. My hope is that such a class would not only answer their questions, but also provide them with better training in the practical skills that Michael identifies.

Villanova Law School’s Dean got a deliciously just dessert – Villanova is a Catholic university after all, so it’s no surprise that hypocrisy about sex should surface (see Senators Craig and Ensign and Governor Sanford, just to name a few other Christian moralist hypocrites).

Beyond the schadenfreude of the example, it actually points toward a real policy choice. Professor Crawford’s correct that an excellent way to crack down on prostitution is to focus on demand rather than supply. Anti-prostitution efforts until recently almost always centered on limiting supply – rounding up prostitutes and taking them off the streets or out of the brothels. This seemed like a sensible solution to male lawmakers who viewed prostitutes as responsible for their industry without regard to the economic inequality that leads many woman to engage in sex work.

Comparative law is helpful here. Sweden, for example, has a solution that focused on thinking of prostitution differently. In 1999, Sweden criminalized the buying of sex and decriminalized the selling of sex. The focus immediately switched from limiting supply to limiting demand. Unlike in the United States, where such criminal law efforts are pursued without regard to the social consequences. Enforcing a prostitution ban, whether by criminalizing the purchase or sale of sex, has serious effects on the livelihood of the people who perform sex work. Sweden, unsurprisingly for a social democracy, takes this into account by providing extensive social support systems for people who want to leave the sex work industry, including education and other support. The effect of the law has been a marked reduction in the number of prostitutes and the instances of sex trafficking into Sweden. The Swedish government’s argument for the law is as follows: “In Sweden prostitution is regarded as an aspect of male violence against women and children. It is officially acknowledged as a form of exploitation of women and children and constitutes a significant social problem… gender equality will remain unattainable so long as men buy, sell and exploit women and children by prostituting them.”

The Swedish example and the arrest of Dean Sargent both reflect an abolitionist stance. But many sex workers, such as those in Coyote (Call off your old tired ethics)http://www.coyotela.org/what_is.html
argue that engaging in sex work is part of their exercise of control over their bodies. Many third wave feminists, whose work Professor Crawford carefully theorizeshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=887914
, would argue that sex work is part of self expression and it is retrograde to presume that women engaged in sex work have no agency. I’m not sure how persuasive I find those specific arguments, but I do have a hard time enunciating exactly what’s wrong with prostitution in theory. Unlike rape for instance, the sale of sex conceivably could be consensual, and then what’s wrong with it? As a utilitarian matter, though, it’s quite clear that prostitution harms the lives of real people in many contexts, and that for many sex workers, the level of consent is minimal at best.

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

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

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