Mentholated Racism

Courtesy of Reason.

The Congressional Black Caucus has joined criticism of the bill that would let the Food and Drug Administration regulate tobacco products, complaining about the omission of menthol, disproportionately favored by black smokers, from its list of prohibited cigarette flavors. As I noted in a column last month, this provision has been in the bill since 2004, but black leaders did not start to complain that failing to ban menthol cigarettes was racially discriminatory until after a May 13 New York Times story headlined "Cigarette Bill Treats Menthol With Leniency." The front-page article reported that "some public health experts are questioning why menthol, the most widely used cigarette flavoring and the most popular cigarette choice of African-American smokers, is receiving special protection as Congress tries to regulate tobacco for the first time." (Here's why: Because Philip Morris, the only major cigarette manufacturer supporting the bill, does not want to give up the money it makes from Marlboro Menthol, the No. 2 brand in this category.) Two weeks after the Times story ran, the National African American Tobacco Prevention Network withdrew its support for the tobacco bill, and now the Congressional Black Caucus, responding to Johnny-come-lately criticism from former Secetary of Health and Human Services Louis Sullivan, has taken up the cause as well.

It is noted that this bill is considered racist but it's also noted that this bill is already a bad bill for other reasons...

Last week the House Energy and Commerce Committee overwhelmingly approved legislation that would authorize the Food and Drug Administration to regulate tobacco products. Since the FDA is usually portrayed as a benevolent (if occasionally sleepy) watchdog, you might assume the bill is all about consumer protection. But it's actually aimed at consumer prevention, which is not quite the same thing.

A consumer protection bill that reduced competition, raised prices, restricted choice, blocked information, and made products more hazardous could not really be counted as a success. Yet the Family Smoking Prevention and Tobacco Control Act, which has broad support in both houses of Congress, promises to do all these things in an effort to discourage consumption.

The act imposes new regulatory burdens and advertising restrictions that will help industry leader Philip Morris, which supports the bill, maintain its market-share advantage over smaller cigarette manufacturers, which oppose the bill. The compliance costs and reduced competition are likely to raise prices, which counts as an advantage if your goal is "smoking prevention" but a disadvantage if your goal is to buy a pack of cheap smokes.

Likewise, the bill restricts variety, which consumers like but public-health paternalists do not. Under the act, smokers will be allowed to choose any cigarette flavor they like, as long as it's menthol (which happens to be the one flavor Philip Morris uses). Although people above the age of 18 have been known to enjoy the occasional clove cigarette, Camel Crema, or Kool Caribbean Chill, these flavored varieties have been deemed too kid-friendly and therefore inconsistent with the goal of smoking prevention.

While added flavors (except for menthol) are unambiguously evil, toxins and carcinogens may have a positive role to play if they discourage people from smoking by raising the specter of cancer, heart disease, and emphysema. Hence the bill instructs the FDA to approve a "modified risk tobacco product" only if it would "benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products."

To make that judgment, the FDA is supposed to consider "the increased or decreased likelihood that persons who do not use tobacco products will start using the tobacco product that is the subject of the application" as well as "the increased or decreased likelihood that existing users of tobacco products who would otherwise stop using such products will switch to the tobacco product that is the subject of the application." In other words, the FDA could decide to keep a demonstrably safer cigarette off the market because it might attract new smokers or dissuade current smokers from quitting.

Another well meaning bill not doing what it's expected to do.