Experts Urge Rejection of Kennedy-Enzi Tobacco Bill

Published July 1, 2007

A group of free-market advocates and experts in tobacco and health issues has sent the following letter to Sens. Edward M. Kennedy (D-MA) and Michael B. Enzi (R-WY) regarding the Family Smoking Prevention and Tobacco Control Act. These experts fear the act, now under consideration in the Senate Health, Education, Labor, and Pensions Committee, could have a variety of harmful consequences, outlined in the letter.

April 17, 2007

The Honorable Edward M. Kennedy, Chairman
The Honorable Michael B. Enzi, Ranking Member
Senate Health, Education, Labor, and Pensions Committee
428 Dirksen Senate Office Building
Washington, DC 20510

Dear Senators Kennedy and Enzi:

We are writing to express our concern about and opposition to the Family Smoking Prevention and Tobacco Control Act, a bill that would raise taxes, hinder economic competition, impose punitive regulations on business, and potentially worsen the health of Americans. S. 625 seeks to give the Food and Drug Administration unprecedented regulatory authority over legal tobacco products.

This legislation is deeply flawed on several counts. S. 625 would harm American consumers, cause injury to a competitive business environment, overtax our federal bureaucracy, dilute FDA’s vital mission to protect America’s food supply and approve life-saving drugs, and ironically create a federally sponsored tobacco cartel system. Specific flaws include:

Unintended Consequences

FDA regulation could actually worsen the health of Americans. FDA Commissioner Dr. Andrew von Eschenbach contends that government regulation of tobacco could backfire. He maintains that government efforts to regulate nicotine levels could lead smokers to smoke more cigarettes or inhale more deeply, worsening the effects of smoking. “We could find ourselves in the conundrum of having made a decision about nicotine only to have made the public health radically worse. And that is not the position FDA is in; we approve products that enhance health, not destroy it,” said the FDA chief.

Double Regulation

Tobacco products are already properly regulated by the Federal Trade Commission, Department of Agriculture, and several state and municipal entities. FDA regulation of tobacco products would not only infringe upon the jurisdictional authority of lawful government agencies, but it would prove redundant, costly, confusing, and ignite needless turf warfare within the federal bureaucracy.

No Jurisdictional Authority

The FDA does not and should not have legal jurisdiction over tobacco products as tobacco fails to sufficiently satisfy the definition of either food or drug. It would be inappropriate and injurious to the FDA to dilute its mission by charging it with tasks that fall outside its regular domain. The FDA is already overburdened with the vital missions of ensuring that America’s food supply remains secure and that life-saving drugs make it to the marketplace in a timely fashion. Ensuring that candy cigarettes don’t end up in the hands of children denigrates and distracts the FDA from this important work.

Free Markets

FDA regulation threatens to undermine free markets by imposing punishing regulations on legal products. The laws of supply and demand and consumer choice should determine which market transactions occur. Neither grandstanding politicians nor benevolent regulators can make better consumption decisions than the individual himself. This is the essence of a free market economy and free society.

Picking Winners and Losers

Ironically, this new legislation is expected to benefit America’s largest tobacco company by creating a non-competitive, protectionist environment. Restrictions on how tobacco companies market to adult consumers will stifle competition and create barriers to entry. America’s largest tobacco manufacturer actually supports this legislation, as it will virtually guarantee that the tobacco behemoth will maintain its market share.

This company’s share of the U.S. cigarette market was 50.1 percent in the fourth quarter of 2006. Its closest rival, which had a 29.8 percent share in the same period, and other leading tobacco manufacturers rightly argue that advertising restrictions will have minimal impact on reducing overall smoking levels, while ensuring the permanent dominance of one company.

New Taxes

This legislation will also carry a hefty price tag. In addition to threatening the American economy, jobs, and tobacco farmers, the bill orders an initial $300 million in annual “user fees” to be levied on tobacco companies. These euphemistic “user fees” will likely rise, and will almost certainly be passed on to already overtaxed consumers.

Direct Sales Channel Under Siege

Up until now, the FDA’s role has been properly limited to ensuring the safety of food and drug products. This bill would redefine the FDA’s mission dramatically by giving the FDA power over the marketplace–not just products. This legislation permits the FDA to limit the sale of cigarettes to “face-to-face” transactions, potentially killing the innovative direct sales channel that allows small and independent manufacturers a marketplace through which to compete with larger national brands.

Sixty-three percent of teen smokers cited face-to-face sales as the source of their tobacco products in a CDC study, and 56 percent reported not being age verified. The Internet, a vehicle for delivery sales, was cited by only 2.3 percent.

Nanny State

FDA regulation of tobacco is another example of a growing “nanny state” in which liberal government officials regulate personal behavior and politicians work with special interests to impose compliance and politically correct values. Adult consumers have the right to be free from regulations that have the effect of limiting consumer access to legal tobacco products. Like Prohibition, overzealous regulation only undermines consumer choice, personal liberty, and consumer safety–while creating a black market for more expensive, potentially hazardous products that can harm the very health and safety of consumers that the FDA has been charged to protect.

Individual vs. Collective Responsibility

Supporters of the bill argue that this legislation is justified because smoking costs the nation nearly $100 billion annually in health care bills, including medical expenses and direct Medicaid costs to pay for smoking-related illnesses. This collectivist mentality is extremely dangerous and challenges the basis of individual rights by proclaiming that the government can outlaw certain behaviors if it can also identify a social cost that results from such behavior. Under this line of reasoning, the government could surely prohibit any personal behavior it deems undesirable, for there is always a quantifiable social cost to “negative” behavior.

We urge you to protect America’s free-market system, and the health and freedom of our nation’s consumers, by rejecting S. 625. The United States economy and the American people thrive because of our country’s unique commitment to limited government, consumer choice, and free markets. This bill threatens these freedoms.

We look forward to working with you and hope that you will resist anti-competitive and protectionist proposals that harm our economy and the American people.


Former Congressman Bob Barr

Christine Hall
Communications Director, Competitive Enterprise Institute

Chuck Muth
President, Citizen Outreach Project

Dr. Elizabeth Whelan
President, American Council on Science and Health

Jon Utley
The American Conservative

Dr. Jane Orient
Executive Director, Association of American Physicians and Surgeons

Jason Wright
Executive Director, Institute for Liberty

Colin Hanna
President, Let Freedom Ring

Stephen Gordon
Smoker’s Club


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