Commentary

FDA Actions Threaten Civil Liberties

The Clinton administration’s stampede to save our kids from Joe Camel runs roughshod over our most basic civil liberties, will do nothing to reduce teen-age smoking and threatens to actually ban cigarettes as we know them.

Although the Food and Drug Administration concedes that prohibited ads “do not rely on objective product claims,” they must be controlled nonetheless because they “create the impression that smoking … is more prevalent and acceptable in society than it actually is.” Yet the government cannot simply criminalize speech or imagery that takes issue with what it feels should be “acceptable in society.”

Nor can the government, in the words of the U.S. Supreme Court, “reduce the adult population … to reading only what is fit for children.” This is not Iran.

Nor is there a shred of evidence to suggest that advertising causes kids to smoke. Not the Canadian Supreme Court in 1995 the U.S. Federal Trade Commission in 1994, the U.S. Surgeon General in 1989, or anybody else has ever been able to unearth such evidence in their reviews of the published literature. Countries that have totally banned all tobacco advertising—like Norway—still have teen-age smoking rates higher than in the United States. Even the FDA’s own focus groups identified “peer pressure; the desire to do something they perceived to be an adult activity; and a way to rebel against their parents”—not advertising—as the main reasons for underage smoking.

In order for the government to act, the FDA had to declare that cigarettes were really “medical devices” regulated by the 1938 Food, Drug and Cosmetic Act. But once a product has been declared a “drug” or “device,” it must, by law, be shown to be “safe and effective.” And cigarettes cannot possibly meet that test.

As FDA Commissioner David Kessler wrote recently, “a strict application of these (FDA) provisions would mean, ultimately, removal from the market of tobacco products containing nicotine at levels that cause or satisfy addiction.” Public interest lawsuits could force the strict application of those provisions regardless of the FDA’s wishes. Prohibition of cigarettes as we know them would be the result.

All in a day’s work for the paternal Clinton state. How long until they get to alcohol?

Jerry Taylor is director of natural resource studies at the Cato Institute.