The Food, Drug & Nanny Administration

June 21, 2004 • Commentary

Four years ago, the Supreme Court held that the Food and Drug Administration was not authorized to regulate cigarettes. That was the right decision. Yet, for constitutional purists who are concerned about separation of powers, the Court didn’t go far enough. Instead of inquiring whether Congress intended to give the FDA jurisdiction over tobacco, the Court might have tackled this more vital issue: May Congress constitutionally assign its legislative role to an executive agency?

The justices may have another bite at that apple if Sens. Edward Kennedy (D‐​Mass.) and Mike DeWine (R‐​Ohio) get their way. They have co‐​sponsored legislation — Youth Smoking Prevention and Public Health Protection Act — along with Reps. Henry Waxman (D‐​Calif.) and Tom Davis (R‐​Va.) in the House, that would give the FDA sweeping powers to regulate cigarette advertising and production — even reduce (but not eliminate) nicotine, and ban the use of other harmful additives.

Of course, the machinery of regulation, once set in motion, will not stop with ameliorative changes. Listen to former Commissioner David A. Kessler, outlining his concept of FDA oversight: “Only those tobacco products from which the nicotine had been removed or, possibly, tobacco products approved by FDA for nicotine‐​replacement therapy would then remain on the market.” In other words, cigarettes as we know them would cease to exist.

In 1919, Americans understood that Congress could not prohibit the sale of alcoholic beverages, so Prohibition was effectuated by constitutional amendment. Today, when it comes to tobacco, our lifestyle police argue that we require neither a constitutional amendment nor even an intelligible statute — just an amorphous delegation to an un‐​elected administrative agency, which can ban ingredients it doesn’t think uninformed citizens should consume. So much for limited government. We are left with the executive state — return of the king.

Moreover, the neatly wrapped pact between the FDA and industry leader Philip Morris is not likely to protect us from the travails of smoking. Indeed, Philip Morris is tagging along primarily because new advertising restrictions will prevent its rivals from increasing their market share. Meanwhile, after FDA‐​imposed nicotine restrictions make cigarettes taste like tree bark, we’ll see an avalanche of black market sales, hooking underage smokers on an adulterated product, with big bucks generated for criminal gangs and terrorists.

Just as bad, assigning quasi‐​legislative authority to the FDA will drive another nail into the coffin of personal responsibility. A federal agency will be empowered to dictate the form and composition of a legal product about which consumers have exhaustive knowledge. Throughout this century, incessant warnings about the risks of tobacco have come from doctors, public health sources, and thousands of scientific and medical publications. By the 1920s, 14 states had prohibited the sale of cigarettes. A warning has appeared on every pack of cigarettes lawfully sold in the United States for almost four decades. Nicotine content by brand has been printed in every cigarette ad since 1970.

That isn’t enough for the anti‐​tobacco crowd, for whom cigarettes are only the first in a long list of products that the nanny state will monitor. If we know anything at all about government, it is that bureaucrats are likely to have an expansive view of their mission. So what comes next — coffee, soft drinks, red meat, dairy products, sugar, fast foods, automobiles, sporting goods? The list is endless — all in pursuit of so‐​called public health.

But smoking is a private, not a public, health question. The term “public,” if it is to have any substantive content, cannot be used to describe all health problems that affect lots of people. Instead, “public” should refer only to those cases requiring collective action, when individual harms cannot be redressed without a general societal solution. Smoking, for example, would be a public health problem if it were contagious. But it isn’t. Similarly, cigarettes do not infect us as they cross state borders. Nor has nicotine shown up in biological or chemical weapons.

An adult’s decision to smoke is a voluntary, private matter. As for kids, they’re already sheltered from tobacco products by laws on the books in all 50 states. By all means, those laws should be vigorously enforced. But young adults, once they turn 18, are old enough to vote, sign contracts, go to war, get married, even get an abortion. Surely they’re old enough to decide whether to smoke.

FDA jurisdiction over tobacco is bad law and bad public policy. It’s time to rein in the administrative state and restore a modicum of individual liberty.

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