Clinton’s Tobacco War: How High the Constitutional Price?

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Friday’s presidential order directing the U.S. Food and Drug Administration to restrict advertising of and access to tobacco was undoubtedly a political grand slam, but the stampede to save our kids from Joe Camel runs roughshod over our most basic civil liberties and threatens to actually ban cigarettes as we know them. Does anybody notice or even care?

Consider the shredding of the First Amendment. Brand‐​name advertising at sporting events will be forbidden. Billboards and ads in magazines “aimed at children” (defined so broadly as to include Rolling Stone and Sports Illustrated must be black and white and include no graphics. Even cigarette brand‐​name advertising on caps, shirts, or anything not directly tobacco related will be illegal.

The FDA concedes that those now‐​forbidden ads “do not rely on objective product claims” and are thus neither false or misleading. Their crime, according to the agency, is that they “create the impression that smoking … is more prevalent and acceptable in society than it actually is.” Yet the federal government cannot simply criminalize speech or imagery that takes issue with what it feels should be “acceptable in society.” This is not Iran.

It is not even clear if advertising has much to do with teenage smoking. The Canadian Supreme Court threw out Canada’s anti‐​tobacco advertising laws because it found “no scientific evidence supporting a link between advertising bans and decreased smoking consumption.” Likewise, Clinton’s own Federal Trade Commission concluded in 1994 that “evidence to support the intuition” that Joe Camel and similar advertising campaigns “lead more children to smoke or lead children to smoke more” did not exist. 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 reasons for underage smoking.

The order also mandates an advertising campaign — to be paid for by the tobacco industry and monitored by the FDA — to talk people out of smoking. Companies will thus be forced by law to disparage their own products and, by implication, disparage themselves.

Forcing manufacturers to become mouthpieces for the FDA clearly violates their First Amendment rights, and by expropriating a company’s own funds to support a program overseen by the government, the president is essentially ordering a tax that he has no such power to levy. One of the bedrock principles upon which this Republic was built is the idea that only Congress can levy a tax. Clinton is not Caesar.

To give the order some color of legality, Clinton was forced to declare that nicotine is a drug and tobacco products are really “medical devices” regulated by the 1938 Food, Drug and Cosmetic Act. And there’s the rub. Once a product has been declared a “drug” under the aegis of the FDCA, it must, by law, be shown to be “safe and effective” before it can be marketed to the public. There is no debate about that. FDA Commissioner David Kessler wrote in a letter to an anti‐​smoking group in 1994 that “a strict application of these [FDCA] provisions could mean, ultimately, removal from the market of tobacco products containing nicotine at levels that cause or satisfy addiction.” Former Surgeon‐​General C. Everett Koop (who supports the presidential order) last week agreed: “I think it would follow as the night follows the day; if you can successfully regulate cigarettes for youngsters, then you can begin to regulate the amount of nicotine in cigarettes, because it is a nicotine delivery system, and that’s how the law is written.”

David Kessler has been careful to deny that any such regulation is planned “at this time,” but what about down the road? The FDA’s Drug Abuse Advisory Committee has been working since August 1994 on regulations that would lower nicotine levels in cigarettes over a 10- to 15‐​year period to a level only one‐​third that of the lowest nicotine cigarettes now on the market. Even if the administration regains its senses and decides that “Prohibition II” would be a social and economic fiasco, it may not have any choice. Lawsuits by anti‐​smoking activists may force the administration to execute the letter of the law whether it wants to or not. At least our first fling with Prohibition was done through the front door, through constitutional amendment.

Finally, shouldn’t what the Washington Post calls “one of the most important public health initiatives ever launched by the government” be sent to the people’s representatives — the elected members of the House and Senate — for a vote? It’s not altogether clear that the food and drug laws really apply to tobacco; neither former FDA commissioners, federal judges, or Congress itself have ever held that they did. It is clear, however, that our Founding Fathers intended lawmaking to be the exclusive perview of the legislature. And if this isn’t law‐​making, what, pray tell, is?

Even David Kessler acknowledged in 1994 that “the regulation of cigarettes raises societal issues of great complexity and magnitude. It is vital in this context that Congress provide clear direction to the agency.” Apparently, he got tired of waiting for a green light.

Ironically, White House spokesman Mike McCurry argued last week against turning teenage drug use “into a political football because it sends the wrong message to kids — then they’ll just think it’s just an issue for the politicians and not something that they have to take responsibility for.” Exactly … and pawning our national birthright to liberty and constitutional government is too high a price to pay for political football, no matter how worthy the cause. Today, they come for the smokers.
Tomorrow …?