2008-07-17 21:12:58 - The bill to give the Food and Drug Administration [FDA] authority to regulate cigarettes appears to be dying, at least in this Congress, according to a number of sources and for a variety of reasons, says Action on Smoking and Health (ASH), America's first antismoking organization.

FDA Week admits that "the bill's future is entirely unsure," especially in the Senate, where Senator Richard Burr (R-NC) has vowed to block it.

But the publication also cited other major problems the bill faces:

* "jurisdictional objections" by Natural Resources Chair Nick Rahall (D-WV) (over Native American reservations), and by House Ways and Means Chair Charles Rangel (D-NY) and Appropriations

Chair David Obey (D-WI) (over user fee provisions)

* "The Congressional Black Caucus has also raised concerns about the bill's treatment of menthol cigarettes."

* "the health of Sen. Edward Kennedy (D-MA), the leading Senate sponsor."

* testimony by FDA Commissioner Andrew von Eschenbach, approved by the Office of Management and Budget, that the FDA doesn't want to regulate tobacco [as well as a veto threat by President Bush]

A leading tobacco blog reports that "Support for FDA Tobacco Legislation Continues to Crumble," citing two additional antismoking organizations which have just come out against the bill in its present form.

The blog also cited an editorial in "Black America's Daily News Source" which highlights the racial implications of prohibiting virtually all other flavorings in cigarettes but specifically exempting menthol.

Indeed, this is a theme which has resonated with many media sources reporting to Black America. For example:

Menthol Exemption Called Risky for Black Smokers, Final Call News:

'If we're banning things such as clove and peppermint, then we should ban menthol,' said Dr. Louis Sullivan. 'If it doesn't happen, this bill will be discriminatory against African-Americans.' 'The (menthol) exemption harms the Black community,' said Robert McCaffree of the American College of Chest Physicians. . . . William S. Robinson, director of the African American Tobacco Prevention Network, said his group firmly believes a better tobacco control bill could be drafted without the support of Philip Morris, which produces a high number of menthol brand cigarettes."

Restrictions Sought on Menthol Cigarettes, Chicago Defender:

"Black lawmakers are pushing for more government regulation of tobacco, starting with changes to a House bill that would place a ban on menthol cigarettes. The Congressional Black Caucus, along with the National African American Tobacco Prevention Network and other organizations, is leading the movement to make changes to a provision in the bill, entitled the Family Smoking Prevention and Tobacco Control Act, that bans additives like cinnamon, clove and other fruit, spice and candy flavors in cigarettes but exempts menthols. Many believe that the exclusion of menthol from the Act is racially charged since mostly African Americans smoke menthol cigarettes."

The menthol loophole was originally seen as racist by the Congressional Black Caucus and many former HHS Secretaries.

For example, former HHH Secretary (and former ASH Trustee) Dr. Louis Sullivan charged that:

"This loophole especially undermines the health of African-Americans," and that "the bill caves to the financial interests of tobacco companies and discriminates against African Americans-the segment of our population at greatest risk for the killing and crippling smoking-related diseases. It sends a message that African American youngsters are valued less than white youngsters."

The concerns about the racial implications of the menthol loophole have just been exacerbated by a new study showing that cigarette makers deliberately manipulated levels of menthol -- just as they previously manipulated levels of nicotine -- so as to attract young (especially Black) smokers (by masking the initial harsh taste of smoke) as well as to increase the hold on established smokers.

Many if not most of the news articles emphasized the racial impact. For example:

Tobacco Industry Manipulated Cigarette Menthol Content To Recruit New Smokers Among Young People, Science Daily:

"The researchers noted that race was also a factor in use and brand choice, with African Americans as a whole more likely to use menthol brands. . . . Earlier HSPH research described industry efforts to target African Americans with menthol brands."

Big Tobacco Lures Young Smokers With Menthol Cigarettes: Study, US News & World Report:

"Tobacco companies are manipulating menthol levels in cigarettes to appeal to newer, younger smokers, part of a deliberate strategy to get younger people, particularly African -Americans, hooked, a new study contends. 'Menthol is being used as a candy to help the toxin go down"

In addition, ASH has learned that former HHH Secretaries Louis Sullivan and Joe Califano, as well as William Robinson, Executive Director, National African American Tobacco Prevention Network, met privately with the bill's principal House sponsor, Rep. Henry Waxman [D-CA], to urge him not to support the bill with the menthol loophole.

They followed up their meeting with a very strong letter which said in part:

"We want to reiterate our view that the current version of the bill, which gives menthol a protected status, would have the effect of discriminating against the health interests of African Americans and, as such, the bill devalues the health of African Americans. . . . Given the history of big tobacco's targeted marketing of menthol cigarettes to African Americans, it is unconscionable to let Philip Morris (or any other tobacco company) have a provision in law that protects their ability to continue to exploit African American teens, while the same law protects other teens from being seduced into smoking, by banning other flavorings."

Banzhaf notes that delaying the bill until the next Congress to remove the racially-charged menthol loophole would actually strengthen it in other ways as well.

After January, the bill will not face the veto threat from President Bush which seems to have forced proponents to make many concessions to Philip Morris, as well to those who oppose regulation, in order to obtain the votes necessary to overcome a veto.

It also would face a Congress less adverse to governmental regulation, and more willing to pass a strong bill which can be effective in protecting the public health.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
banzhaf.net