FDA Smoke Rings

May 11 1997 3:30 AM

FDA Smoke Rings

Regulating us through our children.

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My father was the supreme regulator in our family, promising each of his six children a $100 cash subsidy from the family treasury if they did not partake of nicotiana before age 21. Dad was a Camel man, and his offer usually came as he filled the air with smoke and ash. He so despised his deadly habit that he routinely thumped any kid caught sneaking puffs in the attic.

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Tomorrow's parents won't have to regulate their tobacco-tempted teens, because the federal government has taken the job. President Cigar (I mean Clinton) made teen smoking a federal affair two years ago when he unleashed the Food and Drug Administration on the problem. And there is a problem: A recent study shows that 34 percent of high-school seniors now smoke, compared with 25 percent of adults.

Clinton's FDA commissioner, David A. Kessler, inserted the federal government into the fray by diagnosing teen smoking as a "pediatric disease." Assuming regulatory control over the noxious weed for the first time in the agency's history, he defined tobacco as a "drug" and tobacco products (cigarettes, cigars, chew) as "drug-delivery devices" under the Food, Drug, and Cosmetic Act. Discovering these regulatory powers--which had escaped the notice of other FDA commissioners for more than 80 years--Kessler issued a slew of rules designed to suppress teen smoking, most of which were upheld by U.S. District Judge William L. Osteen Sr. late last month. Although Osteen's decision is currently under appeal, he approved Kessler's ban on tobacco sales to anyone under 18, as well as the commissioner's various prohibitions on cigarette-vending machines, self-service cigarette displays, and free samples of tobacco. He also approved the FDA's new warning label for cigarette packs: "Nicotine-Delivery Device for Persons 18 or Older."

Of course, the evil tobacco bastards recoiled from Kessler's rules. In court, they argued that the Food, Drug, and Cosmetic Act limits the FDA's regulatory powers to drugs and medical devices that provide medical benefits. The tobacconists' perverse logic held that poisonous products like cigarettes, for which no health claim is made, should fall outside government regulation. The tobacco bastards didn't actually call their product poisonous in court, but that's their take-home message: Regulate us if our product heals, but don't regulate us if our product kills. And make no mistake about it, tobacco kills: The average cigarette smoker lives eight fewer years than the average nonsmoker.

But just because the tobacco companies are evil doesn't mean that we should sympathize with the FDA, which has convoluted the law to wound its foe. If the FDA were consistent, it would leapfrog the Drug Enforcement Administration and start regulating marijuana. (The drug here is THC, and the delivery system is a joint.) Or it would police whiskey and shot glasses. Or it would go after the Big Mac as an unhealthful fat-delivery device. (You laugh. The FDA currently regulates that nonfat delivery device, olestra.)

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S o how did the FDA succeed in regulating tobacco? In the guise of protecting children.

Don't get me wrong. Some of my best friends are children--but I don't want to live in a childproof world, and most kids don't want to grow up to inherit such a safe place, either. The joy of being an adult lies in the freedom to take chances--even if you have to pay the consequences. Osteen's decision proves that almost any liberty can be nibbled away if suffering children can be associated with it. But even the judge approved only the most overt nanny-state measures requested by the FDA, acknowledging the agency's power grab by rejecting the proposals that don't directly deter teen smoking. For instance, the FDA wanted to bar tobacco companies from sponsoring sports events or placing Marlboro Man and Joe Camel logos on T-shirts, caps, and other gear.

The FDA claims that its ad-busting rules are the best way to achieve the administration's goals of halving teen smoking in the next seven years. But young Americans aren't as helpless in the face of the tobacco-industry juggernaut as the Clintonites would like to imagine: Black teen-agers are already hitting the president's goals.

A 1995 government study found that while 38 percent of white teen-age boys smoke cigarettes, only 19 percent of their black contemporaries do. Young black girls are even more resistant to tobacco: Forty percent of young white girls smoke vs. only 12 percent of young black girls.

It wasn't always so. Just 20 years ago, young blacks and young whites smoked in equal percentages. What changed? One theory holds that young white girls (unlike young black girls) subscribe to a cult of thinness, and smoke to block their appetite. Some black teens tell researchers that they feel that society has so thoroughly stacked the deck against them with racial discrimination, crime, and poverty that their very survival depends on resisting tobacco. And still others maintain that young blacks are quicker to see through Joe Camel's charms than young whites. To the sociologists' speculations, add mine. Everybody likes a little danger in their lives, but perhaps most black kids are already experiencing all the hazards their psyches can take. Meanwhile, kids (of all races) who live inside elaborately constructed safety cones--airbags; mandatory bicycle helmets; mommy pagers; home-security systems; anti-drug campaigns; anti-sex propaganda; and sanitized-for-your-protection suburbs--yearn for something to rebel against. At 15 cents per protest, smoking is a cheap ticket to danger. (The buzz ain't bad, either.)