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Butt PiracyWhy ban the tobacco industry when you can hijack it instead?

By William SaletanPosted Tuesday, June 23, 2009, at 12:53 PM ET

"Today, despite decades of lobbying and advertising by the tobacco industry, we've passed a law to help protect the next generation of Americans," President Obama declared yesterday as he signed a new antismoking bill into law.

It's an uplifting tale of courage against evil. The truth, however, is more complicated. For all his rhetoric, Obama is still apparently a nicotine addict. And the country's biggest tobacco company, Altria, helped write the bill. These awkward facts don't make for a simple story about right and wrong. But they do help explain why, as a model of addiction control, the new tobacco law beats the war on drugs.

The law doesn't ban tobacco products. In fact, it bars the Food and Drug Administration from prohibiting them. It instead empowers the FDA to restrict "nicotine yields" and to require "the reduction or elimination of other constituents" that may be harmful. Lorillard, a major tobacco company, has complained that the bill "would allow the FDA to alter what occurs naturally in the leaf." That's true. To save lives, we're manipulating not just industry but nature.

Why is Altria going along with this crackdown? Because it sees the handwriting on the wall. The accumulating evidence of damage from firsthand and secondhand smoke has propelled a tide of smoking regulations, lawsuits, and tobacco taxes that are sweeping away the industry's old business model. Altria envisions a new business model: devising and selling less harmful tobacco products. Along with competitor R.J. Reynolds, it's test-marketing snus, a smokeless tobacco pouch. It's investing in research to limit carcinogens further. A third company, Star Scientific, is dedicated to "reducing toxins" through the development of "dissolvable smokeless products." It already sells tobacco tablets in two forms.

Don't kid yourself. These are still tobacco companies, and they'll give up their tobacco business when you pry it from their cold, dead hands. But their interest in making money by developing safer products can be put to good use. Two years ago, an Altria executive told Congress that "with clear guidelines and oversight, there should be an opportunity for increased competition as both new and existing manufacturers work to develop and commercialize products that could potentially reduce the harm caused by tobacco use." That's exactly right. The government's job is to set up the competition so that it genuinely serves public health.

Rules that serve the public won't please the industry. Tobacco companies wanted a rule that would let them market anything nominally safer than a conventional cigarette. The Senate rejected that idea. Instead, the law permits such marketing only if the FDA is convinced that the product, "as it is actually used," will "benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products." So if smokers increase their consumption to compensate for a lower per-unit dose of nicotine, or if advertising the product's relative safety lures too many nonsmokers into using it, the FDA can forbid the product's sale.

Better yet, the law requires the agency to evaluate each product's risks and benefits "as compared to the use of products for smoking cessation." Doctors commonly prescribe nicotine inhalers, nasal sprays, and lozenges, and the government promotes such products, as long as they're designed to wean addicts off the drug gradually. By forcing tobacco products to compete on safety grounds with nicotine-replacement products, the law blurs the distinction. It pushes the industry to reduce harm and nicotine to levels from which smokers can quit altogether. In such a competition, if the industry can't adequately protect its customers' health, it will lose them.

Why not ban tobacco right away? Because too many people are hooked. If you think a ban will stop them, look at Obama. He needed to quit so he could run for president. He promised his wife he'd quit. He had access to every resource. And yet when a reporter asked yesterday whether he was still smoking, his press secretary could only answer, "He struggles with it every day."

If you ban tobacco products, some people will quit, but others will just buy them illegally. And the illegal products will come with none of harm reduction that regulation can provide. The FDA acknowledged this problem years ago. If tobacco were outlawed, the agency explained, black-market suppliers would move in with products "even more dangerous than those currently marketed, in that they could contain even higher levels of tar, nicotine, and toxic additives."

This is what drug warriors don't understand: There's always market competition, whether you like it or not. Prohibition just means that the competition is between legal and illegal products. To beat illegal products in an already-addicted market, you need sufficiently attractive legal alternatives. Then, by regulating and manipulating the legal products, you can ratchet down the harm and addiction. That's how you bring the market under control.

If you want to know what Obama really thinks about tobacco, don't read his lips. Read his teeth. To relieve his addiction and protect his health, he's been chewing nicotine gum. The law he just signed authorizes the FDA to expedite approval of nicotine lozenges, gum, and patches. It encourages the agency to broaden the grounds for prescribing such products and to authorize their "extended use." It puts regulators smack in the middle of the nicotine business so they can turn it to better use. If only all our drug policies were this rational.

(Now playing at the Human Nature blog: 1) Shrinking cows to fit the new economy. 2) The psychology of infanticide. 3) Are abortions for sex selection nobody's business?)

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William Saletan is Slate's national correspondent and author of Bearing Right: How Conservatives Won the Abortion War. Follow him on Twitter here.

COMMENTS

While the introduction of snus into the mix is a great idea (as proven in Sweden), the idea of restricting nicotine content is self-defeating. Let's remember why lights were found to be as dangerous as regulars despite lower nicotine and tar - smokers adjusted their habits, smoking more and inhaling more deeply, in order to get the nicotine. So from the industry's side (at least Altria knows it), reducing nicotine may lead to higher sales among current smokers. Keep in mind as well that most smokers already smoke "light" or "mild" cigarettes. These will just exist under different names once the laws take effect.

Altria did not back this because they realize that they need to change their ways. That's just silly, and as for "they are introducing safer products", remember that it's RJR, which opposed the bill, that has taken the lead in introducing snus, capsules, and other safer methods, which very well may be nixed by the FDA. Altria backed the bill because it will push out some competitors (especially smaller companies in niche markets) and increase their market share, and possibly increase sales. They also know that the FDA is iffy on electronic cigs, which are almost certainly much safer and are a major threat to their business.

There are a few things that I do like about the bill, and the (slim) possibility of a list of ingredients on the pack is one. But overall this bill gives Altria exactly what they want, and puts the FDA in the position of very possibly working as much in favor as "against" the tobacco companies. Spin it how you want, but the reality is that there is a good chance that the consequences will not be those intended - except those intended by Altria.

-- Adamatari
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