(Boston, 03/19/10) New England Law | Boston: The Centers for Disease Control contends that cigarette smoking causes about one of every five deaths in the United States each year. Yet nicotine gum and patches are more heavily regulated than tobacco itself. And tobacco advertising remains pervasive.
It’s a topsy-turvy regulatory situation, says Professor Micah Berman, and he’s working to change it. A $2.5 million grant that he won from the State of New York will help.
The grant money funds the law school’s new Center for Public Health and Tobacco Policy. Berman and his staff will work with New York’s Department of Health and local communities to develop policies that reduce the availability of tobacco products, protect nonsmokers from secondhand smoke, and minimize or remove tobacco advertising. The center is located at the school’s St. James Avenue office.
Berman says deception has long been a standard tactic in tobacco advertising, just one of the reasons that such advertising is banned in England and elsewhere. “Light” cigarettes, for example, airily suggest less risk for the smoker; in a technical sense, it’s true, since they have been carefully designed to deliver less tar and nicotine than regular cigarettes. But there’s a catch: less tar and nicotine are inhaled only when light cigarettes are “smoked” by a machine the company uses in testing.
But humans don’t smoke like machines. They inhale more deeply, take more puffs, or unknowingly cover up the tiny holes in light cigarettes’ filters, negating any potential health benefit. Are the cigarettes less harmful? Not one bit, says the National Cancer Institute, which declares, “Light cigarettes provide no benefit to smokers’ health.” Starting in June, tobacco companies will be forced by a new federal law to stop labeling their cigarettes as lights, but they are already finding ways around the law. The companies are color-coding their packs and using lighter colors to replace the lights label.
A former prosecutor with the U.S. Department of Justice, Berman directed Ohio’s Tobacco Public Policy Center before coming to New England Law. His qualifications were instrumental in the receipt of New England Law’s largest grant in its 100-year history. In his role as director, Berman supervises two staff members, as well as students. Over the next five years, the team will focus on legal research and policy options that may include proposals for tobacco-free outdoor areas and new restrictions on tobacco promotions and sponsorships.
“I’d Rather Fight Than Switch”
“Winston Tastes Good…Like a Cigarette Should”
“Come to Where the Flavor Is”
These advertising jingles were deeply embedded in our national psyche when TV cigarette commercials were banned in 1970. Although cigarette ads are gone from TV, tobacco is still heavily advertised in magazines and retail stores.
Many tobacco control advocates would like to see a complete prohibition on tobacco advertisements. “There are a lot of countries that are moving in that direction,” says Berman. “The United States is a signatory to an international treaty that calls on countries to ban tobacco advertising. But we haven’t ratified the treaty, and it’s not clear that the administration is interested in pressing for ratification.”
Because of tobacco’s unique status in our culture, says Berman, marketers are allowed to promote deadly and addictive products.
Tobacco’s economic and political clout and the perception that it is quintessentially American have shielded it from regulations used on similar products, according to Berman. The Food and Drug Administration (FDA), which only recently gained permission to regulate tobacco at all, is barred from banning tobacco products. By comparison, the FDA successfully banned early versions of silicone breast implants.
“Tobacco cases are treated in an ‘exceptional’ manner by the courts, and such treatment has had a distorting effect on judicial decision making in the field of public health,” he says. “Courts purport to apply the same legal doctrine to tobacco cases that they apply to all other public health issues, but in actuality, courts tend to be unusually skeptical of attempts to regulate tobacco and of plaintiffs’ claims against the tobacco industry.”
The FDA’s 1996 conclusion that nicotine was a “drug” and that cigarettes were “drug delivery devices” subject to its jurisdiction seemed to place the FDA’s oversight on solid ground, he says. But the U.S. Supreme Court concluded otherwise in FDA v. Brown & Williamson Tobacco Corp.
In FDA v. Brown & Williamson, Berman argues, one might have expected the Court to follow the accepted Chevron standard (from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.)—deferring to a government agency’s expertise when it interprets its own statutes. Instead, the Court refused to show deference in reviewing the FDA’s decision to treat cigarettes as drug delivery devices, reflecting the majority’s belief that tobacco products were, in Berman’s words, “simply different and required a different set of protections.”
The focus of the center’s work is New York State, which has an adult smoking rate between 16 and 17 percent. New York’s strategic plan calls for reducing adult smoking by about a third within the next five years.
One of the challenges is altering young people’s perception that smoking is popular. “The laws have changed and people aren’t allowed to smoke in restaurants or workplaces anymore,” explains Berman. “Nonetheless, when kids and adolescents are asked about smoking, they consistently overestimate—it seems like ‘everyone’s doing it.’”
Berman says the best way to reduce smoking is to change the social norm. “If there are fewer settings where smoking is commonplace, people will be less likely to smoke. That’s why we’re looking at the possibility of prohibiting smoking in parks and beaches and further reducing displays of cigarettes, so people don’t see smoking all around them as frequently.”
If the social norm changes enough in an influential state like New York, is it conceivable that national feelings about tobacco’s special nature might be nudged as well? Could the work of New England Law’s tobacco center eventually lead to rethinking by the U.S. Supreme Court?
Berman smiles at the thought. “Further success in New York will help save more lives, which is enough of a reward in itself. Hopefully, it will lead to even more progress, if not in Washington, DC, then in other individual states.”