When will the FDA stand up to Big Tobacco?
Many food advocates mistakenly believe that we just need to follow in the footsteps of the tobacco-control movement and then we will win. It’s certainly true impressive gains have been made in reducing smoking rates in the United States. And the World Health Organization’s global tobacco treaty has tremendous potential to save lives around the world. Nevertheless, the public health crisis caused by tobacco remains quite serious.
Smoking is still the leading cause of preventable death, with more than 440,000 Americans dying prematurely from tobacco-related illnesses each year. And millions more are dying globally, as tobacco corporations shift to overseas markets.
You might also think that debates over having tobacco-industry representatives involved in public health decision-making would be a thing of the past, but not so. In 2009, after decades of failed attempts, Congress finally passed legislation giving the Food and Drug Administration authority to regulate tobacco products. Of course, that didn’t completely solve the problem. Next came the fight over the make-up of a key FDA body: the Tobacco Products Scientific Advisory Committee.
Back in 2009 when Congress was finalizing its legislation giving FDA new authority, Corporate Accountability International and others strongly recommended that no industry representatives be allowed to serve on the science committee, explaining that doing so “would be worse than inviting the fox to guard the hen house.” But Congress didn’t listen. Instead, three tobacco-industry representatives were appointed, just without voting power. But even that wasn’t good enough for an industry that gives the word “chutzpah” a whole new meaning.
A lawsuit filed by industry giants Lorillard and R.J. Reynolds is currently pending that, according to CBS news, “alleges financial conflicts of interest and bias by several members of the Tobacco Products Scientific Advisory Committee and asks the court to stop the federal agency from relying on the panel's recommendations.”
Yes, you read that right: industry is alleging conflict of interest. This is the industry that created an entire front group called the Tobacco Institute whose mission was to obstruct, misdirect and delay scientific research related to the deadly impacts of smoking. The Tobacco Institute was disbanded only because of widespread public outcry, grassroots mobilization and litigation brought by several state attorneys general in the late 1990s.
This same tobacco industry is now whining to a federal court that its interests are not being served by a scientific advisory board whose mission is to save a few of those 400,000 deaths occurring each year from the industry’s own products.
A lot is at stake. One of the most contentious issues on FDA’s plate is menthol-flavored cigarettes. For decades, health experts, tobacco-control advocates and others have argued that the tobacco industry deliberately adds menthol to mask the harsh taste of cigarettes. Especially of concern are youth and African-American smokers, two groups that industry targets aggressively with menthol products. Overall, menthol cigarettes make up 30 percent of the market.
At least one research study concluded that “menthol is a prominent design feature used by cigarette manufacturers to attract and retain new, younger smokers.” And African-American smokers are four times more likely to choose menthol cigarettes than white smokers. The most popular menthol-flavored brand is Newport, which is owned by Lorillard, the company that also happens to have one of the three coveted industry seats on the FDA scientific advisory committee.
Still, in 2011, that committee’s report on menthol recommended “removal of menthol cigarettes from the marketplace” to “benefit public health in the United States.” Meanwhile a report industry submitted to the committee claimed “there is no scientific basis to support the regulation of menthol cigarettes any differently than non-menthol cigarettes.”
Recently, Corporate Accountability International joined a coalition of groups calling on the FDA to ban menthol cigarettes, citing a number of familiar corporate stall tactics and dirty tricks, including filing intimidation lawsuits, buying off critics and promoting junk science. This desperate Lorillard-sponsored website, www.understandingmenthol.com makes familiar scare-mongering arguments against a ban, such as the alleged creation of a black market.
Lorillard has even stooped so low as to buy up various website domain names to keep them out of the hands of critics, including: MentholKillsMinorities.com, MentholAddictsYouth.com and FDAMustBanMenthol.com. (Those are pretty good ones.) No wonder Lorillard is freaking out. One survey showed 40 percent of Newport smokers would likely try to quit upon a menthol ban.
While the FDA has yet to act on the committee’s recommendations, there is some hope it will do so soon. Last month, the FDA’s Center for Tobacco Products got a new leader in Mitch Zeller, who public health advocates praise as a promising choice. In the 1990s, Zeller worked at the FDA, laying the groundwork for his current stint by pressing Congress to give the agency more legal authority.
Long-time tobacco industry critic and University of California at San Francisco professor Stan Glantz recently called Zeller the “perfect person for the job.” But he also wondered if President Obama would let the new appointee do his job.
The number one measure Glantz will use to answer to that question? The FDA’s policy on menthol.
The FDA’s inaction on menthol has become the defining issue among many public health professionals and the media for whether or not the Agency will be seriously engaging the tobacco industry.
Many lives can be saved if the FDA ignores decades-old tobacco industry scare tactics and does the right thing by protecting public health. The Obama Administration does not have a great track record in supporting its regulatory agencies, at least when it comes to food marketing. High time to change that.
Michele Simon is a public health lawyer who has been working as a nutrition advocate since 1996, specializing in legal strategies and food industry tactics. She is on the Advisory Board for Corporate Accountability International's Value [the] Meal campaign.