May 12, 2006 – Last year, it was alcohol- and candy-flavored cigarettes â€“ "Margarita Mixer," "Twista Lime," "Mocha Taboo" â€“ presented in party-promising packages. This year, itâ€™s smoke-free, spit-free tobacco products convenient enough to use in places where cigarettes are banned. The cigarette industry, it seems, is the master chameleon.
But as tobacco-product companies continue to reinvent themselves by creating new brands and employing ever-more-cunning marketing strategies, public-health groups argue that these new offerings underscore the need for legislation that would rope in the industry.
Despite common assumptions, companies that produce tobacco products, including cigarettes, are almost completely unregulated by the federal government.
Spurred by an announcement that tobacco giants R.J. Reynolds and Philip Morris plan to test-market smokeless, spit-free tobacco products in several cities this summer, groups are urgently pushing Congress to pass stalled legislation that would grant the US Food and Drug Administration (FDA) regulatory authority over all tobacco-based products.
Groups fear that, absent regulations, the tobacco companies will use both new and old strategies to market their smokeless goods to children and young people, and to spoil adult smokersâ€™ efforts to quit their deadly habits. R.J. Reynolds will introduce "Camel Snus" in Austin, Texan and Portland, Oregon. Philip Morris will test "Taboka" in Indianapolis.
Although attempts have been made over the past decade to give the FDA regulatory authority, the tobacco industry has been successful at snuffing these efforts.
Both new products are offered as tobacco pouches to be placed between the lip and gum as an alternative to ordinary smokeless tobacco, which requires chewing and spitting.
Although attempts have been made over the past decade to give the FDA regulatory authority, the tobacco industry has been successful at snuffing these efforts, even winning a Supreme Court ruling in 2000 to back it up. While the FDA has the ability to regulate "drugs" and the "devices" used to administer them, the court ruled that Congress has never granted the FDA specific jurisdiction over the regulation of tobacco products.
Since 2005, legislation has been pending in Congress to grant the FDA oversight powers, but the majority of lawmakers have not supported it, leaving the tobacco industry with free reign. The legislation would require a disclosure of tobacco product contents, prohibit "reduced risk" health claims not scientifically proven and force and restrict tobacco advertising. The bills on the table are S. 666 sponsored by Senators Mike DeWine (R-Ohio) and Ted Kennedy (D-Massachusetts), and H.R. 1376 in the House sponsored by Representatives Tom Davis (R-Virginia) and Henry Waxman (D-California).
"Thereâ€™s no recognition or understanding of whatâ€™s in the products," said Paul Billings, vice president of National Policy and Advocacy for the American Lung Association. "Thereâ€™s no supervision about the claims that are made about the products," Billings told The NewStandard, adding that wide-ranging safeguards typically expected of believed to govern tobacco products do not exist.
As more and more bars and restaurants throw out their ashtrays, however, the tobacco industry is looking for ways to circumvent smoking prohibition.
"They can say anything they want," said Mitch Zeller, who served as associate commissioner and director of the FDAâ€™s Office of Tobacco Programs from 1993 to 2000. "These [claims] are completely unregulated. No government agency, no scientist with a public-health background has independently evaluated the product, the science, the claim." Zeller was at the FDA when the agency attempted to regulate the tobacco industry only to be rebuffed by the Supreme Court.
The Surgeon Generalâ€™s Warning on packages also helps to push the misconception.
"The warning label may give the illusion that someone is actually regulating the product," said Cynthia Hallett, executive director of Americans for Nonsmokersâ€™ Rights (ANR). The Federal Cigarette Labeling and Advertising Act of 1965 first required the Surgeon Generalâ€™s Warning on cigarettes, followed by a 1984 amendment to the legislation to include the warning on advertisements.
In 2004, an estimated 44 million adults were smokers in the US. Efforts made by states and cities to protect the public from second-hand smoke have, according to Billings, "exploded" through high taxes on cigarettes and smoke-free laws, including statewide laws in California, New York and Washington, among others. According to ANR, a little over 40 percent of the population lives under laws banning indoor public smoking.
As more and more bars and restaurants throw out their ashtrays, however, the tobacco industry is looking for ways to circumvent smoking prohibition. And because it remains unregulated, the industry is free to tackle this barrier with stealth.
R.J. Reynoldsâ€™ introduction of its smokeless tobacco product in Austin comes less than a year after the city passed a smoke-free law last May.
Zeller predicted that the smokeless tobacco products are "aimed at addicted adult smokers concerned about their health, interested in quitting and finding it increasingly difficult to light up any place other than their living room."
Indianapolis, where Philip Morris is test-marketing its product, also passed a smoke-free workplace ban in 2005 that applied to many restaurants. In April, residents voted to ban smoking from the Indianapolis Motor Speedway.
A spokesperson for Phillip Morris, however, denied any such connection. "For proprietary reasons, we donâ€™t disclose the specifics of our marketing plan," Jennifer Golisch told TNS. "What I can tell you is that weâ€™ve chosen an adjacent growth strategy that looks at potential moves into complementary products."
Itâ€™s not just adult smokers public-advocacy groups are worried about.
"A lot of it is done by targeting kids and coming up with flavored products that are clearly aimed and targeted at adolescents," said Matt Barry, director of policy research at the non-profit Campaign for Tobacco Free Kids. "And if they apply that same sort of approach to smokeless products, then we certainly have a reason to be concerned."
Under the massive 1998 settlement agreement between 46 state attorneys general and the biggest cigarette manufacturers, the tobacco industry agreed not to take "any action, directly or indirectly, to target youth." Without enforceable regulation, however, the industry appears to be devising new ways to appeal to that population.
One of several tobacco companies offering candy-flavored cigarettes last year, Brown & Williamson Tobacco came under heavy fire in 2004 for its "Kool MIXX" cigarette promotion, which featured a young-looking hip-hop deejay on the package.
"The tobacco companies have looked at children and adolescents as the replacement customers for the addicted adults who either die or quit," Zeller said. "Because of the powerfully-addictive nature of tobacco products, you literally become a customer for life. How the companies at this day and age can make these candy [flavored] offerings and try to say with a straight face that that is not being targeted at kids is beyond me."
Groups are hopeful that the pending legislation that would allow the FDA to restrict advertising and promotions, might lead to preventing the industry from marketing to youth.
Progress in Congress, however, has been elusive.
"The companies have â€˜more money than God,â€™ as they have even put it," Barry said. "That purchases a lot of influence, from campaign contributions to being cozy with a number of influential leaders." From 1996 to 2000, while the tobacco industry battled the FDA over regulatory authority, it donated about $7.5 million dollars to Republicans, and about $1.5 million to Democrats. Total contributions so far this year have amounted to $1.7 million.
Even if the FDA is someday granted regulatory powers, some critics are apprehensive about whether the agency would use such authority to reign in Big Tobacco. Allegations that the FDA is more political than scientific have mounted lately amid revelations of lax pharmaceutical-evaluation regimens, a private-sector revolving door and apparent religious influences in the top ranks.
Others worry that the prerogative to take action would be watered down before Congress passes any legislation.
"Will they only be given authority to regulate products on the market, or will they be able to regulate products that are in development now?" Hallett asked. "Thereâ€™s this whole gamut of questions, because what weâ€™ve seen with the tobacco companies over the last 50 years is theyâ€™re very adaptable."
While legislation isnâ€™t a magic bullet, anti-smoking groups say it is a step in the right direction.
Barry of Tobacco Free Kids said his organization would welcome the opportunity to switch from tobacco legislation lobbyist to EPA watchdog to force the agency to follow through on regulations.
"In some respects, itâ€™s a problem weâ€™d love to have," Barry said. "Where we are now, we have nothing."