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Should nicotine and alcohol be further regulated?


Jack E. Henningfield, Ph.D., and John Slade, M.D.


Robert A. Levy, Ph.D., J.D.

The vast majority of current alcohol users (about 85 to 90 percent) use occasionally and in a manner which does not cause problems; in fact, more and more scientific data indicate that low levels of alcohol intake (one to two drinks per day) may produce beneficial health effects for many people of middle age and older. Nonetheless, alcoholism, alcohol-related accidents, and alcohol abuse by youth are major health problems. This suggests that we need much more effective enforcement of existing regulations (e.g., prohibition of sales to minors and driving under the influence), increased public education about the dangers of drinking, increases in price, limits on advertising, and increased availability of treatment options for those who do have problems. It is not clear that we need to regulate the product itself -- alcoholic beverages -- any more.

In contrast to the case of alcohol, there is no documented safe level of exposure to cigarette smoke. Thousands of nonsmokers die each year due to their exposure to other people's cigarette smoke. Moreover, it appears that more than 85 percent of cigarette smokers compulsively smoke more than five cigarettes every day. These products have been heavily marketed to children and adolescents, among whom more than one in three who try smoking develop dependence. When one considers the scope of the health problems and the extraordinary historical exemptions of tobacco from health-related regulations, it is clear that cigarettes are severely under-regulated. For example, cigarettes have traditionally been exempt from many important regulations affecting other consumer products: No ingredient listing is required on the package, there is no information about the nicotine dosage levels required on the package (FTC ratings shown in advertisements do not reflect what consumers actually get), the products are exempt from fire safety standards, and no federal standards govern the use of labels with health claims such as "light," "low tar," or "ultralight."

The FDA's Tobacco Rule, finalized in 1996 and with the first phases of implementation begun in 1997, gave the FDA the authority to implement regulations to address some of the preexisting regulatory deficiencies. For example, the FDA may now have the ability to require more accurate rating of nicotine and tar yields to consumers. However, the tobacco industry has sued to reverse even those regulatory advances and is seeking congressional legislation under the guise of a "National Tobacco Settlement" that might strengthen its ability to modify its products and make more claims in ways that would never be accepted from the pharmaceutical industry for nicotine-delivering medicines such as gum or the patch that help people eliminate their exposure to tobacco toxins. Tobacco products should certainly receive much more regulation, or at least a removal of their privileged legislative immunity.

In the name of promoting virtue, America is fast becoming a nation of snoops and busybodies. Consider the push to empower the Food and Drug Administration -- an agency of unelected federal bureaucrats -- to regulate tobacco products.

If that effort succeeds -- if the FDA mandates "nicotine-free cigarettes," for example -- the inevitable outcome will be a flourishing black market. Tobacco will become the new "forbidden fruit" as criminal gangs hook underage smokers on an adulterated product freed of all constraints on quality that competitive markets normally afford. Neither the FDA nor even the U.S. Congress should be entrusted to make basic consumer choices for individuals. At most, government might disseminate information on product safety and efficacy (although private companies could do that job better). That leaves individuals free to make their own decisions.

What about "addicted" teenagers who began smoking because they were "victimized" by fraudulent advertising? Well, 46 million smokers managed to quit. By the 1920s, 14 states prohibited cigarettes. For over 30 years, a warning label has appeared on every pack lawfully sold. Even tobacco critic Richard Kluger concedes that "public-health advocates . . .  for years advised that nicotine was as addicting as heroin and cocaine." Kluger finds no basis "to justify a claim that the cigarette makers had massively imposed an intentionally addicting product on an innocent public."

In the unlikely event that a smoker or drinker -- somehow oblivious to the risks -- reasonably relies upon deceptive ads and becomes physiologically dependent prior to age 18, he could have a claim against the industry. But an 18-year-old may choose to sign contracts, marry, get divorced, have an abortion, vote, and go to war. Surely he is no less responsible if he continues to use tobacco or alcohol products. To be sure, we should vigorously enforce the laws that make it illegal to sell those products to kids in all 50 states. That means prosecuting retailers, demanding that purchasers prove their age, outlawing vending machine sales in arcades and schools, and notifying parents who, after all, are ultimately accountable for disciplining their children.

Adults, however, cannot micro-manage each other's lives. And we cannot remain free if we permit our government to engage in social engineering without any sense of restraint or concern for personal liberty.

Biographies: Biography:

Jack E. Henningfield, Ph.D., is associate professor in the Department of Psychiatry and Behavioral Sciences, Johns Hopkins University School of Medicine in Baltimore, and Vice President, Research and Health Policy, for Pinney Associates, Inc., in Bethesda, Maryland. John Slade, M.D., is professor in the Department of Medicine at the University of New Jersey-Robert Wood Johnson School of Medicine and Dentistry in New Brunswick.

Robert A. Levy, Ph.D., J.D., is senior fellow in constitutional studies at the Cato Institute in Washington, D.C., where he published "Tobacco Medicaid Litigation: Snuffing Out the Rule of Law."  He is also adjunct professor at the Georgetown University Law Center and a director of the Institute for Justice.

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