R.I.P. Vanilla Dreams, You Will Be Missed

by Sae Bom Yoon October 10 2009, 11:30

I. Introduction

In smoke-filled rooms, Big Tobacco executives are patting themselves on their backs while local smoke shops and flavored-cigarette aficionados are increasingly disgruntled by the loss of their Djarum cloves, Cherry Jubilee and Vanilla Dreams. The ban was introduced by the U.S. Food and Drug Administration (FDA) as an important step in curbing cigarette use among teenagers, branding flavored cigarettes as a “gateway for many children and young adults to become regular smokers.” [1] However, as the ban approaches is second week of implementation, gaping loopholes within the prohibition has left the ban to open attack by others. [2] This paper will attempt to cast doubt on the effectiveness of the recent ban on teenage smoking cessation efforts, showing that the tobacco products favored by teenagers are not affected by the ban. Consequently, this paper will argue that the ban will mainly profit major U.S. cigarette producers, Phillip Morris USA, Lorillard and Reynolds American Inc., allowing them to further monopolize the tobacco market under the guise of federal regulation.

 

II. Background: The Family Smoking Prevention and Tobacco Control Act

On March 21, 2000, the Supreme Court was tasked with determining whether the FDA had the authority to regulate tobacco products under the Food, Drug, and Cosmetic Act (FDCA). [3] [4] The Court held that, reading the FDCA as a whole, Congress never intended to give the FDA jurisdiction over tobacco products and invalidated FDA regulations in question. [5] In the ongoing battle of tobacco-related litigation, the Court effectively confirmed the fact that tobacco products have largely escaped regulation by federal health and safety laws for decades.

As a result, the Family Smoking Prevention and Tobacco Control Act (the Act) was signed into law on June 22, 2009, amending the FDCA and allowing the FDA to regulate the manufacturing, marketing, and sale of tobacco products for the first time. [6] The Act does not allow the FDA to place a complete ban on conventional tobacco products, including cigarettes or smokeless tobacco products, or on nicotine levels within these devices. [7] However, the FDA may now directly implement FDCA provisions that will, among other things, restrict tobacco advertising, prohibit the use of terms such as “light” or “mild” on tobacco product packages, strengthen warning labels on existing and new tobacco products, and herald federal efforts to stop tobacco smoking among minors. [8]

Interestingly, the Act also directly prohibits the manufacture or sale of all cigarettes that have a “characterizing flavor,” other than tobacco or menthol. [9] The relevant provision of the statute states:

“A cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.” [10]

In effect, the production and sale of fruit, candy, or clove-flavored cigarettes have been banned in the U.S. as of Sept. 22, 2009. [11] The ban plainly excludes menthol-flavored cigarettes, which the FDA has singled out to examine its options regarding the product’s regulation. [12]

 

III. Casting Doubt on the Act: Brand Preferences and the Current State of the U.S. Tobacco Industry

In announcing the ban on flavored cigarettes, the FDA placed particular emphasis on the special appeal that characterizing flavors such as fruit, candy, or cloves have on children, and how they would “allure kids into addiction.” [13] Another highly quoted figure in support of the ban comes from the Roswell Park Cancer institute, which claims that the use of flavored cigarettes is more likely among 17 year olds vis-à-vis 20 to 26 year olds. [14] Teens are more prone to use flavored cigarettes because they prefer “high-impact” flavors, while their adult counterparts prefer “mild and natural flavors.” [15]

Despite such bold statements, recent statistics would argue otherwise. According to a survey conducted by the Centers for Disease Control and Prevention (CDC), out of 54,301 established smokers between the ages of 12 and 17, 52 percent of high school students preferred Marlboro, 21 percent favored Newport, while 13 percent smoke Camel cigarettes. [16] Similar figures are shown among middle school students, with 43 percent, 26 percent, and 9 percent favoring each brand, respectively. [17] A different study by the American Lung Association shows that among regular high school smokers, only 6.8 percent smoked clove cigarettes while 1.7 percent smoked candy-flavored cigarettes. [18] In fact, figures from the CDC 2007 National Study on Drug Use and Health show that teen preferences mirror that of adults, finding that the most popular brands among adults were also Marlboro, Newport and Camel, respectively. [19]

In other words, both teens and adults appear to favor tobacco and menthol-flavored cigarettes – both which the Act explicitly excludes from the ban. This begs the question as to why such a gaping loophole has been written into the Act if Congress and the FDA truly purport to ensure the health and safety of teenagers, and undercut “the most preventable cause of premature death in our society.” [20]

Furthermore, a breakdown on the national tobacco market supports the futile nature of banning flavored, as defined by the Act, but not tobacco or menthol-flavored cigarettes. The U.S. Tobacco industry currently operates under the iron fist of “Big Tobacco,” referring to the three big tobacco manufacturers that have dominated the $70 billion national market (2007 figures) [21] – Phillip Morris USA (Altria), Reynolds American (RJR), and Lorillard, Inc. [22] Phillip Morris owns the Marlboro brand, which accounts for 40 percent of national retail sales in cigarettes [23], and has just launched a new menthol brand, Marlboro Blend No. 54, this June. [24] Meanwhile, Lorillard owns Newport, which continues to be the best-selling menthol cigarette [25], and Reynolds American holds the Camel brand and its menthol line Camel Crush. [26] These companies would hardly be adversely affected by the ban. In fact, Phillip Morris doesn’t even produce cigarettes that would trigger the ban. [27] 

 

On the other hand, clove cigarettes represent .09 percent of all cigarettes purchased in the U.S. and the figures are far slimmer for flavored cigarettes [28], while menthols account for an overwhelming 28 percent. [29] Here’s an interesting twist – 99 percent of all cloves sold in the U.S. are imported from Indonesia, sparking a potential trade skirmish if Indonesia were to bring a protectionist complaint to the World Trade Organization. [30] No wonder Big Tobacco supports the ban – they have nothing to lose. [31] The ban, in effect, allows Big Tobacco to further monopolize the U.S. tobacco industry by doing away with what competition they faced from cloves and flavored cigarettes.

 

IV. What’s the Next Step?

The absence of a logical explanation for banning cigarettes with “characterizing flavors” but not tobacco or menthol-flavored cigarettes undermines the purpose of the ban in the first place. This is not to say that the rest of the Act will not work to hinder children and young adults from smoking, or will not protect the general health of the nation as a whole. Other provisions of the Act have yet to come into effect: the terms “light," "low," and "mild" will be banned from use on tobacco products by July 2010; warning labels for smokeless tobacco products will be revised by July 2010; warning labels for cigarettes will be revised by Oct. 2012, to include larger warning signs and pictures depicting the harmful effects of cigarettes. [32] Given the recent enactment of the Act, much of its consequences are of a wait-and-see scenario.

However, one thing is for sure – the FDA still has a long way to go before they can envision a world without smokers and cigarettes.  Moreover, the commercialization of various non-traditional tobacco products, such as tobacco candies and e-cigarettes, will provide for new and particularized challenges to regulating tobacco products that the FDA has yet to encounter. As for right now, the FDA should stop hiding behind the ban of certain flavored cigarettes and come up with a legitimate answer to explain why we have lost our cloves and flavored cigarettes.

 

V. Conclusion

The Family Smoking Prevention and Tobacco Control Act may have given the FDA some teeth to reduce the prevalence of tobacco-related illnesses within the U.S. Yet, the Act has yet to manifest any concrete results regarding smoking cessation among teenagers, or in challenging the long-standing, monopolistic power that Big Tobacco companies have enjoyed before the enactment of the Act. The ban on cigarettes with certain “characterizing flavors” has done little to help the FDA’s cause. Today, the ban stands strong, with little rationale supporting its binding nature. Therefore, we bid adieu. R.I.P. Vanilla Dreams, you will be missed.

 

End Notes

[1] Press Release, U.S. Food and Drug Administration, Transcript for FDA's Media Briefing on Ban on Cigarettes with Certain Characterizing Flavors (Sept. 22, 2009) (on file with author).

[2] Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[3] Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (1938).

[4] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

[5] Id., at 161.

[6] Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 907, 123 Stat. 1775 (2009).

[7] Tobacco Control Legal Consortium, Federal Regulation of Tobacco Products: A Summary (2009), http://www.wmitchell.edu/documents/federal-regulation-tobacco-summary.pdf.

[8] Id.

[9] § 907, 123 Stat. at 1800.

[10] Id.  

[11] See Tobacco Control Legal Consortium, Federal Regulation of Tobacco Products: A Summary (2009), http://www.wmitchell.edu/documents/federal-regulation-tobacco-summary.pdf.

[12] Id.

[13] See Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[14] Kathleen Dachille, Tobacco Control Legal Consortium, Pick Your Poison: Responses to the Marketing and Sale of Flavored Tobacco Products (2009), http://tobaccolawcenter.org/documents/flavored-tobacco.pdf.

[15] Id.

[16] Associated Press, U.S. Teen Smokers Prefer Marlboro, Report Says, MSNBC.com, Feb 12. 2009, http://today.msnbc.msn.com/id/29167717/ns/health-addictions.

[17] Id.

[18] See Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[19] See Associated Press, U.S. Teen Smokers Prefer Marlboro, Report Says, MSNBC.com, Feb 12. 2009, http://today.msnbc.msn.com/id/29167717/ns/health-addictions.

[20] American Cancer Society, Prevention and Early Detection, http://www.cancer.org/docroot/PED/content/PED_10_2X_Cigarette_Smoking.asp (last visited Oct. 2, 2009).

[21] Phillip Morris USA, Financial Information, http://www.philipmorrisusa.com/en/cms/Company/Financial_Information (last visited Oct. 2, 2009).

[22] See Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[23] Yahoo! Finance, Phillip Morris USA Inc. Company Profile, http://biz.yahoo.com/ic/55/55933.html (last visited Oct. 2, 2009).

[24] See Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[25] Yahoo! Finance, Lorillard, Inc. Company Profile, http://biz.yahoo.com/ic/55/55993.html (last visited Oct. 2, 2009).

[26] Yahoo! Finance, Reynolds American Inc. Company Profile, http://biz.yahoo.com/ic/55/55935.html (last visited Oct. 2, 2009).

[27] See Sarah Torribio, Flavor Cigarette Ban Curbs Freedom, Helps Big Tobacco Keep Selling, Examiner, Aug. 23, 2009, http://www.examiner.com/x-10873-LA-Health-and-Beauty-Examiner~y2009m8d23-Flavor-cigarette-ban-curbs-freedom-helps-big-tobacco-keep-selling.

[28] Paul Smalera, Cool, Refreshing Legislation for Philip Morris, Slate, June 8. 2009, http://www.thebigmoney.com/articles/judgments/2009/06/08/cool-refreshing-legislation-philip-morris.

[29] Al Harris, Altria Backs Ban on Flavored Cigarettes, Richmond BizSense, May 19, 2009, http://www.richmondbizsense.com/2009/05/19/altria-backs-ban-on-flavored-cigarettes.

[30] See Paul Smalera, Cool, Refreshing Legislation for Philip Morris, Slate, June 8. 2009, http://www.thebigmoney.com/articles/judgments/2009/06/08/cool-refreshing-legislation-philip-morris.

[31] Id.

[32] FindLaw’s Common Law, FDA Flavored Cigarette Ban: What's Covered and What's Next?, http://commonlaw.findlaw.com/2009/09/fda-flavored-cigarette-ban-whats-covered-and-whats-next.html (last visited Oct. 2, 2009).

 

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