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The Tobacco Industry Fights Feds & Moves to Fill Void Left by States

Progress in enacting proven and effective tobacco control policies has varied drastically between the federal and state governments in the past few years. 2011 was no exception to that trend. Whatever progress that may have been made in tobacco control at the state level these past ten years has largely stalled, while at the federal level the Obama Administration has taken major strides forward. And not surprisingly, the tobacco industry has evolved to fight back at the federal level, looked for new ways to addict Americans and take advantage of states’ failure to act.

Industry Continues to Aggressively Promote Smokeless Tobacco Products

In August, the Federal Trade Commission released marketing expenditure data for cigarettes and smokeless tobacco products, which confirmed the industry’s increased focus on smokeless tobacco. The report revealed that while marketing expenditures have declined somewhat for cigarette sales to $9.9 billion in 2008 (down from $12.5 billion in 2006)¹, smokeless tobacco product marketing has more than doubled from $250.8 million in 2005 to $547.9 million in 2008.²

In 2011, Camel re-launched its dissolvable products, starting a second round of test-marketing in Charlotte, NC, and Denver, CO. Camel’s smokeless tobacco product marketing is primarily aimed at encouraging smokers who may otherwise quit to instead use its smokeless products in smokefree settings. The most egregious examples of this were ads run in a number of weekly alternative papers nationwide before the Great American Smokeout on November 17. In the ads, Camel urges smokers to use its smokeless products in lieu of quitting.

Industry Turns to the Courts

Most of the major cigarette/smokeless companies have been a part of multiple lawsuits filed against the U.S. Food and Drug Administration (FDA) about its implementation of the Family Smoking Prevention and Tobacco Control Act.

• In 2009, RJ Reynolds and Lorillard led a coalition of companies that filed suit against the FDA in a Kentucky federal court to stop implementation of the FDA youth access rule. A federal district court judge upheld virtually all provisions of the rule; the case is pending before a federal appeals court.
• In February 2011, RJ Reynolds and Lorillard filed suit against FDA to halt the FDA’s Tobacco Products Scientific Advisory Committee (TPSAC) from its legally-mandated responsibility of issuing a report and recommendations on menthol cigarettes. TPSAC ultimately issued its report on time, recommending that menthol cigarettes be removed from the marketplace.
• In August 2011, tobacco companies again filed suit against FDA to stop graphic warning labels from being placed on cigarette packs starting in the fall of 2012. A federal judge initially sided with the tobacco companies. The Obama Administration announced its intent to appeal the ruling on November 29.
• The 2010 lawsuit filed by the electronic cigarette (e-cigarette) industry was resolved when the U.S. Department of Justice decided not to appeal the decision reached by a federal appeals court which sided with the lower court judge. The initial ruling determined that e-cigarettes are to be regulated as a class of tobacco products, except under certain circumstances. The FDA and the public health community, including the American Lung Association, had argued that e-cigarettes should be regulated as drug-delivery devices. Ultimately, FDA’s Center for Tobacco Products has announced its intent to issue regulations for e-cigarettes as a tobacco product unless a specific e-cigarette company makes a claim that their product will help a smoker quit, at which time they will be regulated by FDA’s Center for Drug Evaluation and Research.

Tobacco Control Act under Attack on Capitol Hill

While the industry was active in the courts, it did not neglect its historic stomping grounds on Capitol Hill. Two separate attempts were made by Members in the U.S. House of Representatives against the Tobacco Control Act during consideration of the FDA’s Fiscal Year 2012 funding bill. First, an amendment was offered during committee consideration that would have stripped FDA of its authority to restrict tobacco marketing or to require changes in tobacco products, including FDA’s ability to reduce or remove ingredients, such as menthol. In large part due to the public health community’s swift and strong response, the amendment was ultimately stripped on a procedural motion during consideration by the full House of Representatives.

Representative Cliff Stearns (R-FL) launched another attack against regulating tobacco products during the House of Representatives’ floor consideration of the appropriations bill. Mr. Stearns’ amendment would have severely hampered FDA’s ability to move forward with implementation of the Tobacco Control Act by cutting funding for the Center for Tobacco Products by 82 percent. Because tobacco companies – through user fees – entirely fund the Center for Tobacco Products, the Stearns amendment was a $392 million giveaway to the tobacco companies. Thankfully, it was also defeated, this time by a strong bipartisan margin.

The cigar industry launched its own attack against the Tobacco Control Act, with the introduction of H.R. 1639 and S. 1461. These bills would completely exempt large cigars from all aspects of FDA regulation, including warning labels, prohibitions on flavorings and any other common sense consumer protections FDA may eventually pursue. The Lung Association and our public health partners sent a letter to House and Senate sponsors stating the groups’ strong opposition to the bills and urging them to withdraw their legislation.

Cigar Sponsorship Withdrawn

In response to an uproar from the public health community and key champions in the U.S. Senate, in December, the Orange Bowl announced it would drop a three-year sponsorship from Camacho Cigars, a Florida-based cigar company. Earlier, the Orange Bowl had announced that Camacho Cigars would be an Orange Bowl corporate festival partner and that cigar lounges would be available to fans before and during the game. The American Lung Association and other public health partners sent an open letter to NCAA and Orange Bowl leaders, urging them to reject this sponsorship.

Unlike cigarette companies which are prohibited from sponsoring sports and other events, cigar companies are presently not prohibited by the U.S. Food and Drug Administration from this type of marketing.

State Policies Come under Fire

2011 was the first year since 2001 when no state passed a comprehensive smokefree law, and only two states increased their cigarette taxes (by insignificant amounts). The tobacco industry remains adamantly opposed to both of these effective policies, which they have admitted impact smoking levels.³ And while tobacco companies often let their allies, such as groups representing retail stores or restaurants and/or bars, take the lead in opposing these proven public policies, they often provide funding behind the scenes, and have multiple lobbyists in most, if not all, states. Unfortunately, their success in blocking smokefree laws and substantial increases in tobacco taxes this year means more people will ultimately get sick and die from these deadly products.