- The Washington Times - Thursday, May 5, 2005

One of America’s most persecuted minorities is smokers. Cities and states have imposed ever more draconian restrictions on lighting up a cigarette, and a bipartisan coalition of paternalistic legislators on Capitol Hill now is pushing for Food and Drug Administration regulation of tobacco.

Lighting up might be a stupid thing to do. But a free society must allow people to do stupid things.

Unfortunately, the anti-smoking movement has moved from accommodation to suppression. Smokers also have become the great deep pocket for legislators and lawyers.

The latest anti-smoking effort is legislation to deliver the industry to the tender mercies of the FDA. Sens. Ted Kennedy, Massachusetts Democrat, and Mike DeWine, Ohio Republican, are leading the effort to expand the FDA’s authority over cigarettes (and smokeless tobacco). Explained Mr. DeWine: “FDA regulation of tobacco is the most important public health bill to come up in quite a few years.”

Their measure would impose more advertising restrictions, marketing controls and health warnings, as well as limits on cigarette ingredients. The specific proposals run from the serious, restricting advertising, to the obnoxious, prohibiting athletic sponsorships, to the inconvenient, banning vending machines.

Although the legislation directly targets cigarette producers, its heaviest impact would fall on smokers and retailers. The FDA would have virtually untrammeled authority to micromanage tobacco sales.

If the controls proved more than perfunctory, the FDA would have to create a regulatory army, ranging from investigators to administrative law judges, to monitor some 300,000 retailers. That wouldn’t be cheap — and undoubtedly would channel resources from the agency’s more pressing mission of moving life-saving drugs to market.

Moreover, sellers would be held liable for other people’s mistakes, such as violating the law’s labeling rules. The burden of any regulatory regime would fall most heavily on smaller establishments.

Hiking the cost of face-to-face sales would put storefront retailers at a further disadvantage. Largely because they offer buyers the opportunity to avoid sales tax, Internet and mail-order services already account for more than 10 percent of total sales.

Some of the bill’s provisions treat everyone as children. For instance, the legislation would ban advertisements, including indoor signs visible from the street, within 1,000 feet of a playground or school. But ads seen by minors aren’t the problem. Sales to minors are the problem.

The Kennedy-DeWine bill is not just flawed. It is unnecessary. States already regulate tobacco sales.

In contrast, Uncle Sam has way too much to do and doesn’t do it very well. Perhaps Washington should put foreign cocaine cartels out of business before it tries to monitor cigarette advertising at thousands of gas stations across America.

At least not every regulation supporter wants to ban cigarettes. But under the right rules cigarettes would no longer be cigarettes.

Mr. Kennedy wants to “reduce or remove hazardous ingredients from cigarettes.” Heck, just ban — or dramatically reduce — nicotine and tobacco. Why force Congress to take the difficult step of prohibiting smoking when it can authorize the FDA to do so indirectly?

The legislation has picked up one unusual endorsement: cigarette maker Philip Morris. The company cited the benefit of having clear rules under which to operate.

Critics noted that limiting advertising would help freeze industry market shares, protecting Philip Morris from competition. That was, in fact, one of the outrageous effects of the tobacco-litigation settlement: It purported to bind even new firms, solidifying the lead of existing producers. Unsurprisingly, the Wall Street firm Goldman Sachs figured that the Kennedy-DeWine legislation would actually improve Philip Morris’ bottom line.

The legislation continues Congress’ practice of providing almost unlimited and unreviewable regulatory authority to an unelected regulatory body. The bill simply says that the FDA “may by regulation require restrictions on the sale and the distribution of a tobacco product, including the advertising and promotion of the tobacco product.”

Is there anything the agency could not then do? Actually, to protect a match producer with a friend in high places, the bill does prohibit any restriction on retailers giving away matchbooks with cigarette purchases.

Last year the FDA legislation was appended to a multibilliondollar bailout of tobacco farmers. That effort narrowly failed. Now the anti-tobacco crusaders are back.

The desire to reduce tobacco use is fair enough, but that’s what any number of private educational efforts are all about. Government can legitimately bar sales to minors, but the states already do that.

Unfortunately, legislative proposals to allow FDA regulation over cigarettes are really yet another attempt to move to de facto tobacco prohibition — even while solidifying the market share of entrenched operators like Philip Morris. Uncle Sam should leave smokers, and the rest of us, alone.

Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Reagan.

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