Your Rights, Up in Smoke

Sara Bodde, Contributor

Sure, Proposition 19 failed in California, but does it really matter if the federal government can decide for us what we can and cannot smoke? The FDA ban, ordained by H.R. 1256, constitutes an unprecedented overreach of federal control over consumption, not based on health, not based on manufacturing defect, but based on irrelevant criteria. An objectionable section of H.R. 1256, the Family Smoking Prevention and Tobacco Control Act, reads:

“Beginning 3 months after the date of enactment of the Family Smoking Prevention and Tobacco Control Act, 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.” [1]


The facts:

This was not for your health– Kreteks distributed in the U.S. are NOT more harmful than regular or mentholated cigarettes. “Djarum Black cigarettes sold in Europe, Canada and South American countries have 10–12 mg tar and 1 mg nicotine, as indicated on the pack. This level of tar and nicotine is comparable to the majority of other regular or ‘full-flavor’ cigarettes available. The venous plasma nicotine and carbon monoxide levels from 10 smokers were tested after smoking kreteks and were found to be similar to non-clove brands of cigarettes, such as Marlboro.” [2]

This was not for the children – “During 2000–2002, current use of any tobacco product among high school students decreased from 34.5% to 28.4%; […] kretek use from 4.2% to 2.7%. ” [3] In fact, many underage smokers prefer menthols! [4]

In the mid ’90s, the FDA took it upon themselves to regulate tobacco. In March 2000, a 5:4 Supreme Court ruling [5] ended that. In the ruling, delivered by Justice Sandra Day O’Connor, it was noted that compliant with the Food, Drug, and Cosmetic Act (FDCA) [6], if tobacco were to fall under the jurisdiction of FDA, the FDA would be obliged to ban it altogether. The ruling is fine but the diction was rather too motivational.

In case the fact that a federal law contains the words “family” and “control” is not enough to raise some red flags, I have several more suspicions that were even outlined by the Supreme Court. The Court revealed too many hints of their real motivation in the ruling.

1. For the economy (and consumer health too)
The ruling recognizes that Congress rather than banning tobacco products, implemented a health warning labeling and advertising system. “Its express policy is to protect commerce and the national economy while informing consumers about any adverse health effects” [5].

Perhaps this is why Congress had to weed out that pesky Indonesian market in these scarce times? At least one pathetic defense for this bill that I have heard was for protection of domestic market. John Geoghegan of Kretek International, California-based importer of cloves, says “The total flavored cigarette business is a little bit less than two-tenths of one percent of all the cigarettes sold” [6]. Our < 0.198% translates as about 20% for Indonesia [7], by the way. So while it has little effect on our national economy, it will shake up Indonesia.

2. Congress has to say so (so just ask . . . err . . . lobby them!)
The penultimate statement of the ruling set legislators to work: ” No matter how important, conspicuous, and controversial the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress” [8].

So here we are. Congress has granted that authority, but it is not valid– at least, the reasons for granting that authority are not valid, and the current head of the Executive Branch did not exercise his power of veto (apparently because he loathes his own smoking habit) [9].

3. Congress is not cryptic (only sneaky)
Here is where Justice O’Connor is mistaken, in my opinion: “It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA’s discretion in so cryptic a fashion” [5].

But they did manage this in a cryptic fashion. Congressman Waxman introduced H.R 1256 in the midst of the the mortgage crisis, crippling unemployment rates, and chatter over the corporate bailouts. The papers were pushed through the House and the Senate, just a month before the “socialized” medicine controversy was ignited with the introduction of H.R. 3200. And soon enough, it seemed that no one was talking about anything else. That is how to do it. Phillip Morris has enjoyed a lovely conspiracy of circumstances, and only the Gothic community really cares. Unfortunately, political activism seems not to be a hallmark of Gothic counterculture [10].

References:

1. http://www.govtrack.us/congress/billtext.xpd?bill=h111-1256&version=enr&nid=t0%3Aenr%3A335
2. http://en.wikipedia.org/wiki/Kretek#Health_effects
3. http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5245a2.htm
4. http://www.nytimes.com/2008/07/17/business/17menthol.html?_r=1
5. http://www.law.cornell.edu/supct/html/98-1152.ZS.html
6. Federal Food, Drug, and Cosmetic Act
7. http://www.npr.org/templates/story/story.php?storyId=113052528
8. http://thejakartaglobe.com/business/indonesia-may-ask-for-wto-help-over-kretek-ban/313291
9. Obama’s Not-So-Secret Shame
10. Gothic.net: Reload this Page The FDA Banning of Clove Cigarettes

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