The Marlboro Monopoly Act

| Staff Columnist

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (H.R. 1256) into law, thus taking the first faltering steps toward fully monitoring and regulating cigarettes and their purchases. The bill gives the FDA the power to “regulate tobacco products.” This is all well and good, and the act is clearly well-intentioned, but there remain several kinks to work out.

The gist of the bill deals with various requirements for tobacco companies regarding regulation of cigarettes, notification of the public about their ingredients and various other restrictions and requirements for them. However, about a quarter of the way through the bill, a “Special Rule” is thrown in, stating “a cigarette or any of its constituent parts…shall not contain…an artificial or natural flavor (other than tobacco or menthol) or an herb or spice.” Note two things: first, the elimination of flavorings; second, the special exception of menthol cigarettes. The rest of the bill is largely commendable, but this special rule is a cause for concern.

The ban on flavorings is ostensibly designed to discourage teens and younger adults from smoking. The widely-held belief is that cloves (also called kreteks), which are one of the most prevalent forms of flavored cigarettes, are most popular among young smokers. In addition, these cigarettes are supposedly unhealthier than normal ones. This is wrong on both counts. In 2002, the Centers for Disease Control and Prevention (CDC) found that kretek usage among teens had been declining since 1997, as are all other forms of tobacco except smokeless. And despite allegations that kreteks are more unhealthy than the average cigarette, a 1990 study in the journal “Archives of Toxicology” comparing American brand regular cigarettes and kreteks found that rats suffered no more ill effects from kreteks than from cigarettes. Presumably Congress knew about this before they wrote the bill—after all, if a freshman in college with a search engine and a large amount of free time on his hands could find numerous references to this, Congress definitely can. Therefore, one must question the motivations behind the special rule if it is not for the safety of young smokers.

Questioning the motivations behind this legislation brings me to my second point: the menthol cigarettes exception. The exception of menthol cigarettes is contingent to the banning of all other natural and artificial flavors and additives. Menthol cigarettes—the most popular of all flavored tobacco, with 25 percent of the overall cigarette market share—are predominantly produced by Phillip Morris USA, which supported the bill in its final form. By supporting a bill that both eliminates its competitors in the flavored cigarettes market and appears to look like an excellent piece of legislation, Phillip Morris comes across as a responsible, regulation-accepting member of the tobacco industry. In reality, Philip Morris has used Congress to establish a monopoly in the flavored cigarettes market, so much so that the bill is sometimes referred to as the “Marlboro Monopoly Act of 2009” alluding to the corporation’s “Marlboro” brand.

The speculative nature of the bill aside, not banning menthol cigarettes has serious health complications. They are widely believed to be by far the most addictive of all cigarettes, as consumers take in more nicotine—the active addictive ingredient in tobacco—when they smoke them.

Overall, H.R. 1256 has good intentions in endowing the FDA with the power to regulate cigarettes but falls short of this goal. Banning flavorings while excepting menthol has prevented this legislation from becoming complete and demonstrates the sway that industry giants like Philip Morris continue to hold over tobacco regulation. Because it does not prohibit menthol cigarettes, the law is weakened, and the most dangerous cigarettes will continue to lack much-needed policing.

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