Richard A. Daynard…? tobacco control update…
Stubbing Out Cigarettes for Good
March 3, 2013
By RICHARD A. DAYNARD
PERHAPS no public official was as synonymous with the antismoking movement as C. Everett Koop, who died last Monday at age 96. Dr. Koop, who worked tirelessly to turn America into “a smoke-free society,” did not live to see that goal reached. But the rest of us have the power to make it happen.
Fewer than one in five American adults smoke, a share that’s plunged by about half since the 1960s — an achievement due, in some measure, to Dr. Koop’s antismoking crusade as surgeon general, from 1981 to 1989. Revelations in the 1990s about tobacco companies’ cover-up of smoking’s dangers also played a role. So have a host of other strategies that have included consumer taxes, minimum ages for cigarette purchases, restrictions on smoking in public spaces and programs to help people quit. Continuing on the same path, with some luck, we might be able reduce the smoking rate a little more.
But that would still leave us with a profound public health tragedy: cigarettes continue to kill more than 400,000 Americans a year and cost untold billions in health care spending.
To its credit, the Food and Drug Administration has tried more aggressive approaches, including a recent effort to require hard-hitting graphic warnings on cigarette packages. That proposal, already the rule in dozens of countries, has been held up in United States federal courts over concerns that the ads might infringe on cigarette manufacturers’ First Amendment rights. But even if implemented, more scare tactics would not go far enough.
What we need is an all-out push to reduce smoking rates to well below 10 percent. The notion is nothing new to tobacco-control advocates, many of whom gathered last week in Cambridge, Mass., for a conference on the governance of tobacco, sponsored by Harvard with support from the World Health Organization.
But outside of such academic meetings and journals, little has been said about two possible approaches that could have an immediate impact.
One involves federal action; the other, state or local action. Both are made possible by the Family Smoking Prevention and Tobacco Control Act, which President Obama signed in June 2009.
Under the act, the F.D.A. has the power to establish tobacco product standards including “provisions, where appropriate, for nicotine yields of the product.” The only limitation on this power is that the F.D.A. may not require that nicotine yields be reduced to zero. The law calls on the F.D.A. to apply public health criteria — “the risks and benefits to the population as a whole” — in designing its regulations. It also encourages the F.D.A. to create tobacco standards that will help existing users stop smoking and decrease the risk that nonsmokers will start.
The F.D.A. would be well within its authority to require nicotine content to be below addictive levels — an idea that originated with a 1994 article in The New England Journal of Medicine urging a nonaddictive nicotine standard.
Cigarette makers would lobby hard to block such a standard. But if the F.D.A. insisted on the change, and cigarettes ceased to be addictive, ample evidence shows that most smokers would quit or switch to less toxic nicotine products. Current nonsmokers, moreover, would be far less likely to become addicted.
Another part of the act affirms the authority of states and municipal governments to prohibit the sale, distribution and possession of — and even access and exposure to — tobacco products by individuals of any age.
This provides an opportunity for states, counties and cities to adopt the Smokefree Generation, a proposal by A. J. Berrick, a mathematics professor in Singapore.
The idea is simple: no one born in or after 2000 can ever be sold cigarettes. Under such legislation, which jurisdictions like the Australian state of Tasmania are considering, the vast majority of this cohort — the oldest are now 13 — would never begin smoking. It’s hard to imagine too many parents objecting, and it would be easy for retailers to enforce. In the United States, it would provide a useful focus for state and local public health officials to do something game-changing, rather than sitting on the sidelines waiting for Washington to act.
Critics will say that, even if a state or city passed such a law, would-be smokers could go to an adjoining one to buy cigarettes. But evidence suggests that border-crossing and smuggling would be minimal. States that have sharply raised their cigarette taxes, after all, have not only increased tax revenue but also reduced rates of smoking prevalence, even among nicotine addicts. Young people, who are generally not addicted (yet) and who tend not to have peers who smoke, are even less likely to chase cigarettes across state or county lines.
Some antismoking advocates who support existing approaches (smoking-cessation programs, higher taxes) fear that pushing for an “end game” — a smoking rate below 10 percent — is too ambitious. But then, banning smoking in restaurants, workplaces and bars was once seen as crazy, too. Sometimes, a little crazy goes a long way.
Richard A. Daynard is a professor of law at Northeastern University and president of its Public Health Advocacy Institute:
The Law and Obesity Project explores the use of the law in slowing obesity and reversing the epidemic of obesity-related diseases. …
The Tobacco Control Resource Center continues its ongoing mission of working to improve the public’s health by honing legal strategies to reduce tobacco use and exposure to environmental tobacco smoke.? …
Professor Daynard has been the principal investigator in grants and contracts from the National Cancer Institute, the Massachusetts Department of Public Health, the American Legacy Foundation and the Robert Wood Johnson Foundation.?